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Cases Cited: Bugmy v The Queen [1990] HCA 18, 169 CLR 525 Director of Public Prosecutions v Dalgliesh [2017] HCA 41; 262 CLR 428 Foaiaulima v The Queen [2020] NSWCCA 270; 285 A Crim R 222 Grant v R [2014] NSWCCA 67 Hawat v R [2020] NSWCCA 121 Heard v The Queen [2015] ACTCA 6 Hili v The Queen [2010] HCA 45; 242 CLR 520 Markarian v The Queen [2005] HCA 25; 228 CLR 357 R v Blacklidge (Unreported, NSW Court of Criminal Appeal, Gleeson CJ, Grove and Ireland JJ, 12 December 1995) R v Campbell [2016] QCA 42 R v Duffy [2014] ACTCA 53; 297 FLR 359 R v England [2001] ACTSC 33 R v Forbes [2005] NSWCCA 377; 160 A Crim R 1 R v Higgins (No 2) [2021] ACTSC 202 R v Hoerler [2004] NSWCCA 184; 147 A Crim R 520 R v Kourpanidis [2021] ACTSC 112 R v Speechley [2012] NSWCCA 130; 221 A Crim R 175 R v Urlich [2018] ACTSC 345 R v Vickerstaff (No 2) [2019] ACTSC 343 R v Weinman (1987) 49 SASR 248 Sorensen v R [2016] NSWCCA 54 The Queen v Omari [2022] ACTCA 4 The Queen v Pham [2015] HCA 39; 256 CLR 550 Tracey v The Queen [2020] ACTCA 51 Tuncbilek v R [2020] NSWCCA 30 Tyler v The Queen [2007] NSWCCA 247; 173 A Crim R 458 Tyne v Tasmania [2005] TASSC 119; 158 A Crim R 208 Ulrich v The Queen [2019] ACTCA 30;14 ACTLR 267

Parties: Kerry Kourpanidis (Appellant) The Queen (Respondent)

Representation: Counsel S J Odgers SC and M Jones SC (Appellant) S Drumgold SC and K L McCann (Respondent)

Solicitors O’Connor, Harris & Co Solicitors (Appellant) ACT Director of Public Prosecutions (Respondent)

File Number: ACTCA 31 of 2021

Decision under appeal: Court: Supreme Court of the ACT Before: Elkaim J Date of Decision: 3 June 2021 Case Title: R v Kourpanidis Citation: [2021] ACTSC 112 THE COURT:

Introduction

1. On 3 June 2021, after pleading guilty to the offence of manslaughter, the appellant was sentenced to imprisonment for seven years and six months with a nonparole period of three years and nine months, commencing 9 July 2020: R v Kourpanidis [2021] ACTSC 112.

2. The learned sentencing judge had before him a Crown tender bundle which included an Agreed Statement of Facts (ASOF) and pre-sentence report, with victim impact statements being read. His Honour also received a number of character references for the appellant, with witnesses giving evidence on that topic, together with a report setting out his work history. The appellant did not give evidence.

3. By an amended Notice of Appeal, the appellant appeals against the sentence imposed on four grounds:

(1) the sentencing judge erred in taking into account the provocation of the appellant;

(2) the sentencing judge erred in assessing the objective seriousness of the offence;

(3) the sentencing judge erred in taking into account reasons for leniency only in determining the nonparole period; and

(4) the sentence is manifestly excessive.

4. It is appropriate to recall at the outset that remarks on sentence must be read fairly as a whole and without engaging in unduly critical textual analysis or minute scrutiny in the search for error: see for example, Tuncbilek v R [2020] NSWCCA 30 at [57] per Johnson J; Grant v R [2014] NSWCCA 67 at [38]; Foaiaulima v The Queen [2020] NSWCCA 270; 285 A Crim R 222 at [51] and [70] per Johnson J; Hawat v R [2020] NSWCCA 121 (Hawat) at [31]-[32] per R A Hulme J. Moreover, the sentencing Judge delivered the sentence later on the same day on which submissions were heard. It has been said in that context, the sentencing remarks may be akin to an ex tempore judgment, in that such judgments “may not be as robustly structured as they might otherwise have been” and “may lack the order and precision of language that can be incorporated into a judgment after the luxury of time for consideration, refinement of expression, and polishing”: R v Speechley [2012] NSWCCA 130; 221 A Crim R 175 (Speechley) at [34] per Johnson J; Hawat at [31] per R A Hulme J.

