Field v R

Dr Alan Cala

1. The Crown called Dr Alan Cala, the senior staff specialist in forensic pathology at the John Hunter Hospital in Newcastle, to give expert evidence. Dr Cala conducted Mr Kane's autopsy.
2. Dr Cala observed three presently relevant injuries. The first was a 12 millimetre diameter abrasion or graze on Mr Kane's right lower forehead. Dr Cala said that he did not believe that "that injury was in all likelihood caused by a punch". He thought that a graze was an unusual result of a punch and added that "[w]hilst I couldn't say it's impossible I favour some other mechanism such as landing onto some other object, maybe bitumen or the concrete or some other thing that's rubbed off the skin surface" (Transcript p 649).
3. Secondly, there was a narrow line of interrupted haemorrhage on the inside of Mr Kane's upper lip, on the left side. Dr Cala said that this had been caused by some external force and continued: " … [q]uite how it's come about I'm not able to say. It might have been from a punch, but then we know this man had a lot of medical treatment with tubes being put into his mouth and so on and I would concede that that can sometimes be quite traumatic and might have caused those injuries by that means" (Transcript p 658).
4. Thirdly, there was a 150 x 90 millimetre area of fresh internal bleeding in the left side of Mr Kane's neck, around the angle of the left half of the mandible (lower jaw bone) which had spread around various muscles under the skin. This haemorrhage in the left jaw area was the cause of death and consistent with blunt force trauma such as a punch. When asked to comment on the degree of force likely to have caused this subarachnoid haemorrhaging, Dr Cala responded: "I can't accurately say how much force was applied, but I can say that it would have been more than a mild force or a light force such as being gently touched or slapped. I don't believe that would cause such an injury. I believe it was more than that. How much more than that I can't say. It could be a moderate force or it could have been a very severe force and anywhere in between" (Transcript p 665).
5. Dr Cala also gave the following evidence: "Q. Could I ask you this doctor, could a person remain upright for a period of time with a bleed that you've seen? A. Yes. Q. How long? A. It varies. It could be several seconds and then fall to the ground. It might be longer than that. How long again varies. I don't believe it would be minutes with this type of injury. I believe it would be much more rapid than that. But my view is that for most of these cases somebody wall fall to the ground within around about 10 seconds as an approximation. … Q. In that time period, and I apologise for not having that note, in that time period would the person be showing any signs, manifestation of this bleeding? A. I suspect they would. Q. What would they be? A. I don't think that they would look normal as if nothing had happened. I think that they would look dazed, they might appear confused and they may start to complain of symptoms of a terrible headache, feeling sick. And when they're communicated with by people around them, generally the communication I would not expect to be normal, the conversation would not be as it was prior to that incident. They may be - they may be - they may mumble, they may not say anything, they may be unresponsive verbally. Q. What about motor skills, being able to move hands? A. They might be able to but again I don't think they'd look as if nothing had happened, as if - the behaviour they exhibited prior to the incident, I don't think it would be the same after that incident. To an observer near them or close by they would've looked different" (Transcript pp 665-7).
6. In cross-examination, Dr Cala gave the following further evidence as to the effects of a subarachnoid haemorrhage: "A. … essentially it's my view that once a blow had been rendered and a subarachnoid haemorrhage had occurred it was probably, if not instantaneously, after that then very soon after that I would expect that person within several seconds to begin to crumple. As I've said I didn't think - I wouldn't expect them to look or behave normally, there's a number of things that they may exhibit to an observer but within several seconds I would then expect them to start falling down to the ground. Q. And it's a matter of degree of course but such a person I think you agreed with me before could remain upright for approximately 10 seconds? A. As an approximation they might" (Transcript pp 670-1).

