Lee v The Queen [2018] VSCA 63

CRIMINAL LAW - Appeal - Sentence - Unlawful and dangerous act manslaughter - Applicant sentenced to 8 years' imprisonment with non-parole period of 5 years - Death caused by single punch to head - Applicant had no prior convictions - Judge found community did not need to be protected from applicant - Whether judge erred in stating that specific deterrence was 'important' - Whether judge erred in not finding the offending was in 'lowest possible category' of seriousness - Whether sentence manifestly excessive - Leave to appeal refused.

1 On 8 September 2017, the applicant pleaded guilty to one charge of manslaughter and, on 10 November 2017, he was sentenced to 8 years' imprisonment with a non-parole period of 5 years.[1] The maximum penalty for manslaughter is 20 years' imprisonment.[2]

2 The offending arose out of an altercation that broke out outside the Windy Mile Hotel in Diamond Creek, where the applicant and the victim were patrons. During the altercation, the applicant struck the victim once to the right side of his head, with a closed fist. The victim died approximately 21 hours later from an acute extradural haemorrhage which was caused by the applicant's blow.

3 The applicant seeks leave to appeal against sentence on three proposed grounds: first, the judge erred in failing to find that the offence was in the lowest possible category of seriousness; secondly, the judge erred in finding that specific deterrence was an important sentencing consideration; and thirdly, the sentence is manifestly excessive.

4 For the reasons that follow, leave to appeal will be refused.

Circumstances of offending and procedural history

5 On the evening of Saturday 16 April 2016, the applicant and the victim separately attended the Windy Mile Hotel. The victim, 19-year-old Patrick Cronin, arrived there at 9:45 pm with five friends.

6 The applicant arrived at the hotel with some friends at 10:21 pm. The applicant and the victim did not know each other and until the altercation, spent the evening in separate areas of the hotel.

7 At about 11:00 pm, an altercation broke out on the footpath at the front of the hotel, involving a large group of patrons primarily from two different sports clubs. CCTV footage of the interior and exterior of the hotel shows the applicant's and the victim's movements at the time of the altercation.

8 At 11:04 pm, the applicant left the hotel through the main doors. He stood facing towards the hotel and watched the altercation from the outside of the group of combatants with his arms folded.

9 About 15 seconds after the applicant walked outside, the victim came out of the main doors of the hotel and walked past the applicant. He proceeded around the side of the group of combatants where he could see one of his friends, Anthony Hopkins, involved in the fight. The victim walked into the group, took hold of Mr Hopkins and tried to pull him away from the conflict. The victim was able to lead Mr Hopkins through the group back towards the main doors of the hotel. However, Mr Hopkins became involved in renewed fighting, at which time, approximately 30 seconds after the victim exited the hotel, the applicant moved towards the victim and Mr Hopkin's right side. The victim was facing away from the applicant and could not see him approaching.

10 When the applicant reached the victim and Mr Hopkins, he threw a punch at Mr Hopkins, striking him to the right side of his head. He then threw a second punch with his right hand, striking the victim to the right side of his head, near his right ear. Upon impact, the victim stumbled sideways and crouched slightly, but did not fall. The applicant threw a third punch which did not connect with anyone. The three punches were in rapid succession. The victim and Mr Hopkins moved away from the group of combatants and walked down the side of the hotel. The applicant continued to engage in the fighting with other patrons.

11 At all times during the altercation, and in its aftermath, the victim did not act aggressively. He can be seen on the CCTV footage, after assisting Mr Hopkins to leave the altercation, pulling another friend, Josh Davis, away from the fighting. He then assisted a third friend, Jesse Matthews. He talked to Mr Matthews after the police arrived and the fighting ceased. During that time the victim periodically rubbed the side of his head where he had been punched and demonstrated to Mr Matthews and later to another friend, Fraser Delbridge, how he had been hit.

12 At approximately 11:30 pm, the victim and his group went to a friend's house, where they had planned to spend the night. The victim complained of a headache and feeling unwell. He said that he was going to take Panadol and go to bed. By approximately 12:30 am on 17 April 2016, the victim's condition was significantly worse and he had begun vomiting. The victim called his mother, who arrived at approximately 1:15 am. The victim was then unresponsive and an ambulance was called. Before the ambulance arrived, the victim had a seizure and was convulsing. Shortly after the ambulance arrived at 1:30 am, the victim fell unconscious. He was transported to the Royal Melbourne Hospital.

13 At the hospital, it was determined that the victim had suffered 'a significant bleed on the right side of his brain which had resulted in a non-survivable brain injury'. At 8:25 pm on 17 April 2016, the victim died from an 'acute extradural haemorrhage following blunt force head trauma'.

14 The victim's autopsy revealed a two centimetre hairline fracture to the right side of his skull, with an associated lacerated right middle meningeal artery at the site of the fracture. The lacerated artery produced the acute extradural haemorrhage which in turn caused death. The evidence of the pathologist who performed the autopsy was that the skull, at the point where the victim was struck, is only between one and four millimetres thick and that 'with a very direct hit or blow it doesn't take much to actually fracture the skull at that point'.

15 Police reviewed the CCTV footage from the hotel and released to the media still images of the applicant as a person of interest. On 20 April 2016, the applicant surrendered himself to police and participated in a 'no comment' interview. He was arrested, charged with murder and remanded in custody, before being released on bail on 20 June 2016.

16 At the committal hearing on 17 May 2017, the charge of murder was withdrawn and the applicant was committed for trial on a charge of manslaughter by unlawful and dangerous act. The blow to the victim's head was an unlawful assault as well as a dangerous act.[3]

17 In early 2017, the prosecution filed a notice pursuant to s 9A of the Sentencing Act 1991 ('s 9A notice'). The effect of this notice was that, if the applicant was convicted of manslaughter, and certain matters about the circumstances of the offending were proved beyond reasonable doubt, the applicable minimum non-parole period would be 10 years in accordance with s 9C(2) of the Sentencing Act 1991.