5. For the reasons below, the grounds are not established and the appeal is dismissed.

Factual background

6. As noted above, the matter proceeded by way of an ASOF.

7. At [1]-[5] in that document is a summary of the facts as follows:

[1] The Kingston Hotel is a licenced venue in the Canberra suburb of Griffith. It consists of a bar, restaurant, pool room and beer garden. As at July 5, 2020, in accordance with ACT government Covid 19 directions, the hotel's manner of trading needed to be adjusted. Patron numbers were capped, patrons needed to be seated unless making a purchase and the hotel's pool tables had been covered up and could not be used. [2] On Sunday July 5, 2020 the victim, Warren Hordpenko was at the Kingston Hotel. He arrived at the hotel at around 5pm. He was alone. Mr Hordpenko had been drinking for most of the afternoon. At around 6pm the offender, Kerry Kourpanidis, arrived at the hotel with his girlfriend and his daughter. They met his brother and went into the hotel to have a counter meal. While they were there Mr Hordpenko approached the offender and his family. He spoke directly to the adults and the offender's daughter. At one stage he told the offender's daughter she was beautiful and touched her on the face. A short time later the offender and his family left the hotel. [3] The offender, his partner and his daughter arrived home a little after 8pm. When they arrived home the offender's partner criticised him for not standing up to Mr Hordpenko. At that the offender left his home, got in his car, and drove the short distance back to the hotel. He parked his car and entered the hotel. Mr Hordpenko was in the pool room speaking to some other patrons. He was either standing next to, or seated on, a bar stool. The offender ran at Mr Hordpenko and tackled him to the ground. He then struck him in the head several times, then got up and left. [4] The force of the assault rendered Mr Hordpenko unconscious. Hotel staff commenced CPR and the ACT Ambulance Service ("ACTAS") was called. When ACTAS arrived, they took over performing CPR from the hotel staff. After a short while they moved Mr Hordpenko to the ambulance. Paramedics were unable to revive Mr Hordpenko. Mr Hordpenko was pronounced dead at 9.42pm. The cause of death was traumatic basal subarachnoid haemorrhage. [5] The offender has pleaded guilty on the basis that he voluntarily assaulted Mr Hordpenko, and that voluntary act caused traumatic basal subarachnoid haemorrhage, which in turn caused his death. The assault was unlawful and in striking Mr Hordpenko to the head several times, the offender realised that he was exposing Mr Hordpenko to an appreciable risk of injury.

8. In addition, the ASOF included the following at [10]-[12]:

[10] As they left the hotel Ms McGarrity began to cry. Noticing the offender was not displaying the same emotion as she was, she said to him words to the effect "Kerry why didn't you say something. You should have stopped that man from touching her". [11] As the offender drove Ms McGarrity and his daughter back to his home in Griffith his daughter asked Ms McGarrity "Why did he touch me? Why did he touch me Jess? I am not going to be able to sleep. I am going to have nightmares about that man and how he touched me". [12] When they got home the offender took some time putting the child to bed and comforted her as she was still upset. He returned to where Ms McGarrity was, and she burst into tears and again asked him why he had not said anything. She said she was going to write the man a letter and to explain to him how inappropriate he was and how dare he touch a 6-year-old child. She told the offender she was going to go to the hotel and give the letter to the deceased. The offender told Ms McGarrity that she could not do that, and that he would go back to the hotel himself. Ms McGarrity insisted that she was going to go saying words to the effect "I want to go on behalf of me and all the women who have been made to feel the way that I saw - I recognised in [Name redacted]'s reaction". The offender stood up and said "I'm going". Ms McGarrity tried to dissuade him, but the offender was firm that it was he who had to go. The offender got in his car and drove the 2-kilometre journey back to the Kingston Hotel.

9. And later at [14]:

[14] Prior to 9pm the offender drove from his home in Griffith back to the Kingston Hotel. He parked his car on the nature strip outside the hotel. He entered the hotel through the dining room door just before 9pm. Mr Hordpenko was still in the pool room speaking to Mr Rosser and Mr Peden. The offender walked quickly to the pool room. He tackled Mr Hordpenko off the bar stool he was sitting on. The offender was on one knee over the top of the offender [victim]. Mr Hordpenko was on his back. He did not fight back or try to defend himself. The offender then struck him to the left side of his head. The force of the blow caused the right side of Mr Hordpenko's head to hit the wall. The contact with the wall did not cause any visible external injury - lacerations, grazing or bruising. The offender struck Mr Hordpenko several additional times about the head. While he was assaulting Mr Hordpenko, the offender said words to the effect of "you fucked with my daughter cunt". The offender then stood up and left the hotel. He was in the hotel for less than 60 seconds. He was in the pool room for about 16 seconds.

Consideration

Ground 1: the sentencing judge erred in taking into account the provocation of the appellant

Ground 2: the sentencing judge erred in assessing the objective seriousness of the offence

10. The parties addressed these grounds together and, given the nature of the submission, it is appropriate that we follow the same course.

