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R v GDP (1991) 53 A Crim R 112

R v Hallocoglu (1992) 29 NSWLR 67

R v Jurisic (1998) 45 NSWLR 209

R v Osenkowski (1982) 5 A Crim R 394

R v Pham and Ly (1991) 55 A Crim R 128

R v Rushby [1977] 1 NSWLR 594

R v Schelberger, unreported, NSWCCA, 2 June 1988

R v Tran [1999] NSWCCA 109

R v Wall [2002] NSWCCA 42

The Queen v Dodd (1991) 57 A Crim R 349

Wong v The Queen; Leung v The Queen [2001] HCA 64; 207 CLR 584

TEXTS CITED: Judicial Commission – Monograph 23 (2006), Sentenced Homicides in NSW 1994-2001

PARTIES: The Crown (Appellant)

Joshua John Carroll (Respondent)

FILE NUMBER(S): CCA 2007/16176

COUNSEL: P M Miller (Crown/Appellant)

A J Bellanto QC (Respondent)

SOLICITORS: Director of Public Prosecutions

Justin Lewis & Co (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 07/11/0833

LOWER COURT JUDICIAL OFFICER: Flannery DCJ

LOWER COURT DATE OF DECISION: 24 April 2008

IN THE COURT OF

CRIMINAL APPEAL 2007/16176

McCLELLAN CJ at CL

SIMPSON J

HISLOP J

FRIDAY, 19 SEPTEMBER 2008

R v CARROLL, Josh

Judgment

1. McCLELLAN CJ at CL: This is a Crown appeal in respect of the sentence imposed upon the respondent, Josh Carroll, for manslaughter. The respondent pleaded guilty in the Local Court to the unlawful killing of Luigi Criniti. The maximum penalty for the offence of manslaughter is 25 years. There is no standard non-parole period.

2. The respondent was sentenced in the District Court where a non-parole period of 18 months and a further term of 18 months imprisonment was imposed. The sentencing judge ordered that the sentence be served by way of periodic detention.

3. The sentencing judge expressed her factual findings in the following terms: “[A]bout 1pm on Sunday 20 May [2007] the offender, his elder brother Dave, and a friend, Geoff Bowman, attended the Gladstone Hotel, Marrickville, where they had lunch, consumed alcohol, and watched the football. Whilst they were there they socialised with Alicia Kitchener and Amanda Kelly. At the same time the victim, who was 51 years old, and his friend 55 year old Serbastia Nerandis, were playing poker machines.

Shortly before the 10pm closing time Alicia Kitchener had a conversation with the victim and Mr Nerandis. Ms Kitchener convinced the victim to collect the $700 he had won on the poker machines before he lost any more than the $300 he had already lost. The victim handed Ms Kitchener $50 to buy a round of drinks for her group of friends, which included the offender. Ms Kitchener took the money but as the bar was closed she attempted to return the $50 to the victim, he would not take it, and suggested she try the bottle shop. She kept the money and returned to her group.

A short time later the offender left the hotel with his brother, Mr Bowman, Ms Kitchener and Ms Kelly. The group agreed to walk to the offender’s home and continue drinking. They walked a short distance along Marrickville Rd, Marrickville, toward the offender’s home.

About the same time the victim walked out of the hotel. He called out to Ms Kitchener, ‘Hey give me my $50.’ He then approached the group and said to Ms Kitchener, ‘Where’s the $50?’ Ms Kitchener said to Dave Carroll, ‘I’ve got the $50, I can give it back to him.’ Dave Carroll said, ‘No, no, no, fuck it.’ Mr Bowman said to the victim, ‘What’s your problem? Fuck off and go home.’

At this time the victim was standing in front of Ms Kitchener and Dave Carroll. It is alleged that Dave Carroll pushed the victim causing him to take one step backwards. After being pushed the victim said, ‘I’ll get a gun and shoot youse all.’ He was also heard to say, ‘I’m going to kill your whole family’ by a young man who worked in a restaurant close by.

The offender, who had been about 15 metres in front of the group before the victim approached Ms Kitchener, brushed past Ms Kitchener and his brother and said, ‘You want to talk about guns’ and head-butted the victim in the face. The victim immediately fell backwards onto Marrickville Rd where the back of his head hit the roadway with force. Mr Nerandis and a female shopkeeper went to his aid. The offender told his brother to ring an ambulance and he did so. The offender and his friends then returned home.