18 The applicant's trial commenced on 6 September 2017. He was arraigned and pleaded not guilty to the charge of manslaughter. On 8 September 2017, after openings were presented and a view of the scene had been conducted, the applicant was re-arraigned at his request and he pleaded guilty. A short time later, the prosecution revoked the s 9A notice, the result of which was that the mandatory sentencing provisions no longer applied to the applicant.

19 Ninety-three victim impact statements were tendered on the plea from the victim's family, friends and local community. The judge stated that the victim impact statements from the victim's siblings and parents particularly highlighted the loss, suffering and grief that had been caused by the applicant's conduct. The judge said the following about the victim impact statements:

The effect of Patrick Cronin's death on a very large number of people in the area in which he and his family lived, was educated and played football, is profound ...

...

The victim impact statements also combine to underline the extraordinary affection and esteem in which Patrick Cronin was held by everyone who knew him, and that is a very large collection of people.

...

Those in the position of the family and friends of Patrick Cronin will have to carry the effects of his loss for the rest of their lives in varying levels of intensity. Those effects will be particularly vivid in the case of his family. Among the collection of matters I am required by legal principle to consider in imposing sentence, I have taken the victim impact statements, and the nature of the effect they describe, into account in determining the sentence I should impose ...[4]

20 The applicant was 33 years of age at the time of the offending and 34 when he was sentenced. He has two older siblings.

21 The applicant has lived in Diamond Creek for his entire life. He attended school nearby, before leaving during Year 11 and commencing an apprenticeship in shop fitting. He completed that apprenticeship and began working in that industry in 2003, before becoming a construction rigger in 2006. He had consistent employment in the construction industry from that time until his arrest.

22 In about 2003, the applicant met his wife. They bought a house together in 2009 and married in about 2014. They have a son who was born in 2015.

23 The applicant has no prior convictions. He does not have any history of substance abuse or psychological instability. He has been diagnosed with a major depressive disorder, however the condition did not have any role in the offending.

24 At the plea hearing, the applicant submitted that his offending fell within the lower range of seriousness, and not within the mid-range. He contrasted his offending with the offending in other cases of manslaughter by unlawful and dangerous act that involved sustained attacks, weapons, attacks in company and immediate and apparent injuries to victims, by offenders with relevant criminal histories and uncertain prospects of rehabilitation.[5] He said that, in comparative terms, his offending fell towards the bottom of the range.

25 The applicant contended that, when compared to other cases of manslaughter by unlawful and dangerous act, his moral culpability was low for a number of reasons. First, his offending involved a fleeting act, following a period of restraint when he did not intervene in the fight, including when the victim walked past him earlier. Secondly, the dangerous act was a single punch and not an attack that was sustained or involved the use of a weapon. Thirdly, the punch was not so forceful as to have dazed the victim and it was 'incredibly unlucky' that the blow fell on a vulnerable point on the victim's skull. Fourthly, the applicant's involvement in the fight and punch to the victim was precipitated by Mr Hopkins hitting one of the applicant's friends, Aaron Burns, which placed the punch in the category of acting out of loyalty rather than for a more sinister reason.

26 In his written submissions on the plea, the applicant stated that 'specific deterrence is little needed'. In his oral submissions, he referred to 'the diminution of specific deterrence'.[6]

27 Sixty-two character references were tendered on the plea, from the applicant's family, friends, colleagues and members of his local community. They described him as a loving father and uncle and a very community-minded person who was involved with, and volunteered, in his local community. A number of the references described him as hardworking and a valuable and respected member of the community. Some of the statements also described the offending as out of character for the applicant, and stated that he felt shame and remorse for his offending.

28 The applicant's wife gave evidence on the plea. She described the remorse the applicant has felt since his offending and the empathy he feels for the victim's family, particularly his parents. She said that he also feels that he has let his family and his community down. She stated that she intends to maintain her relationship with the applicant.

29 A psychological report tendered on the plea also stated that the applicant had 'displayed a good deal of empathy and remorse for his actions'. The psychologist's opinion was that the applicant's genuine ability to feel remorse and empathy and his willingness to take responsibility for his actions suggest that he is a good candidate for rehabilitation.

30 The applicant submitted that his major depressive disorder would make his time in custody onerous and that it should be taken into account in a moderate way.

31 The prosecutor did not directly address the applicant's submission that his offending fell within the lower range of seriousness rather than the mid-range. However, he made two observations that suggested that the seriousness of the applicant's offending was above the lower range. The first observation was that, by enacting s 9C of the Sentencing Act 1991 to deal with one-punch manslaughter, Parliament effectively classified this type of manslaughter as 'a high end example of manslaughter'. The second observation was that, in cases such as the present where s 9C does not apply because some but not all of its requirements are satisfied, the 10 year minimum period of imprisonment specified by s 9C(2) can nevertheless serve as a 'guide post' for sentencing purposes.

32 The prosecutor contended that one matter affecting the applicant's moral culpability was his training in the martial art, Muay Thai, which teaches that a person should only engage in fighting for self-defence. Accordingly, so it was said, the applicant's engagement in fighting, having had that training, carried with it greater moral culpability.

33 The judge did not place the applicant's offending in any category of seriousness. However, he described the nature and gravity of the applicant's offending as 'significant'.[7] He stated that although the applicant's conduct was spontaneous and occurred over a few seconds, during which he made a 'terrible mistake', it was a 'violent act [that] had a dreadful consequence'.[8] The judge found, consistent with a concession by the prosecutor, that he could not be satisfied beyond reasonable doubt that the blow which struck the victim was intended by the applicant for the victim. He nevertheless condemned the applicant's actions because, even though he may been motivated by a desire to assist Mr Burns, he intervened in the conflict in a violent manner when there was no need for him to do so.