11. In summary, the appellant contended that there were two specific errors of principle.

12. First, that the sentencing judge, in determining that he was satisfied that the offence was aggravated on the basis that it was “vigilante conduct” on the part of the appellant involving “reprisal for the perceived harm caused to his daughter” at [39]-[40], was not satisfied beyond reasonable doubt that, when the appellant returned to the hotel, he intended to attack Mr Hordpenko. Absent such a finding, it was an error of principle to conclude that the offence was committed with the feature of vigilantism made out. This submission was premised on the proposition that to be vigilantism, the conduct must be premediated, and in this case, the intention to carry out the attack must have been formed before the appellant returned to the hotel.

13. Second, in deciding whether the offence “was the result of provocation”, per s 33(1)(q) of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), the sentencing judge focused his attention on the objective circumstance of the available time for reflection rather than on the actual state of mind of the appellant at the time of the “attack” and how the appellant came to form the intention to “attack” Mr Hordpenko. The appellant challenges the sentencing judge’s conclusion at [30]-[32] in respect to the role of provocation in this offence and, in particular, his conclusion that he did not accept that the “provocation” on the part of Mr Hordpenko “significantly reduces the moral culpability of” the appellant. Relying on [33], the appellant contended that the sentencing judge would have found that the objective seriousness of the offence was “low” if it had been accepted that the “provocation” on the part of Mr Hordpenko did “significantly” reduce the moral culpability of the appellant. It was submitted that having regard to the appellant’s good character, that when the appellant left home there was no suggestion he planned violence and the nature of the assault, the “inescapable inference” in this case is that the appellant acted impulsively in that he “lost control” when he saw Mr Hordpenko on the stool.

14. The submissions are based on propositions that are not borne out by a proper reading of the sentencing remarks.

15. At the outset, it is appropriate to address the submission that but for the sentencing judge’s conclusion as to provocation, he would have found the objective seriousness of the offending was low.

16. At first instance, the appellant’s submission that a finding should be made that the objective seriousness of the offence was low was based on three reasons: first, noting that a specific act causing death could not be identified in the pathology report, benefit should be given to the appellant and the death should be attributed to the appellant’s initial act of tackling the victim off his stool; second, no weapons, drugs or alcohol were involved (on the part of the appellant); and third, that the provocation was an extenuating circumstance, which significantly reduced his culpability. The sentencing judge at [26]- [32], addressed each of those submissions, and rejected the approach taken by the appellant. Immediately thereafter at [33], his Honour concluded that “[c]onsequently, the submission of an assessment of “low” objective seriousness is rejected”. Contrary to the appellant’s contention, that conclusion is not solely related to the finding as to provocation. It follows that the submission, that but for the finding as to provocation the sentencing judge would have found low objective seriousness, is not supported by [33] of the sentencing remarks. That said, it can be accepted that if the sentencing judge had accepted the appellant’s submission as to the effect of provocation, that would have impacted on an assessment of the objective seriousness of the offence.

17. In any event, neither of the two purported errors are established. They also, at least in part, suffer from a misreading of the sentencing remarks.

18. The appellant addressed each submission separately and in a vacuum from the findings elsewhere in the sentencing remarks. The impugned passages must, therefore, be considered in their proper context. Although the appellant submitted that these two purported errors were specific errors, they nonetheless are grounded in the facts.

19. Moreover, in reality, the submissions on these grounds, at least in part, challenge the factual conclusions made by the sentencing judge. In that context, we note that generally, an appellate court is bound by the findings of fact made by the primary judge, unless they were not open on the evidence: see for example, Tyler v The Queen [2007] NSWCCA 247; 173 A Crim R 458 at [86] per Simpson J.

20. As to the first submission, the appellant directs attention to [39]-[40] of the sentencing judge’s reasons. However, it is appropriate to consider those passages in context. Having rejected the appellant’s submissions as to objective seriousness which are referred to above, his Honour turned to a consideration of the Crown’s submission. At [34]-[40], he stated:

[34] The Crown submitted that the offending was at, or just above, “the mid-level of the spectrum of objective seriousness for manslaughter”. I generally agree with that assessment, although restrict the finding to mid-level. I also, although not completely, agree with the reasons the Crown has submitted lead to the conclusion. [35] While I would not necessarily use the word “cowardly”, the assault was upon a person taken by surprise and involved not only the initial tackle but also the continued striking of the deceased to his head and body. [36] Although the attack was short, it was brutal and included the targeting of the deceased’s head. [37] The Crown submitted that the offending was pre-meditated. I am not sure this is a correct description. I agree that the offender deliberately returned to the hotel with the intent of confronting the deceased. It is not clear however whether he arrived at the hotel intending the attack or intending a confrontation which developed into an intent to carry out a physical attack. [38] It must be observed however that there was no preliminary discourse before the attack commenced. The offender entered the room and immediately launched the assault. [39] The Crown submitted that the offender was “intent on exacting revenge”. Such a motive is clearly an aggravating feature. I would not classify the offender’s actions as revenge. Perhaps the distinction is subtle but in my view his actions are more consistent with reprisal for the perceived harm caused to his daughter. [40] I agree with the Crown’s condemnation of vigilante conduct. Earlier this week, in R v Crick [2021] ACTSC 106 I said that vigilantism “can be as criminal as the conduct it seeks to address”. In this case it immeasurably exceeded the conduct.

