DPP v Simpas & HR [2009] VSCA 40

[2009] VSCA 40

Criminal Law - Sentencing - Crown appeal - Manslaughter - Intentionally causing serious injury - Affray - Whether sentences of four years and eight months and four years and nine months respectively with non-parole periods of three years manifestly inadequate - Youthful offenders - Whether youth and immaturity sufficient to warrant leniency - R v PDJ [2002] VSCA 211; (2002) 7 VR 612 referred to - Appeal allowed - Respondents re-sentenced to sentences of six years and four months' imprisonment with non-parole periods of four years and two months.

1 I agree that the appeal should be allowed for the reasons given by Vickery AJA and the respondents be re-sentenced in the manner proposed by his Honour.

2 I have had the advantage of reading in draft the reasons for judgment of Vickery AJA and gratefully adopt his Honour's statement of the facts.

3 As the sentencing judge observed in her sentencing remarks, the offences the subject of this appeal were the result of an episode of mob rule fuelled by alcohol and aggression. The respondent, Simpas, caused the death of the deceased by the unlawful and dangerous act of stabbing him in the neck with a broken bottle and intentionally caused the other victim, Spinks, serious injury by striking him in the chest with the same broken bottle. The respondent, HR, was equally responsible with Simpas for the death of the deceased, in that he instigated and encouraged the final affray, with the risk that one of the victims might be stabbed in the course of the melee.[1] These offences were, therefore, of a kind which this Court has said repeatedly should be visited with condign punishment.

4 Despite all that, the judge considered that the primary focus of the sentencing process should be on rehabilitation. Consequently, based upon her assessment of each respondent's personal circumstances, age, background, expressions of remorse and prospects of rehabilitation, her Honour sentenced each respondent on the count of manslaughter to only four years and six months' imprisonment, Simpas on the count of intentionally causing serious injury to only six months' imprisonment, of which three months' were to be served cumulatively on the sentence imposed on the count of manslaughter, and HR on the count of affray to only four months'

imprisonment of which two months were to be served cumulatively on the sentence imposed on the count of manslaughter.

5 The Crown contends that the judge gave too much weight to the respondents' age and prospects of rehabilitation and, as a consequence, imposed sentences which manifestly failed to reflect the seriousness of the crimes in issue.

6 Counsel for the Director acknowledged the principles essayed in R v Mills[2] as to the sentencing of youthful offenders and accepted that, other things being equal, the youth of an offender should be a primary consideration for a sentencing court. But he submitted that there are some cases, of which this was one, where the primacy of rehabilitation must yield to the demands of denunciation and deterrence. He referred in support of that submission to observations in DPP v SJK and GAS[3] to the effect that youth and the rehabilitation of young offenders are only some among a number of matters to be taken into account, and that there are occasions on which those factors must give way to the achievement of other objectives of sentencing law.[4]

7 Counsel for the Director suggested that, judged according to current sentencing practices,[5] these offences of manslaughter warranted head sentences of somewhere between seven and eight years' imprisonment, and the sentences properly to be imposed on the offences of intentionally causing serious injury and affray should be substantially increased.

8 In my view there is force in the Crown's submissions. The respondents killed the deceased by a voluntary, conscious and deliberate attack with the use of a broken bottle, in the course of a violent escapade, in a public place, regardless of the safety of others. Presumably, they did not intend to kill the deceased, or even to cause him really serious injury. Otherwise, their offence would be murder. But Simpas intended to wage the attack which resulted in the deceased's death and, by his plea, HR is taken to have acknowledged his foresight of the possibility that the deceased could be stabbed.

9 It follows that the nature and gravity of these offences and the respondents' moral culpability were at the serious end of the range, and, with such offences, the principles of general and specific deterrence, and the need for the court to express its denunciation, reduce the scope for leniency ordinarily accorded to youth.

10 In her sentencing remarks, the judge found that, with the benefit of hindsight and two years' additional maturity, Simpas had acquired an understanding of the consequences of his offending and exhibited both remorse and empathy for his victim and the victim's family. Her Honour also noted that he had completed a 'useful and relevant range of behaviour modification programmes including youth understanding, drugs and anger' and she concluded that he had good prospects for rehabilitation in the future. In the case of HR, her Honour observed that his time in custody since arrest had been a difficult period of adjustment but that he was involved in counselling and sport for which he had showed considerable aptitude, and she accepted that ultimately he too had good prospects of success.

11 Counsel for each of the respondents submitted that her Honour's findings as to the respondents' remorse and prospects of rehabilitation distinguished the respondents from the offenders in cases like SJK and GAS where there was no evidence of remorse and little evidence of reasonable prospects of rehabilitation in the near future. It was also significant, it was submitted, that both respondents were first offenders and that their offences were spontaneous and fleeting as opposed to the kind of planned and sustained criminal activity for which some youthful offenders in other cases have attracted sterner punishment.[6]

12 I accept those submissions up to a point. Plainly, each case turns on its own facts and circumstances and there are features of this case which significantly distinguish it from SJK and GAS. There are also worse cases involving more mature offenders with relevant prior convictions. It is necessary to keep steadily in mind that the respondents are first-time offenders and that in the case of youthful offenders the interests of rehabilitation are usually at the forefront. And in this case, that does require some amelioration of penalty.

