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Texts Cited: Nil

Category: Principal judgment

Parties: LK (Applicant)
Rex (Respondent)

Representation: Counsel:
Mr K Averre (Applicant)
Ms T Epstein (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2023/258142

Publication restriction: Nil

HEADNOTE

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

LK (the applicant) sought leave to appeal against the sentence imposed on him by his Honour Judge McHugh SC in the District Court on 17 December 2024.

The applicant was sentenced following his plea of guilty to the offence of manslaughter pursuant to s 18(1)(b) of the Crimes Act 1900 (NSW) to a term of imprisonment of 6 years, 4 months and 15 days with a non-parole period of 3 years, 10 months and 16 days.

At the time of the offending, the applicant was 17 years and 4 months and the deceased, Trey Johnson, was 16 years and 8 months. The applicant and Mr Johnson knew each other, Mr Johnson having entered into a relationship with HS, who the applicant had previously been in a relationship with. On 13 August 2023, the applicant approached Mr Johnson’s group of friends, and a fight ensued. Mr Johnson placed the applicant in a headlock and, seemingly unable to escape, the applicant grabbed a knife from his pocket and stabbed Mr Johnson in the leg three times, ultimately leading to his death. It was accepted that the applicant had killed Mr Johnson through a dangerous and unlawful act.

The applicant relied upon a single ground of appeal, namely that the sentence imposed was manifestly excessive. There was no appeal in respect of any specific finding.

The Court held (Cavanagh J, Stern JA and Yehia J agreeing) granting leave to appeal but dismissing the appeal:

1. The principles relating to manifest excess are well established and were summarised recently in R v White [2025] NSWCCA 111 (when dealing with an appeal based on manifest inadequacy, albeit the same principles apply to manifest excess): per Cavanagh J at [45]-[48] (Stern JA at [1] and Yehia J at [94] agreeing).

R v White [2025] NSWCCA 111; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54, applied. Markarian v the Queen (2005) 228 CLR 357; [2005] HCA 25; Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45; Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221, cited.

2. This was an objectively serious example of manslaughter. The conduct of the applicant in starting the fight, bringing the knife to the fight (despite being warned by his mother not to carry knives) and then using the knife are matters of some importance and add support to the finding of the sentencing judge that this is a serious example of manslaughter: per Cavanagh J at [54], [90] (Stern JA at [1]-[2] and Yehia J at [94] agreeing).

R v JM (Sentence) [2024] NSWSC 1345, considered.

3. Despite not pointing to any specific error, the effect of the applicant’s submissions was that the sentencing judge must have placed insufficient weight on the applicant’s youth in the exercise of the sentencing discretion. Where no specific challenge was made to this finding, the Court must be careful not to substitute its own finding. Nonetheless, it is clear that the applicant’s age was an important factor in the exercise of the sentencing discretion. The rehabilitation of the applicant was another important factor: per Cavanagh J at [55]-[64] (Stern JA at [1] and Yehia J at [94] agreeing).

R v Saliba (No 4) [2025] NSWSC 659, considered.

4. The use of comparable cases relied upon by the applicant was appropriate but tended to emphasise that the use of comparable cases to establish manifest excess may be of limited utility particularly in considering the offence of manslaughter: per Cavanagh J at [65]-[80] (Stern JA at [1] and Yehia J at [94] agreeing).

R v SMP [1999] NSWCCA 318; R v TM [1999] NSWSC 504; R v HT [2010] NSWSC 324; R v MR, JB and CS (young persons) (No 5) [2024] NSWSC 912; R v JM (Sentence) [2024] NSWSC 1345; R v Blacklidge (Court of Criminal Appeal (NSW), 12 December 1995, unrep), considered. Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45; Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2, cited.

5. Whilst there was room for a lesser sentence, the sentence imposed was not plainly unjust: per Cavanagh J at [92] (Yehia J at [94] agreeing). The applicant failed to overcome the “very heavy practical burden” of showing disproportion indicative of a substantive error of law: Stern JA at [1]-[2].

