Lambaditis v R

The remarks on sentence

1. On the basis of the content of the Agreed Statement of Facts, the sentencing judge was satisfied that the applicant was affected by alcohol and in an angry state of mind after being turned away from the two venues. He accepted that it was the applicant who struck the first blow (which may have been in response to a comment made by Mr Heward) and that Mr Rodrigues' reaction in hitting out at the applicant was precipitated by the applicant's assault on Mr Heward. He said that the CCTV footage established that the events moved at a very fast pace, and that the applicant was "plainly intent on escalating the violent incident".
2. He recounted, in some detail, the evidence concerning the applicant's personal circumstances. He noted a number of cases said to be comparable to which he was referred by either the Crown or by the applicant's counsel. He expressly found that, for the purposes of s 21A of the Sentencing Procedure Act, there were no aggravating factors to be taken into account.
3. Contrary to the submissions of defence counsel who urged that the objective gravity of the offence was less than mid-range, the sentencing judge found the objective gravity to be "at least mid-range". That was attributable to four factors:

• the applicant's intoxicated and angry state of mind;
• the level of violence meted out to Mr Heward, which drew Mr Rodrigues into the violent episode, and was initiated by the applicant;
• the severity of the applicant's attacks upon Mr Heward and Mr Rodrigues;
• the force with which the applicant struck Mr Heward, causing him to fall to the ground, and the force of the punch to the head of Mr Rodrigues which similarly propelled him and which caused him to hit his head on the pavement.

1. He then said: "95 This is a case of alcohol-fuelled violence of a high order. It is not in the type of case of injury inflicted in the course of a drunken brawl involving an offender and victim. On the findings made to which I have earlier referred, the offender drew the deceased into a violent confrontation which was entirely of his own making."
2. The sentencing judge then referred to the decision of this Court in R v Loveridge [2014] NSWCCA 120, and said: "98 Although reference is often made to one-punch or single-punch manslaughter cases as constituting a particular class of case, as the Court in Loveridge observed the circumstances of these cases vary widely: at [215]. Additionally, in Loveridge the Court of Criminal Appeal stated that the commission of offences of violence, including manslaughter, in the context of alcohol-fuelled conduct in a public street or public place, is of great concern to the community and calls for an emphatic sentencing response to give particular effect to the need for denunciation, punishment and general deterrence. It is clear in the present case that the sentence to be imposed must, in an appropriate way, give effect to the principle of general deterrence in the sentencing exercise. … 100 There are some similarities to the facts in Loveridge to this case although there are also facts that distinguish that case from the present, including the fact that in that case the offender had a history of violent offences and was the [sic] subject to conditional liberty at the time of the offence in question. … 102 The attack upon Mr Rodrigues was, as in the case of Loveridge, both cowardly and unprovoked. It is a serious example of unlawful and dangerous act manslaughter which deserves substantial punishment. The offender in the present case, as I have earlier noted, was aged 33 years of age at the time of the offence, the offender in Loveridge was 18 years and 4 months …" His Honour went on to refer to other circumstances distinguishing Loveridge from the present case, and identified relevant sentencing considerations such as the applicant's subjective circumstances, general and specific deterrence, and said: "Although there is no evidence of prior instances of alcohol-fuelled violence by the offender, the facts and circumstances of the present case, so far as specific deterrence is concerned, indicates that the offender has a potential vulnerability to outbursts of violence in circumstances where excessive drinking and frustration and/or anger combine. On this basis, I consider that specific deterrence is a factor to be given some consideration and weight as appropriate in the sentencing exercise."
3. He accepted (at [111]) that there was evidence from a variety of sources including the applicant's own evidence, of remorse. He considered the applicant's prospects of rehabilitation to be reasonable.
4. He noted the Form 1 offence and stated specifically that the sentence that he was about to impose took that offence into account. He declined to make any variation, pursuant to s 44(2) of the Sentencing Procedure Act, to the ratio between the non-parole period and the total sentence. He took into account the applicant's plea of guilty and stated his intention of reducing the sentence to be imposed by 25 per cent for that reason.