21. As noted above, the appellant’s submission is based on the premise that for a finding of vigilantism, an offence must be pre-planned, which in this instance, is said to require that the appellant must have planned to attack Mr Hordpenko before he returned to the hotel.

22. Contrary to the appellant’s contention, the authorities referred to in his written submissions do not support that proposition. Although the facts of various cases might involve preplanning or premeditation, the concept of vigilantism is about taking the law into your own hands. It is because of that concept that the vigilante nature of an offence may be an aggravating consideration on sentence, reflecting on deterrence: see for example, Speechley at [110]-[112] per Johnson J; Sorensen v R [2016] NSWCCA 54 at [110]-[112] per Ward JA. As the sentencing judge found, in committing the offence the appellant’s conduct was consistent with “reprisal” for what he perceived had been done. It was plainly open to the sentencing judge to so find. There is no reason why the decision to act in that manner must have been formed before the appellant returned to the hotel, to be characterised as vigilante conduct. Regardless of when the intention was formed, at the time the offence was committed, the appellant, on the sentencing judge’s findings, was taking the law into his own hands, as he was acting in retaliation and extracting punishment for what he perceived had occurred. It was redress for a grievance. That is vigilantism. There is no error of principle established in that finding.

23. It is apparent from the appellant’s submission, that underpinning it is the factual proposition that the conduct in committing the offence resulted from a loss of self-control, as a result of provocation. That is, without a finding by the sentencing judge that the appellant planned to attack Mr Hordpenko before he returned to the hotel, the offence must have occurred impulsively and, therefore, as a result of a loss of control. However, the sentencing judge did not make a finding that the appellant acted impulsively. As observed above, at its highest, the sentencing judge at [37] concluded that “the offender deliberately returned to the hotel with the intent of confronting the deceased. It is not clear, however, whether he arrived at the hotel intending the attack or intending a confrontation which developed into an intent to carry out a physical attack”. Although the appellant was not sentenced on the basis that he planned to attack the deceased before he arrived at the hotel, it does not follow from that conclusion that the appellant acted as a result of a loss of self-control.

24. The appellant’s submission is advanced as if there are only two alternatives arising on the evidence; that the offence was either planned before the appellant arrived at the hotel or it occurred as a result of a loss of self-control. That is incorrect. That the appellant formed an intention to attack Mr Hordpenko on, or after, arriving at the hotel does not, without more, necessarily lead to the conclusion that the conduct was as a result of a loss of control. Moreover, as noted above, this aspect of the appellant’s submission was made without any reference to his Honour’s conclusion at [30]-[32] in which the sentencing judge rejected the significance of provocation to the extent contended for by the appellant. Any finding of vigilante conduct, and challenge thereto, must be considered in that context.

25. On the facts of this case, there is nothing inconsistent in the sentencing judge’s conclusion that the appellant’s actions were taken in reprisal against the victim’s conduct and that it can be characterised as vigilante conduct. That conclusion was open to the sentencing judge.

26. Turning to the second submission, that the sentencing judge focused his attention on the objective circumstance of the available time for reflection rather than on the actual state of mind of the appellant at the time of the “attack” and how the appellant came to form the intention to “attack” Mr Hordpenko.

27. The considerations relevant to assessing the impact, if any, of provocation in imposing sentence include the nature of the provocation, its severity, its duration, its timing in relation to the offence, the personal circumstances of the offender, the extent of its impact on the offender and whether the response was proportionate to the provocation: see for example, Tyne v Tasmania [2005] TASSC 119; 158 A Crim R 208 at [18] per Underwood CJ and [28] per Blow J; R v Campbell [2016] QCA 42 at [36]-[38] per Morrison JA. Each case is necessarily fact specific.

28. The effluxion of time between what is said to be the provocative act and the offence is plainly a relevant consideration (amongst others) as to whether an appellant was acting under provocation at the time. Such a proposition should be uncontroversial. Whether the appellant was acting under provocation is a question of fact. Delay in the appellant’s actions may give rise to inferences as to his state of mind. The sentencing judge’s reference to delay does not support the appellant’s contention that the sentencing judge did not consider the appellant’s state of mind in forming his conclusion.

