(d) Without any retaliation or provocation by Mr Agang, the applicant, without further warning, punched Mr Agang with enormous force sufficient to cause the sound of a "loud crack" as Mr Agang's head hit the ground.
92 Although the episode of violence constituting the offence had been preceded by the "immature" and "loutish" behaviour associated with the egg throwing, the applicant's engagement in an elevated level of aggressive conduct involving direct physical confrontation and a high level of violence constituted it as a qualitatively different event from the earlier conduct.
93 The facts and circumstances revealed in the statement of facts as summarised in paragraphs [91] to [92], in my opinion, provided adequate material upon which the sentencing judge could base the finding his Honour made as to the character of the applicant's conduct. The conclusions expressed by the sentencing judge that the applicant conducted himself in an "adult manner" and had engaged in an offence involving extreme violence and, therefore, of considerable gravity were, in my opinion, soundly based and were certainly open on the evidence.
94 His Honour's other observations as to the physique of the applicant and to his living in an adult world were quite ancillary to the principal matters relied upon by his Honour. Reference to those matters do not, in my opinion, in any way evidence error.
95 In context, the immature egg-throwing activity by the applicant from his position within the vehicle was, as the sentencing judge in my opinion correctly discerned, to be distinguished from the violent confrontation which he initiated outside the vehicle. The former was, with respect, properly characterised as "immature" "hoodlum behaviour". The latter involved a deliberate attack involving a high level of aggression and violence and carried out, on the sentencing judge's finding, with the intention of hurting Mr Agang.
96 As his Honour found, the applicant heard the victim's head hit the ground and realised that he had sustained injury. That realisation, rather than resulting in assistance, was met with the applicant's statement "you want more? I'll be back".
97 I do not, with respect, consider that conduct of the kind in question involving such a high level of criminality can be characterised simply as "immature" in the ordinary sense of the word, that is, "not yet fully developed; unripe; lacking emotional or intellectual development": Shorter Oxford English Dictionary.
98 The applicant's offence involving, as it did, a highly charged confrontation, an intention to injure and "a very forceful blow" so powerful as to fracture Mr Agang's skull, in my opinion, places it in a category beyond mere immature conduct. The evident mixture of anger and malevolence stamped the offence as one involving serious criminality.
99 A reading of the remarks on sentence plainly indicate that these were the matters that well-supported the sentencing judge's finding that the offence was not to be marked out simply as "juvenile behaviour" or as "adolescent bravado".
100 In determining the appropriate sentence, his Honour gave extensive consideration to the applicant's youth. In that respect, his Honour set out the provisions of s.6 of the Children (Criminal Proceedings) Act 1987, "Principles relating to the exercise of criminal jurisdiction" and had regard to the detailed submissions made on behalf of the applicant, including the fundamental submission made that he had not conducted himself as an adult (paragraph 115).
101 The sentencing judge stated (as is evident from the remarks on sentence), that he had given careful consideration to the submissions made. It is clear that the relevant sentencing principles and the relevant factual matters were foremost in the consideration underpinning the determination as to the appropriate sentence.
102 I have earlier set out the submissions made in paragraph 18 of the submissions on behalf of the applicant. I do not, with respect, consider it accurate to say that his Honour adopted an approach, as suggested in paragraph 18, namely, that there was a rule that required that the principles in GDP (supra) must be read down because the offence was adult-like or of "considerable gravity committed in a way an adult might". Nor do I consider that his Honour approached the sentencing task with some notion that there was a rule or principle that required a judge, when sentencing a child, to say that the elements of punishment and deterrence must not be subsidiary to the rehabilitation of the offender.
103 Plainly, there is no hard and fast general rule that applies uniformly in the sentencing of young offenders. One well-known principle, of course, is that when a court is required to sentence a young offender, considerations of punishment and general deterrence should in general be regarded as subordinate to the need to foster the offender's rehabilitation: see Tran (supra) at [9]. However, the phrase "in general" is not to be overlooked. In Tran, Wood CJ at CL observed at [9]:-
"That is a sensible principle to which full effect should be given in appropriate cases . It can have particular relevance where an offender is assessed as being at the cross roads between a life of criminality and a law abiding existence." (emphasis added)
104 Again, the phrase "in appropriate cases" is not to be overlooked. His Honour went on in Tran to state (at [10]):-
"What his Honour did not mention, and appears to have overlooked, however, was the qualification to that principle concerning young persons where they conduct themselves in a way that an adult does, and commit a crime that involves violence or is one of considerable gravity. In such a case, it is the function of the Court to protect the community, and to appropriately give effect to the retributive and deterrent elements of sentencing: Pham (1991) 55 A Crim R 128; Allam (Court of Criminal Appeal, New South Wales, 13 April 1993, unreported); DRL (Court of Criminal Appeal, New South Wales, 16 May 1997, unreported); Townsend & Cooper (Court of Criminal Appeal, New South Wales, 14 February 1995, unreported) and SDM (Court of Criminal Appeal, New South Wales, 4 August 1997) …"
105 In Tran (a case involving one count of armed robbery under s.97(1) of the Crimes Act 1900 to which the respondent to the appeal pleaded guilty, together with an offence of supply prohibited drug and an offence of goods in custody taken into account on a Form 1), Wood CJ at CL concluded (at [14]):-
"The nature and circumstances of the offence were accordingly such that the respondent should have been considered as having conducted himself like an adult, with the consequence that relatively little weight should have been given to his age."