13 But that said, as this court has observed before, youths who roam the streets at night, charged with alcohol and participating in serious acts of criminal violence will not be excused on the basis of youth or immaturity.[7] The nature and prevalence of that kind of conduct is such that society properly regards it as intolerable and, in those circumstances, the court is bound to do what it can to make clear that such offending will not be tolerated.[8] To that extent, the ameliorating effects of youth and rehabilitation must yield to the needs of deterrence.[9]

14 Judged according to those precepts, I consider that the sentences which were imposed reveal such manifest inadequacy as to constitute error of principle and to such an extent that this court's intervention is required to maintain proper sentencing standards.[10]

15 Accordingly, I would quash the sentences passed below and re-sentence the respondents as Vickery AJA proposes.

16 I add for the avoidance of doubt that I have made an allowance for each respondent's youth, immaturity and lack of prior convictions, as well as for the prospects of rehabilitation as the judge found them to be. I have also allowed for double jeopardy as it applies to Crown appeals against sentence.[11] Were it not for those considerations, I would impose significantly longer sentences.

17 On 11 October 2007 the respondent, Kristofer Simpas ('Simpas') was convicted in the Supreme Court of one count of manslaughter ('Count 1') and one count of causing serious injury ('Count 2'). He was sentenced on Count 1 to 4 years 6 months' imprisonment and on Count 2 to 6 months' imprisonment. The sentencing judge directed that 3 months of the sentence imposed on Count 2 be served cumulatively upon the sentence imposed on Count 1. Thus, the total effective sentence imposed was 4 years 9 months' imprisonment. The sentencing judge fixed a non-parole period of 3 years' imprisonment.

18 The Director of Public Prosecutions brings this appeal pursuant to s 567A Crimes Act 1958 against the sentence passed on the conviction of Simpas on the ground that the individual sentences imposed in respect of each count, the total effective sentence imposed, and the non-parole period fixed, were all manifestly inadequate.

19 On the same date the respondent, HR was convicted in the Supreme Court of one count of manslaughter ('Count 1') and one count of affray by fighting ('Count 2'). He was sentenced on Count 1 to 4 years 6 months' imprisonment and on Count 2 to 4 months' imprisonment. The sentencing judge directed that 2 months of the sentence imposed on Count 2 be served cumulatively upon the sentence imposed on Count 1. Thus, the total effective sentence imposed was 4 years 8 months'

imprisonment. The sentencing judge fixed a non-parole period of 3 years' imprisonment.

20 The Director of Public Prosecutions brings this second appeal pursuant to s 567A Crimes Act 1958 against the sentence passed on the conviction of HR on the ground that the individual sentences imposed in respect of each count, the total effective sentence imposed, and the non-parole period fixed, were all manifestly inadequate.

21 As was said by Redlich JA in R v Bright:[12]

Crown appeals inevitably excite an examination of whether there is reasonable proportionality between the sentence and the gravity of the crime. The objective gravity of the offence must be assessed otherwise other relevant sentencing considerations, and in particular subjective factors, may be given undue weight in arriving at the sentence, rendering it is unlikely that the sentence will be commensurate with the seriousness of the crime.[13]

22 Morgan Harris Morgan ('the deceased') was fatally injured in the early hours of Saturday 25 March 2006. This gave rise to the manslaughter conviction of both respondents which was the basis of Count 1 in each case. In the same incident, Anthony Spinks ('Spinks') suffered a serious wound. This founded the conviction of the respondent Simpas of the serious injury offence reflected in his case in Count 2. The offences occurred in the course of a street brawl which was the basis of the charge of affray by fighting preferred against the respondent HR reflected in his case in Count 2.

23 The events leading up to the commission of these offences commenced on the night of Friday 24 March 2006 outside the Crown Casino at Southbank, in Melbourne near the indoor interactive theme venue called 'Galactic Circus'. This is situated near a park on the corner of Whiteman Street and Clarendon Street. Much of the activity leading up to the brawl, the fatal wounding, and the serious wounding was captured on video film sourced from two security cameras. One of the cameras was located above the entrance to Galactic Circus, and looked south-west down Whiteman Street towards the corner of Clarendon and Whiteman streets. It was capable of focusing upon the access point to the park, approximately 90 metres away on Whiteman Street. The second security camera was positioned in the Casino complex on the other side of Whiteman Street almost adjacent to the Whiteman Street access point to the park. It looked south across Whiteman Street and into the park, although the image was at times significantly obscured by overhanging foliage across Whiteman Street.

24 The deceased was a 20 year old Sudanese man. He was dark skinned and identifiable in the footage as wearing black clothing.

25 Spinks was a large Caucasian man. He stood some six feet four inches tall and weighed approximately ninety-five kilograms. He was clearly identifiable throughout much of the footage as wearing a striped top.

26 Edward Chol ('Chol') was a dark skinned man, and could be seen in the video footage wearing a white top.

27 The deceased, Spinks and Chol were all members of a group which I shall call 'the Spinks Group'.

28 HR was clearly identifiable on the video footage. He had a 'mullet' hairstyle and wore a sleeveless top. He said in his record of interview that he was drunk at the time.