34 The judge stated that, despite the applicant having achieved some proficiency in Muay Thai and being taught that his skill was only to be used in self-defence, it was 'significant [that the applicant] knew better but failed to heed that instruction which is an important part of legitimate martial arts training'.[9] However, he did not treat this, or any other circumstance of the offending, as aggravating.

35 The judge rejected the submission from the prosecutor that, notwithstanding that s 9C of the Sentencing Act 1991 did not apply to the applicant, it operated as a 'guide post' that should have an upward effect on the sentence to be imposed on the applicant.[10]

36 The judge noted that the applicant did not have any previous convictions of any kind and said that his 'prospects for the future ... seem very positive'.[11]

37 The judge stated that general deterrence - as well as public education and awareness - played an important role in curbing the frequency of incidents such as the present. He accepted that there was justifiable community concern about such incidents taking place and the propensity of young men to engage in violent behaviour without realising the gravity of the consequences of that conduct.

38 Regarding the applicant's prospects of rehabilitation and the need for general and specific deterrence, the judge found the following:

As is the case with Patrick Cronin [the applicant comes] from a close and stable family. As to [the applicant's] previous character, [he is] without a prior criminal history and [his] future on [his] release from custody looks positive. [His] prospects for rehabilitation are something I must consider and they are good. In my opinion [he] already [has] well developed insight into what [he] did. The way [he has] conducted [himself] since this incident demonstrates that [he] clearly understand[s] the gravity of [his] actions. I do not regard [him] as someone from whom the community now needs to be protected. However, sentencing considerations of specific and general deterrence remain important in this case.[12]

39 The judge had regard to the strong mitigating factors that the applicant was able to call in aid. He stated that although the applicant's plea of guilty had been made at a late stage, in some respects that was the fault of the legal process. He accepted that the applicant's plea of guilty had avoided the need for a trial and the attendant trauma for the victim's family. Further, the judge was satisfied that the applicant was genuinely remorseful and that his plea was, at least in part, a reflection of that remorse and a willingness to accept responsibility for his actions. He had regard to the psychologist's report, which supported the applicant's submission that he was remorseful. The judge stated that the applicant had been diagnosed with depression but noted that the condition was situational upon the applicant's present circumstances.

40 Pursuant to s 6AAA of the Sentencing Act 1991, the judge declared that, had the applicant not pleaded guilty, he would have sentenced him to 10 years' imprisonment and fixed a non-parole period of 7 years.

41 The applicant's proposed grounds of appeal are as follows:

1. The Learned Trial Judge erred in failing to find that this crime should have been categorised as falling in the lowest possible category of 'unlawful and dangerous act' manslaughter.
2. The Learned Trial Judge erred in finding that specific deterrence was important.

Proposed ground 1: Categorisation of seriousness of offending

42 The applicant submitted that the judge erred in not identifying where his offending lay on the spectrum of seriousness for the offence of manslaughter by unlawful and dangerous act. He relied on the following observations in R v Kilic[13] for that submission:

Where ... an offence, although a grave instance of the offence, is not so grave as to warrant the imposition of the maximum prescribed penalty ... a sentencing judge is bound to consider where the facts of the particular offence and offender lie on the 'spectrum' that extends from the least serious instances of the offence to the worst category, properly so called. It is potentially confusing, therefore, and likely to lead to error to describe an offence which does not warrant the maximum prescribed penalty as being 'within the worst category'. It is a practice which should be avoided.[14]

43 The applicant submitted that the judge's comment '[t]he nature and gravity of [the applicant's] offending was significant'[15] suggested that the judge had failed to make any finding as to the category in which his offending fell or erred by categorising it as other than 'bottom-end' or 'within the lower range'. He contended that categorisation is an important process, particularly for the offence of manslaughter which is 'a wide ranging offence and catches such a range of conduct'.

44 The applicant argued that if his offending were considered in the light of the context in which it was committed and the elements of the offence, it would necessarily have to be assessed as falling toward the bottom of the scale of seriousness. In support of this submission, the applicant relied on the key elements of his offending, as well as a comparison of his offending with that in other cases. The cases on which he relied for comparison purposes are discussed under proposed ground 3 below.

45 Regarding the unlawfulness elements, the applicant conceded that throwing a punch without the excuse of defence of another constituted an unlawful assault. However, he submitted that, when compared to other cases of manslaughter by unlawful and dangerous act, the act was 'basic' because it comprised punching and lasted a split second. He described his offending as 'situational, weaponless, speedy and explicable, albeit culpable'. He also noted that many other patrons involved in the altercation threw multiple head-high punches, without apparent significant effect and without charge.

46 Regarding the dangerous element, the applicant submitted that the danger inherent in throwing a punch in a volatile, moving fight was 'generally' less than 'almost all other dangerous acts which lead to conviction for this type of manslaughter', including kicks, stomps, use of sharp or heavy weapons and sustained or recurring attacks. The danger was said to have arisen in the present case because the victim unexpectedly moved 'into peril' and was hit at the side of his head where the skull is thin and significant force is not required to cause a fracture.

47 Regarding the context of his offending, the applicant submitted that he threw his punches in the course of a 'rolling brawl' in which he intervened only after Mr Hopkins struck Mr Burns. It was submitted that the punch that struck the victim was not a gratuitous act of violence or a 'cold king-hit'.

48 The applicant contended that his Muay Thai training was not an aggravating feature, as there was no evidence that it affected the force of his punches. The facts were, so it was said, that the applicant hit the wrong man, without sufficient force to knock him down or cause concussion.

