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Representation: Counsel:
S Talbert (Applicant)
M Knowles (Respondent)
Solicitors:
Willcox Criminal & Civil Lawyers Pty Ltd (Applicant)
Director of Public Prosecutions (Respondent)

File Number(s): 2022/00198810

Publication restriction: Prohibition on publication of the name of the applicant or any child witness and any material that tends to identify them under s 15A of the Children (Criminal Proceedings) Act 1987 (NSW).

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant was found guilty of manslaughter by a dangerous and unlawful act for stabbing a member of a rival youth gang in the chest. The stabbing occurred after two groups of gang members encountered each other at the Sydney Royal Easter Show, but in circumstances where there was no fight or physical altercation between the groups before the applicant stabbed the deceased. The sentencing judge imposed a sentence of imprisonment of 7 years with a non-parole period of 4 years and 3 months, after a 25% discount for the applicant’s early plea of guilty to manslaughter.

As part of the sentencing exercise, the sentencing judge found that the objective seriousness of the offence was below the mid-range for manslaughter, taking into account the statutory aggravating and mitigating factors arising under s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW). This finding was not cavilled with during the appeal.

The sentencing judge found that the applicant’s moral culpability was significantly reduced by reason of his youth and mental health condition. His Honour could not make findings as to remorse or the applicant’s likelihood of reoffending, due to his conduct before and after the offending and whilst in custody. His Honour nonetheless found that the applicant had some realistic prospects of rehabilitation.

The applicant appealed against his sentence on the sole ground that it was manifestly excessive.

The Court held (Ward P, Cavanagh and Weinstein JJ), granting leave to appeal and dismissing the appeal:

The sentence imposed on the applicant was not manifestly excessive: at [79]-[80]. The sentencing judge’s findings as to the applicant’s reduced moral culpability and the objective seriousness of the offending were appropriately weighed against the other factors that pulled the applicant’s sentence in a competing direction: [65]-[67]. The sentencing judge’s reasons reveal that his Honour had regard to the relevant principles of sentencing and that he synthesised the relevant factors to arrive at the sentence he deemed appropriate in all the circumstances: at [68]. The comparative cases advanced by the applicant are distinguishable from the present case in important respects: [74]-[77]. The sentencing judge was alive to the specific features of the applicant’s case and the sentence imposed was within a legitimate range of sentences that were available to his Honour in the exercise of his discretion: at [78].

JUDGMENT

1. THE COURT**:** On 19 December 2025, the applicant KL was sentenced by Garling J (“the sentencing judge”) following a trial by judge alone in which his Honour found KL not guilty of murder but guilty of manslaughter: see R v KL [2025] NSWSC 1414 (“the Verdict Judgment”). The basis of KL’s liability was that his conduct constituted an unlawful and dangerous act, and he was sentenced accordingly: see R v KL [2025] NSWSC 1574 (“the Sentencing Judgment”) at [62].

2. KL was sentenced to a term of imprisonment of 7 years with a non-parole period of 4 years and 3 months, after a 25% discount for his early plea of guilty to manslaughter. The undiscounted sentence would have been 9 years and 4 months. The sentencing judge ordered that the offender serve the whole of his term of imprisonment as a juvenile offender pursuant to s 19(1) of the Children (Criminal Proceedings) Act 1987 (NSW).

3. Pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) the applicant seeks leave to appeal against the sentence imposed on him, on the sole ground that the sentence imposed was manifestly excessive.

Factual Background

4. The facts upon which the applicant was sentenced are set out in the Sentencing Judgment. They substantially overlap with the facts found in the Verdict Judgment. The following summary is derived from the Sentencing Judgment.

5. The applicant was aged 14 years and 6 months at the time of the offending, and the deceased was aged 17 years. The applicant was affiliated with a youth gang called Ready for Anything (“RFA”) and the deceased was affiliated with a youth gang called “67”. Prior to April 2022 when the offence occurred, there had been a history of antagonism between these two gangs and a number of altercations had occurred between members.

6. The evening before the offence, the deceased had been involved in a physical altercation with individuals thought to be members of the applicant’s gang, RFA. The deceased had subsequently made derogatory comments about that gang, and was alert to the possibility of another altercation occurring at the Sydney Royal Easter Show (“the Easter Show”) the next day.

7. On 11 April 2022, the deceased was working at the Easter Show as a ride attendant. At about 7pm, the deceased took a break and met with some friends including his younger brother. About 15 minutes later, KL and some associates arrived at the Easter Show and began walking around the Showground. No meeting between these two groups had been planned or arranged, but shortly before 8pm the groups encountered one other in the Showground.

8. The two groups stopped about a metre apart, facing one another. The deceased stood at the front of his group, whilst KL stood behind two members of his group. KL stood with his hands in his pockets or by his sides. Unknown words were spoken but there was no physical interaction or confrontation between the two groups. No person raised their fists or attempted to strike another person. There was some small movement between the groups and a gap opened between the people in front of KL. KL suddenly reached through the gap and stabbed the deceased with a knife in a single movement. This entire confrontation occurred within about 10 seconds.

9. KL immediately ran away from the scene, and a scuffle broke out between the remaining people. KL met up with his brother and they left the Showground through a public exit.

