Decision
32 In view of submissions made in support of the application, it is appropriate to recite some basic principles.
33 The Court of Criminal Appeal functions within well-established jurisdictional boundaries and is concerned, on an application for leave to appeal against sentence, primarily to ascertain whether the decision of the first-instance Judge was in error: R v Vachalec (1981) 1 NSWLR 351 at 353. An appeal to this Court is not by way of rehearing, and error must be established before the Court may intervene: R v O'Donoghue (1988) 34 A Crim R 397 at 401. This Court is bound by findings of fact of the sentencing Judge unless they were not open on the evidence or unless error is shown in the sense referred to in House v The King (1936) 55 CLR 499 at 504: Kardoulias v The Queen (2005) 159 A Crim R 252 at 265 [56].
34 To the extent that some of the Applicant's submissions assert that "insufficient weight" was given to a factor or that "appropriate weight" had not been given to another factor, it is timely to refer to the observation of Spigelman CJ in R v Baker [2000] NSWCCA 85 at [11] that "questions of weight in the exercise of a discretion are matters for the first instance judge" and that "the circumstances in which matters of 'weight' will justify intervention by an appellate court are narrowly confined".
35 The Applicant does not contend that there is patent error in this case, but submits that there is latent error in that, having regard to the findings of fact made, the sentences imposed upon the Applicant were manifestly excessive. The real question is whether the sentences imposed were manifestly excessive in the sense of being unreasonable or plainly unjust: Markarian v The Queen (2005) 228 CLR 357 at 370-371 [25].
36 As is apparent from the extracts from the remarks on sentence set out earlier in this judgment, the learned sentencing Judge made careful and detailed findings with respect to the objective seriousness of the offences and the Applicant's subjective circumstances. No error, either patent or latent, has been demonstrated with respect to his Honour's assessment of the level of the Applicant's culpability for his crimes and his subjective circumstances.
37 In my view, the decision in R v Fernando does not assist the present Applicant. Mr Trevallion confirmed that the decision had not been relied upon before Buddin J. In R v Fernando, Wood J made clear, at 62, that the same sentencing principles are to be applied in every case irrespective of the identity of the particular offender or his membership of an ethnic or other group, although the Court should not ignore those facts which exist only by reason of the offender's membership of such a group. The principles in R v Fernando have particular application where deprivation and disadvantage suffered by an offender of Aboriginal race or ancestry exist, which bear upon the commission of the crime, although the application of the principles will depend upon the circumstances of the case: see R v Kelly (2005) 155 A Crim R 499 at 503-504 [17]-[19] (and the cases cited therein).
38 It is apparent that his Honour had regard to the Applicant's family and social dynamics insofar as they played a part in his involvement in these serious crimes. No error has been demonstrated in his Honour's approach in this respect.
39 It is apparent from his Honour's findings of fact that the Applicant had played "a pivotal role" (at [126]) and that his part throughout the entirety of the evening, culminating in the fatal incident, was "a critical one" and that "he must bear responsibility for having turned the initial argument from a verbal argument into something considerably more serious by having produced the knife and threatening to use it" (at [131]). Whilst acknowledging that the Applicant's life within the family was "a very insular one" and that he was "still very much under the influence of his family, particularly his father" (at [126]), Buddin J found that the Applicant had played a significant role in the violent confrontation, in which the Applicant was criminally responsible for the death of one man, the wounding of another and the assault of a teenage girl.
40 No error has been demonstrated in his Honour's allowance of a 15% discount for the Applicant's pleas of guilty. Bearing in mind that these pleas were offered, for the first time, just prior to the commencement of the trial, the discount allowed fell within the available discretionary range in accordance with the principles summarised recently in Borkowski v R [2009] NSWCCA 102 at [32].
41 References to sentencing statistics for manslaughter offences provide little assistance: Salah v R at [40]; Stewart v R [2009] NSWCCA 152 at [16]-[18]. In manslaughter cases, the circumstances of the offence and criminality involved can vary enormously, and the assessment of these circumstances, and of the criminality, is very much a matter for the judgment of a sentencing judge: Stewart v R at [17].
42 This case is a further example of the disastrous consequences which can flow from a public affray: Hopley v R [2008] NSWCCA 105 at [47]. The Applicant was armed with a weapon and was part of a joint criminal enterprise which saw the killing of a man in circumstances of clearly excessive self-defence. He committed offences of violence against three separate victims.
43 In the present case, the learned sentencing Judge undertook a careful appraisal of the objective circumstances of the offence, and the subjective circumstances of the Applicant, and reached a decision with respect to sentence which was clearly open in all the circumstances of the case. It has not been demonstrated that the sentences passed were unreasonable or plainly unjust so as to make good a ground of appeal based upon a claim of manifest excess. To the contrary, the sentences passed were plainly open and were well within the discretionary range available in the circumstances of the case.
44 I propose that leave to appeal be granted, but that the appeal be dismissed.