TH v R [2025] NSWCCA 121; He v Sun (2021) 104 NSWLR 518 at [5]; [2021] NSWCA 95 at [42(iv)], applied.

JUDGMENT

1. STERN JA: I agree with Cavanagh J.

2. Whilst the applicant’s sentence was clearly stern having regard to the applicant’s age, the circumstances of the offending and the applicant’s subjective case, I agree with Cavanagh J that the applicant has not overcome the “very heavy practical burden” of showing disproportion indicative of a substantive error of law: TH v R [2025] NSWCCA 121; He v Sun (2021) 104 NSWLR 518 at [5]; [2021] NSWCA 95 at [42(iv)].

3. CAVANAGH J: The applicant seeks leave to appeal from the sentence imposed upon him by Judge McHugh SC in the District Court at Coffs Harbour following his plea of guilty to the offence of manslaughter (Crimes Act 1900 (NSW), s 18(1)(b)).

4. His Honour imposed a sentence of 6 years, 4 months and 15 days with a non-parole period of 3 years, 10 months and 16 days. The sentence commenced on 6 December 2023 and will expire on 20 April 2030, with the non-parole period expiring on 21 October 2027.

5. At the time of the offending, the applicant was 17 years and 4 months. The sentencing judge made an order pursuant to s 19 of the Children (Criminal Proceedings) Act 1987 (NSW) that the applicant serve his sentence as a juvenile offender. The deceased, Trey Johnson (his mother consents to his name being in this judgment and all reasonable inquiries have been made to contact his father, pursuant to s 15E(2) of the Children (Criminal Proceedings) Act) was 16 years and 8 months.

Circumstances of offending

6. The circumstances of the offending are set out in the sentence judgment dated 17 December 2024. The sentencing judge’s findings were based primarily on the facts agreed by the parties although his Honour was still required to make some findings about the matters that were not agreed. There is no challenge to any of the factual findings on this appeal.

7. In August 2023, Mr Johnson lived with his mother and younger siblings just south of Coffs Harbour having moved there recently from Woolgoolga.

8. The applicant and Mr Johnson went to the same high school albeit both had left school by 2023. They knew each other.

9. The applicant had been in a relationship with a young woman whilst at school, referred to as “HS” in the sentencing judgment, but the relationship ended in 2021. At some time thereafter HS had entered into a relationship with Mr Johnson. The applicant was aware of this.

10. After he had broken up with HS, the applicant’s mother had sent him to live in Queensland with his father where he remained for approximately 18 months. However, he returned to the Coffs Harbour area in early 2022. He commenced work as a baker’s apprentice and was studying at TAFE. He resumed some contact with HS.

11. HS’s relationship with Mr Johnson led to acrimony between Mr Johnson and the applicant (seemingly more on the part of the applicant). HS believed that they might have arranged to fight each other at some earlier time.

12. A friend of both the applicant and Mr Johnson had spoken to both of them about the animosity between them. Mr Johnson had suggested that he did not want to fight with the applicant and wanted to be friends. However, the applicant had indicated that he still held a grudge against Mr Johnson and was still angry about what had happened with HS. The precise reason for this is unclear as the applicant had ended his romantic relationship with HS before she commenced her relationship with Mr Johnson.

13. In an unrelated incident, the applicant’s brother was assaulted in 2022. Thereafter, in early 2023, the applicant’s mother became aware that the applicant was carrying a knife. She cautioned him against that behaviour and confiscated five different knives from him in 2023. He told his mother to “stop worrying as it was never going to come out, it just makes me feel safer”.

14. At some point prior to August 2023, HS also became aware that the applicant was carrying a knife. The applicant showed her the knife at one stage stating “be careful cause you might get your fingerprints on it”. HS said “why would that matter, it’s not like you are going to use it?” The applicant replied, “you never know”.

15. On Sunday 13 August 2023, the applicant finished work around 3pm. He went to the Corindi store where Mr Johnson happened to be. There was no interaction between them at that time.