Adjunct Professor John Hilton

1. The applicant called Adjunct Professor John Hilton, a forensic pathologist of extensive experience, to give expert evidence.
2. Professor Hilton agreed with the reasonableness of the following hypothesis put to him in chief: Mr Kane was struck by a blow on the left jaw which initiated the bleeding process into the arachnoid space, he thereafter remained on his feet, he then "threw a blow" at another person who was being held or restrained in some way and thereafter he received another punch before collapsing (Transcript p 771). Professor Hilton agreed that after receiving the fatal blow (to the left jaw) Mr Kane could have remained upright for 10 seconds or more and maintained a boxing stance, giving the impression that he was about to throw a punch (Transcript p 772) and being capable of doing so (Transcript p 773). He distinguished the consequences of the blow that caused subarachnoid bleeding from a concussion which he said "is literally an instantaneous thing, it's the sort of thing you see in boxing matches, a boxer gets a punch and he usually crumples immediately after the punch. Now that's a concussive effect" (Transcript p 775).
3. He added that the above hypothesis: "… is rather uncommon, but I would see a case like this perhaps once every two years, and nowadays with CCTV, assuming that the CCTV is, (a) turned on, and is in the right place we have actually got records now of people being struck and sustaining this sort of injury and performing purposive movements including exiting the location where the blow was sustained outside before crumpling to the ground" (Transcript pp 777-8).
4. His view was that the abrasion or graze above Mr Kane's right eyebrow was "consistent with a glancing blow, with [a] punch, [an] elbow, whatever", delivered with a "trivial amount of force" (Transcript p 780).
5. He considered that the damage under Mr Kane's lip was consistent with a blow forcing the inside of his lip against his teeth (Transcript p 781).
6. Professor Hilton said that if Mr Kane dropped to the ground immediately after receiving the fatal blow it would not have been as a result of the subarachnoid bleeding "because the bleeding hasn't had time to take effect if you like but it could well have been caused by a concussive injury" (Transcript p 785).
7. Professor Hilton was asked in cross-examination whether he agreed with Dr Cala's evidence that if Mr Kane did not immediately lose consciousness as a result of the fatal blow, there would have been a very sudden onset of a severe headache. Professor Hilton gave a long answer but did not appear to disagree (Transcript pp 787-8).

Other evidence

1. There was considerable police evidence concerning the features of the carpark and surrounding area. A large number of photographs were tendered.
2. In addition, there was evidence that the applicant did not suffer any injury to his hands.

The "unreasonable verdict" ground of appeal

1. To determine this ground of appeal this Court must make "an independent assessment of the evidence, both as to its sufficiency and its quality" (SKA v The Queen [2011] HCA 13; 243 CLR 400 at [14] citing Morris v The Queen [1987] HCA 50; 163 CLR 454 at 473). Having done this, the Court must determine whether "upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty" (SKA at [11] citing M v The Queen [1994] HCA 63; 181 CLR 487 at 493). If the Court's review of the evidence leaves it with a reasonable doubt as to the accused's guilt, the accused's conviction must be quashed unless that doubt is capable of being explained by the jury's advantage in seeing and hearing the witnesses (SKA at [13]).

Circumstantial evidence

1. Strictly, the Crown's case against the applicant was not a circumstantial one as there was considerable direct evidence, including from the applicant himself, that the applicant hit Mr Kane immediately before he collapsed. Moreover, there was eye-witness evidence that supported the Crown's contention that no-one else landed a punch on Mr Kane that could have caused his death. However, as the Crown sought to prove its case by reference to the combined effect of the evidence of a variety of circumstances, and from a number of different witnesses' evidence, it is appropriate to refer to the following guiding authority on circumstantial evidence.
2. In R v Hillier [2007] HCA 13; 228 CLR 618, Gummow, Hayne and Crennan JJ observed: "48 Often enough, in a circumstantial case, there will be evidence of matters which, looked at in isolation from other evidence, would yield an inference compatible with the innocence of the accused. But neither at trial, nor on appeal, is a circumstantial case to be considered piecemeal."
3. Their Honours then referred to the need to consider "the weight which is to be given to the united force of all the circumstances put together" (ibid, citing Chamberlain v The Queen (No 2) [1984] HCA 7; 153 CLR 521 at 535 per Gibb CJ and Mason J).