49 The Crown submitted that the judge had correctly found the nature and gravity of the offending to be 'significant'. It contended that the finding was correct when regard is had to, among other things: the applicant's intoxication; the applicant and victim being strangers; the victim not being involved in the altercation; the applicant watching the fighting for approximately one minute before becoming involved; the victim not posing any threat to the applicant or any other person; the applicant punching the victim from behind, while he was defenceless; the punch that struck the victim being considered and deliberate, as it was a second punch; and the public place at which the offence took place.

50 The Crown contended that a punch which is described as a 'split second' that kills another person is objectively serious conduct. It argued that, properly categorised, the applicant's moral culpability was 'high', because he had needlessly intervened in the fight after watching it and had delivered blows that were forceful. It further argued that the applicant's culpability was not diminished by the fact that other patrons were also punching at head-height, or because other incidents of manslaughter by unlawful and dangerous act have involved kicking, stomping, or the use of weapons. The context of the offending, the Crown contended, elevated the applicant's offending from the lower category. The Crown contrasted the applicant's conduct in responding to the altercation by becoming involved, and the victim's conduct in seeking to remove his friends from the fighting.

51 In my opinion, proposed ground 1 is not reasonably arguable.

52 The judge was required to have regard to the maximum penalty of 20 years' imprisonment[16] and to use it as a yardstick against which to assess the applicant's offending relative to the 'worst case', which warrants the imposition of the maximum penalty.[17] He was also required to assess the nature and gravity of the offending[18] and the applicant's culpability[19] by reference to the circumstances in which the offence was committed and other relevant considerations such as the presence or absence of any aggravating or mitigating factors.[20]

53 The judge made an assessment in accordance with these statutory requirements by describing the gravity of the applicant's offending as 'significant'. There was no statutory or common law obligation on the judge to go further and attach a label such as 'low range', 'mid-range' or 'high range' to the offending. Kilic does not mandate use of such labels. Although such labels can sometimes be useful in articulating, in relative terms, the gravity of particular offending, their absence does not bespeak error. What is important is the substance of the assessment of the nature and gravity of the offending, rather than the label that is used.

54 In any event, the judge's description of the nature and gravity of the offending as 'significant' must be considered in the light of the parties' submissions on the plea. The applicant described his offending as falling within the lower range whereas the effect of the prosecutor's submissions was that the seriousness of the offending exceeded that level.[21] In these circumstances, the judge's statement that the nature and gravity of the offending was 'significant', read in context, can only mean that he treated it as mid-range. For the reasons discussed under proposed ground 3, he was correct to do so.

55 The applicant submitted that the need for specific deterrence was 'almost non-existent' in his case. He contended that the judge therefore erred in finding that it was an 'important' factor, as set out at [38] above, in circumstances where the judge had also found that the applicant had no history of violence or substance abuse, no prior convictions and had demonstrated remorse. The applicant argued that the judge's finding that the community did not need protection from him was inconsistent with the statement that specific deterrence was an important sentencing consideration. Accordingly, so it was said, there was no, or no substantial, basis on which the judge could find that specific deterrence was an important sentencing consideration.

56 The Crown submitted that the sentencing remarks, read as a whole, give rise to the inference that the judge gave little, if any, weight to specific deterrence. It argued that inference arose because, before the judge concluded his remarks, he set out all the matters particular to the applicant that would have reduced the importance of specific deterrence in the sentencing synthesis. The judge was, the Crown argued, doing no more than stating that specific deterrence carried some weight.

57 The Crown contended that the judge was correct to find that specific deterrence had a role to play, notwithstanding the applicant's lack of criminal history, good work history and support from his family and friends. That was said to be because the applicant, a 33-year-old man, had while affected by alcohol elected to join the altercation after having initially stood back, and continued to be involved after he punched the victim. The Crown argued that specific deterrence assumed greater importance in the light of the fact that, despite being taught as part of his Muay Thai training to fight only in self-defence, the applicant chose to be an aggressor in the altercation that led to the victim's death.

58 In my opinion, ground 2 is not reasonably arguable.

59 I accept that, if the judge's statement that 'sentencing considerations of specific and general deterrence remain important in this case' was read literally to mean that the judge assessed general and specific deterrence as having equal prominence in the present case, that statement would disclose error. This would be so because, although general deterrence is undoubtedly a foremost sentencing consideration for this type of offending and thus warranted significant weight,[22] there was an insufficient evidentiary basis to elevate specific deterrence to the same level of importance in the case of the applicant. Significantly, there was an absence of any prior offending by the applicant. In addition, the judge made positive findings that the applicant had expressed remorse, accepted responsibility for his actions, had good prospects of rehabilitation and the community did not need to be protected from him. These findings are inconsistent with specific deterrence being a foremost sentencing consideration which warranted the same weight as general deterrence.

60 However, the judge's statement appears in sentencing remarks and his words should not be construed as if they are in a statute, a will or a deed and require semantic analysis to distil their meaning.[23] Allowance must be made for occasional looseness of language. Further, the judge's statement must be considered in the context of his sentencing remarks as a whole.[24] Viewed in this manner, I am satisfied that the judge did not intend to convey that general and specific deterrence deserved equal prominence and carried the same weight in the present case. Rather, he intended to convey that specific deterrence remained a relevant sentencing consideration. That is clearly so having regard to s 5(1)(b) of the Sentencing Act 1991.

61 It is to be noted that, on the plea, the applicant did not contend that specific deterrence was irrelevant. Rather, he said that it was 'little needed', that is, that it carried little weight. Further, having regard to the judge's findings to which I have already referred, it can be inferred that while the judge gave significant weight to general deterrence, he gave little weight to specific deterrence, which was consistent with the applicant's submission.