10. The deceased was treated by bystanders and NSW Ambulance officers at the scene, before being taken to Westmead Hospital where he was pronounced dead at about 9:30pm. The cause of death was the single stab wound inflicted by the applicant, which pierced the right posterior ventricle of the deceased’s heart.

11. Before leaving the Showground, KL recorded a short video of himself saying:

“G G 67 motherfucker

Thought you could pull us up motherfucker

Ha ha.”

12. After the offending, the applicant also composed a number of rap lyrics found in the Notes application of his phone and in a notebook which were described by the sentencing judge as boastful of his stabbing of the deceased and as disrespectful to the deceased and his family.

13. In sentencing the applicant, the sentencing judge made the following relevant findings, from which there is no appeal. We have adopted his Honour’s sub-headings.

Specific Sentencing Consideration

14. The sentencing judge was required to have regard to the list of aggravating and mitigating factors contained in s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the “Sentencing Act”) so far as they were relevant and known.

15. His Honour noted that the offence involved the actual use of violence, which was an aggravating factor: s 21A(2)(b). However, he considered that the aggravating factor was accounted for as part of the offence of manslaughter itself and did not have additional regard to it.

16. His Honour found that the use of a weapon, namely a knife, was an aggravating factor: s 21A(2)(c). That the offence was committed in the presence of a number of people under the age of 18 was also an aggravating factor: s 21A(2)(ea). Moreover, the offence was committed in a public place, in the presence of other juveniles, and placed members of the public at risk, which amounted to the aggravating factor under s 21A(2)(i).

17. His Honour noted that the applicant had a record of previous convictions, namely for assault occasioning actual bodily harm, common assault and reckless wounding in company, which constituted an aggravating factor: s 21A(2)(d). The applicant was also on conditional liberty for those offences at the time of the offending against the deceased, which was a further aggravating factor: s 21A(2)(j).

18. The sentencing judge found as a mitigating factor that the applicant was not fully aware of the consequences of his actions because of a mental health disability, namely Post Traumatic Stress Disorder (“PTSD”): s 21A(3)(j).

19. The sentencing judge was not satisfied that KL had shown any real remorse so as to enliven the mitigating factor under s 21A(3)(i).

20. The sentencing judge was satisfied that KL had “some realistic prospects of rehabilitation” so as to enliven the mitigating factor under s 21A(3)(h). In this respect, his Honour had regard to the applicant having reached Stage 3 of the Custodial Centre-based incentive scheme which required some demonstration of good behaviour. Moreover, the applicant had received some treatment for his diagnosis of PTSD whilst in detention. The sentencing judge made this finding despite the applicant maintaining gang affiliations whilst in detention and receiving some custodial punishment throughout his detention. His Honour noted that the applicant’s rehabilitation would depend upon the steps taken by him upon his release back into the community.

21. The sentencing judge was not able to form any view as to the likelihood of KL re-offending. Whilst his Honour noted that KL had significantly matured since the offence and had shown reasonably good behaviour whilst in detention, he referred to the applicant’s continuing involvement in physical altercations in custody and the fact that he had not yet fully matured.

Objective Seriousness

22. The sentencing judge found that KL did not attend the Easter Show with a violent purpose, and that the encounter with the deceased’s group was neither planned nor intended. His Honour found that the confrontation occurred by chance. With respect to KL carrying a knife with him, his Honour referred to evidence that KL was suffering from PTSD at the time of the offending and that he carried the knife as a “security blanket”.

23. Although it was not discussed in the context of objective seriousness, later in the Sentencing Judgment his Honour noted that there were events in KL’s life when he had been the victim of stabbing, including one where his close friend was stabbed and died in front of KL. These were the events said to have caused KL to suffer from PTSD.

24. The sentencing judge also referred to the basis upon which KL was sentenced, being manslaughter by an unlawful and dangerous act. His Honour referred to the Verdict Judgment, and his finding that he was not satisfied beyond reasonable doubt that KL had the intention to kill the deceased or cause him grievous bodily harm at the time of the offending. That conclusion was based on KL’s age at the time, his PTSD and accompanying symptoms which included impulsivity and anger responses, the brevity of the confrontation and the circumstances surrounding it. His Honour found that KL’s action in stabbing the deceased was an impulsive, thoughtless reaction to the confrontation which occurred within a very short period of time, and which was done without any consideration for the consequences of his actions.

25. The sentencing judge made full and proper allowance for the fact that the offender was young, being aged 14 years and 6 months at the time of the offending, and referred to evidence that KL was more psycho-socially immature than an average person of his age.

26. The sentencing judge considered that the entirety of the confrontation occurred within about 10 seconds. KL inflicted only a single stab and there were no repeated or ongoing incidents of violence.

27. The sentencing judge concluded that the objective seriousness of the offending was below the mid-range for manslaughter. The applicant does not cavil with that finding.

Subjective Features

28. The sentencing judge noted that KL’s family were of Tongan descent. KL was the middle of five siblings. KL had been a witness to domestic violence in his family home from about 7 years of age, and his parents had separated because of his father’s violence toward his mother. On occasion, KL had been physically assaulted by his father.