16. After having dinner at home, the applicant returned to the Corindi store. He is seen on CCTV footage entering the store, looking around and running down Pacific Street in the direction where Mr Johnson had travelled only minutes earlier.

17. The applicant caught up with Mr Johnson and his two friends. CCTV footage shows the applicant approaching Mr Johnson’s group and punching Mr Johnson. A fight then ensued. This led to Mr Johnson placing the applicant in a headlock. The CCTV footage shows Mr Johnson applying some force around the neck and upper shoulder area of the applicant. It also shows the applicant struggling to escape from the headlock and at one stage Mr Johnson lifting the applicant up while he was in the headlock.

18. Seemingly unable to escape the headlock, the applicant grabbed the knife from his pocket and used it to stab Mr Johnson in the right leg three times, quickly in succession. Mr Johnson then released his hold. The applicant ran away, and Mr Johnson collapsed onto the roadway.

19. There was a dispute as to what was said during the fight. Evidence was adduced from the two friends of Mr Johnson that Mr Johnson said words like “fuck off” and “get off me”. They denied hearing the applicant say anything.

20. The applicant said that he did not know that Mr Johnson was there. He said Mr Johnson approached him and said, “let’s have a fight”. The applicant complained that after Mr Johnson put him in a headlock he could not breathe. He said he gave a warning to Mr Johnson in terms of “stop it or I’m going to hit, stab you in your leg”.

21. The sentencing judge did not accept this version of events describing it as false. There is no challenge to that finding on this appeal.

22. Further, the sentencing judge found that the applicant had not told the truth to police when he said that he only stabbed Mr Johnson once. He stabbed him three times in quick succession.

23. After the stabbing, emergency services were called and an ambulance arrived but Mr Johnson was pronounced dead in hospital. Whilst two of the stab wounds were found to be superficial, one penetrated deeply into the leg causing significant blood loss and hypovolaemic shock.

24. After the fight, the applicant returned home. He was questioned by his mother as to what had happened. Whilst he gave part of a version of events, he also said that Mr Johnson kept saying that he wanted to kill him and that he gave a warning to Mr Johnson to stop. Again, this was not accepted by the sentencing judge.

The sentencing judgment

25. The sentencing judge accepted that the applicant had killed Mr Johnson through a dangerous and unlawful act in stabbing Mr Johnson three times in the leg.

26. Consistent with the agreed basis of liability as set out in the agreed facts, the sentencing judge found that the fatal stab was unlawful because, although the applicant honestly believed that he had to stab Mr Johnson to defend himself, his response was not reasonable in the circumstances as he perceived them.

27. The sentencing judge found that the act was dangerous because the applicant appreciated that the act of stabbing Mr Johnson exposed Mr Johnson to a risk of actual bodily harm, and that a reasonable person in the applicant’s position would have appreciated that the act exposed Mr Johnson to risk of serious injury.

28. His Honour found that there were three factors particularly relevant to assessing the objective gravity of the offence being:

29. The extent and nature of the injuries;

30. The degree of violence; and

31. The mental element of the offence.

32. His Honour noted that whilst there were three stabs, only one severed the vein.

33. The sentencing judge observed (correctly) that a significant consideration in the assessment of the objective seriousness of an offence of this type is the degree to which the applicant’s conduct departed from that which would have been reasonable in the circumstances as he perceived them to be. His Honour accepted that the applicant needed to defend himself and that having regard to all the circumstances his conduct was not grossly unreasonable.

34. His Honour also had regard to the aggravating factors including that the crime involved use of a weapon and that it was committed in the presence of a child (being the two friends of Mr Johnson).

35. His Honour then moved to the subjective factors referring to the important principles which apply having regard to s 6 of the Children (Criminal Proceedings) Act.

36. His Honour observed:

“The law recognises potential for the cognitive, emotional and psychological immaturity of a young person that contribute to their breach of the law. Accordingly, allowance will be made for the offender’s youth, not just their biological age. I also note that moral culpability and objective seriousness are separate but related concepts and matters personal to an offender are usually relevant an assessment of moral culpability, as opposed to objectiveness, unless causally connected to the offending.”

