J P R v The Queen [2012] VSCA 50

CRIMINAL LAW - Manslaughter - Unprovoked, single punch to second victim's head - Sentencing principles for youthful offenders - Having regard to nature of offending, age, co-operation with authorities, genuine remorse, lack of criminal record or subsequent offending, and good prospects of rehabilitation, sentence of 6 years' imprisonment with non-parole period of 4 years manifestly excessive - Resentenced to 3 years' detention in a youth justice centre.

2 For the reasons her Honour gives, I agree with Hollingworth AJA that in considering deterrence as a sentencing factor with respect to charge 1 the sentencing judge was, through no fault of his, in error. Thus, I would uphold ground 1 and, consequently, ground 2 of the applicant's application.

3 I agree with Hollingworth AJA that there is no merit in ground 3; that the sentencing judge gave undue weight to charge 1 as a circumstance of aggravation in respect of charge 2. However, I respectfully disagree with her Honour as to ground 4.

4 Having regard to all the facts of the case, as canvassed by her Honour fully in her judgment, I do not consider a sentence of six years' imprisonment on this charge of manslaughter to be manifestly excessive, notwithstanding the applicant's youth and the other mitigating factors upon which he is able to rely. It was within the range of a reasonable sentencing discretion, even if at the higher end of that range. As his case was, as my colleagues have demonstrated, arguable, I would grant the applicant's application for leave to appeal in respect of his sentence on charge 2, but would dismiss that appeal.

5 As I acknowledge that I am in the minority with respect to the disposition of this ground and, therefore, as to the overall outcome of this application, there is no utility in my proffering a suggested substitute total effective sentence or a new nonparole period.

6 On 29 July 2011, the applicant pleaded guilty in the Supreme Court to one charge of recklessly causing injury (charge 1) and one charge of manslaughter (charge 2).

7 On 15 August 2011, the applicant was sentenced to 18 months' imprisonment in respect of charge 1, and 6 years' imprisonment in respect of charge 2. The sentences were ordered to be served concurrently, resulting in a total effective sentence of 6 years' imprisonment. A non-parole period of 4 years was set. Pursuant to s 471 of the Children Youth and Families Act 2005 ('the CYFA'), the applicant was assessed as suitable to serve his sentence in a youth justice centre, and has been transferred to such a centre at the direction of the Adult Parole Board.

8 The applicant seeks leave to appeal against sentence on the following grounds:

(a) Ground 1: In relation to charge 1, the sentencing judge erred in not sentencing under the CYFA, given that the applicant was 17 at the time of offending and not within the exclusive jurisdiction of the Supreme Court;

(b) Ground 2: The sentence in relation to charge 1 was manifestly excessive, having regard to the applicant's youth, co-operation with authorities and early plea, lack of criminal record or any subsequent offending, and prospects of rehabilitation;

(c) Ground 3: The sentencing judge erred in giving undue weight to charge 1 as a circumstance of aggravation in relation to charge 2; and

(d) Ground 4: The sentence in relation to charge 2 was manifestly excessive, having regard to the applicant's youth, co-operation with authorities and early plea, lack of criminal record or any subsequent offending, and prospects of rehabilitation.

9 The Crown concedes that grounds 1 and 2 are reasonably arguable, given the Court of Appeal decision in CNK v R.[1] The Crown disputes that grounds 3 and 4 are reasonably arguable.

10 On 30 October 2010, the applicant went to a party. During the party, he was heard to say 'I want to hit that kid with the red hair', meaning the first victim, Zane McMillan. Zane McMillan ignored the comment.

11 The applicant was subsequently involved in a scuffle and was asked to leave the party. He did so, but sat outside, yelling at people as they went past.

12 He then left, and walked down the road with his friend, Travis Gurshall. They came across Zane McMillan and his friend, Todd Parker. Travis Gurshall and Todd Parker started talking, while the applicant stood nearby with Zane McMillan. The applicant stepped towards Zane McMillan and punched him to the left side of the face. The blow knocked Zane McMillan unconscious, and he fell to the ground.

13 The applicant walked off with Travis Gurshall. When Travis Gurshall asked him why he had hit Zane McMillan, the applicant replied 'It was the ranga from the party.'

14 Zane McMillan suffered concussion and severe pain to his jaw and teeth for the next week. He did not seek medical treatment.

15 On 6 November 2010, at about 11.30 pm, the second victim, Cameron Lowe, went out with a group of friends to get some take-away food. The group had been drinking alcohol before they went out.

16 The applicant had been out that night on a party bus. Around midnight, he and others got off the bus at Pakenham High School. The applicant had been drinking alcohol before and during the party bus event. After he got off the bus, the applicant commented that he wanted to fight. Those present tried to discourage him.

17 As the two groups of youths approached each other, comments were made about the appearance of Cameron Lowe's group, although the precise details of what was said are uncertain. Cameron Lowe responded by saying, sarcastically, that he was a drug dealer, and the applicant should not speak to him.

18 The applicant moved towards Cameron Lowe and punched him in the jaw, knocking him unconscious. Cameron Lowe fell to the ground, and his head 'bounced' on the road. The applicant did not help him, and left with his own group.