29 Simpas was less prominent in the footage, but could be seen wearing a baseball cap.

30 HR and Simpas were both members of what I shall refer to as 'the HR Group'.

31 On Friday 24 March 2006 the deceased had travelled with his friends Chol and Spinks by car into the general Southbank area. Their car was parked in Clarendon Street. It was their intention to meet three international visitors.

32 They met Mr Pass, a Ms Tubbesing, and a Ms Schrader. The six young people, four males and two females, all assembled outside the parked car in Clarendon Street where some of them began consuming alcohol. During the plea, the prosecution described the Spinks Group at this stage as 'peaceful, just passing the time, not looking for trouble'.

33 HR then appeared on the scene. In his statement to police Chol said that his first observation of HR was on Clarendon Street in the company of other young people aged between approximately thirteen and eighteen or nineteen years old.

34 HR wanted some of the alcohol that the Spinks Group was consuming. There was a hostile exchange between HR and Spinks when HR's demand was refused.

35 A scuffle ensued. HR slapped and pushed Spinks, and Spinks pushed HR and hit HR around the face. HR in his record of interview said that he was slapped and that he did not do any pushing and that he did not initiate the hostility. However, he admitted that he was looking for alcohol to drink. The Crown submitted at the plea that HR was in fact the instigator of the conflict and that he essentially provoked a peaceable group of young people on the footpath in Clarendon Street.

36 Shortly after this incident, Leading Senior Constable Ryan Carney and Constable Craig Neeman, attended upon the two hostile groups of young people at Clarendon Street. They inquired if there was any trouble. Perceiving that this was merely an engagement between the two groups of young people accompanied by a relatively low level of aggression, they moved them along.

37 The initial interaction had a profoundly aggravating effect upon both HR and Spinks. They both became highly agitated and aggressive. They remonstrated with one another and projected the clear impression that they wished to cause injury to each other, and probably anyone else in the opposing group. HR and Spinks were the major agitators for the violence, although certainly not the only persons exhibiting this behaviour.

38 The next interaction between the two groups occurred when the Spinks Group moved in a north-easterly direction along Clarendon Street and through the park at the corner of Clarendon and Whiteman Streets, apparently on their way to Galactic Circus. The Spinks Group had become physically separated, such that Chol and the deceased were moving at the front of the group through the park, and the remainder of their group either followed some distance behind them, or stopped elsewhere.

39 As Chol and the deceased reached the end of the path through the park, which exited onto Whiteman Street, they entered into discussion with some young people sitting at the park exit near Whiteman Street. The discussion was along the lines that nobody wanted the conflict between the groups to progress any further, and that Spinks, who was not yet present, needed to calm down, or be calmed down.

40 At this point HR re-emerged on the scene and was observed by Chol inciting other members of his group to attack the Spinks Group. This was the beginning of a violent, and largely unprovoked, attack instigated by HR.

41 Chol said that at this point he and the deceased began to retreat into the park in fear for their personal safety. He said that at this time a couple of members of HR's Group punched the deceased. Others reported that the deceased punched back. However, what appears to be uncontroversial is that Chol and the deceased went back to the entrance of the park in the face of the hostile advances of the HR Group which was by this time under HR's control and responding directly to his agitation.

42 As Chol and the deceased retreated, Spinks emerged on the scene at the Clarendon Street end of the park. He ran towards the HR Group. At this point members of the HR Group had set about attacking Chol and the deceased at the Whiteman Street end of the park. Spinks's approach caused the members of the HR Group, who were assaulting Chol and the deceased, to run north-east along Whiteman Street towards Galactic Circus.

43 A number of members of the HR Group then approached Galactic Circus. They appeared to be distressed. They gestured to the security guards stationed at the entrance to the venue and pointed back towards the corner of Clarendon and Whiteman streets, and the area of the park. At this point, a number of the members of the HR Group had bottles in their hands.

44 At this time Spinks was near the entry to the park on Whiteman Street. He was in a highly agitated state. Spinks yelled at the HR Group who then ran away. Chol and the deceased attempted to move Spinks away. Spinks resisted these attempts and continued to behave aggressively toward members of the HR Group. However, Spinks was restrained by others in his group and did not pursue HR and his group up Whiteman Street. The deceased also taunted members of the HR Group with a baseball cap which one of them had lost earlier.

45 A short time later HR obtained a bottle from a rubbish tin located outside the Galactic Circus and broke it on a nearby wall. This occurred at approximately 1:49 am on the Saturday morning. The obvious purpose behind this manoeuvre was to create a weapon with which to attack members of the Spinks Group (either by stabbing them, or by using it as a projectile). HR then brandished the broken bottle in full view of other members of his group with the object of encouraging them to obtain and use similar weapons against the rival group. In his record of interview HR said that most of his group broke bottles, including himself, but that he dropped his bottle before the later fighting commenced when he was alerted to what was believed to be a police presence in the area. Save for one incident which occurred in the later fighting, none of the Spinks Group possessed any weapons or broken bottles.

46 HR then gestured to his group to proceed up Whiteman Street to fight the Spinks Group near the park. A number of the other members of the HR Group had bottles in their hands, and one witness from the group said in his statement to police words to the effect that people in the group were looking in bins and gutters for things to make into weapons.

47 A tentative standoff then ensued during which the HR Group proceeded a short distance up Whiteman Street towards the park. Chol and Spinks retreated into the park, but continued to taunt members of HR's group. For his part, HR continued to encourage the members of his group to attack the other group.