29. Significantly, the appellant did not give evidence and, therefore, there was no direct evidence as to his state of mind. This is in the context where the onus was on the appellant of establishing, on the balance of probabilities, that he acted under provocation (such as to significantly reduce his moral culpability).

30. The sentencing judge was entitled to draw inferences from the ASOF to conclude that although the provocation was relevant to sentencing in this case, it did not have the significance contended for by the appellant. This is particularly so in circumstances where there was no evidence from the appellant.

31. The appellant had left the hotel and gone home. As the sentencing judge observed, there was ample time for calm reflection. He only returned to the hotel after his girlfriend, who was upset and critical of his inaction at the time of the incident by failing to intervene, said she was going to return to the hotel. It was in that context, the sentencing judge found that the acts of provocation became more of a reason for his return than an explanation for the violent attack. The appellant entered the hotel, and assaulted the victim in the manner recited above at [9], as described in the ASOF. His statement to Mr Hordpenko during the assault is consistent with reprisal. The appellant was in the hotel for less than 60 seconds, and in the pool room (where the assault occurred) for only 16 seconds. The sentencing judge at [36] concluded that “[a]though the attack was short, it was brutal and included the targeting of the deceased’s head”. The appellant stopped the attack of his own volition, and left the hotel.

32. This aspect of the sentencing remarks also should not be considered in isolation. As addressed above, the sentencing judge concluded that the appellant’s actions were motivated by reprisal. That is a finding (as it is an aggravating consideration, it must be proven beyond reasonable doubt) related to the appellant’s state of mind at the time of the offence.

33. Moreover, the matters relied on by the appellant said to give rise to the “inescapable inference” that he “lost control” when he saw Mr Hordpenko are his good character, that when he left home there was no suggestion he planned violence, and the nature of the assault. It was open to the sentencing Judge to conclude otherwise.

34. Again, it was open to the sentencing judge to make the findings he did. In the circumstances, it was open to the sentencing judge to conclude that while provocation was relevant it did not have the significance that the appellant contended. The appellant’s actions were directed at redressing and punishing the victim for the perceived wrong done to his daughter. We do not accept the appellant’s contention that the sentencing judge in reaching his conclusion as to provocation did not consider the appellant’s state of mind in committing the offence.

35. The appellant has not established either of grounds 1 and 2.

Ground 3: the sentencing judge erred in taking into account reasons for leniency only in determining the nonparole period

36. The appellant contended that the sentencing judge’s reasons indicate that he did not take into account at least some of the appellant's subjective circumstances in setting the head term.

37. This submission is based on [44] of the sentencing judge’s remarks, which stated:

There are reasons for leniency, mostly derived from the offender’s background, the absence of a relevant criminal record and the remorse he has expressed. As stated in a number of the references, the offender can return to a life in which he can contribute to society and re-join his family. I think this aspect is best addressed through a nonparole period.

38. From that it is said that these features were not addressed in determining the head sentence. The appellant points to the absence of words such as “weight”, or “primary focus”, in support of the submission.

39. It is uncontroversial that, as observed by Mason CJ and McHugh J in Bugmy v The Queen [1990] HCA 18, 169 CLR 525 at 531:

[T]he considerations which the sentencing judge must take into account when fixing a minimum term will be the same as those applicable to the setting of the head sentence. Obviously, the weight to be attached to these factors and the way in which they are relevant will differ due to the different purposes behind each function.

40. And see Hili v The Queen [2010] HCA 45; 242 CLR 520 (Hili) at [41]; Heard v The Queen [2015] ACTCA 6 at [51].

41. The issue turns on a consideration of the sentencing remarks.

42. We note that the appellant advanced the following submission during the sentencing hearing:

In relation to the non-parole period, we agree with the Crown that given the very strong prospects of rehabilitation that are present here, that it would not be inconsistent with sentencing principle for your Honour not to approach the matter applying relativities of 50 and 70 percent between the head sentence and non-parole period. And to the extent that general deterrence plays a part in the sentencing exercise in relation to this particular case, we say first of all that it may not be an appropriate vehicle for such a consideration given the unusual factual circumstances that applies to the physical altercation and the cause of death. And certainly specific deterrence would have no role to play. Secondly, in relation to how that consideration plays out as between head sentence and non-parole period, we would say that the primary focus for marking the death, acknowledging the death, would be in the head sentence, rather than the non-parole period.

43. We note also that the sentencing judge was mindful of the appellant’s submissions, as it is readily apparent from the sentencing remarks that he addressed each of them. Read in context, [44] is responding to the submission recited above.