Inconsistencies in the witnesses' evidence

1. As the applicant's case on appeal emphasised inconsistencies in and between the witnesses' evidence, I refer to the following oft-quoted observations of McHugh J in M v The Queen [1994] HCA 63; 181 CLR 487 at 534: "It is the everyday experience of the courts that honest witnesses are frequently in error about the details of events. The more accounts that they are asked to give the greater is the chance that there will be discrepancies about details and even inconsistencies in the various accounts. Of course, it is legitimate to test the honesty or accuracy of a witness's evidence by analysing the discrepancies and inconsistencies in his or her accounts of an incident. In a case where accuracy of recollection is vital - such as the account of a conversation in a fraud case or the description of a person where identity is the issue - discrepancies and inconsistencies in the witness's account may make it impossible to accept that person's evidence, no matter how honest he or she appears to be. But in other cases, discrepancies and inconsistencies may be of far less importance if the honesty of the witness, as opposed to the accuracy of the detail, is the crucial issue. If a jury thinks that the demeanour of the witness or the probability of occurrence of the witness's general account is persuasive, they may reasonably think that discrepancies or even inconsistencies concerning details are of little moment."
2. This passage has been referred to with approval on a number of occasions in this Court including, recently, by Leeming JA (with whom Johnson and Schmidt JJ agreed) in Sio v R [2015] NSWCCA 42 at [40].
3. Conformably with this approach, in BCM v The Queen [2013] HCA 48; 88 ALJR 101, the High Court considered the nature and circumstances of inconsistencies in a complainant's evidence and concluded that none of them were "of a kind that lead, on a review of the whole of the evidence, to a conclusion that it was not open to the jury to convict" (at [47]).
4. Bearing in mind the presence of Ms Grainger and Ms Burger in the midst of the altercation in the carpark that led to Mr Kane's death, it is apposite to refer to McClellan CJ at CL's observation in Mohamed v R [2008] NSWCCA 45 at [18] that "inordinate stress" may give rise to inconsistencies in an account of an event.