48 The standoff ended when a number of members of HR's group threw projectiles from the Whiteman Street end of the park across the park towards the Spinks group. The HR Group, with the exception of a few female members, then all ran into the park toward the Spinks group.

49 Three members of the Spinks Group almost succeeded in removing Spinks from the park and away from imminent danger into Clarendon Street. However, before this could occur, HR and about 6 or 8 members of his group arrived at the far south-west corner of the park.

50 What followed was a vicious free-for-all mêlée. HR said in his record of interview that 'I was just walking, like, I want to - I want to get him and I want to hit him, but not bottle'. He said further 'I was tryin' to hit the - the African guy with the black shirt. ...Try to throw a punch but I couldn't. ...[I was aiming at] His face. His face'.

51 HR also said in his record of interview that he hit Spinks with a stick on the arm 'maybe three' times. A short time later in the course of the fight HR found himself pinned to the ground by the deceased on his hands and knees. Spinks got hold of the stick previously used by HR. The deceased punched HR on the side of his face while Spinks hit HR with the stick and another young man kicked him in the leg.

52 Simpas then ran towards HR. He had a broken glass bottle in his hand. Although there was no evidence that Simpas had at any earlier time armed himself with a broken bottle, at some point before the attack on the deceased he did arm himself with this object to use as a weapon. Using the broken glass bottle, Simpas slashed the deceased's throat, inflicting a deep and mortal wound. Spinks was also wounded when he was cut by Simpas with the broken bottle in the left mid-section of his back. The wound inflicted on Spinks was later sutured and dressed.

53 In his record of interview, Simpas denied using a broken bottle to attack the deceased. He said that he had merely: 'Pushed him in the face to get him off [HR]', and that the deceased had in fact slashed his hand with a broken bottle.

54 Following the attack, the deceased eventually got to his feet and was seen walking towards Clarendon Street holding his neck. The time clock on the video footage shows this to have occurred at approximately 1:53 am. The evidence was that he walked approximately 50 meters down Clarendon Street to the front of the 'Triple S Motors' building, collapsed and bled to death.

55 At approximately 2:00 am a security staff member's voice was heard on the video recording requesting medical assistance for a: 'male who is bleeding very heavily from the neck.'

56 The deceased's friends did not appear to have appreciated the severity of his injury. They continued to taunt the HR Group. HR was seen holding a stake and gesturing to his group to continue fighting. Eventually, the two groups dispersed.

57 The Crown put its case against HR on the charge of manslaughter on the basis of extended common purpose.

58 Each of the participants to an arrangement or understanding forming a joint criminal enterprise is guilty of any other crime which both:

(a) falls within the scope of the common purpose; and

(b) is committed while carrying out that primary criminal venture.

The scope of the common purpose is determined by what was foreseen by the secondary participant as a possible incident in the commission of the original joint criminal enterprise to which he or she had agreed.[14]

59 On the facts of this case, there was ample evidence to support the conviction of HR on the charge of manslaughter.

60 Simpas and HR, both pleaded guilty to one count of manslaughter of Morgan Harris Morgan at Southbank. Simpas, also pleaded guilty to one count of intentionally causing serious injury to Spinks and HR pleaded guilty to one count of affray by fighting.

61 Simpas, is now 22 years old, having been born on 7 February 1987. At the time of the commission of the offences on 25 March 2006, he was aged 19 years and 2 months. He had been undertaking a mechanics apprenticeship and residing at the home of his parents. His employer is supportive of him and is willing to have him recommence his apprenticeship when he is released from custody.

62 His father was born in Greece and his mother in Egypt. They both subsequently immigrated to Australia. He has a younger sister.

63 He attended school at Bell Street Primary and then went to Alphington Grammar but was forced to leave when his parents could no longer afford the fees. Simpas then attended Northcote High School. He left school at the end of Year 11 and obtained an apprenticeship as a motor mechanic. It was noted in his pre-sentence report that he had been expelled from school three times for fighting.

64 The sentencing judge found, and I accept, that Simpas came from a dysfunctional family. His parents often argued and there was violence between them. His father, who worked in a Greek restaurant as a chef, had a serious alcohol problem. He would often arrive home affected by alcohol. Domestic arguments would then ensue. When this occurred, Simpas was accustomed to spend time at the home of his grandparents who lived nearby.

65 His father left the family home and returned to Greece when Simpas was aged about four. His mother followed her husband to Greece. She remained there for about a year trying to patch up the relationship. During that time Simpas resided with his grandparents. His parents did eventually resume their marriage. They remained together until the respondent was aged approximately fifteen. However, as the sentencing judge found, it could never have been described as a happy home environment.

66 The respondent's father then left the matrimonial home for a second time. His mother and the children moved in with her parents. They all lived together because of financial constraints. His mother had not worked during her marriage to the repondent's father. Living with her parents created significant tensions in the household with blame being attributed to the respondent's mother for the failure of her marriage. The respondent's mother attempted to obtain employment, however she was unable to do so. Ultimately she became bankrupt due to her inability to meet her commitments.

67 The respondent had not seen his father since the time of the second very acrimonious separation with his mother. His father was present at court when his trial was about to commence. This was the first time that he had seen him since his parents' second separation.