62 Even if the judge's statement disclosed error in the exercise of the sentencing discretion, I would refuse leave to appeal on the basis that there is no reasonable prospect that the Court of Appeal would impose a less severe sentence than the sentence imposed by the judge.[25] This is so for the reasons set out under proposed ground 3.

63 The applicant submitted that, as his offending was 'at the very least [at the] lower-end' of the range of seriousness, and in the light of his good character, remorse and plea of guilty, a significantly lighter sentence was required. He contended that this was so even having regard to current sentencing practices since Director of Public Prosecutions v Dalgliesh,[26] and the recent trend towards higher sentences for violent offending.

64 The applicant relied on Director of Public Prosecutions v Bryan,[27] in which this Court stated that 'sentences in the range of five to seven years ... may be appropriate where the offender does not have any significant prior convictions for violence or, alternatively where the attack was less savage and sustained than that which was inflicted by the [offender]'.[28] He also relied on the fact that the offender in that case was resentenced by this Court to 8 years' imprisonment with a non-parole period of 4 years and 6 months in circumstances where the offending in that case - which involved death caused by multiple stab wounds to the victim's body with a knife - fell higher on the scale of seriousness than his offending. Bryan is discussed in detail at [79]-[89] below.

65 The applicant also submitted that his offending should be contrasted with that in Vincec v The Queen,[29] which involved death caused by a single punch. In that case, Weinberg JA refused to grant leave to the offender to appeal against his sentence of 8 years' imprisonment with a non-parole period of 5 years. The applicant contended that his offending was objectively less serious than that in Vincec, that his personal circumstances were more favourable than those of the offender in that case and accordingly, he should have received a lighter sentence than that imposed in Vincec. Vincec is discussed in detail at [90]-[99] below.

66 The applicant also contrasted his offending with that in Maybus v The Queen[30] and Robb v The Queen.[31] Those cases are discussed at [100]-[104] below.

67 Finally, the applicant relied on a table of sentences imposed for the offence of manslaughter by unlawful and dangerous act since 2014. That table is discussed at [105] below.

68 The Crown submitted that although the judge did not expressly categorise the offending as 'low' or 'mid-range', in substance, he treated it as mid-range. It contended that, as the applicant's offending was in the mid-range of seriousness, the sentence imposed on him was open to the judge. It argued that sentences for manslaughter have increased significantly in recent years and referred to the Sentencing Advisory Council's Sentencing Snapshot for manslaughter.[32] The Sentencing Snapshot showed that during the five-year period ending 30 June 2016, the median length of imprisonment was 8 years, the mean length ranged from 6 years and 11 months to 8 years and 11 months' imprisonment, and the most common length was 8 to less than 9 years' imprisonment. Accordingly, so it was said, the applicant's sentence - which was 40 per cent of the maximum penalty - was consistent with the prosecution's submission to the judge that the seriousness of the applicant's offending was above the lower range, and open to the judge.

69 The Crown submitted that, when compared to similar cases of manslaughter by unlawful and dangerous act, the applicant's offending cannot be seen as at the 'low end of the range of offences' that comprise manslaughter. The Crown relied on Vincec, in which Weinberg JA referred to the Sentencing Snapshot discussed at [68] above and stated that 'the average sentence [for manslaughter] is currently between about seven years and nine years' imprisonm[33]t'.33 He also said that 'there is nothing at all unusual about a head sentence of eight years for manslaughter, still less a non-parole period of five ye[34]s'.34 Weinberg JA also agreed with the sentencing judge's observation that 'sentences for all forms of manslaughter have increased significantly in recent ye[35]s'.35 The Crown contended there was a 'marked degree of similarity' between Vincec and the present case.

70 The Crown emphasised that a sentence is not unreasonable or unjust because a lesser sentence has been passed in a like case or the same sentence has been passed in a case that is said to have worse features.[36]

71 In my opinion, proposed ground 3 is not reasonably arguable.

72 The judge was correct to describe the applicant's offending as 'significant'. As I explained under proposed ground 1, the judge can be taken to have assessed the applicant's offending as 'mid-range'. Such an assessment was appropriate having regard to the following:

(a) The applicant's offending was neither provoked nor spontaneous. He stood watching the altercation for almost a minute before deciding to intervene and throw three punches. He had time to reflect on how he should respond to the events he was observing and made a deliberate decision to act in a violent and dangerous manner.

(b) As there were a number of individuals between the applicant and the group which included the victim, Mr Hopkins and Mr Burns, the applicant had to navigate his way through the crowd to reach them. The determined manner in which he made his way to Mr Burns is indicative of his intention to inflict harm on Mr Hopkins. By acting violently towards Mr Hopkins, he created a danger that others in the vicinity of Mr Hopkins might be seriously hurt, irrespective of whether they posed a danger to anyone.

(c) When the applicant reached Mr Hopkins and the victim, he struck them in quick succession without any hesitation and without any warning.

(d) The applicant was in no personal danger and there was no necessity for him to intervene. Although he intervened only after he saw that Mr Burns and Mr Hopkins were fighting, he would have been able to observe that the victim was seeking to pull Mr Hopkins away from Mr Burns. The applicant's conduct was entirely gratuitous.

(e) The applicant would have been aware that the victim was not a participant in the altercation but was seeking to defuse it by removing Mr Hopkins from the fighting. The applicant did not know the victim, had no previous contact with him and had no justification in harming him.

(f) The applicant punched the victim from behind, while he was defenceless. The punch that made contact with the victim was the second punch following the applicant's intervention, which indicated that he persevered with his violent behaviour following the infliction of the first blow on Mr Hopkins.

73 The applicant's moral culpability was high. He was intoxicated at the time of the offending and deliberately chose to act in a violent and dangerous manner against a defenceless victim who was actively seeking to keep the peace by removing his friend from the altercation.