19 Cameron Lowe eventually regained consciousness and his friends took him home. When they got home, he complained of a sore head and teeth, was very disoriented, and repeatedly asked what had happened. He took some painkillers, vomited, and then fell asleep on the couch.

20 His friends checked on him several times the next morning, as he lay sleeping. Shortly before noon, his brother went to wake him, and found him very unwell.

21 An ambulance was called and Cameron Lowe was taken to hospital, where he underwent emergency surgery to relieve bleeding and swelling to the brain. He was placed in an induced coma, on life support.

22 On 8 November 2010, Cameron Lowe's life support was turned off, as his brain was showing no activity; he died shortly thereafter. He was 17. The post-mortem examination established that the cause of death was a head injury.

23 Upon learning that Cameron Lowe was seriously unwell in hospital, on 8 November 2010 the applicant handed himself in at the Pakenham police station. He was arrested and interviewed, and made extensive admissions in relation to the assault on Cameron Lowe.

24 The applicant was 17 years' old at the time of offending. That made him a 'child' for the purposes of the CYFA.[2]

25 Charge 1 (but not charge 2) was an offence for which he could have been sentenced under either the CYFA or the Sentencing Act 1991.

26 At the plea, the Crown argued that this was a case which 'cries out' for general deterrence, specific deterrence and denunciation. The Crown urged the sentencing judge to sentence under the Sentencing Act, but said that even if the applicant was sentenced under the CYFA, the decision of Kaye J in R v Hills & Ors (Ruling No 11)[3] was authority for the proposition that general deterrence and denunciation were relevant when sentencing under the CYFA.

27 In his sentencing remarks[4], after discussing the general principles which relate to the sentencing of youthful offenders, his Honour held that there was a need for general deterrence and denunciation in relation to both charges:

... in the circumstances of this case, the primacy of rehabilitation as a sentencing consideration must be moderated by the need for the Court to express the community's denunciation of your criminal conduct and to deter you and others from engaging in similar conduct in the future.[5]

28 Elsewhere, he observed that 'unprovoked violent attacks must be deterred.'[6]

29 The plea was heard on 29 July 2011 and sentence was reserved. On 10 August 2011, the Court of Appeal handed down its decision in CNK, in which it overruled Hills and held that general deterrence is not a sentencing consideration under the CYFA. The Court of Appeal held that s 362(1) of the CYFA contained an exhaustive list of matters to which regard must be had in determining what sentence to impose on a child; that list did not include general deterrence.

30 It seems that when his Honour handed down his sentence a few days later, on 15 August 2011, he was unaware of the CNK decision.

31 The sentencing judge chose to sentence for charge 1 under the Sentencing Act[7], apparently under the mistaken belief that the same considerations were relevant to sentencing under either Act.

32 The charge of recklessly causing injury was a matter which, on its own, would have been heard in the Children's Court, unless either the applicant objected or 'exceptional circumstances' were demonstrated under s 356(3)(b) of the CYFA. Charge 1 was only before the Supreme Court because charge 2 was not within the jurisdiction of the Children's Court, and the two offences occurred so closely in time.

33 Given the applicant's age, the nature of the offence (a single, spontaneous punch, which caused no permanent injury), and the fact that there had been no prior offending, the sentencing judge should have sentenced him in relation to charge 1 under the CYFA. And had he been aware of CNK in sentencing under the CYFA, his Honour would not have had any regard to general deterrence in relation to charge 1.

34 His Honour did note the following mitigatory matters:

(a) The applicant had completed an apprenticeship and worked continuously since leaving school;

(c) Prior to this offending, the applicant was a person of good character, with an unblemished record, who came from a good home and had an unremarkable past;

(d) The applicant had handed himself in to the police and made admissions, as well as pleading guilty at the earliest opportunity;

(f) Since the offending, the applicant had participated in counselling and was committed to continuing to seek such help; and

(g) The applicant had 'good prospects of rehabilitation.'

35 The maximum penalty for recklessly causing injury was 5 years' imprisonment.

36 In imposing a sentence of 18 months' imprisonment in relation to charge 1, his Honour must have given considerable weight to general deterrence, a consideration which has no role to play under the CYFA. Having regard to the nature of the offence, the applicant's age, and the mitigatory factors identified by the sentencing judge, I am persuaded that the sentence of 18 months was manifestly excessive.

37 I would grant leave to appeal in relation to grounds 1 and 2, set aside the sentence for charge 1, and resentence the applicant to 6 months' detention in a youth justice centre, to be served concurrently with the sentence for charge 2.

38 The applicant submits that the sentencing judge gave undue weight to charge 1 as a circumstance of aggravation in relation to charge 2.

39 The applicant says that the following passage in the sentencing remarks demonstrate that he (impermissibly) treated charge 1 as a circumstance of aggravation in relation to charge 2:

Unprovoked violent acts must be deterred. You have chosen to engage in two such attacks on consecutive Saturday nights. The community's denunciation of your conduct must be expressed. In my view, the appropriate head sentence for the manslaughter of Mr Lowe is imprisonment for six years.[8]

40 It was not inappropriate for his Honour to observe (as was the fact) that the applicant had engaged in two unprovoked violent attacks on two consecutive Saturday nights. I am not persuaded that, in making that observation, his Honour was treating the earlier offence as an aggravating circumstance.