68 Simpas commenced drinking at the age of 15 and described himself as a 'binge drinker'. This was confirmed by a psychologist Ms Northey, whose report was tendered in evidence. Simpas said to her that he drank to make himself feel good but tried to hide his drinking from his family. Accordingly, his family was apparently not aware of his alcohol consumption.

69 The sentencing judge noted that since he had been in custody the respondent completed what Ms Northey noted as a 'useful and relevant range of behaviour modification programs including youth understanding, drugs and anger.' She also said that he required professional psychological counselling in order to more fully address the features of what she described as post traumatic stress disorder which she believed was a relevant factor in this offence.

70 In his discussions with Ms Northey, she noted that the respondent now had the benefit of hindsight and two years of additional maturity which allowed him to recognise and fully appreciate that there were other choices that he could have and should have made on the night in question.

71 The sentencing judge also observed that the respondent had told some of the workers who have been assisting him that he had been drinking on the night at the time of the offence, however he told Ms Northey that he had not. Ms Northey noted in her report:

On the basis of my past experience of interviewing young men in relation to acts of violence of this serious nature, I am inclined to think that the disinhibiting effects of alcohol are most likely to have been a factor and that Mr Simpas was reluctant to tell me he'd been drinking because he felt guilty about that. Given the absence of priors for violent offending, I do not believe that Mr Simpas is sufficiently callous as to have committed the offence in cold blood without the disinhibiting effects of alcohol. He had little realisation immediately after the incident as to the extent of the injury unleashed upon his victim. This is more typical of a person who had been drinking at the time and who was not clearly cognisant of the actual consequences of his action.

72 The sentencing judge took into account that, in her view, the respondent at the time of his plea had an understanding of the consequences of his actions and had exhibited both remorse and empathy for the deceased and his family. Her Honour noted that he was a youthful offender and rehabilitation must be given due recognition.

73 The respondent Simpas, had three prior court appearances which resulted in convictions. The first was in April 2004, when he was charged with being an unlicensed driver and theft of a motor vehicle for which he was placed on a non-conviction $50 good behaviour bond. The second in October of 2004, when he was charged with entering a private place without excuse for which he was fined $100; and the third was in January 2006, when he was charged with driving without P plates and speeding and placed on a good behaviour bond for 12 months. As the sentencing judge observed, whilst these matters did not constitute serious offending, they did indicate that Simpas had been involved in minor breaches of the law during the two year period leading up to the commission of the offences on 25 March 2006.

74 I accept that, on the night in question, the respondent Simpas broke down and cried when he was told of the death of the victim. I take this to be a demonstration of genuine remorse.

75 HR is now 21 years old, having been born on 19 June 1988. He was a student who also resided at his parents' home at home until the incident. At the time of these offences he was aged 17 years and 9 months.

76 The sentencing judge accepted that he had come from a difficult background. He was the oldest of five children and has four sisters. The respondent, his mother and father, together with his siblings, came to Australia as refugees.

77 The respondent's mother came to this country first in 2001 and the respondent arrived in November 2003. The respondent's family are Kurdish people from Syria. His mother was a lawyer and was involved in women's rights and Kurdish rights. She had been imprisoned and tortured. She was persecuted for her religious and political views in Syria and left for Australia to seek asylum. She also came to Australia because she was very ill and needed an operation which she had in 2002.

78 The respondent's father was a teacher. He was dismissed from his position and ultimately also had to flee Syria, taking with him the children of the family. They travelled from their home to another area where his father worked as a labourer. He then moved to Turkey where he spent a year as a refugee. Finally he was granted permission to come to Australia.

79 HR attended a number of different schools after his arrival in Australia. However, this was disrupted because of his refugee status. Initially he spoke no English and struggled with both the cultural difficulties and the language. His mother encouraged him to find friends and develop a social network in Australia. In response, he often left the family home in weekends to meet up with other young people.

80 The respondent HR attended the Brunswick Language Centre for a year to improve his English and then attended Banksia Secondary College. He failed Year 11. At the end of Year 11 he left school and attempted to enrol in a mechanics course and tourism course at Northern TAFE. That did not eventuate and he returned to school to repeat Year 11. He was attending school at this level at the time of commission of the offences.

81 However, the respondent was recalcitrant in his school attendance. He refused to attend school and became accustomed to stay out late at night. This had a marked effect on his family. It was a source of constant problems between himself and his parents.

82 Since being in custody he has been actively involved in education at the Youth Justice Centre. The sentencing judge described the respondent's report in respect of his education as being 'very positive'. He was said to have a mature approach to his education, recognising that it would increase his employment prospects upon release.

83 The sentencing judge also noted that the respondent's time in custody has been clearly a difficult adjustment for him. For some time he was involved in a number of violent incidents victimising vulnerable fellow detainees. There were thirteen of those incidents in all. His placement was changed in August 2007 and there has been only one incident since that time.

84 The respondent HR has been involved in counselling courses and a 'Stop the Violence' program. However, his participation in that program has been described as limited, although he appears to be responding better to a program of one on one counselling. He has been involved in sporting activities whilst in custody and has demonstrated a high level of motivation in organising sporting events within the Justice Centre. He is not considered a management problem.