RESOLUTION OF THE APPEAL AGAINST CONVICTION

1. As the decision in SKA requires, I have conducted an independent assessment of the evidence, both as to its sufficiency and quality. As a result of that review, I conclude that the Crown proved its case at trial beyond reasonable doubt and that the jury's verdict was therefore open to it. In reaching these conclusions I have, consistently with the authorities to which I have referred above (at [71]-[72], [75]), had regard not only to the individual elements of the evidence but also to their cumulative effect. I have also taken into account the fact that "[t]he starting point in the application of s 6(1) [of the Criminal Appeal Act] is that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of having seen and heard the witnesses." (SKA at [13]).
2. The following matters are of principal importance to my reaching of these conclusions.
3. First, Dr Cala's and Adjunct Professor Hilton's expert evidence established that, from a medical point of view, it was possible that Mr Kane suffered the fatal blow before the applicant hit him. That is, assuming that Mr Fathers did in fact punch Mr Kane, Mr Kane may have remained on his feet for a period of about 10 seconds during which he could have punched or attempted to punch Mr Fathers before receiving the applicant's blow. Moreover, the effect of the evidence, particularly that of Professor Hilton, was that Mr Kane's internal bleeding would not have caused him to collapse immediately after receiving the fatal blow. However, this evidence was not inconsistent with the applicant's punch being the fatal blow because Professor Hilton recognised that the concussive effect of a blow to the head may well cause an immediate collapse. There was no evidence to suggest that Mr Kane's immediate collapse after the applicant hit him did not result from a concussive effect of the applicant's blow.
4. Secondly, Ms Grainger's evidence provided strong support for the Crown's case. When she got out of the vehicle and went around it towards the altercation, she saw Mr Fathers trying to punch Mr Kane. She did not see any of those punches land. It is possible that prior to Mr Fathers and Mr Kane coming into Ms Grainger's view that one or more of Mr Fathers' punches connected. However, in light of the period for which the altercation continued after Ms Grainger arrived at it, and the time that the evidence demonstrates must have elapsed before Mr Kane collapsed, it would not be reasonable to conclude, given the medical evidence, that any such earlier punch was the fatal blow. Moreover, no-one suggested that Mr Kane showed any of the symptoms that Dr Cala said he would have expected to be apparent during the period after the fatal blow was delivered (see [58] above).
5. Whilst the altercation was continuing at the rear of the vehicle, Ms Grainger put herself between Mr Fathers and Mr Kane, facing Mr Fathers. Therefore, she would have witnessed any punch that Mr Fathers landed on Mr Kane, yet gave no evidence of this occurring. Her evidence was in fact the opposite, namely that she did not see any further punches, rather, "they were just kind of dancing at each other" (see [8] above).
6. Thirdly, Ms Burger was also in the midst of the altercation and therefore also in a prime position to see any hit by Mr Fathers of Mr Kane. In fact, she said that she "definitely" did not see anyone other than the applicant hit Mr Kane.
7. Fourthly, Mr Fathers' evidence also provided support for the Crown's case. As the applicant argued at his trial that the Crown had not proved beyond reasonable doubt that Mr Fathers did not throw the fatal punch, Mr Fathers' evidence cannot be regarded as objective and disinterested. Nevertheless, even after he was granted a certificate under s 128 of the Evidence Act, he maintained that he did not cause Mr Kane to collapse (see [16] above). He did not rule out the possibility that some of his attempts to punch Mr Kane were successful but his evidence, when taken as a whole, was inconsistent with him landing a punch of any significant force on Mr Kane.
8. Moreover, Mr Fathers' conduct after Mr Kane's collapse was consistent with Mr Fathers believing that it was the applicant who had caused Mr Kane's collapse. The CCTV footage that was in evidence appeared to show Mr Fathers put his right arm around the applicant's shoulder as they walked away from the incident. Although he did not agree that the footage appeared to also show him lean in and give the applicant a kiss on the side of his head, having viewed the footage, I consider that interpretation is open as is, more generally, the inference that Mr Fathers was comforting or perhaps thanking the applicant for his support during the altercation.
9. This is in contrast to the first boy's evidence that another man followed the person who threw the punch yelling "[l]ook what you've done, you've done this, you started this. This is your doing" (see [30] above). Whilst this puts a somewhat different complexion on what occurred as they walked away, it is consistent with Mr Fathers regarding the applicant (who was undoubtedly walking ahead of him) as the prime cause of Mr Kane's collapse.
10. Fifthly, Mr Wallis' evidence confirmed the close proximity of Ms Grainger and Ms Burger to Mr Fathers and Mr Kane at the relevant time. He described them as being on either side of Mr Kane. As he approached, he did not see any punches thrown or any pushing but did hear the loud sound of someone being punched. This noise must have been from a punch, rather than Mr Kane falling, as Mr Wallis' evidence was that he was not looking at Mr Kane when he heard the noise but did so in time to see Mr Kane's head hit the ground. He did not suggest that he heard any earlier sound of a punch.
11. Sixthly, Mr Colvin Field, the applicant's father, gave evidence that the applicant told him that he had hit a person (referring to Mr Kane) who had consequently collapsed. Significantly, the applicant did not say that he had only hit that person with a glancing blow which, according to the expert evidence, was the only type of punch consistent with the limited graze or abrasion injury to Mr Kane's right temple. Specifically, Professor Hilton said that that injury would be consistent with a blow delivered with a "trivial amount of force". Dr Cala did not believe that that injury was caused by a punch.
12. Moreover, according to his father, the applicant did not tell his father that anyone else had hit Mr Kane. This stands in contrast to the applicant's version in oral evidence of what he told his wife (which he says may have been overheard by his father), which included a reference to "the guy" (that is, Mr Kane) hitting Mr Fathers (see [53] above).
13. Seventhly, the evidence of the three boys further assisted the Crown's case notwithstanding that their distance from the incident and the poor lighting requires it to be approached with caution. The first boy saw what was undoubtedly the applicant's punch as it was immediately followed by Mr Kane collapsing. He did not see any other punches land. His description of the sound of the applicant's punch as "a massive, massive thump" was also consistent with Mr Wallis' evidence.
14. The second boy referred to "shoving and pushing" but only to one punch. This was clearly that thrown by the applicant as it was observed to lead to Mr Kane's immediate collapse. Consistently with the first boy's evidence, the second boy indicated that it was thrown with considerable force.
15. The third boy likewise saw only one punch. He said it was to the left side above the middle of the cheek.
16. Eighthly, the evidence of the three observers from the unit balconies also supported the Crown's case, again notwithstanding the limitations on their evidence resulting from distance and lighting. Each only saw one punch and the person punched collapse immediately. There were some differences in their evidence about whether it was Mr Kane's left or right side that was struck but none of these witnesses suggested that the punch landed on Mr Kane's mouth (such that it may have caused the lip injury).
17. Ninthly, the applicant described, consistently with the other witnesses, a period of "grabbing" and "pushing and shoving" which involved Mr Fathers throwing punches that did not land. He then said that Mr Fathers hit Mr Kane, Mr Kane hit Mr Fathers and then the applicant hit Mr Kane. The applicant said that he did not see Mr Fathers' punch connect with Mr Kane, he said that he "just heard it".
18. Further, the applicant could not recall the force of his punch. If it was in fact a soft punch, or only a glancing blow, it is difficult to understand why the applicant did not include that information in his description of the incident to his wife (and overheard by his father). If it were such a blow, the applicant would likely have been incredulous at Mr Kane's collapse. The applicant says that his punch landed in Mr Kane's temple region above the right eye but according to Professor Hilton's evidence the injury there would have resulted from no more than a trivial blow.
19. The applicant agreed that Mr Fathers put his arm around him as they were walking away from the incident. This action appears to attribute to the applicant, rather than to Mr Fathers, responsibility for Mr Kane collapsing to the ground.
20. The applicant's evidence confirmed Ms Grainger's and Ms Burger's proximity to Mr Fathers and Mr Kane at the relevant time and therefore the likelihood of them seeing any punch by Mr Fathers landing on Mr Kane.
21. Finally, for a number of reasons, it should not be regarded as a reasonable possibility that the applicant's punch hit Mr Kane on his mouth, causing the lip injury referred to in [56] above. First, the applicant said that he hit Mr Kane elsewhere in the temple region above the right eye (see [49] above). Secondly, none of the eyewitnesses said that Mr Kane was hit in the mouth, most identifying a different place. Thirdly, the medical evidence indicated that the injury may have been caused by medical treatment rather than a punch (see [56] above). Fourthly, common sense suggests that the limited nature of that injury was not consistent with the eyewitness descriptions of the force of the applicant's punch.