44. We also note that the sentencing judge summarised and made findings in respect to the appellant’s subjective circumstances at [16]-[25], which included his plea of guilty and what that reflected, including that the appellant had shown remorse: at [16]-[17]. The sentencing Judge concluded that he was entitled to a 25 percent discount on account of those matters relating to the plea. It is plain that was taken into account in imposing the head sentence. Once that is accepted, the appellant’s interpretation of [44] which is that the subjective features were not taken into account in the head sentence, cannot be accepted.

45. The sentencing judge’s language in [44] may have been infelicitous, but the sentencing remarks read fairly and properly, in the context of the submissions they were addressing, do not bear out the appellant’s contention. Rather, the passage read in context reflects a recognition that more weight might be placed on such factors in the nonparole period. That is an uncontroversial approach, given the different roles of the head sentence and nonparole period. That is particularly so with an offence such as this, where general deterrence and denunciation must necessarily play a significant role in the head sentence.

46. The appellant has not established that the sentencing Judge did not take into account his subjective circumstances in imposing the head sentence, but only “addressed” or took them into account in the nonparole period.

Ground 4: the sentence is manifestly excessive

47. The appellant contended that even on the assumption that the objective seriousness of the offence was at “mid-level”, and the sentencing judge took into account “the reasons for leniency”, the strong subjective case of the appellant required a sentencing term which began at a lower starting point than 10 years’ imprisonment. It should be concluded that this starting point was unreasonable, particularly in light of comparable cases. The appellant made submissions as to what he considered to be comparable cases including, and, in particular, R v Urlich [2018] ACTSC 345 (Ulrich) (on appeal: Ulrich v The Queen [2019] ACTCA 30;14 ACTLR 267); R v Vickerstaff (No 2) [2019] ACTSC 343 (Vickerstaff); R v Higgins (No 2) [2021] ACTSC 202 (Higgins) (imposed after the sentence in this case) and R v England [2001] ACTSC 33 (England). The appellant submitted that the principle to be drawn from the first three cases is that where there is a high objective seriousness for the offence of manslaughter, the starting point in this jurisdiction has been around 10 years’ imprisonment.

48. The appellant submitted that current sentencing practice is required to be considered by a sentencing judge: Sentencing Act, s 33(1)(za). The common law also requires consideration of sentencing standards. It was submitted that although manslaughter is characterised by the protean nature of the offence, his Honour’s statement at [46], that he gained little assistance from the authorities provided, fails to engage with current sentencing practice.

49. The principles relating to a claim of manifest excess are well known, and were recently summarised by this Court in Tracey v The Queen [2020] ACTCA 51 at [37]- [38]:

[37] The principles in relation to assessing whether a sentence is manifestly excessive are well-established. Appellate intervention is not justified simply because an appellate court may have a different view as to the most appropriate sentence (Lowndes v The Queen [1999] HCA 29; 195 CLR 665 at [15]; Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [28]) or where the sentence is markedly different from sentences that have been imposed in other cases (Wong v The Queen [2001] HCA 64; 207 CLR 584 at [58] (Wong); Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 at [58] (Hili)). Rather, the appellant must demonstrate that the sentence is such that it may be inferred that there was a misapplication of principle by the sentencing judge, although when and how the error occurred is not apparent from the judge’s reasons: Wong at [58]; Hili at [58]–[59], [75]–[76]. [38] To determine whether a sentence is manifestly excessive, it is necessary to view it in the context of the maximum sentence prescribed for the offence, the standards of sentencing customarily observed with respect to the offence, the relative objective seriousness of the particular offence, and the personal circumstances of the offender.

50. The focus of the submission was on what is contended are comparable cases.

51. In Hili, in respect to the relevance of previous sentences, French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ at [53]-[54] observed:

[53] Next, in seeking consistency, sentencing judges must have regard to what has been done in other cases. In the present matter, the prosecution produced detailed information, for the sentencing judge and for the Court of Criminal Appeal, about sentences that had been passed in other cases ... Care must be taken, however, in using what has been done in other cases. [54] In Director of Public Prosecutions (Cth) v De La Rosa Simpson J accurately identified the proper use of information about sentences that have been passed in other cases. As her Honour pointed out, a history of sentencing can establish a range of sentences that have in fact been imposed. That history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits. As her Honour said: "Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts." But 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". Past sentences "are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence" (emphasis added). When considering past sentences, "it is only by examination of the whole of the circumstances that have given rise to the sentence that 'unifying principles' may be discerned". (Footnotes omitted.)

52. Relevantly, in Director of Public Prosecutions v Dalgliesh [2017] HCA 41; 262 CLR 428 (Dalgliesh), Kiefel CJ, Bell and Keane JJ at [49] observed:

[49] In Elias v The Queen, French CJ, Hayne, Kiefel, Bell and Keane JJ said: "[t]he administration of the criminal law involves individualised justice". The imposition of a just sentence on an offender in a particular case is an exercise of judicial discretion concerned to do justice in that case. It is also the case that, as Gleeson CJ said in Wong v The Queen: "[t]he administration of criminal justice works as a system ... It should be systematically fair, and that involves, amongst other things, reasonable consistency." As was explained by French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ in Hili v The Queen: "[t]he consistency that is sought is consistency in the application of the relevant legal principles." (Footnotes omitted.)