29. KL’s attendance at high school was poor. Throughout the period of his schooling, and prior to the Easter Show, KL had been involved in three significant incidents of knife-related violence. In February 2021, when KL was 13 years old, he was accosted by a group of older boys whilst making his way to football training. During this altercation, KL was stabbed and the wound required stitches. This was apparently a significant reason that KL subsequently became affiliated with a gang. Later in February 2021, KL was involved in a brawl with another gang during which he was stabbed three times following which he required treatment at hospital. In September 2021, KL was involved in another violent brawl with another gang during which he sustained a laceration to the head which required hospital treatment. More significantly, his close friend was stabbed during that brawl and died in front of KL.

30. Two expert psychiatrists diagnosed KL with PTSD as a result of his exposure to domestic violence throughout his childhood and as a result of the episodes of knife violence being perpetrated on him, notwithstanding that he had also participated in the violence. Both experts were of the view that the PTSD was clinically significant such that KL was in need of treatment which he had not received prior to the killing of the deceased. The sentencing judge considered that the PTSD affected KL’s mental state at the time he stabbed the deceased, including through entrenched antisocial and pro-violent attitudes arising from a dysfunctional childhood characterised by a normalisation of violence. His Honour also considered that KL was affected by emotional and cognitive immaturity due to both his age and his symptoms of PTSD.

31. His Honour was satisfied that KL’s symptoms of PTSD made him susceptible to anger, to a heightened emotional response which could reduce inhibitions and his level of control, to hypervigilance or “walking on eggshells” and to impulsive aggression. His Honour found that KL’s symptoms of PTSD, specifically his heightened threat perception and hypervigilance, led to KL carrying a knife which lowered his anxiety and soothed his symptoms of PTSD.

32. His Honour found that KL’s diagnosis of PTSD and its consequences affected his conduct at the Easter Show, and that his PTSD was a material cause of his conduct in stabbing the deceased. In this context, the sentencing judge found that KL’s moral culpability for the offence was significantly reduced.

Plea of Guilty

33. The applicant offered to enter a plea of guilty to manslaughter on 1 June 2023, and again at his arraignment on 7 August 2023. In April 2025, at the time of the applicant’s first trial which took place before a jury and which did not produce a verdict, he maintained his plea of guilty to manslaughter.

34. It was agreed that the applicant was entitled to a 25% discount to his sentence on the basis of his early guilty plea, and the sentencing judge applied that discount.

Victim Impact Statements

35. Victim impact statements were read in Court by the deceased’s mother, partner, sister and aunt. The sentencing judge took these into account on the basis that the harmful impact of the death of the deceased on his family and partner was an aspect of harm done to the community. His Honour also considered the effect of the offending on the deceased’s son, who was born after the deceased’s death.

Sentencing

36. The sentencing judge reiterated his assessment that the offending was below a mid-level of objective seriousness for the offence of manslaughter. In light of KL’s young age and mental health conditions, his Honour found that his moral culpability was significantly reduced. The stabbing was an instance of thoughtless, impulsive conduct which occurred within a very short period of time and KL’s mental illness had a significant causal role to play in his conduct.

37. The sentencing judge found that general deterrence and retribution should be given less weight in the sentencing exercise. His Honour found that more weight should be given to rehabilitation to assist the applicant’s re-integration into the community and the maintenance of his family and community ties. His Honour made a finding of special circumstances on the basis that KL would need a longer than usual period on parole to assist with his re-integration into the community, and he deviated from the statutory ratio to a ratio of approximately 61%.

38. The sentencing judge considered that it was necessary to place some emphasis on specific deterrence because of KL’s immaturity and his conduct before and after the offence.

39. The sentencing judge indicated that an appropriate undiscounted sentence would be in the order of 9–10 years. After applying a discount for the early plea of guilty, the sentencing judge imposed a sentence of a term of imprisonment of 7 years, with a non-parole period of 4 years and 3 months.

40. The sentencing judge ordered that KL serve the whole term of his imprisonment as a juvenile offender under s 19(1) of the Children (Criminal Proceedings) Act 1987 (NSW), given his age and general immaturity, and his mental illness which he had not yet learned to manage.

Ground of Appeal

The Applicant’s Submissions

41. The applicant advances the sole ground of appeal that the sentence imposed was manifestly excessive.

42. In written submissions, the applicant cited Hili v The Queen*; Jones v The Queen* (2010) 242 CLR 520; [2010] HCA 45 (“Hili”) at [59]:-

“As was said in Dinsdale v The Queen, ‘[m]anifest inadequacy of sentence, like manifest excess, is a conclusion’. And, as the plurality pointed out in Wong, appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate ‘is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases’. Rather, as the plurality went on to say in Wong, ‘[i]ntervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons’. But, by its very nature, that is a conclusion that does not admit of lengthy exposition. And, in the present matters, the Court of Criminal Appeal, having described the circumstances of the offending and the personal circumstances of the offenders, said that ‘the sentence imposed in these matters is so far outside the range of sentences available that there must have been error’.”

(footnotes omitted)

43. Both parties cited TH v R [2025] NSWCCA 121 (“TH”), in which Bell CJ observed at [5] that “an applicant seeking to challenge a sentence on the ground of manifest excess has a ‘very heavy practical burden”, citing He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95 at [42(iv)] (“He v Sun”).

44. No challenge was made to the findings of the sentencing judge. Rather, the applicant contended that the findings of the sentencing judge both as to the objective seriousness of the offending and the reduction in moral culpability supported the conclusion that the sentence imposed was manifestly excessive.