Mr Bowman asked the offender, ‘What happened?’ The offender replied, ‘I head-butted him.’

When Mr Casey of the ambulance service arrived he noticed the victim had swelling to the front of his lips, a haematoma, and abrasions to his occipital region. He also noticed that he was heavily intoxicated.

The victim was admitted to Royal Prince Alfred Hospital where his condition deteriorated. He died on 30 May 2007.

A post mortem was conducted at Glebe Morgue. It revealed that he had suffered a cut inside his top lip, bruising around his nose, a fracture to the back of his skull, bleeding on the brain, and a sub-dural haemorrhage.

On 21 May 2007, the day after the incident, the offender told his father what had happened. His father advised him to make himself available to the police. The offender then instructed his solicitor to inform police that he would attend the police station if required in relation to the matter.

On 7 June arrangements were made for the offender to attend Newtown police station with his lawyer. He decline to participate in an interview, and declined to participate in an identification parade. He consented to a forensic procedure, which included having his photograph taken.

It appears that the victim did have a licence to shoot a rifle. It also appears that he would sometimes get angry over things when he was drinking and would make verbal threats. Those who knew him well knew he would never carry out those threats.”

4. The sentencing judge’s account of the facts contains one error which may have significance. Although the respondent had been about 15 metres in front of the group he had returned to them. He was about 1 metre from Mr Criniti when he brushed passed his brother to deliver the head butt. Subjective circumstances

5. The sentencing judge carefully considered the subjective circumstances of the respondent. Her Honour made a number of findings favourable to him which were expressed as follows: “This is very much a case where there is material justifying a degree of understanding and of sympathy towards the offender. At the time of these events he was 20 years old. He had successfully negotiated high school where in his final year he had been a prefect, and had received both the Principal’s Award, and the Community Spirit Award. He had never been a problem to his parents and was, according to his mother, always helpful and good humoured. He was in his second year of a plumbing apprenticeship and was a highly valued employee. He was the captain of his rugby league team and was renowned for stepping in to calm situations on the field before they got out of hand. In his 17 year playing career he had never been sent to the sin bin or sent off. He had certainly never been in trouble with the criminal law.

In the light of all the material before me about this young man what occurred on the night of 20 May 2007 is inexplicable. He is unable to explain it. What is clear is that the events of that night have touched him deeply and irrevocably. He is no longer the carefree young man he was. He lives each day conscious that he has taken a human life. He suspended his apprenticeship as he felt it was unfair to his employer to keep working as he was too distressed, anxious and depressed to do the job properly. He stopped playing football as he felt emotionally unable to face people.

He has been diagnosed as suffering clinically significant levels of depression and anxiety. He is troubled by thoughts of worthlessness, hopelessness, and personal failure. He has almost entirely ceased using alcohol. And yet to keep himself busy he sought and obtained labouring work which requires less concentration than his apprenticeship, and he has sought to deal with his emotional distress by undergoing treatment with Professor Stephen Woods, clinical psychologist, as he feels that confronting his sense of guilt and remorse, though painful, would benefit him.

I am satisfied that this young man genuinely understands the enormity of what he has done, and the suffering he has caused. I am also satisfied that he will live with what he has done for the rest of his life.”

6. The Crown submitted that the sentence imposed is manifestly inadequate. Three reasons are advanced: 1. Her Honour erred in finding that the youth of the respondent and the need to foster his rehabilitation reduced the need for retribution and general deterrence.

7. Her Honour gave too much weight to the respondent’s subjective circumstances and failed to appreciate the objective seriousness of the offence.

8. Her Honour erred in finding that there were exceptional circumstances such that a sentence of periodic detention would reflect the objective seriousness of the offence and fulfil the manifold purposes of punishment.

9. The sentencing judge recognised that when sentencing the respondent there was a need to ensure that the sentence imposed adequately reflected retribution and general deterrence. However, her Honour was of the opinion that the youth of the respondent, together with the excellent prospects of his rehabilitation did not require the sentence to reflect, to any degree, considerations of personal deterrence or the protection of society.