Conclusion

1. There were undoubtedly some inconsistencies in and between the witnesses' evidence such as what colour clothing Mr Kane's hitter was observed to be wearing, whether Mr Kane was hit on the left or right side of his head and how Mr Kane fell. However, for the reasons that McHugh J gave in M v The Queen (see [73] above) such inconsistencies are to be expected, particularly in a case such as the present where those observing the altercation from beyond the carpark encountered issues of distance and lighting, and for all witnesses a rapid unfolding of traumatic events. The inconsistencies do not in my view give rise to any doubt about whether it was the applicant's punch that the witnesses were describing as they all referred to Mr Kane's immediate collapse after the applicant's punch. Moreover, the inconsistencies were not such as to detract from the various witnesses' evidence that they only saw one punch land on Mr Kane.
2. None of the witnesses saw Mr Fathers throw and land a punch on Mr Kane. Ms Grainger and Ms Burger were standing in the immediate proximity of Mr Fathers and Mr Kane, with their attention focused on their interaction. They could not have failed to see Mr Fathers land a forceful punch on Mr Kane, had that occurred. The evidence of the witnesses who were outside the carpark, although not conclusive, if viewed alone also strongly supported the Crown's case.
3. The jury in this case had the advantage of seeing and hearing all of the witnesses give evidence during a lengthy trial. It was therefore well entitled, as I do, to reject the applicant's evidence that he heard (though did not see) Mr Fathers land a punch on Mr Kane and to find that the Crown's case against the applicant was proved beyond reasonable doubt.

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE

1. For the reasons that R A Hulme J gives, although leave to appeal against sentence should be granted, the appeal should be dismissed.

ORDERS

1. I propose that the Court order that leave to appeal against conviction and sentence be granted but the appeals be dismissed.
2. JOHNSON J: I have had the advantage of reading, in draft, the judgments of Macfarlan JA and R A Hulme J.
3. I agree with Macfarlan JA with respect to the application for leave to appeal against conviction. Having undertaken an independent assessment of the evidence, I have no reasonable doubt concerning the guilt of the Applicant of the manslaughter of Mr Kane.
4. I agree with R A Hulme J concerning sentence.
5. I agree with the orders proposed by Macfarlan JA.
6. R A HULME J: I agree with Macfarlan JA that leave should be granted to appeal against conviction but that the appeal be dismissed. On my reading of the evidence, the conviction of Mr Field for manslaughter was well open to the jury.