45. The applicant submitted that the sentencing judge’s finding that the objective seriousness of the offending fell below the mid-level for the offence of manslaughter, and the facts which underpinned that finding, must be given meaning in the ultimate sentence. The applicant relied on the following findings of the sentencing judge:-

46. The offending was unplanned and impulsive;

47. The applicant carrying the knife was itself causally connected to his PTSD;

48. The applicant had no intention to cause grievous bodily harm or kill the deceased. Rather, the act of stabbing was impulsive, without any regard for consequences and was related to the symptoms of the applicant’s PTSD including a loss of control; and

49. The applicant’s perception at the time of the stabbing, as found in the Verdict Judgment, was that he would be harmed by the deceased and genuinely believed his actions were necessary to protect himself or others from injury, in response to a confrontation with a group that was likely more aggressive than his group and as a result of his PTSD.

50. The applicant further submitted that the sentencing judge’s findings as to the subjective case of the applicant should be identifiably reflected in the applicant’s sentence, namely:-

51. The applicant was very young at the time of the offending, being 14 years and 6 months of age, which led to the findings that the applicant’s moral culpability was decreased, that there was a greater emphasis on rehabilitation and that there was a lesser emphasis on general deterrence;

52. The applicant’s psycho-social maturity was even less than an average 14.5 year old because of his mental impairment; and

53. The applicant’s mental impairment had a significant causal role in his conduct and the sentencing judge found (in the Verdict Judgment) that the applicant’s ability to control himself was substantially impaired by his PTSD.

54. The applicant accepted the difficulties in drawing comparisons between sentences for the offence of manslaughter, but relied on five cases said to be comparable with the applicant’s case in which lesser sentences were imposed. Those cases are considered in the reasons that follow.

55. The applicant contended that an instinctive synthesis of the entirety of the circumstances of the offence, taking into account the sentencing judge’s findings as to the objective seriousness of the offending and the applicant’s subjective case, could not lead to a discounted head sentence of 7 years imprisonment on any reasonable exercise of the sentencing discretion. It was submitted that the result was plainly unjust and error was established.

56. The applicant submitted that, if this Court were to allow the appeal and proceed to re-sentence, the Court would form the view that a lesser sentence was warranted: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42]; Criminal Appeal Act 1912 (NSW), s 6(3).

Crown Submissions

50. The Crown cited Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 (“Obeid”) where R A Hulme J (Bathurst CJ, Leeming JA, Hamill and N Adams JJ agreeing) stated at [443]:-

“When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles …:

‘Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases.

Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error.

It is not to the point that this court might have exercised the sentencing discretion differently.

There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle.

It is for the applicant to establish that the sentence was unreasonable or plainly unjust.’”

51. The Crown further relied on TH at [5] where Bell CJ stated, citing R v Elemes [2000] NSWCCA 235 at [22]-[23], that in an appeal on manifest excess, an applicant “must show a kind of disproportion which is so ‘manifest on its face as to be indicative of, not a mere difference of idiosyncratic opinion, but, rather, of substantive error of law’”.

52. The Crown submitted that the sentence imposed was not unreasonable or plainly unjust. The Crown drew attention to the maximum sentence for manslaughter being 25 years imprisonment, which it submitted represents an important yardstick for sentencing courts.

53. The Crown submitted that the sentencing judge did not make a finding that the applicant’s PTSD reduced the objective seriousness of the offending but rather that it contributed to the basis of manslaughter for which the applicant was sentenced, namely an unlawful and dangerous act, rather than intent to kill or cause grievous bodily harm. The Crown submitted that the applicant’s PTSD was the basis for the sentencing judge’s finding with respect to the applicant’s reduced moral culpability. While it might have been open to the sentencing judge to find that the applicant’s PTSD reduced the objective seriousness of the offending, such a finding was not made in this case.

54. The Crown submitted that the sentencing judge properly accounted for the highly relevant and significant subjective circumstances of the applicant, including that his mental illness significantly reduced his moral culpability, that the encounter was brief and impulsive, that the applicant had some prospects of rehabilitation and that the applicant was young. However, the Crown drew attention to the sentencing judge’s finding that there must be some emphasis on specific deterrence in light of the applicant’s immaturity and his conduct before and after the offending. The Crown contended that other findings at sentence required the judge to give weight to specific deterrence, namely the applicant’s disrespectful conduct after the offence, his psycho-social immaturity, his impulsive aggression, his record of previous convictions for serious personal violence offences, his continued gang affiliations, his mental health diagnosis which he had not yet learned to manage, and the lack of remorse.

55. The Crown highlighted the limited utility of comparative cases to establish manifest excess, particularly for the offence of manslaughter, relying on the comments of Cavanagh J (Stern JA and Yehia J agreeing) in LK v R [2025] NSWCCA 143 at [76]-[79]:-

“It is important to have regard to comparable cases, but the use of comparable cases in this matter tends to emphasise that which has been said on many occasions, being that the use of comparable cases to establish manifest excess is of limited utility particularly in considering the offence of manslaughter (see Hili v The Queen at [54]; Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2 at [40]-[41]).

In R v Blacklidge (Court of Criminal Appeal (NSW), 12 December 1995, unrep), Gleeson CJ (Grove and Ireland JJ agreeing) observed:

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

Similarly, in R v Loveridge [2014] NSWCCA 120 (‘Loveridge’), the Court at [226]-[227] (per Bathurst CJ, Johnson and R A Hulme JJ) observed:

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

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

Regard is to be had to the comparable cases but such cases do not establish sentencing tariffs or a range when it comes the offence of manslaughter.”