41 I would not grant leave to appeal in relation to ground 3.

42 The final proposed ground of appeal asserts manifest excess in the sentence of 6 years' imprisonment imposed for charge 2.

43 At the plea hearing, the Crown submitted that the appropriate sentencing range for charge 2 was 3 to 5 years' imprisonment. In his sentencing remarks, the sentencing judge said that he was unable to agree with that range.[9] It seems that the reason why he thought the Crown range was too low was because it did not give sufficient weight to the need for general and specific deterrence and denunciation.

44 Whilst a sentencing judge is entitled to ask the Crown to assist by making a submission as to the appropriate sentencing range, the judge is not bound by that range, as it can never be more than an approximation or indication.[10] Error is not demonstrated merely by proving that the sentence was outside the suggested range. Buchanan JA observed in Director of Public Prosecutions (Vic) v Ross:[11]

The essential question which arises when it is contended that a sentence is manifestly excessive or inadequate is whether the sentence could be imposed in the exercise of a sound sentencing discretion. The 'range' is a reference to the concept of a sentence falling within the limits of a proper exercise of the sentencing discretion. That is not to say, however, that the limits are capable of expression in precise numerical terms. References to range and limits amount to no more than a recognition that there is not one particular sentence which can be demonstrated to be correct.

Sentencing is not a mathematical process. To specify the point at which a range of acceptable sentences begins or ends lends a misleading air of scientific precision to an exercise that cannot be precise.

45 The sentencing judge correctly noted that in the case of a youthful offender, rehabilitation is usually said to be more important than general deterrence. In R v Mills[12], the Court of Appeal accepted that the following propositions relevant to the sentencing of youthful offenders could be drawn from the authorities:

(i) Youth of an offender, particularly a first offender, should be a primary consideration for a sentencing court where that matter properly arises.

(ii) In the case of a youthful offender rehabilitation is usually far more important than general deterrence. This is because punishment may in fact lead to further offending. Thus, for example, individualised treatment focusing on rehabilitation is to be preferred. (Rehabilitation benefits the community as well as the offender.)

(iii) A youthful offender is not to be sent to an adult prison if such a disposition can be avoided, especially if he is beginning to appreciate the effect of his past criminality. The benchmark for what is serious as justifying adult imprisonment may be quite high in the case of a youthful offender; and, where the offender has not previously been incarcerated, a shorter period of imprisonment may be justified.[13]

46 The fact that the youth in Mills had (as here) been involved in at least one previous fight when drunk did not preclude him being treated as a first offender, for the purposes of the relevant principles.

47 Of course, those principles are not immutable, and due regard must be had in each case to other relevant matters, including the seriousness of the offence.

48 In this case, his Honour correctly described the applicant's behaviour as 'thuggish' and 'unprovoked', and noted that the applicant had been looking for a fight and displayed no concern for the victim after the punch. He also noted what a devastating effect Cameron Lowe's death had had on his family. But his Honour did not mention the following features of the offending: there was a single punch, with no weapon or ancillary offending.

49 As the applicant fell to be sentenced for manslaughter under the Sentencing Act, general deterrence and denunciation were available to the court as sentencing purposes.[14] However, the applicant's conduct embodied the features of youthful impulsivity and lack of foresight that underlie the logic of not using children as vehicles of denunciation and general deterrence.

50 Having regard to the nature of the offending, as well as the applicant's age, co-operation with authorities and early plea, genuine remorse, lack of criminal record or any subsequent offending, and good prospects of rehabilitation, I am persuaded that the learned sentencing judge placed too much weight on the factors of general deterrence and denunciation, such as to lead him to impose a sentence that was outside the range reasonably open to him. To say that, is not to ignore the terrible pain and suffering of the Lowe family.

51 Having had regard to manslaughter sentences imposed in relation to children since 2002 (but bearing in mind that the process of comparing cases has its limitations, given the differences in offending and young offenders), I would grant leave to appeal in relation to ground 4, set aside the sentence for charge 2, and resentence the applicant to 3 years' detention in a youth justice centre.

52 Pursuant to s 6AAA of the Sentencing Act, I declare that, but for the applicant's plea of guilty, I would have sentenced him to 6 years' imprisonment, with a non-parole period of 4 years.

[1] [2011] VSCA 228 ('CNK').

[2] CYFA s 3.

[3] [2011] VSC 88R ('Hills').

[4] R v RPJ [2011] VSC 363.

[7] By imposing a term of imprisonment, his Honour must have been sentencing under the Sentencing Act, by reason of s 586 of the CYFA.

[10] R v MacNeil-Brown (2008) VR 677.

[11] [2006] VSCA 223; (2006) 166 A Crim R 97 at 106-7, [39]-[40].

[12] (1998) 4 VR 235.

[14] Sentencing Act, s 5(1)(b) and (d).