34. His Honour then went on to find that the applicant’s age was a factor relevant to the assessment of moral culpability as well, but that the emphasis given to rehabilitation was moderated when a young person has conducted himself in a way an adult might conduct himself or herself and has committed a crime of violence of considerable gravity.

35. Although his Honour noted that the applicant was only eight months short of 18 years old, he remained a child at the time of his offending and his Honour said that he took that into account.

36. His Honour went on to find that, particularly having regard to the use of the weapon, this was an objectively serious example of manslaughter. His Honour then again referred to the applicant’s youth in terms of his moral culpability.

37. His Honour made particular reference to the applicant’s mental health. He had regard to the medical evidence, particularly the reports of Dr Richard Furst and Dr Richard Baker. The applicant had been diagnosed as suffering from, at the time of the report, PTSD, cannabis use disorder and attention deficit hyperactivity disorder. He was also suffering from schizophrenia although the onset of the schizophrenia occurred two months after the offence as did the PTSD.

38. Having regard to the medical reports including the opinion of Dr Baker, his Honour accepted that the applicant’s mental health partially contributed to the commission of the offence. His Honour then considered the victim impact statements taking them into account in accordance with s 3A(g) of the Crime (Sentencing Procedure*)* Act 1999 (NSW).

39. His Honour then turned to mitigating factors including what his Honour considered some provocation, arising from the applicant being in a headlock at the time that he used the knife.

40. His Honour found that the applicant had good prospects of rehabilitation and had shown remorse. Although the applicant did not give evidence on sentence, his Honour had regard to a letter dated 2 December 2024 which was written by the applicant a few days before the sentence hearing.

41. The applicant had no criminal history and was otherwise of good character. He was entitled to a 25 percent discount on account of the earlier plea.

42. His Honour then said he had regard to the purposes of sentencing under s 3A of the Crim**e (Sentencing Procedure) Act. His Honour also had regard to a number of sentencing statistics in fixing sentence.

43. His Honour found special circumstances in that it was the applicant’s first time is custody and having regard to his mental health, the applicant would find the conditions in custody difficult. He would also require a longer period of supervision. His Honour reduced the non-parole period to approximately 60 percent of the head sentence.

44. The applicant does not submit that any of the findings on sentence demonstrate error. There is no appeal in respect of any specific finding. I must consider whether the sentence is manifestly excessive having regard to those findings.

Manifest excess

45. In order to establish that the sentence was manifestly excessive the applicant must demonstrate that the sentence was “unreasonable or plainly unjust” (Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 (“Dinsdale”) at [6] per Gleeson CJ and Hayne J; Markarian v the Queen (2005) 228 CLR 357; [2005] HCA 25 at [25] per Gleeson CJ, Gummow, Hayne and Callinan JJ).

46. In Dinsdale, the Court (Gleeson CJ and Hayne J) said at [6]:

“Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than non‑custodial) or because the sentence imposed is manifestly too long or too short. But to identify the type of error amounts to no more than a statement of the conclusion that has been reached. It is not a statement of reasons for arriving at the conclusion. A Court of Criminal Appeal is not obliged to employ any particular verbal formula so long as the substance of its conclusions and its reasons is made plain. The degree of elaboration that is appropriate or possible will vary from case to case.”

47. Most recently, in R v White [2025] NSWCCA 111 (“White”), the Court at [101] (per Bell CJ, Payne JA and N Adams J agreeing) said the following (when dealing with an appeal based on manifest inadequacy, albeit the same principles apply to manifest excess):

“The court will consider the following factors when deciding if the sentence imposed meets that standard of manifest inadequacy: R v Sara at [99]:

‘(1) Sentencing is a discretionary judgment and there is no single correct sentence: Bugmy v R (2013) 249 CLR 571; [2013] HCA 37 at [24].

(2) The Court of Criminal Appeal must not substitute its own opinion merely because it would have exercised the sentencing discretion differently to the sentencing judge: Lowndes v R (1999) 195 CLR 665; [1999] HCA 29 at [15].