Application for leave to appeal against sentence

1. The offence of manslaughter is punishable by imprisonment for 25 years: s 24 Crimes Act. As Macfarlan JA has noted, Fullerton J sentenced the applicant to imprisonment for 10 years with a non-parole period of 7 years 6 months with effect from 4 July 2014. (The backdating of the sentence was so as to take account of a period of pre-sentence custody.)
2. There is one ground of appeal: "The sentence was manifestly excessive having regard to the protean nature of manslaughter: Loveridge [2014] NSWCCA 120 [226]-[227]."
3. I take the applicant's case to be that the sentence is unreasonable or plainly unjust because it is based upon erroneous findings of fact and also because certain aspects of his subjective case called for greater mitigation.
4. In relation to challenges on appeal to factual findings, I subscribe to what I would call the orthodox approach, "the test of asking whether the finding of fact was open to the sentencing judge": Turnbull v Chief Executive of the Office of Environment and Heritage [2015] NSWCCA 278 at [32] (Button J, Meagher JA agreeing).
5. It must be borne in mind that the judge was able to assess matters of credibility and reliability with the advantage of having seen and heard the witnesses give their evidence. Matters that may bear upon credibility and reliability (for example, whether a witness was confident or hesitant, or gave answers thoughtfully or perhaps too hastily) are denied to this Court when it is confined to the printed pages of the transcript.
6. In relation to the many challenges to the findings of fact by the sentencing judge, it emerged during the hearing of the application that the focus should be on those findings which led to her Honour's conclusion concerning the objective seriousness of the offence.
7. The pertinent passage in the sentencing judgment is as follows: "[83] I am satisfied that the objective seriousness is within the mid range for manslaughter. I do so on the following bases involving factual findings I have reached to the criminal standard: (1) The offender made the conscious decision to involve himself in a fight with a man not known to him and to deliver a punch to the man's head; (2) The punch was delivered with at least substantial force; (3) The offender must have appreciated the risk that he would cause significant injury by the delivery of that punch; (4) The punch was delivered after Mr Kane had been […] expressing a clear desire that he did not wish to involve himself in violence; (5)The punch was struck without warning; (6) The punch was unprovoked by anything the deceased said or did; and (7) The violence was perpetrated in a carpark open to members of the public and in sight of neighbouring residents and visitors to the area who were attracted to the incident. [84] Mr Bellanto's submission that the offender's conduct exhibited a low level of objective criminality and moral culpability because the offender suffered a momentary lapse of judgment which was entirely out of character is not persuasive given what I am satisfied was his increasing agitation over the course of the evening. The offender's prior good character will, however, be factored into the sentence to be imposed. Mr Bellanto's submission that a non-custodial penalty is within my sentencing discretion is rejected."

(1) The offender made the conscious decision to involve himself in a fight with a man not known to him and to deliver a punch to the man's head.

1. In the course of oral argument, it was conceded that this finding was open to be made but it was submitted it needed to be understood in the context of the applicant's decision to strike Mr Kane being made quickly or spontaneously.
2. It is appropriate to note that the judge accepted a concession made by the Crown that "the offender may have been drawn into the fight". She said that "to the extent that was meant to convey that he was not the instigator, the concession is properly made". However she added: "To the extent that the concession is relied upon as a mitigating factor, I do not consider that it has that effect" (ROS [60]).

(2) The punch was delivered with at least substantial force.

1. In the written submissions, it was contended that her Honour should have found that the force was "somewhere between slight and moderate".
2. The evidence of Dr Cala has been set out in the judgment of Macfarlan JA but for convenience I will do so again: "I can't accurately say how much force was applied, but I can say that it would have been more than a mild force or a light force such as being gently touched or slapped. I don't believe that would cause such an injury. I believe it was more than that. How much more than that I can't say. It could be a moderate force or it could have been a very severe force and anywhere in between."
3. Professor Hilton was cross-examined by reference to his report as follows: "Q. And you describe that as nevertheless the application of a substantial force remains as the initiating factor, correct? A. Yes. Q. Can I ask you this, professor, substantial force, that's a blunt force trauma blow, correct? A. Yes. Q. A good blow? A. A good blow. Or blows."
4. The judge also took into account the descriptions of eyewitnesses (e.g. "a massive thump").
5. In my view, all of this evidence supported the finding of "substantial force". It was a finding well open to her Honour.

(3) The offender must have appreciated the risk that he would cause significant injury by the delivery of that punch.

1. It was a necessary component of the jury's verdict of guilty of manslaughter that it had been established to the criminal standard that a reasonable person in the position of the applicant would have realised that his punch exposed the deceased to a risk of serious injury.
2. In written submissions on sentence it was contended by the applicant that her Honour should find that the applicant did not intend to inflict grievous bodily harm but that there was "a realisation that in punching the deceased to the left jaw he was exposed to a significant risk of serious injury". During oral submissions, the judge queried whether this was being conceded on behalf of the applicant.
3. Although that submission (concession) was withdrawn, I am satisfied that the finding was open to her Honour to make. If a reasonable person would have realised the risk of serious injury there is no reason to think that the applicant would not have realised it too. (It is important to note that realising a risk of serious injury is not the same as intending to cause serious injury; the latter being an element of the crime of murder of which the applicant was acquitted.)