10. I have recently had occasion in this Court to consider the circumstances of a young man of seventeen years of age who, with a single violent act, caused the death of another. In KT v R [2008] NSWCCA 51 I summarised the principles relevant to the sentencing of such an offender. I said (at [22]-[26]): “The principles relevant to the sentencing of children have been discussed on many occasions. Both considerations of general deterrence and principles of retribution are, in most cases, of less significance than they would be when sentencing an adult for the same offence. In recognition of the capacity for young people to reform and mould their character to conform to society’s norms, considerable emphasis is placed on the need to provide an opportunity for rehabilitation. These principles were considered in R v GDP (1991) 53 A Crim R 112 at 115-116 (NSWCCA), R v E (a child) (1993) 66 A Crim R 14 at 28 (WACCA) and R v Adamson (2002) 132 A Crim R 511; [2002] NSWCCA 349 at [30].

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. ( R v Hearne (2001) 124 A Crim R 451; [2001] NSWCCA 37 at [25]). The weight to be given to the fact of the offender’s youth does not vary depending upon the seriousness of the offence ( Hearne at [24]). 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. ( Hearne at [25]; MS2 v The Queen (2005) 158 A Crim R 93; [2005] NSWCCA 397 at [61]).

Although accepted to be of less significance than when sentencing adults, considerations of general deterrence and retribution cannot be completely ignored when sentencing young offenders. There remains a significant public interest in deterring antisocial conduct. In R v Pham & Ly (1991) 55 A Crim R 128 Lee CJ at CL said (at 135):

“It is true that courts must refrain from sending young persons to prison, unless that course is necessary, but the gravity of the crime and the fact that it is a crime of violence frequently committed by persons even in their teens must be kept steadfastly in mind otherwise the protective aspect of the criminal court’s function will cease to operate. In short, deterrence and retribution do not cease to be significant merely because persons in their late teens are the persons committing grave crimes , particularly crimes involving physical violence to persons in their own homes. It is appropriate to refer to the decision of Williscroft (1975) VR 292 at 299, where the majority of the Full Court of Victoria expressed the view that, notwithstanding the enlightened approach that is now made to sentencing compared to earlier days, the concept of punishment ie coercive action is fundamental to correctional treatment in our society.”

The emphasis given to rehabilitation rather than general deterrence and retribution when sentencing young offenders, may be moderated when the young person has conducted him or herself in the way an adult might conduct him or herself and has committed a crime of violence or considerable gravity ( R v Bus, unreported, NSWCCA, 3 November 1995, Hunt CJ at CL; R v Tran [1999] NSWCCA 109 at [9]-[10]; R v TJP [1999] NSWCCA 408 at [23]; R v LC [2001] NSWCCA 175 at [48]; R v AEM Snr, KEM and MM [2002] NSWCCA 58 at [96]-[98]; R v Adamson (2002) 132 A Crim R 511 at [31]; R v Voss [2003] NSWCCA 182 at [16]). In determining whether a young offender has engaged in “adult behaviour” ( Voss at [14]), the court will look to various matters including the use of weapons, planning or pre-meditation, the existence of an extensive criminal history and the nature and circumstances of the offence ( Adamson at [31]-[32]). Where some or all of these factors are present the need for rehabilitation of the offender may be diminished by the need to protect society.

The weight to be given to considerations relevant to a person’s youth diminishes the closer the offender approaches the age of maturity ( R v Hoang [2003] NSWCCA 380 at [45]). A ‘child-offender’ of almost eighteen years of age cannot expect to be treated substantially differently from an offender who is just over eighteen years of age ( R v Bus, unreported, NSWCCA, 3 November 1995; R v Voss [2003] NSWCCA 182 at [15]). However, the younger the offender, the greater the weight to be afforded to the element of youth ( Hearne at [27])”

9. The offender in KT was sentenced to a term of six years imprisonment with a non-parole period of four years. Although I would have reduced that sentence it was confirmed by the majority of the court. In the course of my reasons I gave consideration to a number of cases where an offender had been sentenced for manslaughter in the circumstances similar to KT. I also drew upon the monograph of the Judicial Commission – Monograph 23 (2006), Sentenced Homicides in NSW 1994-2001 which indicated that the median sentence for manslaughter was 6 years imprisonment with a non-parole period of 3 years for juvenile offenders. For adult offenders the median sentence is 7 years imprisonment with a 4 years 6 months non-parole period. I concluded my discussion of the appropriate sentence for a manslaughter committed by young persons with the following remarks (at [41]): “… However, there is considerable force in the view that, notwithstanding the youth of the offenders, the decisions of the courts for this type of offence have provided a range of penalty which fails to adequately reflect the need for general deterrence and retribution. The recent experience of this Court indicates that the range of penalties imposed on young offenders who commit random acts of violence resulting in death may not have been sufficient to deter others from similar irresponsible criminal behaviour. In my opinion although the circumstances of an individual offence and offender must always be considered, this Court should in future accept that more significant penalties may be required when sentencing offenders for this type of offence.”