(3) Judges at first instance are to be allowed as much flexibility in sentencing as is consonant with the application of proper principle and consistency of approach: Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54 at [6]; Markarian at [25]; Hili at [58].

(4) The weight to be given to the various factors to be taken into account (including the evidence and various purposes of sentencing) is a matter for the sentencing judge: Bugmy at [24], [99].

(5) Although the Court of Criminal Appeal is not bound by the sentencing judge’s assessment of objective seriousness, the Court should be very slow to form its own view: CMB at [78]; Mulato v R [2006] NSWCCA 282 at [37].

(6) Whether or not manifest error has occurred is not “fundamentally intuitive”. What reveals manifest inadequacy is a consideration of all of the matters that are relevant to fixing the sentence: Hili at [60].

(7) Reviewing a history of sentencing can establish a range of sentences that have in fact been imposed. However, that history does not establish either that (i) that range is the correct range; or (ii) that the upper or lower limits to the range are the correct limits. They are only a yardstick against which to examine a proposed sentence: Hili at [54] approving Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 at [303]–[304].’”

48. The Court’s observations in White reflect what has been said on many occasions about manifest excess (see Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 (“Hili”) at [59]; Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443]).

The applicant’s submissions

49. The applicant submits that, having regard to the undiscounted starting point for the offence of 8 years and 6 months imprisonment, the sentence should be viewed as manifestly excessive.

50. He relies on a number of circumstances as grounding that assertion including:

(a) The seriousness of the offending; (b) His youth; (c) The importance of rehabilitation; (d) The role of general deterrence; and (e) Comparative cases.

The seriousness of the offending

51. In particular, the applicant submits that:

(i) Whilst the sentencing judge considered that the offending was an objectively serious example of manslaughter, his Honour did not place the offending at any point in a hypothetical range. The applicant emphasises that there is no finding or evidence to support a suggestion that his state of mind was such that he intended to kill or cause grievous bodily harm to Mr Johnson. Rather his state of mind was much more limited. It is said this renders the applicant’s offending less serious. It is submitted that the basis of the offence of manslaughter was not a reduction from murder to manslaughter based on excessive self-defence but rather an unlawful and dangerous act which did not encompass any finding of an intent to kill or inflict grievous bodily harm. (ii) Further, the applicant accepted his guilt on the bases that he was acting in self-defence and that his response was necessary to defend himself albeit that his response was not reasonable to the threat as he perceived it. (iii) The finding of the sentencing judge that his response was not grossly disproportionate is of some significance.

52. Although that is so, none of those factors detract from the finding of the sentencing judge that this was objectively a serious example of manslaughter. Two factors stand out, being:

(i) It was the applicant who initiated the fight. He approached Mr Johnson as Mr Johnson was walking along a street with two other persons who the applicant did not know. The applicant threw the first punch; and (ii) The applicant was carrying a knife and used the knife when Mr Johnson got the better of him. Mr Johnson was not armed.

53. This is an aggravating feature of the offending. In R v JM (Sentence) [2024] NSWSC 1345 at [28], Dhanji J said:

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

54. In my view the conduct of the applicant in starting the fight, bringing the knife to the fight (despite being warned by his mother not to carry knives) and then using the knife are matters of some importance and add support to the finding of the sentencing judge that this is a serious example of manslaughter.

The applicant’s youth

55. The age of the applicant was an important factor in the exercise of the sentencing discretion. This was recognised by the sentencing judge. It has not been suggested to the contrary. However, the effect of the applicant’s submissions is that whilst the applicant cannot point to any specific error, it must be that the sentencing judge placed insufficient weight on this important factor.