106 The same point was made by this Court in Hoang (supra) at [44]. The Court additionally observed at [45] that the weight to be given to considerations associated with offending arising out of immaturity, diminishes the closer an offender approaches the age of maturity, referring in that respect to this Court's decisions in Bus (supra) and Regina v Voss [2003] NSWCCA 182.
107 In MD & Ors (supra), three of four offenders entered pleas of guilty to manslaughter. The offence occurred on New Year's Eve, late at night, where a number of young people had gathered, some of whom were significantly affected by alcohol. The deceased, his male companion and some young girls were walking from a railway station to a party and some members of the group, including the offenders, moved either individually or in small groups over to the highway and an altercation then occurred. The details of the altercation were difficult for the sentencing judge to ascertain. It was not clear that the offenders acted as a group and such finding was not made.
108 The deceased had been first incapacitated when his head made contact with a pole, apparently causing significant injury. The sentencing judge was uncertain how the injury occurred, saying that MD somehow, in confrontation with the deceased, resorted to physical violence and at least, in some fashion frightened, propelled, pushed, chased or herded the deceased, head-on, into the pole. He sustained severe cerebral injuries and fell to the ground.
109 This Court (McClellan CJ at CL, Simpson and Howie JJ) observed at [21]:-
"The sentencing statistics of the Judicial Commission, covering the period January 1998 to December 2004, reveal that not all persons convicted of manslaughter received custodial sentences. Of those that did, the sentences imposed range from 18 months to more than 20 years. In relation to the non-parole periods or fixed terms, the range varied between one year and 16 years. The middle 80% of cases fell in the range of two years to eight years. In respect of persons under 18 years, there are few examples, but the head sentences ranged between five years and eight years and the non-parole periods between 30 months and five years."
110 The respondents to the appeal were, at the date of the offence, aged 17 and nine months (MA), 17 years and eight months (JT), 17 years and two weeks (MD) and 16 years and nine month (BM).
111 In that case it had been submitted that none of the respondents had been demonstrated to have lacked sufficient maturity to appreciate the risk that they were taking by their actions and that although no finding had been made that they acted as a group, the Crown submitted that each of them should have been aware that he was not alone in his role in his attack on the victim. It was submitted that the actions of the respondents were so brutal that, even given their lack of maturity, they should have appreciated the seriousness of their actions and have been sentenced accordingly.
112 In the course of the judgment in MD, this Court stated:-
"61. The crime of manslaughter carries a maximum sentence of 25 years imprisonment (s.24, Crimes Act 1900). The felonious taking of human life has always been regarded by the law as a most serious crime. It could never be otherwise, for the protection of human life must be a fundamental objective of any criminal law system in a civilised society: Regina v Edwards (1996) 90 A Crim R 510.
62. It is important when sentencing an offender to reflect the objective seriousness of the crime concerned: Regina v Rushby [1977] 1 NSWLR 594. The assessment of that matter depends on the factual findings made by the sentencing judge. When, as in the present matters, the factual findings of the sentencing judge are not challenged on appeal, the appeal court must consider the matter having regard only to those factual findings.
63. Because the sentencing process requires consideration of a number of matters, some of which indicate a greater sentence whereas others reflect concerns which would ameliorate the sentence, the task of the sentencing judge can be complex and difficult. For this reason it is common for courts to accept that there will be a range of sentences appropriate for any particular circumstances within a particular offence category. Provided the sentence that is imposed is accepted as falling within that range, the discretion of the sentencing judge will not have miscarried. If, however, the sentence is such that, having regard to all relevant matters, it falls outside the range, an error will be identified and an appeal court may intervene.
64. However, the High Court has recently again emphasised the importance of due weight being given to the exercise of the discretion by the sentencing judge. It has acknowledged, as this Court must, that there is no single correct sentence and judges at first instance must be allowed 'as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies': Makarian v The Queen (2005) 215 ALR 213 at [27]."
113 In considering the sentence imposed on MD, the Court observed at [71] that MD had been sentenced to five years and six months on the manslaughter count and six months on the stealing count, the aggregate sentence being five years and nine months with a non-parole period of three years and nine months. The sentence had been reduced by 10% to take into account the utilitarian value of MD's plea of guilty. The undiscounted sentence was, therefore, about six years and four months.
114 The Court then observed in MD:-
"72. … that even taking into account his youth and strong subjective circumstances, if it could have been shown that the respondent was directly and intentionally responsible for the impact of the deceased with the light pole, his culpability would have been such that a more severe sentence could not have been avoided."
115 The Court finally observed at [80] that:-
"… the non-parole period and the head sentence imposed in relation to MD was at the lower end of the available range but the Court was not persuaded that the sentence imposed was such that the Court should intervene".
116 I note that the age difference between MD and the applicant in the present appeal was one and a half months (MD was 17 years and two weeks as against the applicants 16 years and 11 months as the date of the offences).
117 The non-parole period of three years and nine months imposed with respect to MD is, in my opinion, in line with the non-parole period imposed in the present case of four years, given, in particular, the Court's observation in paragraph [72] extracted above that, if it could have been shown that MD was directly and intentionally responsible for the impact of the deceased with the light pole, then his culpability would have been such that a more severe sentence could not have been avoided. In the present case, the applicant by his brutal attack was both directly and intentionally responsible for inflicting the fatal injuries on Mr Agang.