56. The Crown further cited Gleeson JA (Rothman and Cavanagh JJ agreeing) in Shalida v R [2024] NSWCCA 55 at [91]-[92], where his Honour said:-

“Care must be taken in using what has been done in other cases: Hili at [53]. Differences in the facts and circumstances affects the utility of the comparative exercise. As stated in Hili, the range of sentences that have been imposed in the past does not fix ‘the boundaries within which future judges must, or even ought to, sentence’ and past sentences ‘stand as a yardstick against which to examine a proposed sentence’: Hili at [54] citing Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [303]-[305] (Simpson J); Moodie v R [2020] NSWCCA 160 at [80]-[89] (Bell P).

This Court has frequently said that it is not to the point that the sentence under challenge might be described as severe, whether by reference to other cases or sentence statistics, or whether this Court would have imposed the same or some other sentence. The question is whether the sentence under challenge exceeds the bounds of proper sentencing discretion: Webber v R [2014] NSWCCA 111 at [46] (Fullerton J, Hoeben CJ at CL and Adamson J agreeing).”

57. The Crown distinguished the cases advanced as comparative by the applicant, particularly on the basis that those cases did not bear any true factual resemblance to KL’s offending. The Crown highlighted that unlike those cases, the stabbing in this case was spontaneous and occurred without any prior physical interaction or fighting.

Consideration

58. The principles relating to manifest excess are well settled. They are summarised in Hili and Obeid, above.

59. In He v Sun, Bell P (Gleeson and McCallum JJA agreeing) said at [42], after referring to Obeid:-

“To this oft-cited summary of principles may be added the following:-

(1) Sentencing is an ‘exercise of intuitive synthesis of all of the material before the sentencer in order to serve purposes that often pull in different directions’ – Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [51]; Tammer-Spence v R [2013] NSWCCA 297 at [56].

(2) Each case has to be considered on its own merits, and no case is entirely similar to any other – Windle at [61].

(3) There is a wide discretion to impose a sentence that seems to the sentencing judge to be just and appropriate – Windle at [61].

(4) An applicant seeking to challenge a sentence on the ground of manifest excess has a ‘very heavy practical burden’, and must show a kind of disproportion which is so ‘manifest on its face as to be indicative of, not a mere difference of idiosyncratic opinions, but, rather, of substantive error of law’ – R v Elemes [2000] NSWCCA 235 at [22]-[23].

(5) The basis for appellate intervention is in accordance with the principles set out in House v The King (1936) 55 CLR 499; [1936] HCA 40 – Matthews v ASIC [2009] NSWCA 155 at [181]; Dowling at [59].

(6) The starting point of the analysis as to whether a sentence is manifestly excessive is to identify the nature of the offence(s) – Turner at [68].

(7) Whether a sentence is manifestly excessive is a conclusion, and it is not necessary to identify any particular error in the process – Dinsdale at [6]; Simmons at [30].

(8) Whilst a history of sentencing might establish a range of sentences imposed, it does not establish that such a range is the correct range, nor does it establish that the upper and lower limits are the correct upper and lower limits of such a range – Martinez v R [2020] NSWCCA 250 at [39].

(9) Thus, the use of statistics is a somewhat blunt instrument when seeking to establish manifest excess, and statistics may be of limited utility in a particular case and should not be given undue weight – Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] 4 HCA 45 at [54]; Fogg v R [2011] NSWCCA 1 at [59]-[60]; Windle at [62]; Furia v R [2010] NSWCCA 326 at [74].

(10) Instead of a comparison of the sentences with statistics, when assessing whether a particular sentence is manifestly excessive, it is important to consider the specific findings as to the objective seriousness of the offence and the culpability of the offender – Holloway v R [2011] NSWCCA 23 at [85]; Windle at [64].”

60. Appellate intervention will only be warranted if the sentence is such that it may be concluded that there must have been some misapplication of principle, or where the sentence imposed sits so far outside the range of available sentences that there must have been error: Obeid at [443].

61. For the reasons that follow, we do not consider that the sentencing judge misapplied any principle. Neither do we consider that the sentence imposed is so far outside the range of available sentences that error must have been occasioned.

62. We accept the Crown’s submission that the sentencing judge’s findings with respect to the applicant’s subjective case must be balanced against the findings that his Honour made about the objective seriousness of the offending. While we accept that the sentencing judge found that there was a causal relationship between the applicant’s PTSD and the offending, his Honour did not find that it operated to reduce the objective seriousness of the offending which the sentencing judge found to be below mid-range. In so finding, his Honour took into account the aggravating factors of the use of a weapon (s 21A(2)(c)), that the offending took place in the presence of a person under the age of 18 years (s 21A(2)(ea)) and that the offence was committed without regard for public safety (s 21A(2)(i)).

63. At [15]-[19] of the Sentencing Judgment his Honour, correctly in our view, set out the principles that were to guide him in the sentencing exercise:-

“The Courts have recognised for many years that sentencing for the crime of manslaughter is a difficult task. That is because the range of conduct which can result in the death of an individual is very great. In all cases of manslaughter, matters of fact and degree arise. Views as to the relative importance of particular facts and matters will undoubtedly differ.