56. In R v Saliba (No 4) [2025] NSWSC 659 at [92], Yehia J observed when considering the importance of youth:

“The law recognises the potential for the cognitive, emotional and/or psychological immaturity of a young person to contribute to their breach of the law. Accordingly, allowance will be made for an offender’s youth and not just their biological age. The weight to be given to the fact of the offender’s youth does not vary depending upon the seriousness of the offence. Where the immaturity of the offender is a significant factor in the commission of the offence, the criminality involved will be less than if the same offence was committed by an adult: KT v R (2008) 182 A Crim R 571; [2008] NSWCCA 51 at [22]-[26] (per McClellan CJ at CL).”

57. It is plain that his Honour considered the applicant’s youth important and relevant. He referred to it on a number of occasions, including at the commencement of the sentencing judgment.

58. In particular, his Honour said:

“In my view, the applicant’s age was a factor relevant to the assessment of his moral culpability as well. However, the emphasis given to rehabilitation, rather than general deterrence and retribution, when sentencing an offender, is made a moderated when a young person has conducted himself in a way an adult might conduct himself or herself and has committed a crime of violence of considerable gravity.”

59. There is room for a different view as to the applicant’s conduct, that is more demonstrative of the characteristics of his youth, such as immaturity and impetuosity, than adult-like behaviour. There may be some support for the proposition that the applicant’s continued demonstration of hostility and acrimony towards Mr Johnson (because of his relationship with HS) long after both the applicant and Mr Johnson had ceased their relationship with HS, is indicative of an immature mind leading to impetuous behaviour.

60. Having said that, it is important to observe that there is no specific challenge to the sentencing judge’s findings on the importance of youth and I must be careful not to substitute different findings. All that can be really said is that the applicant’s age was a very important factor in the exercise of the sentencing discretion.

Rehabilitation and Deterrence

61. Again, there can be no doubt that the rehabilitation of the applicant was another important sentencing factor.

62. This is his first time in custody. He has no criminal history. He suffered from ADHD at the time and unfortunately developed schizophrenia subsequent to his incarceration. Yet, again, no specific error has been identified because his Honour accepted that the applicant’s prospects of rehabilitation were good.

63. Further, his Honour accepted that the importance of specific and general deterrence was moderated to some degree because of the applicant’s mental health and reduced moral culpability.

64. As is apparent from the sentencing judgment, the applicant had a strong subjective case. Again, the applicant’s submissions about rehabilitation and deterrence are well made but the importance of these factors does not necessarily lead to the conclusion that the sentence was manifestly excessive.

Comparable cases

65. The applicant relies on a number of comparable cases, including:

66. R v SMP [1999] NSWCCA 318;

67. R v TM [1999] NSWSC 504;

68. R v HT [2010] NSWSC 324;

69. R v MR, JB and CS (young persons) (No 5) [2024] NSWSC 912; and

70. R v JM (Sentence) [2024] NSWSC 1345.

71. It is said that those cases support the conclusion that the sentence imposed upon the applicant is manifestly excessive. Unsurprisingly, the cases relied upon by the applicant all involve total sentences less than that imposed upon the applicant.

72. In R v SMP, the offender received a sentence of 5 and a half years, comprising a minimum term of 2 years and 9 months but in that case the deceased had been the instigator of the attack upon the offender, they did not know each other and there was no premeditation.

73. In R v TM, the offender received a sentence of about 1 year and 4 months less than the applicant. The circumstances are somewhat similar in that the offender pursued the deceased and he was stabbed in the thigh during the fight. The applicant says also that R v TM was not a case involving excessive self-defence, as if to emphasise the difference in sentence.

74. Further, the subjective case of the offender in R v TM is quite similar to that of the applicant, although having regard to the remarks on sentence, Hidden J may have placed greater weight on the offender’s conduct and attitude in the two years in custody awaiting sentence than the sentencing judge in this case.

75. The applicant also relies upon R v MR, JB and CS submitting that a lesser sentence was imposed even though the deceased was stabbed in circumstances in which the deceased was the initiator of the physical confrontation.

76. In R v HT, the offender was slightly younger than the applicant and the juvenile justice report suggested that the offender was traumatised by being a victim of violence in the past.