10. In the present case the Crown accepted that in the case of youth general deterrence, public denunciation and retribution usually play a subordinate role to considerations of rehabilitation: R v AEM Snr & Ors [2002] NSWCCA 58 at [97]-[98]; IE v R [2008] NSWCCA 70; KT. However, the Crown also emphasised that the courts have recognised that when a young person conducts him or herself as an adult and commits a serious crime that general principle must be put aside so that general deterrence and retribution are given appropriate significance: R v Tran [1999] NSWCCA 109 at [9]-[12]; R v Pham (1991) 55 A Crim R 128 at 135.

11. The respondent was not a young person to whom the Children (Criminal Proceedings) Act 1987 applied. He was 20 years of age and had been in employment since leaving school. He was in the second year of a plumbing apprenticeship when the offence was committed. The Crown submitted that young men affected by alcohol who congregate in or near licensed premises are particularly prone to become involved in violence, often with serious and sometimes catastrophic consequences. For this reason it was submitted that when in such circumstances violence results in the loss of another’s life, the sentence imposed must be sufficient to deter other young men from similar conduct.

12. The Crown accepted that in the present case her Honour was correct to recognise the need to foster the respondent’s rehabilitation. However, it was submitted that her Honour gave excessive weight to this matter and inappropriately confined the significance of considerations of general deterrence and retribution. It was submitted that these considerations required a custodial sentence.

13. The Crown acknowledged, as her Honour accepted, that there was only one blow inflicted by the respondent and no weapon was used. However, it was submitted that a head butt is a vicious way of striking someone in the face, particularly when it is delivered by a 20 year old man to a person in their fifties who is significantly affected by alcohol. The Crown emphasised that although her Honour was in error in finding that the respondent had rushed a distance of fifteen metres before inflicting the head butt, the respondent had been some distance ahead of the group when he turned around and returned and then delivered a seemingly spontaneous and brutal attack upon the deceased. Although an ambulance was called the respondent left the injured man lying in the roadway. The Crown submitted that her Honour erred when assessing the respondent’s criminality as falling towards the bottom of the range of objective seriousness.

14. The Crown emphasised that although her Honour determined that the sentence could be served by way of periodic detention because in her opinion there were exceptional circumstances, she did not specify those exceptional circumstances. Presumably she had in mind the respondent’s remorse and demonstrated potential for rehabilitation, which she had earlier discussed. Although the Crown accepted that these matters required consideration, it was submitted that there was nothing exceptional about the circumstances of the offence itself. This was yet another occasion when a violent act was committed by a young man significantly affected by alcohol which ended in the tragic death of another.

15. The Crown submitted that her Honour had failed to recognise that powerful subjective features must remain subsidiary to the need to ensure that an appropriate punishment is provided for the particular offence (see The Queen v Dodd (1991) 57 A Crim R 349; R v Rushby [1977] 1 NSWLR 594). The Crown further emphasised that a sentence to be served by periodic detention has a strong degree of leniency built into it, R v Hallocoglu (1992) 29 NSWLR 67; Douar v The Queen (2005) 159 A Crim R 154.

16. The respondent emphasised the principles relevant to a Crown appeal. They have been stated on many occasions and I need not repeat them in detail (see R v Wall [2002] NSWCCA 42 at [70]). The court has a discretion not to interfere even when error is found (Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321) and should only exercise its jurisdiction to intervene in rare cases. Everett v R (1994) 181 CLR 295; R v Allpass (1993) 72 A Crim R 561. The respondent emphasised that a Crown appeal against sentence is concerned with establishing matters of principle for the governance and guidance of courts having a duty of sentencing convicted persons (Griffiths v The Queen (1997) 137 CLR 293 at 310). However, the respondent also accepted that the court will intervene to avoid manifest inadequacy or any inconsistency in sentencing where the sentence is definitely outside the appropriate range for the particular case: Everett at 299.