However, one principle which is important for a sentencing Judge to always keep in mind when considering the crime of manslaughter is that the starting point of a consideration of the appropriate penalty, and a key element in assessing the gravity of the objective circumstances of the case is that what is involved in this case, and in every other manslaughter, is the felonious taking of a human life: see R v Blacklidge (NSWCCA, 12 December 1995, unreported) per Gleeson CJ.

Manslaughter, as an unlawful homicide, however it occurs, has always been regarded by the law as a most serious crime. That is because the protection of human life and personal safety is a primary objective of the system of criminal justice: see R v Edwards (1996) 90 A Crim R 510, per Gleeson CJ (James and Ireland JJ agreeing).

But the offender is not the first juvenile to commit manslaughter. The Courts have, in many cases, examined the principles involved in sentencing juveniles on manslaughter and other charges: see R v AJC [2010] NSWCCA 168; (2010) 207 A Crim R 307; APT v R [2009] NSWCCA 230 at [19] per Grove J (Macfarlan JA and Hoeben J agreeing); R v Carroll [2008] NSWCCA 218; (2008) 188 A Crim R 253 at [8] per McClellan CJ at CL (Hislop J agreeing); KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571 at 577-578 per McClellan CJ at CL; R v Adamson [2002] NSWCCA 349; (2002) 132 A Crim R 511 at [29]-[32] per Beazley JA (Bell J agreeing); R v Pham and Ly (1991) 55 A Crim R 128 at 135 per Lee CJ at CL (Gleeson CJ and Hunt J agreeing); R v GDP (1991) 53 A Crim R 112 at 115-116 per Matthews J (Gleeson CJ and Samuels JA agreeing).

Those principles include, and I recognise that my sentencing task must include, these matters:

(a) considerations of general deterrence and the principle of retribution are, in most cases, of less significance than they would be when sentencing an adult for the same offence;

(b) in recognition of the capacity for young people to reform and mould their character to conform with society’s norms, considerable emphasis is placed on the need to provide an opportunity for rehabilitation;

(c) the law recognises the potential for the cognitive, emotional and/or psychological immaturity of a young person to contribute to their breach of the law. Accordingly, allowance will be made for the offender’s youth, not just their biological age;

(d) although accepted to be of less significance than when sentencing adults, considerations of general deterrence and retribution cannot be completely ignored when sentencing young offenders. There remains a significant public interest in deterring antisocial conduct. Of course, the weight to be given to a person’s youth diminishes the closer the offender approaches the age of maturity;

(e) the emphasis given to rehabilitation rather than general deterrence and retribution when sentencing young offenders may be moderated when the young person has conducted him or herself in a way an adult might conduct him or herself, and has committed a crime of violence or considerable gravity.”

64. It is not suggested on this appeal that his Honour misdirected himself about the general principles he was to apply.

65. His Honour then made positive findings in the applicant’s favour, and found that his youth, mental illness and (at least inferentially) a background of disadvantage all contributed to significantly reducing the applicant’s moral culpability. The applicant’s argument before this Court appeared to be that his Honour did not give ample effect to the finding that the applicant’s moral culpability was significantly reduced. To the extent that it was submitted that the sentencing judge did not give enough weight to this finding, it is well-established that matters of weight are very much within the province of the sentencing judge: see TH at [72] per Yehia J.

66. The finding as to the applicant’s reduced moral culpability (in combination with a not insignificant finding of objective seriousness) must be seen through the prism of the other factors that pulled the applicant’s sentence in a competing direction. These were:-

67. First, the aggravating factors that did not inform the objective seriousness of the offending, being the applicant’s record of previous convictions (s 21A(2)(d) of the Sentencing Act) and the fact that he was on conditional liberty at the time of the offending (s 21A(2)(j)) which the sentencing judge was required to take into account in determining the appropriate sentence: see s 21A(1)(a).

68. Second, the sentencing judge took into account that the attack by the applicant was entirely unprovoked and did not take place in the context of a fight or in the presence of any person who was brandishing a weapon.

69. Third, his Honour took into account the victim impact statements on the basis that the harmful impact of the death of the deceased on his family was an aspect of harm done to the community pursuant to s 30E of the Sentencing Ac**t.

70. Fourth, the applicant had not shown any real remorse. He had not apologised for his crime or acknowledged any injury, loss or damage caused by his actions. In argument, Ms Talbert appropriately conceded that this finding also demonstrated the applicant’s lack of insight.

71. Fifth, whilst his Honour was satisfied that the applicant had “some realistic prospects of rehabilitation”, much would depend upon the steps he took when he was released back into the community.

72. Sixth, his Honour was unable to form any confident view as to the likelihood of the applicant reoffending.

73. Seventh, his Honour correctly identified that, in accordance with the principles of sentencing for children, general deterrence and retribution are to be given less weight (not, we observe, no weight) and more weight is to be given to rehabilitation.

74. Eighth, his Honour made some allowance for specific deterrence, in light of the applicant’s immaturity and conduct before and after the offence. In making this finding, his Honour clearly had regard to the Youth Justice report of 9 December 2025 which indicated that the applicant had continued to misbehave whilst in custody, and perhaps most significantly, that he had maintained his affiliation with the RFA gang and their ongoing conflict with opposing young people from other postcodes.