53. And see The Queen v Pham [2015] HCA 39; 256 CLR 550 at [28] per French CJ, Keane and Nettle JJ.

54. In this respect, recently, in The Queen v Omari [2022] ACTCA 4 at [57], this Court observed:

Although consideration of sentences imposed in comparable cases may be useful, care must be taken with respect to the range revealed by the cases referred to, noting that current patterns of sentencing do not cap the upper and lower ranges of a possible sentence: Director of Public Prosecutions v Dalgliesh (a pseudonym) 262 CLR 428 at ; and Barbaro v The Queen [2014] HCA 2; 253 CLR 58 at [40]-[41]. Further, care must be taken to consider whether cases referred to are truly comparable, given the objective and subjective differences between cases and the need to render individual justice: R v Todoroski [2010] NSWCCA 75 at [26]. See generally R v Duffy where this Court observed: [92] Comparable cases from the relevant jurisdiction are of most interest because, even where the maximum available penalties in different jurisdictions are the same, 'unifying principles' may be expressed slightly differently and sentencing patterns may differ between jurisdictions. Further, a sentencing pattern that is disclosed by comparable cases from the relevant jurisdiction is not determinative because consistency in sentencing is not demonstrated by, and does not require, numerical equivalence: Hili. Nevertheless, current sentencing patterns can provide some evidence of the usual sentencing range and may provide some support for an argument that the sentence under appeal fell outside the available sentencing range.

55. We note that the case of R v Duffy [2014] ACTCA 53; 297 FLR 359, which is cited in that passage, involved, inter alia, a Territory offence. We also note that Dalgliesh involved s 5(2)(b) of the Sentencing Act 1991 (Vic), which is in relevantly similar terms to s 33(1)(za).

56. As the appellant submitted, current sentencing practice is referred to in s 33(1)(za), although it must be recalled that the s 33 considerations are only to be taken into account in so far as they are “relevant and known”. The sentencing judge observed at [46]:

[Counsel for the offender] particularly drew my attention to the case of R v England [2001] (Unreported, ACT Supreme Court, Miles CJ, 26 April 2001), suggesting that the offending there was more serious. I do not agree. In England there was an exchange between drunken louts. In this case a sober man deliberately returned to the hotel in order to confront the deceased. More generally, I have not gained much assistance from the authorities provided to me.

57. Contrary to the appellant’s submission, that does not reflect a failure to engage with current sentencing practice, but rather, having considered the cases to which he was referred, his Honour concluded that they were of little assistance. Contrary to the appellant’s contention, it does not follow that the cases referred to were not considered before the sentencing judge made that observation. It was not necessary to refer in detail to those cases, noting this was a judgment delivered on the same day as the sentence. It is plain from the appellant’s sentencing submissions that England was the case on which most reliance was placed. Contrary to the appellant’s submission, the sentencing judge’s conclusion as to that case was open. We will return to England below. Despite the appellant’s submission to the contrary, it is apparent there are few sentences for manslaughter imposed in this jurisdiction.

58. As has been recognised, manslaughter is almost unique in its protean character as an offence: R v Forbes [2005] NSWCCA 377; 160 A Crim R 1 (Forbes) at [133]–[134] per Spigelman CJ; R v Blacklidge (Unreported, NSW Court of Criminal Appeal, Gleeson CJ, Grove and Ireland JJ, 12 December 1995). In its objective gravity it may vary, as has been pointed out, from a joke gone wrong to facts short of murder: R v Weinman (1987) 49 SASR 248; R v Hoerler [2004] NSWCCA 184; 147 A Crim R 520 at [39] per Spigelman CJ; Forbes at [134].

59. The maximum penalty for the offence of manslaughter is 20-years’ imprisonment: Crimes Act 1900 (ACT), s 15(2), and see Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [30]-[31].

60. It is timely to recall the findings in this case, particularly given the manner in which the appellant sought to describe what occurred for the purposes of advancing this ground of appeal. The findings of the sentencing Judge were that this is a reprisal by a sober person, who had time to reflect on the events before returning to the hotel. The appellant took the deceased by surprise, and his conduct involved not only the initial tackle but the continued striking of the deceased. As referred to above, the sentencing judge at [36] concluded that “[a]though the attack was short, it was brutal and included targeting the deceased’s head”. There is no complaint about that description.