74 Contrary to the Crown's submission, I do not regard the applicant's experience with Muay Thai as having any bearing on his moral culpability.[37] Insofar as training in that martial art taught the applicant that he should use his training only in self-defence rather than as an aggressor, it merely reflected common sense.

75 The judge correctly found that general deterrence was an important sentencing consideration. This is because death caused by individuals - particularly young men affected by alcohol - punching defenceless victims to the head has become a serious problem in our community and the courts need to send a clear message that such offending will be met by lengthy periods of imprisonment.[38]

76 I accept that the applicant was able to call in aid powerful mitigating factors. They included his plea of guilty, remorse, acceptance of responsibility, family support and good prospects of rehabilitation. In my opinion, the judge gave appropriate weight to these factors in sentencing the applicant. Had it not been for these factors, the judge would have been justified in imposing a sentence in excess of 8 years' imprisonment.

77 As I have already indicated, both parties placed emphasis on current sentencing practices and, in particular, the cases of Bryan and Vincec.

78 In accordance with s 5(2)(b) of the Sentencing Act 1991, current sentencing practices are a relevant sentencing consideration. However, they are not a controlling consideration.[39]

79 In my opinion, as Bryan was decided in 2014 and Vincec was decided in 2018, the range of 7 to 9 years' imprisonment discussed in Vincec more accurately reflects current sentencing practices than the range of 5 to 7 years discussed in Bryan. This conclusion is reinforced by the Sentencing Advisory Council's Snapshot to which I have already referred, which indicates that the median sentence for manslaughter in the five-year period ending 30 June 2016 was 8 years' imprisonment. It follows that the sentence imposed on the applicant in the present case is entirely consistent with current sentencing practices.

80 In my opinion, a detailed consideration of Bryan and Vincec provides no support for the applicant's contention that the sentence imposed on him was manifestly excessive.

81 In Bryan, the offender met the victim, David Tserniak, for the first time shortly after 3:40 am on 28 January 2012. The two men walked to some nearby flats, and one of them was heard by a witness to be speaking aggressively. At 4:10 am, a passer-by found Mr Tserniak lying on the footpath outside the flats with 12 stab wounds to his body. He had died of wounds penetrating his left lung and damaging his right femoral vein. The offender was arrested just over one month later and was found to have altered his appearance. After initially denying the offending, he accepted responsibility and pleaded guilty to manslaughter.

82 The offender had been convicted in Queensland in 2002 of inflicting grievous bodily harm on a stranger, with a knife, in a public place. He also had a lengthy history of drug abuse, from his early teenage years. He was 31 years old when he killed Mr Tserniak.

83 The offender had killed Mr Tserniak while drug affected, and there was expert evidence on the plea that he was unlikely to re-offend if he ceased substance abuse. A forensic psychiatrist was impressed with the progress the offender made while in custody and the sentencing judge found that 'there was little need for the respondent to be specifically deterred from committing similar crimes in the future'.[40] The sentencing judge accepted that the offending occurred while the offender was in a 'subjective state of fear',[41] and that the offender's plea of guilty was strong evidence of remorse.

84 This Court upheld an appeal by the Director of Public Prosecutions. It found that the sentence of 6 years' imprisonment with a non-parole period of 3 years and 6 months was manifestly inadequate. It stated that the sentencing judge 'must have given too much weight to the [offender's] plea of guilty, to his remorse and to what [the sentencing judge] regarded as his prospects of rehabilitation'.[42]

85 In resentencing the offender, this Court stated that the offender's previous offending had to be given 'full weight'[43] and that while the offender had made commendable attempts to rehabilitate himself in prison, it would take a 'huge effort' for him to remain drug free.[44] The Court had regard to evidence of the offender's immaturity and his attempt to skew the results of his psychological testing, and his limited insight. The Court concluded that those factors meant that specific deterrence and protection of the community had to be taken into account in the course of any resentencing exercise. As I have already stated, the Court resentenced the offender to 8 years' imprisonment and fixed a non-parole period of 4 years and 6 months.

86 The applicant relied on Bryan in two ways. First, he contended that the sentence imposed on him was manifestly excessive in the light of the objectively more serious offending in Bryan, for which the same sentence was imposed. Secondly, he argued that this Court had allowed the Director's appeal and resentenced the offender to a longer sentence because, at least in part, of the need for specific deterrence in the light of the offender's history of violent offending, drug use, and because the offending occurred in the context of a drug deal. The applicant submitted that as he did not have personal circumstances comparable to the offender in Bryan, no such need for specific deterrence existed and a lesser sentence was required.

87 The Crown submitted that the offending in Bryan was significantly different, such that it did not provide a useful comparison and could not assist the applicant.

88 I accept the applicant's submission that a comparison of the circumstances of the offending in Bryan and the present case suggests that the offending in Bryan was more serious. Some aggravating features of the offending in Bryan were absent in the present case. The key distinguishing feature was that the offender used a knife to inflict multiple injuries on Mr Tserniak, shortly after meeting him for the first time. Also of significance was that the offender in Bryan had a relevant prior offence. However, contrary to the applicant's submission, the offending did not take place in the context of a drug deal; the offender had purchased drugs from a third person before he met Mr Tserniak.

89 In my opinion, the fact that the offender in Bryan ultimately received the same sentence as the applicant for more serious offending does not mean that the sentence imposed on the applicant is manifestly excessive. The sentence in Bryan does not set a mandatory benchmark or binding precedent as to the sentence that was reasonably open in the present case. As the High Court emphasised in Dalgleish,[45] the judge had a duty to impose a sentence that was just in all the circumstances of the applicant's case and no sentence in a previous case could prevent him from discharging that duty.[46] The judge discharged that duty in the present case. For the reasons I have already discussed, having regard to the gravity of the offending in the present case and the other sentencing considerations to which I have already referred, the sentence of 8 years' imprisonment was reasonably open to the judge.