75. In our opinion, those factors were important—indeed substantial—considerations which had to be, and were, given appropriate weight in the Sentencing Judgment.

76. The remarks on sentence reveal that the sentencing judge had regard to the relevant provisions of the Sentencing Act and the common law, as he was obliged to do, and that he synthesised those factors to arrive at the sentence he deemed appropriate in all the circumstances.

77. In our view, on the basis of his Honour’s findings, the applicant has failed to demonstrate that the sentence arrived at was unreasonable or plainly unjust.

78. The applicant also submitted that error has been established because the sentence sits beyond the range of sentences that were available to the sentencing judge, and relied on sentences imposed in other manslaughter cases involving juveniles who were older than the applicant and who had received lesser sentences. As Ms Talbert fairly conceded, the cases were not strictly comparable taking into account the (largely) differing basis of liability for manslaughter in the cases she relied upon.

79. The use of comparative sentences to establish manifest excess or inadequacy was discussed in R v Thompson [2025] NSWCCA 133 (“Thompson*”*). Bell CJ (with whom Huggett and Rigg JJ agreed) stated at [40]:-

“Although in Wong at [12], Gleeson CJ observed that ‘inadequacy or excessiveness is often demonstrated by a process of comparison’, there are well established caveats to the use of comparative sentences to test the adequacy (or excessiveness) of any given sentence: see, for example, Merkel v R [2019] NSWCCA 212 at [80]; McFarland v R [2021] NSWCCA 79 at [57]-[58]; McLaren v R [2021] NSWCCA 12; (2021) 287 A Crim R 542 at [77]-[81]; Droudis v R (2020) 103 NSWLR 806; [2020] NSWCCA 322 at [130]; Perkins at [60]-[64]. These include that:

consistency in sentencing is not demonstrated by, and does not require, numerical equivalence;

the consistency required is consistency in the application of relevant legal principles; and

the sentences imposed in other cases do not mark the outer bounds of the permissible sentencing discretion, or necessarily disclose the correct range.”

72. With these principles in mind, we have carefully considered the comparative cases provided by the applicant, all of which concerned instances of manslaughter caused by stabbing with a knife. In our opinion, the exercise of comparison does not demonstrate error in the applicant’s sentence. We summarise these cases briefly as follows:-

73. In R v TH; R v KT; R v LT; R v DR [2025] NSWSC 1578, TH was sentenced to imprisonment for 4 years and 3 months with a non-parole period of 2 years and 3 months, for manslaughter on the basis of excessive self-defence. TH was 15 years of age at the time of offending. The offending was found to be in the middle range of objective seriousness. TH’s stabs to the deceased were found to be excessive but not to a high degree, including because TH had been moving backward when the deceased continued to come at her with a weapon. TH was on conditional liberty at the time of the offending and had a criminal history of some significance. Her life had been one of very significant disadvantage to which the principles in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 applied, and Cavanagh J found that there was a real and significant reduction in her moral culpability. His Honour found that she had a growing sense of maturity which suggested that her prospects of rehabilitation were improving and may be good. She had not demonstrated any real remorse. His Honour did not consider that retribution or general deterrence had any real role to play in the sentencing of TH.

74. In R v Diallo & Ors (No 17) (Sentence) [2024] NSWSC 1650, AD received an indicative sentence of 6 years imprisonment for the offence of manslaughter on the basis of an unlawful and dangerous act, after a discount of 25% for his plea of guilty. AD was aged 17 years and 3 months at the time of the offending. The manslaughter was found to be toward the lower end of the wide spectrum of objective seriousness for unlawful killings. The stabbing took place in circumstances where each of AD’s co-offenders were armed with knives and the other group were mostly armed with knives or golf clubs. AD had a juvenile criminal history and was on conditional liberty at the time of the offending. He had several psychiatric diagnoses which made his time in custody more onerous. Because of his record of offending and ongoing problems in custody, Hamill J was unable to make a positive finding as to AD’s prospects of rehabilitation. His Honour was satisfied that AD’s youth, difficult upbringing and psychological profile meant that his moral culpability was somewhat reduced.

75. In R v MR, JB and CS (young persons) (No 5) [2024] NSWSC 912, MR was sentenced to a term of imprisonment of 4 years and 6 months with a non-parole period of 2 years and 6 months, after a discount of 25% for his plea of guilty. He was convicted of manslaughter on the basis of excessive self-defence. MR was aged 17 years and 2 months at the time of offending. The offence was found to be at the lower end of objective seriousness. MR took a knife to a party for a sense of protection, and stabbed the deceased after believing that the deceased was armed with a knife and was pulling it out with the intention of stabbing him. He was on an unsupervised good behaviour bond for robbery whilst armed with an offensive weapon at the time of the offending, but had no other criminal history. The offender was an Aboriginal young person whose moral culpability was reduced by his youth and his background of dysfunction and deprivation. He had a cognitive impairment reducing the weight to be given to deterrence and giving greater weight to rehabilitation. Huggett J found that the offender was genuinely remorseful and was satisfied that his prospects of rehabilitation were reasonable.