17. The respondent submitted that there was considerable significance in the Crown’s concession that the respondent acted in response to the deceased’s provocative act in threatening to get a gun and kill the “whole family”. It was further submitted that because there were no blows, punches or kicks but a single head butt, the respondent could not have anticipated that the deceased would fall down and die. For these reasons it was submitted that her Honour’s finding that the offence was at the bottom of the range of objective seriousness was appropriate. Because of the significant positive aspects of the respondent’s subjective case and his prospects of rehabilitation it was submitted that no error had occurred which required the intervention of this Court. Consideration

18. Notwithstanding the respondent’s careful submissions I have come to the conclusion that the sentence imposed was so far from that appropriate for the offence that this Court must intervene. Both the length of the sentence and the amelioration of its impact by providing that it be served by periodic detention contributed to a sentence which was manifestly inadequate. Although her Honour found that the deceased made a threat to get a gun, this was an idle boast which could not have justified a violent response from the respondent. Mr Criniti was apparently intoxicated and there was no suggestion that the respondent was under any immediate threat. Perhaps a dismissive word in response to Mr Criniti was justified but not a violent and aggressive act with, on any view, potentially serious physical consequences. Although a head butt delivered to another’s face may not be expected to lead to death, severe injury was clearly foreseeable and death at least a possibility.

19. In my judgment the offence was serious and I am satisfied that it could not justify her Honour’s description as falling towards the bottom of the range of objective seriousness. The initial dispute was between the deceased and other members of the respondent’s group. It was borne of the deceased’s desire to retrieve his fifty dollars and the entirely unjustified decision not to return it to him. The respondent without adequate justification intruded into that dispute and delivered a head butt to the victim’s face, as a consequence of which he fell and died.

20. There is no doubt that the subjective circumstances of the respondent are significant. However, I am satisfied they deflected the sentencing judge from the appropriate course. In a unanimous judgment this Court said in Dodd: “As Jordan CJ pointed out in Geddes at 556, making due allowance for all relevant considerations, there ought to be a reasonable proportionality between a sentence and the circumstances of the crime, and we consider that it is always important in seeking to determine the sentence appropriate to a particular crime to have regard to the gravity of the offence viewed objectively, for without this assessment the other factors requiring consideration in order to arrive at the proper sentence to be imposed cannot properly be given their place. Each crime, as Veen (No 2) (1988) 164 CLR 465 at 472; 33 A Crim R 230 at 234 stresses, has its own objective gravity meriting at the most a sentence proportionate to that gravity, the maximum sentence fixed by the legislature defining the limits of sentence for cases in the most grave category. The relative importance of the objective facts and subjective features of a case will vary: see, for example, the passage from the judgment of Street CJ in Todd [1982] 2 NSWLR 517 quoted in Mill (1988) 166 CLR 59 at 64; 26 A Crim R 468. Even so, there is sometimes a risk that attention to persuasive subjective considerations may cause inadequate weight to be given to the objective circumstances of the case: Rushby [1977] 1 NSWLR 594. We consider that to have happened here. In our view the requirement of a reasonable proportionality with the circumstances of the crime called for a significant full-time custodial sentence.

We should make it clear that we do not suggest that it could never be proper to order that a sentence for the crime of manslaughter be served by way of periodic detention. There may well be cases of manslaughter where that is an appropriate order. It enables the offender to remain in employment and also minimises disruption to family life. We do not disregard the fact that even part-time custody is a substantial punishment. However in the present case we consider the penalty to be so inadequate as to call for intervention by this Court.”

21. Indiscriminate acts of violence of the type committed by the respondent which lead to the death of another deserve severe punishment. It will be a rare case where the appropriate punishment for a manslaughter committed in these circumstances does not involve a term of full time custody. This was not such a rare case. The community has a justifiable concern about the level of violence associated with young people and alcohol in our community. Where that violence results in a death of another the community rightly expects the courts to impose a sentence which not only provides appropriate punishment but which will unequivocally send a message that violence is unacceptable.

22. Although I am satisfied that a sentence of full time custody is required, I would not disturb the finding of special circumstances. The discount which her Honour provided for the plea of guilty was appropriate.

23. In my view, the term of imprisonment which her Honour imposed was below the appropriate range for this offence. However, because this is a Crown appeal I do not propose that the starting date for the term of the sentence or the non-parole period should be disturbed. The consequences overall will be that the respondent will serve less than eighteen months in fulltime custody. In my opinion the appropriate orders are: 1. Crown appeal upheld. 2. Sentence imposed in the District Court quashed. 3. In lieu the respondent is sentenced to a non-parole period to be served by way of full time custody of 18 months to date from 2 May 2008 and expire on 1 November 2009 with a balance of term of 18 months to commence on 2 November 2009 and expire on 1 May 2011. The respondent shall be released to parole on 1 November 2009 on the usual conditions.