90 In Vincec, the offender had been consuming alcohol throughout the day on 6 May 2017. Between 10:15 pm and 11:00 pm, at a bar in the Melbourne CBD, he consumed cocaine. There, he met Jaiden Walker and Mr Walker's former girlfriend, Brooke Ridley, for the first time. At about 11:00 pm, the offender, Mr Walker, Ms Ridley and others left the bar together and were walking along Russell Street. Mr Walker initially refused to shake the offender's hand and then did so aggressively because the offender had kissed Ms Ridley. The offender became angry and eventually the offender and Mr Walker 'started getting in each other's face swearing at each other'.[47]

91 A member of the group restrained the offender from behind while Ms Ridley stood between the offender and Mr Walker. A scuffle broke out and the offender quickly reached around Ms Ridley and punched Mr Walker once to his left cheek. Mr Walker immediately fell to the ground and his head struck the road. He was rendered unconscious and died in hospital six days later, having suffered a fractured skull and brain injury as a result of his head impacting the ground after he was punched. Instead of remaining and providing assistance to Mr Walker, the offender fled the area, which the sentencing judge found to be an aggravating factor.

92 The offender was 26 years of age at the time of the offending and had grown up in difficult circumstances marked by violence and abuse. He had engaged in substance abuse from the age of 14 and used illicit drugs up until the time of the offending. He had a relevant criminal history which, as an adult, included unlawful assault, recklessly causing injury and behaving in a riotous manner in public. The prosecutor served a s 9A notice but this was revoked prior to the plea hearing.

93 The sentencing judge was satisfied that the offender had demonstrated remorse for his offending and noted that he had pleaded guilty at the earliest practicable opportunity. With the exception of the offender's ongoing drug use, the sentencing judge accepted that the offender had overcome his troubled upbringing and since the birth of his three children had become a hardworking father. The sentencing judge assessed the offender's prospects of rehabilitation as very good.

94 As I have already stated, the offender in Vincec was sentenced to 8 years' imprisonment and a non-parole period of 5 years was fixed. Weinberg JA rejected the offender's contention that the sentence was manifestly excessive and refused leave to appeal. In doing so, he rejected the offender's submission that his offending 'should be regarded as being at the lower (if not the lowest) end of the scale of objective gravity'.[48]

95 The applicant contended that his offending was objectively less serious than that in Vincec. He said that he had not punched the victim intentionally, but had intended to strike Mr Hopkins, whereas in Vincec, the offender intentionally punched Mr Walker after an aggressive exchange and scuffle and while the offender was under the influence of drugs. The applicant argued that his offending lacked an aggravating circumstance present in Vincec, namely that the offender in that case fled the scene after he punched Mr Walker. The applicant submitted that specific deterrence also had a role to play in Vincec that did not arise in the circumstances of his case, because the offender in Vincec had a history of drug use, an ongoing drug and alcohol problem and prior convictions for violence_._

96 The Crown argued that although they were both 'one punch' unlawful and dangerous acts, the applicant's punch was delivered with more force than that in Vincec and was the direct cause of the fatal injury. Although the offender in Vincec had prior convictions for violence, the Crown submitted that those matters were given little weight by the sentencing judge and Weinberg JA because, similarly to the applicant, the offender's prospects of rehabilitation were found to be 'very good'.[49] Accordingly, the Crown argued, in the light of the similarities between the applicant's conduct and the conduct of the offender in Vincec, the present offending could not properly be categorised as in the 'low' range of seriousness. Rather, so it was said, the applicant's offending fell within the same 'mid-range' category as the offending in Vincec.

97 Apart from two factors, I do not accept the applicant's submission that the offending in Vincec was more serious than his own. The first exception is that the offender in Vincec fled after punching the victim to the ground rather than remaining to provide assistance. The second exception is that the offender in Vincec acted aggressively towards the victim over a period of time and persisted in seeking to harm him notwithstanding efforts by others to separate them. On the other hand, the offending in Vincec took place in the context of prior interaction between the victim and the offender and a measure of provocation and aggression on the part of the victim. These features were entirely absent in the present case.

98 I accept that, in Vincec, the offender's prior offending meant that specific deterrence was a more significant sentencing consideration than in the present case. However, in both cases, the prospects of rehabilitation were found to be good.

99 Overall, there is nothing in the circumstances of the offending in Vincec or in the personal circumstances of the offender in that case which provide a basis for concluding that the fact that he was sentenced to the same sentence as the applicant means that the applicant's sentence is manifestly excessive. The observations I made at [89] above about the non-binding nature of the sentence in Bryan apply equally to the sentence in Vincec.

100 As I have previously stated, the applicant also relied on Maybus and Robb.

101 In Maybus, the 27-year-old offender and two other members of the Bandidos outlaw motorcycle club attacked a defenceless victim with their fists and a metal bar in the Brunswick clubhouse and subsequently disposed of his body in Keilor East. They cleaned up the clubhouse to remove evidence of the crime. The offender had an extensive criminal history, had not demonstrated remorse and had poor prospects for rehabilitation. Osborn and Kaye JJA refused the offender's application for leave to appeal against the sentence of nine years' imprisonment.

102 In Robb, the offender inflicted non-life-threatening injuries on various parts of the victim's body - including his head - with a weapon, which was either a baseball bat, steel rod or a torch. The injuries caused pain, blood loss and stress and led to the victim dying of heart failure approximately 50 minutes later. The offender was 26 years of age and on bail at the time of the offence. She had prior convictions, including for assault, but was able to call upon a number of mitigating factors. They included the effect of her incarceration on her children and the engagement of some of the principles in Verdins.[50] After a trial, she was found guilty of manslaughter and was sentenced to 4 years' imprisonment. The offender sought leave to appeal against her conviction and the Director of Public Prosecutions appealed against the sentence. This Court refused the offender's application and dismissed the Director's appeal.