76. In R v JM (Sentence) [2024] NSWSC 1345 (“JM”), JM was sentenced to a term of imprisonment of 5 years with a non-parole period of 2 years and 9 months for manslaughter on the basis of excessive self-defence. There was no discount applied to the sentence. JM was aged 17 years and 11 months at the time of the offending. The stabbing of the deceased occurred in circumstances where JM was aware that the deceased intended to harm him. The objective seriousness of the offending was assessed by reference to the degree to which JM’s response was not reasonable in the circumstances as he perceived them, and Dhanji J found that his response was not grossly disproportionate. Dhanji J found that JM’s mental conditions of anxiety and his low level of functioning due to Foetal Alcohol Spectrum Disorder and ADHD increased his fear and perception that he was going to be killed, which affected his belief as to what was necessary to defend himself. He had no past criminal convictions. He suffered from long-term impairments which caused cognitive and verbal deficits, and his moral culpability was found to be significantly reduced due to the causal connection between his mental health issues and the offending. Whilst there was no positive finding of remorse, his Honour considered that JM was unlikely to reoffend and that his prospects of rehabilitation were very good.

77. In LK v R [2025] NSWCCA 143, this Court dismissed an appeal of a sentence for manslaughter by unlawful and dangerous act on the basis of manifest excess. Whilst the Court accepted that the sentence of a term of imprisonment of 6 years, 4 months and 15 days, with a non-parole period of 3 years, 10 months and 16 days (after a 25% discount for a plea of guilty) was stern, it found that the sentence was not manifestly excessive. LK was aged 17 years and 4 months at the time of the offending. The offending was said to be an objectively serious example of manslaughter. LK had brought a knife to a fight despite being warned not to, and then used the knife to stab the deceased after he was put in a headlock, which McHugh SC DCJ found amounted to some provocation. Aggravating factors were the use of a weapon and the act being committed in the presence of two people under the age of 18. LK’s mental impairments were found to have contributed to the offending, although his PTSD and schizophrenia had arisen two months after the offending. He had no criminal history and McHugh SC DCJ found that he had shown remorse and had good prospects of rehabilitation.

78. As Weinstein J said in Hadid v R; Singh v R [2025] NSWCCA 207 at [101]-[102] (Ward P and Adamson JA agreeing):

“The exercise of considering the cases relied on by the applicant, as Bell CJ said in Thompson at [49], ‘only confirm[s] a number of verities in sentencing jurisprudence, namely that there is no one correct sentence, that sentencing judges have a broad discretion and that meaningful comparison of sentences is difficult’. To that I would add that the significant variations of objective and subjective features (and their emphasis) also make any true comparison difficult.

Indeed, the cases relied upon do no more than provide examples of broadly similar offenders who received lesser sentences than the applicant. They do not, in my view, establish the outer bounds of the permissible sentencing discretion for offending of this type. Far from establishing the limits of the range of available sentences for offending of this kind, the cases demonstrate that sentences vary so that the unique circumstances of an offence and an offender are considered, and account is made for individualised justice.”

74. Having reviewed the comparative cases and emphasised the limited utility of comparative cases, it is important to emphasise that there are features of this case which distinguish it from those other cases involving a young person, a knife and manslaughter. Two things stand out.

75. First, the applicant brought the knife to the Easter Show and lashed out with it in circumstances in which there was no suggestion that members of the other group were carrying weapons. In TH, the offender did not bring the knife but was handed it by another young person as an adult was approaching wielding a baseball bat. In LK, the offender brought the knife but only used it when he believed that he was being choked by the deceased.

76. This case again highlights what Dhanji J said about the carrying of knives in JM at [28]:-

“The use of a knife informs the seriousness of the offence, but only in a limited way. Resort to weapons capable of inflicting serious harm or death, is to be deprecated. However, in the present case, absent the use of a weapon such as a knife, the deceased would not have been killed, with the result that the use of that weapon can be regarded as integral to the commission of the offence itself. It was, nonetheless, the offender’s decision to carry a knife. The offence is in that regard more serious than, for example, an offence where a person under threat spontaneously takes hold of whatever might be within reach.”

77. Secondly, the crime was gang related in the sense that the applicant was a member of a youth gang and, by his statements after the offending, showed little regret for his actions. Despite his youth and other factors, his Honour was unable to make any positive finding about his risk of reoffending. These matters suggest that there are some real differences between this matter and the so-called comparative cases.

78. In our view, his Honour’s Sentencing Judgment indicates that he was alive to all of the specific features of the applicant’s case and that he determined his sentence in accordance with established sentencing principles. The sentence imposed was stern, but within a legitimate range of sentences that were available to his Honour in the exercise of his discretion.

79. In our opinion, the sentence imposed was not manifestly excessive in the way that expression is understood in the authorities set out above. As Bell CJ said in TH at [4]:-

“Mere disagreement by appellate judges with the sentence imposed is not enough to warrant a conclusion that a sentence is manifestly excessive (or manifestly inadequate). The significant degree of latitude afforded to sentencing judges when reviewing sentences for manifest excess or manifest inadequacy reflects the fact that sentencing is a discretionary exercise in which there is no one correct sentence and that, within a range of acceptability, the judgment of a sentencing judge as to an appropriate sentence should be respected: R v White [2025] NSWCCA 111 at [20]-[28].”

80. For the reasons we have given, in our opinion the sentence imposed was not manifestly excessive.

81. We make the following orders:

82. Grant leave to appeal.

83. The appeal is dismissed.

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