77. In R v JM, the deceased was the instigator of the confrontation, and the deceased was armed with knuckle dusters. The offender initially remained silent in the face of the aggression from the deceased and only intervened after the deceased had used his knuckle duster on one of his companions. During the melee, the offender used his knife.

78. The applicant is able to point to a number of cases involving a fight and a stabbing in which the offender received a lesser sentence. In this regard, the use of comparable cases is well made.

79. However, on a close analysis of all of these cases, the point by the Crown is also well made. That is, all of the cases are different. They involve different facts and circumstances and the subjective cases of each of the offenders is different, at least to a certain extent.

80. Perhaps R v TM is similar in many respects but identification of a sentence 26 years ago with similar facts and circumstances does not of itself lead to a finding that the applicant’s sentence is unjust.

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

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

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

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

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

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

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

80. Further, as highlighted in Loveridge*,* there is no range of sentences for manslaughter offences said to have been committed by use of a knife.

Conclusion

81. A finding of manifest excess is a conclusion. A finding of manifest excess must be based on the conclusion that the sentence is plainly unjust.

82. Most recently in TH v R [2025] NSWCCA 121, Bell CJ observed that there is a “very heavy practical burden” placed on an applicant who seeks to appeal on the ground of manifest excess (see also He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95 at [42(4)]).

83. The applicant must show a kind of disproportion which is so “manifest on its face as to be indicative of, not a mere difference of idiosyncratic opinions, but, rather, of substantive error of law” (see R v Elemes [2000] NSWCCA 235 at [22]-[23]).

84. This is a case in which minds may differ, but it is important to recognise that there is no one correct sentence and that the fact that a different court, such as this Court, may have imposed a different sentence does not mean that the sentence is manifestly excessive.

85. The applicant has been sentenced to the total sentence of 6 years, 4 months and 15 days with a non-parole period of 3 years, 10 months and 16 days. The applicant has a strong subjective case and as recognised by the sentencing judge, his youth and rehabilitation are important factors.

86. Having said that I am not satisfied that the sentence is plainly unjust.

87. As his Honour said, he took the life of a teenage boy. There is no rating of seriousness based on whether the offending arises out of a dangerous and unlawful act or provocation or any other type of conduct which may lead to conviction for manslaughter.

88. Each case must be assessed on its own merits.

89. In this case, in the exercise of his Honour’s discretion, the sentencing judge described the offending as a serious example of manslaughter.

90. To my mind three things stand out, being:

91. The applicant was the aggressor. He returned to the shop to seek out Mr Johnson. The CCTV footage shows him approaching Mr Johnson and two other persons from the other side of the street. Nothing Mr Johnson did caused the initial attack by the applicant. The applicant approached Mr Johnson and threw a punch at him. A fight ensued and Mr Johnson got the better of the applicant.

92. Although it is accepted that the applicant was acting in self-defence albeit with excessive force, it was the applicant who brought a knife to that fight. This is an important factor as it was the bringing of the knife to the fight, despite the request from his mother not to carry knives, that ultimately led to the death of Mr Johnson.

93. When Mr Johnson got the better of the applicant in the fight, the applicant retrieved his knife and used it three times on Mr Johnson. Again, there was a finding that the response to the circumstances as he perceived was not grossly disproportionate, but it was disproportionate.

94. As is often said, the taking of a person’s life is the most serious crime. In this case both persons were young persons approaching adulthood. The Court does not value one person’s life as being better than that of another but the Court recognises the serious nature of the offending which involved the taking of a young person’s life in circumstances in which no fault or blame can be attributed to Mr Johnson and in circumstances in which the applicant both instigated the fight and used a knife to end the fight between the two young men.

95. Whilst there was room for a lesser sentence, this Court’s task is not to assess what different sentence might have been imposed. For my part, I am not satisfied that the sentence imposed was plainly unjust and in those circumstances the applicant has failed to establish that the sentence was manifestly excessive.

96. The orders that I would propose are:

97. Leave to appeal is granted.

98. The appeal is dismissed.

99. YEHIA J: I agree with the orders as proposed by Cavanagh J and with his Honour’s reasons.

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