(4) The punch was delivered after Mr Kane had been … expressing a clear desire that he did not wish to involve himself in violence.

1. There was a body of evidence supporting this finding. It is referred to in the judgment of Macfarlan JA at [8] (evidence of Ms Grainger), [11] (Ms Burger) and [23] (Mr Evans). Her Honour was "well satisfied that [Mr Kane] was, if not stationary at the time he was punched, he was moving backwards as if in retreat with his hands up" (ROS [61].
2. The submission made in respect of this finding was that Mr Kane was attempting to communicate his desire to distance himself from violence to Mr Fathers, not the applicant (27.11.15 at T25.25). That may be accepted but it does not show that the finding was erroneous. This is a particularly significant finding. It is indicative of the aggression, albeit spontaneous, of the applicant towards a man who was clearly presenting no threat to him or anyone else.

(5) The punch was struck without warning.

1. Counsel for the applicant repeated what had been put in relation to conviction; namely that aspect of the applicant's version which has been summarised in the judgment of Macfarlan JA at [49] which included that it was Mr Fathers who delivered the fatal punch. That version was rejected by the jury beyond reasonable doubt; it is not relevant on the question of sentence.
2. Counsel also sought to distinguish this case from "the sort of case where one sees many times, unfortunately, where there is a victim standing or moving but alone and he is approached and there is gratuitous violence and the person is knocked down" (27.11.15 at T25.31). That may be accepted (although the point of the distinction is not entirely clear). However, it does not deny the fact that the punch was delivered without any warning to Mr Kane.

(6) The punch was unprovoked by anything the deceased said or did.

1. The point sought to be made in relation to this finding appears to have been that the applicant's punch was delivered in the context of an altercation involving the deceased and Mr Fathers (27.11.15 at T26.10). However, bearing in mind the preceding findings, particular finding number four, this was a finding that was amply supported by the evidence.

(7) The violence was perpetrated in a carpark open to members of the public and in sight of neighbouring residents and visitors to the area who were attracted to the incident.

1. In oral argument it was accepted that this finding could not be challenged (27.11.15 at T26.13).

[84] The applicant's increasing agitation over the course of the evening.

1. This finding was based upon events that occurred within the hotel earlier in the evening. The areas of the hotel in question were "the TAB bar" and "the smoking area". The latter was an undercover area out the back of the TAB bar on the way to the carpark. Patrons using it would need to go inside to access the bar or the toilet facilities.
2. Throughout the evening, the applicant, Mr Fathers and others in their group stayed primarily in the TAB bar whilst Mr Kane and Ms Burger occupied the smoking area. During a period of about 1 hour 45 minutes prior to the events in the carpark there was conflict between the two groups but largely involving the applicant's friend, Mr Fathers, and the deceased's friend, Ms Burger. There were the following incidents in chronological order and it is only necessary to describe them briefly: There was a conversation between the applicant and Ms Burger in the TAB bar. She said that he called her a "smartarse". He denied this and said it was just general conversation. It was later that he called that name. About half an hour later there was a heated confrontation between Mr Fathers and Ms Burger in the TAB bar. The applicant stepped between them to break it up. He offered to buy Mr Fathers a drink to calm him down. Ms Burger alleged that Mr Fathers was "in my face" and "was pointing his finger up close to my chin". A short time later she complained to others that he had grabbed her by the throat. This was not supported by the CCTV footage. Mr Fathers left the hotel, saying that he had "had enough". When the applicant realised Mr Fathers had left he called him to persuade him to return. The content of the conversation was disputed. Mr Fathers did, however, return.
3. There was a subsequent incident in the smoking area. Those present included the applicant, Ms Burger, Ms Grainger, Mr Frost, Mr Fathers and Mr Kane. The applicant said in his evidence that it was during this incident that he called Ms Burger a "smartarse". The judge described the incident in her sentencing remarks as follows: "[41] … [The] CCTV footage showed the offender moving with what I am satisfied is fairly described [as] a display of overt antagonism directed at Mr Kane and Ms Burger towards them pointing and gesticulating in their direction. Although Mr Bellanto submitted that the offender's behaviour was reactive (that is, as I understand it, the conflict between them at that time was not 'inspired, promoted or continued' by him), what I regard as significant is that the stills from the CCTV footage … show Mr Fathers well clear of any engagement with Ms Burger or the others showing every indication that the offender was interceding on his behalf in an attitude of high agitation. Although I am cautious about over-interpreting body language, I am left with the unshifting impression that the offender is not acting at that time to quell the tension but is adding to it. [42] The CCTV footage shows that the offender's attention is then directed at Mr Frost with whom he has an aggressive face to face encounter before he appears to be restrained by an unidentified onlooker who did not give evidence."
4. The CCTV footage her Honour was referring to was played by the Crown at the hearing and I have since replayed it a number of times. Noting the caution her Honour expressed about "over-interpreting body language", I can only agree with her Honour's assessment of what the footage reveals. In the context of the preceding events, the description of the applicant's "increasing agitation over the course of the evening" was not inapt.