85 Shortly prior to the offences in this case, the respondent HR was involved in two other instances of violent activity which gave rise to criminal charges. These incidents occurred on two weekends in January and February 2006. A group of young men, who were the same as those involved on the night of 25 March 2006, with the exception of Simpas, were engaged in 'mugging' young men in the parks with the object of stealing their mobile phones.

86 The sentencing judge considered that, despite these matters, which occurred prior to the offences in question, the respondent ultimately does have good prospects for rehabilitation. Her Honour received a letter written by HR, which she noted, while simply written, did express maturity and regret for his actions that occurred.

87 It was submitted by Senior Counsel for the respondent Simpas, that it was not appropriate for this Court to intervene to disturb the sentence imposed by the sentencing judge. DPP v Bright[15] was cited in support of this contention.

88 In considering an appeal by the Director against sentence, and Redlich JA said, in reasons which were agreed with by Chernov and Vincent JJA:[16]

A number of the principles which govern appeals by the Director of Public Prosecutions are set out in R. v. Clarke and R. v. Johnston. One is that an appeal should not be brought unless the sentence reveals such 'manifest inadequacy or inconsistency in sentencing standards as to constitute error in principle'. An examination of authorities suggests, as was conceded by the Director in argument, that manifest inadequacy alone will not be sufficient to warrant appellate intervention. Something more is required to ensure that prosecution appeals do not unduly circumscribe the sentencing discretion of judges. The inadequacy of the sentence must be 'clear and egregious', the sentence being so disproportionate to the seriousness of the crime as to shock the public conscience and 'undermine public confidence in the ability of the courts to play their part in deterring the commission of crimes'. [17]

89 This is consistent with the approach noted by McHugh J in Everett v R[18] in which it was observed:

It is well established that, in those jurisdictions where the Crown has a right to apply for leave to appeal against a sentence, leave should be given only in exceptional circumstances Griffiths v. The Queen [1977] HCA 44; (1977) 137 CLR 293 at 310; Reg. v. Tait (1979) 24 ALR 473 at 476-477; Reg. v. Wilton (1981) 28 SASR 362 at 367-368; Reg. v. Hillsley [1992] FCA 39; (1992) 105 ALR 560 at 565.). The need for exceptional circumstances imposes a stringent barrier to the grant of leave to appeal in such cases.

If a sentencing judge imposes a sentence that is definitely below the range of sentences appropriate for the particular offence, the case can be regarded as falling within the rationale for conferring jurisdiction in respect of Crown appeals. It can be regarded as sufficiently exceptional to warrant a grant of leave to appeal to the Crown even if no question of general principle is involved. Such cases, however, are likely to be rare. Defining the limits of the range of appropriate sentences with respect to a particular offence is a difficult task. What is the range in a particular case is a question on which reasonable minds may differ. It is only when a Court of Criminal Appeal is convinced that the sentence is definitely outside the appropriate range that it is ever justified in granting leave to the Crown to appeal against the inadequacy of a sentence. Disagreement about the adequacy of the sentence is not enough to warrant the grant of leave. Sentencing is too inexact a science to make mere disagreement the criterion for the grant of leave to appeal against the inadequacy of a sentence. The requirement of leave gives rise to the inference that Parliament intended that something more than mere error was to be the criterion of the grant of leave.

90 The Director submitted that in this case the sentences imposed in both matters fell squarely within these principles.

Assessment of the sentence and disposition of the appeal

91 In order to assess whether the sentences imposed in this case were so disproportionate to the seriousness of the crime as to warrant appellate intervention, the objective gravity of the offences must be carefully assessed. It is against this background that the other relevant sentencing considerations must be appropriately weighed.

92 The offences were committed in an entertainment precinct in Melbourne late on a Friday evening and extending early into the following Saturday morning in March 2006. This was a time when the area was frequented by a large number of people, particularly young people, who were attracted to the locality.

93 This was not an unthinking or uncalculated episode.

94 The events leading up to the fatal brawl demonstrate that HR was the ring leader of his group and was responsible for inciting his cohorts to fight the Spinks Group. Early in the episode, he found and broke a glass bottle near the Crown Casino. This was brandished in full view of other members of his group with the object of encouraging them to obtain and use similar weapons against the rival group.

95 HR continued to incite members of his group to violence, and led them to attack the Spinks Group, even after they were in retreat, and had no bottles or weapons in their possession. He instigated the fight in the park by attacking Spinks with a stick. This in turn gave rise to a series of violent events which, a short time later, resulted in the death of the deceased and the wounding of Spinks.

96 As for Simpas, he chose to became embroiled in the fight. He armed himself with a lethal weapon in the form of the broken glass bottle. It was fashioned for the purpose of inflicting bodily harm. Simpas was not restrained in its use. He lashed out with the broken bottle striking Spinks in the back. He also used it to slash the throat of the deceased causing his death.

97 A further and disturbing aspect of these events was the involvement of very young people, some in their early teens, in this appalling episode. The activities of HR (then aged 17 years) and Simpas (then aged 19 years) were calculated to lead the younger people involved into dire trouble with the law and place their personal safety and lives at serious risk.

98 In effect, HR was the moving force behind of the criminal affray and in that sense his culpability was certainly no less than that of Simpas, both in respect of the brawl which he incited and the particular instance of violence which gave rise to the death of Morgan and the wounding of Spinks.