61. As noted above, the appellant in essence relied on three cases, Vickerstaff, Urlich, and Higgins, which were said to be objectively more serious and which have a starting point for the sentences of 10 years’ imprisonment. It was submitted that the subjective factors in those cases are at odds with the subjective factors in this case, there being in those cases little or no remorse, previous criminal records and drug and/or alcohol addiction that contributed to the offending.

62. It was also submitted by the appellant that this case should be contrasted to England which had a starting point of seven years. The appellant placed the most emphasis on England before the sentencing judge. It was submitted that the objective circumstances of the offending in England were more serious than those in this case. Despite the sentencing judge finding to the contrary, the appellant submitted that even if the facts in England were on par, the starting point in that case, noting that there was no plea, was three years below the starting point in this matter.

63. All but one of those four cases referred to above (Urlich being the exception), are first instance sentencing remarks, reflecting the exercise of the sentencing discretion by a single judge, which have not been considered by any appellate court. In Ulrich, although a specific error was demonstrated which called for resentencing, this Court did not alter the starting point of the sentence, and on resentencing stated that 10 years was an “appropriate starting point”: Ulrich at [98]. The sentence in Higgins was imposed after the sentence in this case. Therefore, at the time the sentencing judge imposed this sentence, there were only two cases (being Vickerstaff and Ulrich) which were said to establish the principle that 10 years’ imprisonment is the starting point where there is high objective seriousness.

64. The appellant submitted that a consideration of the comparative sentences leads to the conclusion that the starting point in this case, being 10 years, was not in accordance with those comparative sentences. That is to ask the wrong question on this ground, which is whether the sentence is manifestly excessive.

65. What a consideration of Vickerstaff, Urlich, and Higgins reflects is that each of these cases is very differently factually to the present circumstances. These cases illustrate the vastly different circumstances in which the offence of manslaughter may be committed. Given the limited number of cases (only two at the time of sentence) and the nature of the offence, it is difficult to contend that it discloses or establishes a discernible sentencing practice. Certainly, the starting point of 10 years’ imprisonment in those cases is not some sort of available cap on sentences for certain types of manslaughter in this jurisdiction, which was the tenor or implication in the appellant’s submission.

66. As noted above, reliance was also placed on the sentence imposed in England, particularly before the sentencing judge.

67. The sentencing judge concluded, contrary to the appellant’s submission, that this case was factually more serious than England. That conclusion was open to him. In any event, the appellant’s submission only referred to and relied on the sentence imposed on Mr England, and not that of his co-offender, Mr Culshaw, who is referred to in those sentencing remarks. Miles CJ, who sentenced Mr England, observed that the culpability of both offenders could not be distinguished. He noted that Mr Culshaw pleaded guilty, and any sentence attracted a discount appropriate for a plea, for contrition otherwise shown and a promise to give evidence, if necessary. Mr Culshaw had been sentenced to seven years’ imprisonment with a five-year nonparole period after that discount. That is, the starting point must have been higher, and perhaps significantly so given the nature of the discounts. The sentencing judge in England referred to the principle of parity, and despite Mr England pleading not guilty, and having been found guilty after a trial, he imposed a sentence of seven years with a nonparole period of four years. With respect to the sentencing judge in England, it is unclear how the principle of parity resulted in such a sentence being imposed, although it appears to have had an impact. The appellant submitted that counsel in England had acknowledged that the sentence on Mr Culshaw was severe. There is no explanation as to why that was said to be so, and the sentencing judge in England does not express a conclusion on that issue. Moreover, that a sentence is severe does not make it outside the available sentencing range. In any event, a submission made by counsel during a sentencing hearing in relation to another matter, can hardly form a basis on which this court must assess the sentences imposed by the sentencing judge in this case. If the sentence imposed on Mr England is said to be a relevant sentence to consider in respect to current sentencing practice, it is difficult to understand why the sentence imposed on Mr Culshaw would not also fall within that description. The submissions made by the appellant in respect to England reflect the difficulties in comparing cases, especially in the context of manslaughter offences and particularly where those cases are first instance sentencing remarks. This case does not assist the appellant’s submission.

68. Taking into account the relevant sentencing principles (which include a consideration of the sentences imposed for offences of manslaughter) and applying them to the facts and circumstances in this case, the appellant has not established that the sentence imposed is manifestly excessive. It is not outside the sentencing judge’s discretion.

Conclusion

69. The appellant has not established any of the grounds of appeal. The appeal is dismissed.

I certify that the preceding sixty-nine [69] numbered paragraphs are a true copy of the Reasons for Judgment of their Honours Justices Mossop and Abraham and Acting Justice Walmsley.

Associate:

Date: 17 March 2022 **************

Amendments

21 March 2022 Replace the name at line 11 in quoted paragraph [12], appearing in paragraph [8] of the judgment, with “[name redacted]”: paragraph [8]