Conclusion as to the assertions of fact finding errors

1. I am not persuaded that any of the challenges to significant facts found by the sentencing judge and upon which she based her assessment of the objective seriousness of the offence succeed. There were other challenges to factual findings but they are not significant in the light of this conclusion.

Other matters relevant to the assessment of sentence

1. Her Honour summarised the applicant's personal circumstances. He was aged 39 at the time of the offence. He had no criminal history. He had been married for 17 years and had 4 children from that relationship and 1 from a previous relationship. He left school after Year 10 and then completed an apprenticeship as an electrician.
2. The applicant played professional football for more than a decade until he retired in 2004. He then worked as a hotel manager and football coach in Wagga Wagga until he moved to Kingscliff in 2009. He returned to the electrical trade and took up a position as captain/coach of the Cudgen Rugby League team. He also coached junior cricket and rugby league teams in a voluntary capacity and involved himself in a program to raise funds for various charities.
3. Her Honour found that the applicant had neither expressed remorse nor taken responsibility for causing the death of Mr Kane. Personal deterrence was given "some weight" although it was not regarded as a matter of great significance. This was understandable given her Honour's acceptance that the applicant had no prior convictions, was a person of good character, was unlikely to re-offend and had good prospects of rehabilitation (s 21A(3)(e)-(h) of the Crimes (Sentencing Procedure) Act 1999 (NSW)). She also had regard to the fact that "this will be the first time he has served a sentence of imprisonment".
4. General deterrence, on the other hand, was found to be "a dominating factor". Her Honour later added that it was necessary "to deter others from displays of unprovoked, uncontrolled lethal violence" and "to denounce that conduct and provide appropriate punishment".
5. Her Honour considered a submission that she should find that there were special circumstances warranting a reduction of the proportion of the sentence to be represented by the non-parole period. She concluded that there was no proper basis to do so having regard to the rehabilitation the applicant had achieved already. Matters that were put in support of a submission that her Honour erred in not finding special circumstances were all matters taken into account in the assessment of sentence. It would have been erroneous for there to be double counting of those factors: R v Fidow [2004] NSWCCA 172 at [18] (Spigelman CJ).
6. The applicant had a favourable subjective case aside from the absence of remorse. There is no complaint that the judge erred by overlooking or failing to take some relevant matter into account in that regard. It is important to bear in mind, however, that it was necessary for her Honour to impose a sentence that appropriately reflected the objective gravity of the offence: R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566 at [15] (Spigelman CJ).
7. The question for determination is whether the sentence imposed by Fullerton J was unreasonable or plainly unjust: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 370-371 [25]. It is not a question as to whether this Court might have imposed a different sentence: Lowndes v The Queen [1999] HCA 29; 195 CLR 665.
8. Having regard to all of the circumstances, but particularly the objective seriousness of the offence, the guidepost of the maximum penalty prescribed by Parliament, and the clear need for sentences that will serve the community interest of deterring others from public acts of aggression that may, and in this case did, have tragically fatal consequences, I am not persuaded that the sentence can be characterised as unreasonable or unjust.

Conclusion

1. No error in the manner in which the sentencing discretion was exercised has been established.
2. Although I propose that leave to appeal against sentence should be granted, the appeal should be dismissed.

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