99 The facts and circumstances of this case and the tragic consequence of the principal offence, which caused the death of the victim in my view mark this out as a serious instance of manslaughter requiring condign punishment.

100 These were serious offences involving a vicious display of violence in a densely populated public area at night. In their interviews with the police, HR initially denied responsibility for the fight which gave rise to the offences with which he was charged, and Simpas denied inflicting injury on anybody by the use of a broken bottle. However, I accept that both offenders have now appreciated and accepted responsibility for what occurred and both have expressed remorse for their conduct. Both offenders ultimately pleaded guilty to the offences charged, and the respondent Simpas initiated and actively pursued a course which resulted in this occurring.

101 Simpas and HR are a youthful offenders. The courts have consistently stated that for young offenders the primary focus should be rehabilitation. Rehabilitation must be given due recognition. However, it does not follow that young offenders should not be held appropriately accountable for engaging in serious criminal conduct. DPP v SJK and GAS,[19] was a case of manslaughter involving an elderly and vulnerable victim. It involved a particularly brutal crime. Nevertheless, the Court of Appeal, comprising Phillips CJ and Chernov and Vincent JJA made observations which are pertinent to the present case. The Court stated:

When youth is raised for sentencing considerations, the focus is usually placed upon the offender's prospects of rehabilitation but this is by no means the only basis upon which it assumes relevance. For at least a century the attribution of criminal responsibility and the response in terms of the dispositions handed down upon offenders has increasingly reflected developing ideas and understandings concerning personal responsibility, moral culpability and accountability. In the case of young people to some extent the law incorporates an acknowledgement of aspects of immaturity. By reason of the state of development that an offender may have reached, he or she may not fully appreciate the serious and real consequences of the offending action. However, it does not follow that this is always the situation and that, as teenagers, offenders cannot be held appropriately accountable for their conduct in engaging in serious criminal activity. [20]

102 This approach was echoed by O'Bryan AJA in the earlier case of R v PDJ[21] where his Honour, in speaking for the Court of Appeal (which also included Chernov and Eames JJA), said in a passage which is particularly relevant to the circumstances of the present case:

There can be no doubt in my mind that conduct of the kind indulged in by the applicant cannot be significantly reduced because he is a youthful offender in the sense in which that expression is used in Mills v. R. A youth who roams the streets at night, drinking alcohol, planning and participating in serious criminal activities, cannot rely upon his immaturity or lack of years when he is caught.

... The youthful offender can no longer expect to trade on his or her youth in such cases for the elements of deterrence, condemnation and just punishment are significant matters.[22]

103 Another factor which pervades this case was the considerable amount of alcohol consumed by the principal participants. In his record of interview, HR described himself as being drunk at the time. I also accept that Simpas had also consumed a significant quantity of alcohol during the period leading up to the fatal incident. This no doubt fuelled the considerable aggression which manifested itself so obviously on the night in question. However, in the circumstances of this case, this cannot be considered to be a mitigating circumstance. The moral culpability of the respondents should not here be reduced by reason of their drunken condition. I need only to refer to what was said by this Court in R v Martin[23] about the circumstances when intoxication may and may not be regarded as a factor in mitigation.

104 The circumstances of the commission of the offences in this case call for appropriate public condemnation.

105 The sentencing judge, being highly experienced in criminal cases, gave considerable weight to the youth of the offenders and the potential for their rehabilitation. Her Honour said, in effect, that had the offenders been older the sentences would have been higher.

106 However, in my opinion, undue weight was afforded to these and other subjective factors, with the result that the sentences were not commensurate with the seriousness of the crimes. In particular, the learned sentencing judge gave too little weight to the twin factors of general and specific deterrence.

107 The sentences imposed in both of these cases were manifestly inadequate, and clearly so. The nature and gravity of these offences and the fatal consequences for the deceased call for rigorous punishment in order to express the Court's denunciation of the offending and to provide adequate general and specific deterrence. Public confidence in the ability of the courts to play their part in deterring the commission of crimes such as these, demands no less. As was observed by McHugh J in Everett [24]:

Inadequate sentences also give rise to a sense of injustice, not only in those who are the victims of the crimes in question but also in the general public. Inadequate sentences are also likely to undermine public confidence in the ability of the courts to play their part in deterring the commission of crimes. To permit the Crown, as well as convicted persons, to appeal against sentences assists in maintaining confidence in the administration of justice.

108 The matter calls for the intervention of this Court and the re-sentencing of the offenders.

109 Both senior counsel for their respective respondents referred to DPP v Dalley[25] in support of submissions that, if the Court was to consider re-sentencing, it would be necessary to give proper effect to the principle reflected in that case. In the particular circumstances which arose in Dalley, at the time of the hearing of the appeal, the respondent was within days of having served the whole of the non-suspended portion of the sentence. It was observed by the Court (Vincent, Dodds-Streeton and Weinberg JJA) that:[26]

The Court has always been hesitant in the case of a Director's appeal to return to custody an individual who has already been released from custody, either on parole or in the case of a partially suspended sentence, because the period of immediate incarceration has been served. Although in this case the respondent had not been released, only a matter of a few days remained. This case emphasises the importance of ensuring that such appeals are dealt with quickly.

110 In this case, at the time of the hearing of the appeals, both Simpas and HR were one month off the non-parole period of their sentences coming to an end, resulting in their release from custody.