103 In relation to Maybus, the applicant submitted that the fact that the offender was sentenced to 9 years' imprisonment for offending which fell within the 'upper end of the mid-range' supported his contention that his sentence of 8 years for significantly less serious offending is manifestly excessive. In relation to Robb, the applicant submitted that that case was a 'better comparator'.

104 The observations I made at [89] above about the non-binding nature of the sentence in Bryan also apply to the sentences in Maybus and Robb. Those sentences reflect the particular circumstances of those cases. My consideration of the question of whether the sentence in the present case is manifestly excessive was not particularly assisted by the fact that a higher sentence was imposed in Maybus and a lower sentence was imposed in Robb. I note that in Maybus, Osborn and Kaye JJA stated that the sentence of 9 years' imprisonment in that case was 'eminently reasonable' and that 'notwithstanding the guilty plea, a more severe sentence would have been justif[51]d'.51 I also note that in Robb, this Court described the sentence of 4 years' imprisonment as 'very lenient' and 'at the very bottom of the appropriate r[52]ge'52 and also added that '[i]t should not be thought ... that a sentence of [that] order ... will ordinarily be of appropriate severity for many (if not most) cases of manslaugh[53]r'.53

105 My consideration of whether the sentence in the present case is manifestly excessive was also not assisted by the applicant's table of sentences for the offence of manslaughter by unlawful and dangerous act since 2014. The sentences ranged from 4 years to 11 years and 6 months' imprisonment. The cases listed in the table included those in which the offender pleaded not guilty and involved a wide variety of factual circumstances. The only case in the table which involved death resulting from a single punch was Vincec.[54]

106 In my opinion, of all the cases to which the applicant referred, the most comparable is Vincec. The fact that the offender in that case received the same sentence as the applicant supports my conclusion that that sentence is not manifestly excessive.

107 For the above reasons, the application for leave to appeal will be refused.

[1] R v Lee [2017] VSC 678 ('Sentencing remarks').

[2] Crimes Act 1958 s 5.

[3] Section 4A of the Crimes Act 1958 deems a single punch delivered to the head which causes injury to be a dangerous act for the purposes of the offence of manslaughter by an unlawful and dangerous act.

[4] Sentencing remarks [28], [30], [32].

[5] The applicant referred to Maybus v The Queen [2017] VSCA 125 ('Maybus'); Robb v The Queen [2016] VSCA 125 ('Robb').

[6] Transcript of Proceedings (3 October 2017) 20.

[13] [2016] HCA 48; (2016) 339 ALR 229 ('Kilic').

[14] Kilic [2016] HCA 48; (2016) 339 ALR 229, 235 [19] (citations omitted).

[16] Sentencing Act 1991 s 5(2)(a).

[17] Kilic [2016] HCA 48; (2016) 339 ALR 229, 234-5 [18]-[19].

[18] Sentencing Act 1991 s 5(2)(c).

[19] Sentencing Act 1991 s 5(2)(d).

[20] Sentencing Act 1991 s 5(2)(g).

[21] See [31] above.

[22] DPP v Russell [2014] VSCA 308; (2014) 44 VR 471, 473 [4], 483-4 [67]-[72] ('Russell').

[23] Dennis v The Queen [2017] VSCA 251 [72] ('Dennis'); Wong v The Queen [2013] VSCA 52 [19]; R v Groom [1999] 2 VR 159, 160 [3].

[24] Dennis [2017] VSCA 251 [72].

[25] Criminal Procedure Act 2009 s 280(2).

[26] [2017] HCA 41; (2017) 349 ALR 37 ('Dalgliesh').

[27] [2014] VSCA 54 ('Bryan').

[28] Bryan [2014] VSCA 54 [30].

[29] [2018] VSCA 18 ('Vincec').

[30] [2017] VSCA 125.

[31] [2016] VSCA 125.

[32] Sentencing Advisory Council, Sentencing Snapshot No 199: Manslaughter (April 2017).

[33] Vincec [2018] VSCA 18 [58].

[34] Vincec [2018] VSCA 18 [58].

[35] Vincec [2018] VSCA 18 [58].

[36] The Crown referred to Hudson v The Queen (2010) 30 VR 610, 619 [38].

[37] Cf Russell [2014] VSCA 308; (2014) 44 VR 471, 480-1 [51]-[52].

[38] Vincec [2018] VSCA 18 [66].

[39] Dalgleish [2017] HCA 41; (2017) 349 ALR 37, 40 [9], 51 [68], 54 [82].

[40] Bryan [2014] VSCA 54 [13].

[41] Bryan [2014] VSCA 54 [10].

[42] Bryan [2014] VSCA 54 [31].

[43] Bryan [2014] VSCA 54 [32].

[44] Bryan [2014] VSCA 54 [34].

[45] [2017] HCA 41; (2017) 349 ALR 37.

[46] Dalgleish [2017] HCA 41; (2017) 349 ALR 37, 40 [5], 51 [65], 53-4 [79], 54-5 [83], 55 [85].

[47] Vincec [2018] VSCA 18 [16].

[48] Vincec [2018] VSCA 18 [62].

[49] Vincec [2018] VSCA 18 [35].

[50] R v Verdins [2007] VSCA 102; (2007) 16 VR 269.

[51] Maybus [2017] VSCA 125 [53].

[52] Robb [2016] VSCA 125 [87].

[53] Robb [2016] VSCA 125 [101].

[54] A case that was not in the table is DPP v Closter [2014] VSC 484, which involved a sentence of 9 years' imprisonment for a death resulting from a punch thrown by an 18-year-old offender during an affray.