The application for leave to appeal

1. In written submissions filed on behalf of the applicant five grounds of appeal were identified, as follows: "I. The Judge erred in assessing the objective seriousness of the offence as he failed to consider material considerations such as provocation, self-defence; II. The Judge erred in his reliance on the case of Loveridge … which should have been distinguished on a factual basis and as such failed to deliver an individualised sentence; III. The Judge erred in giving consideration and weight to specific deterrence; IV. The Judge erred in failing to give sufficient weight to mitigating factors of remorse, prospects of rehabilitation and previous good character; V. The sentence was manifestly excessive." At the hearing, it was made clear that the sole ground upon which reliance was placed was the fifth, that the sentence was manifestly excessive.
2. On behalf of the applicant, a good deal of emphasis was placed upon what was said to be the reliance by the sentencing judge on the decision in Loveridge. Reference was also made to passages in the evidence, particularly those passages in which the applicant said that he considered himself to have been under threat or under attack. Although no ground of appeal (as argued) challenged the sentencing judge's findings of fact, it did appear at times that the argument was to the effect that the sentencing judge had failed to take into account relevant factual material. As to the contention that the sentencing judge failed adequately to deal with the applicant's evidence of his state of mind, that is, that he considered himself to be under threat, the Court was urged (by both parties) to view the CCTV footage. My viewing of the footage persuades me that the applicant's evidence that he so considered himself ought to be treated with extreme caution. The video footage shows that the applicant is a very large, powerfully built, man. It shows him first throwing a punch at Mr Heward, and then two punches at Mr Rodrigues. In each case it can be seen that the punch is thrown with a great deal of force. The first punch, thrown at Mr Heward, was not preceded by any threat of violence from either Mr Heward or Mr Rodrigues.
3. The complaint concerning reliance on Loveridge is, in my opinion, misconceived. It appears to arise, not from anything said by the sentencing judge, but from some undoubted similarities between the two cases.
4. In Loveridge, the offender was in the Kings Cross area with a number of others, having earlier consumed significant quantities of alcohol at other locations. He manifested aggression towards one man, which resulted in a charge of assault occasioning actual bodily harm. He then assaulted Thomas Kelly, by punching him, causing him to fall to the ground and hit his head on the pavement. The impact of the pavement caused a severe fracture to Mr Kelly's skull and severe injuries to his brain which proved fatal (at [26]). That attack was entirely unprovoked. Mr Kelly and the offender were not known to one another.
5. After that event, the offender assaulted three other men in similar circumstances. Each assault was unprovoked, and in each case the victim was unknown to the offender.
6. The similarities are obvious. The principal similarity between the two cases is that, in each, the offender was intoxicated, in public places at night (in the Loveridge case the principal offence was committed at about 9.45pm, somewhat earlier than that of the applicant) and, without provocation, attacked a stranger, with a single punch, as a result of which the victim fell to the ground and suffered fatal injuries. In Loveridge, the injury appears to have been caused by the victim having hit his head on the pavement ([26], [35], [36]). In the present case, it is not clear whether the fatal injury was caused by Mr Rodrigues' head striking the pavement, or by the punch to the head, or a combination of the two. That is the significance of the evidence of cause of death set out above. The "blunt force" may have been the punch to the head (which might say something about the force of the blow), or the impact with the pavement.
7. There were also significant points of departure between the two cases. Loveridge had a history of prior offences of violence, including one recent one in respect of which he was subject to conditional liberty. The offence of manslaughter was not his only offence of violence on the night of the manslaughter; both before, and after, he attacked that victim, Loveridge attacked, unprovoked, several other men.
8. Loveridge was significant younger, and was entitled consideration for a severely deprived upbringing: Bugmy v The Queen [2013] HCA 37; 249 CLR 571.
9. At first instance, in respect of the manslaughter offence, Loveridge was sentenced to imprisonment for 6 years with a non-parole period of 4 years. That sentence was part of a more extensive sentencing exercise by reason of the need to sentence him for the four separate assaults, all committed on the same evening, as part of an ongoing episode of serious and violent criminality.
10. After a successful Crown appeal, in respect of the manslaughter offence, the sentence imposed on Loveridge was increased to imprisonment for 10 years, with a non-parole period of 7 years.
11. In Loveridge, this Court said: "215 Firstly, it is not meaningful to speak of one-punch or single-punch manslaughter cases as constituting a single class of offences. The circumstances of these cases vary widely and attention must be given to the particular case before the sentencing court. 216 Secondly, the commission of offences of violence, including manslaughter, in the context of alcohol-fuelled conduct in a public street or public place is of great concern to the community, and calls for an emphatic sentencing response to give particular effect to the need for denunciation, punishment and general deterrence … … 227 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. … … 229 When sentencing for manslaughter, a court must always have regard to the full context in which death was caused … The surrounding circumstances may bear upon the objective gravity of the offence and the moral culpability of the offender …"
12. The difficulty with the submissions advanced on behalf of the applicant is that the sentencing judge did not treat the sentence imposed on Loveridge as governing the sentence to be imposed on the applicant. He recognised that there were relevant differences between the two cases, including those that favoured the applicant. The sentence imposed does not suggest that the sentencing judge treated the decision in Loveridge as determining the sentence to be imposed - the sentence he imposed was less than that imposed on Loveridge for manslaughter. The references to the judgment in Loveridge were made with respect to the principles therein stated.
13. In R v McNeil (No 4) [2015] NSWSC 1198 R A Hulme J sentenced in respect of another so-called "one punch" unprovoked assault that resulted in the death of the victim, together with other offences. Pursuant to s 53A of the Sentencing Procedure Act, his Honour imposed an aggregate sentence, but, in accordance with s 53, specified the sentences he would have imposed if sentenced individually. He nominated 9 years for the manslaughter. (It was not necessary nor appropriate to specify a non-parole period.)
14. Counsel who represented the applicant at first instance put before the sentencing judge a number of previous cases which might thought to be broadly comparable, or at least to have some comparable features: R v Field [2014] NSWSC 1797; R v Dyer [2014] NSWSC 1809; R v Matthews [2015] NSWSC 49; R v Lane (No 3) [2015] NSWSC 118. In each case the sentence was less than that imposed on the applicant, in some cases significantly so. That does not establish error in the sense that the sentence imposed lay outside the wide range legitimately open.
15. At times also, it appeared to be suggested that too much weight was given to the need for the sentence to recognise specific deterrence, but this was not (and could not properly have been) pressed with any rigour. It is true that the applicant's history was not indicative of a tendency towards violence, but it could scarcely be denied in the whole of the circumstances that some element of specific deterrence was required to be reflected in the sentence, and nothing indicates that that consideration was elevated beyond what was appropriate.
16. Although it is well recognised that manslaughter is a widely divergent offence, and the personal circumstances of each offender must be given their full weight, Loveridge and McNeil demonstrate that the sentence imposed on the applicant was well within the range of sentences that might be expected, and falls within the legitimate sentencing discretion. It was not correct, as appeared to be suggested, that the sentencing judge failed to take into account relevant evidence; the Remarks on Sentence show that he gave full weight both to the objective circumstances and the applicant's personal circumstances.
17. No basis has been demonstrated for interference with the sentence imposed in the Supreme Court.
18. I propose the following orders: 1. Leave to appeal against sentence granted; 2. Appeal dismissed.
19. GARLING J: I agree with Simpson JA.
20. WILSON J: I agree with Simpson JA.

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