111 Senior Counsel, who appeared for the Director, sought to distinguish Dalley from the facts of the present cases on the basis that release on parole, which is imminent in the present matter, is a matter of executive discretion, whereas the respondent in Dalley was to be released as of right, having virtually completed serving the whole of the non-suspended portion of his sentence.

112 I do not accept the submission made on behalf of the Director on this point. As was observed in Dalley, the Court has always been hesitant in the case of a Director's appeal to return to custody an individual who has already been released from custody, either on parole or in the case of a partially suspended sentence, or to extend an immediate term of imprisonment where little of it remains.[27]

113 Further, the principle of sentencing double jeopardy applies in this case. This principle does not depend upon the imminence or otherwise of the release of the person who has been sentenced, let alone whether the release results from the expiration of the initial sentence or is a product of the exercise of executive discretion. As observed by Charles JA in Clarke,[28]

When in response to a Crown appeal, the court decides to re-sentence an offender, it ordinarily gives recognition to the element of double jeopardy involved (in twice standing for sentence) by imposing a sentence that is somewhat less than the sentence it considers should have been imposed at first instance.

I see no reason to depart from this principle in the present case.

114 Senior Counsel who appeared for HR submitted that had the charge of affray been preferred against him in the Children's Court of Victoria, a sentence of imprisonment would not have been imposed. I do not accept this submission. HR was born on 19 June 1988. At the time of the offence HR was aged 17 years and nine months. However, as at the date of the presentment, 11 October 2007, he was aged 19 years and 3 months. This brings him within the exclusion provided for in the definition of a 'child' for the purposes of the Children, Youth and Families Act 2005. By s 3 a person 'who is of or above the age of 19 years when a proceeding for the offence is commenced in the Court' is not regarded as a 'child' for the purposes of that Act. The sentencing hierarchy provided for in s 360 therefore has no application.

115 In re-sentencing the offenders I take into full account their relative youth and their prospects for rehabilitation as found by the sentencing judge, the fact that they are first time offenders for crimes involving violence and the remorse which they have expressed for what has occurred. These factors call for an appropriate reduction in the penalty which might otherwise have been imposed. Further, in re-sentencing the respondents, I would allow for an appropriate discount flowing from the application of the principle reflected in Dalley and the principle of sentencing double jeopardy. Had it not been for these matters, the sentences to imprisonment which I would have imposed would have been considerably more severe.

116 I would allow the Director's appeals and I would pass sentences as follows:

Kristofer Simpas: On Count 1 (manslaughter) six years' imprisonment and on Count 2 (intentionally causing serious injury) six months' imprisonment, four months of which is to be served cumulatively upon the sentence imposed on Count 1, resulting in a total effective sentence of six years and four months imprisonment. I would direct a period of four years and two months imprisonment before being eligible for parole.

HR: On Count 1 (manslaughter) six years' imprisonment and on Count 2 (affray) six months' imprisonment, four months of which is to be served cumulatively upon the sentence imposed on Count 1, resulting in a total effective sentence of six years four months' imprisonment. I would direct a period of four years and two months' imprisonment before being eligible for parole.

[1] Johns v The Queen [1980] HCA 3; (1980) 143 CLR 108, 119 (Stephen J) and 131 (Mason, Murphy and Wilson JJ).

[2] [1998] 4 VR 235.

[3] [2002] VSCA 131, aff'd on appeal[2004] HCA 22; , (2004) 217 CLR 198.

[4] [2002] VSCA 131 [65].

[5] Which, as reflected in the sentencing snapshot, spread between three years and 15 years' imprisonment with a median of six years and six months.

[6] For example the kind of planned or sustained criminal activity which was committed in R v SJK and AJS and in R v PDJ.

[7] R v PDJ [2002] VSCA 211; (2002) 7 VR 612, 629 [82] (O'Bryan AJA).

[8] R v Thompson, Unreported, Court of Appeal 21 April 1998, BC9801712, 7-8. (Tadgell JA).

[9] R v Lawrence [2004] VSCA 154; (2004) 10 VR 125, 132 [22].

[10] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665, 671-2 [15].

[11] R v Allpass (1993) 72 A Crim R 561, 562-3; DPP v Scott [2003] VSCA 25; (2003) 6 VR 217, 222 [18].

[12] [2006] VSCA 147, [11].

[14] McAuliffe v The Queen [1995] HCA 37; (1995) 183 CLR 108, 118; Gillard v The Queen [2003] HCA 64; (2003) 219 CLR 1, 36; and Clayton v R [2006] HCA 58; (2006) 231 ALR 500.

[15] [2006] VSCA 147.

[18] [1994] HCA 49; (1994) 181 CLR 295, 305-306.

[19] [2002] VSCA 131.

[21] [2002] VSCA 211; (2002) 7 VR 612, 629, [82].

[23] [2007] VSCA 291, [15]-[30].

[25] [2008] VSCA 173.

[27] DPP v Bourozikas [2009] VSCA 29, [32].

[28] Supra, 522; see too: DPP (Vic) v BAB [2002] VSCA 93, [3] (Callaway JA); DPP (Vic) v Cook [2004] VSCA 11; (2004) 141 A Crim R 579, 589 (Eames JA); DPP v Bourozikas [2009] VSCA 29, [31].