24. SIMPSON J: I have read in draft the judgment of McClellan CJ at CL. I regret to say that I disagree. In my opinion the Crown appeal ought to be dismissed. My conclusion does not depend upon the well-known proposition that Crown appeals ought to be a rarity: Everett v R [1994] HCA 49; 181 CLR 295; R v Allpass (1993) 72 A Crim R 561; R v Wall [2002] NSWCCA 42. I state at the outset that, in my opinion, this was. a proper case for the Crown to seek to challenge the outcome of this sentencing procedure. Nevertheless, my firm view is that the challenge ought not to succeed.

25. It is appropriate also to make some acknowledgements. The offence of which the respondent admitted his guilt is one of the most serious known to the criminal law. Its consequences were devastating: the death of a human being. Obviously, that circumstance must be given considerable, even great, weight. I do not overlook it. I acknowledge also that, although the respondent was only 20 years of age, he did not fit easily into the category of "young offender" such as to attract additional leniency of the kind recognised in, for example, R v GDP (1991) 53 A Crim R 112; R v Pham and Ly (1991) 55 A Crim R 128 such as to demand or even justify any major amelioration of the sentence for that reason.

26. Notwithstanding that, the respondent's relative youth was a significant factor to be taken into account.

27. The objective circumstances of the offence have been fully set out in the judgment of McClellan CJ at CL, drawn from the Remarks on Sentence of the sentencing judge. It is not necessary to restate them. Subjective circumstances

28. In my opinion the respondent presented an exceptional subjective case. This was summarised by the sentencing judge in a few short paragraphs. (By that I do not mean any criticism of the sentencing judge - her observations were an accurate summary of the extensive material that had been put before her.) Those paragraphs, extracted in the judgment of McClellan CJ at CL, are inadequate to explain why I take the view I do. I therefore propose to make more extensive reference to the detail of the subjective case that was presented.

29. The respondent's mother, Ms Sandra Carroll, provided a statement, and gave oral evidence. Even allowing for a mother's natural bias, the statement revealed a history, on the part of the respondent, from a very young age, of community service. One example will suffice. As a primary school child the respondent took on the care of another child who suffered from muscular dystrophy - to an extent and a level that warranted recognition. Ms Carroll, in her statement and in her oral evidence, painted a picture of the respondent as a young man who had, since childhood, exhibited significant leadership qualities, particularly in community sporting activities. That picture was confirmed as accurate in a large number of written testimonials and statements that were in evidence.

30. Ms Carroll also said that, since the date of the offence, she had noticed a change in the respondent; he had become withdrawn and had lost his sense of humour. That understates the position as revealed in other evidence.

31. The respondent himself gave evidence, principally by reading from a prepared statement. Inter alia, he said: "Since [the offence] my life has changed dramatically as I am deeply ashamed of my actions that has caused much hurt to the victim's family and my own. I cannot seem to find the words by actions to show how sorry I am for taking this person away from his family. Upon finding out that the victim had passed away, I was devastated to know that my actions had taken a human life which had just as much right to live on this earth as I do. ... everyday that goes past I wish I could trade places with the victim so that his family wouldn't have to go through this terrible suffering. ... before this tragedy occurred I was employed as a third year plumbing apprentice which I chose to suspend as I could not concentrate on my job and it was unfair to my employer. I also lost motivation to play rugby league which I have played and loved since I was 3 years old. My immediate future is so uncertain and it is so hard to find enjoyment and satisfaction from anything I do. I find it tough to see a future at all as I cannot control mine and what is happening at this time. ..."

32. There was considerably more, but this is enough to convey the flavour of the respondent's evidence. He was cross-examined by the Crown prosecutor, but nothing he said was the subject of challenge.

33. As the respondent said, on leaving school he commenced a plumbing apprenticeship. At the time of the offence (May 2007) he was within fourteen months of its completion. He was achieving excellent results in the TAFE component of his course. Following his arrest and charge, he initiated the suspension of his apprenticeship because of his inability to focus upon his work, although his employer said that he would be welcome to return when his circumstances permit him to give his full attention to his work.

34. He has also ceased most of his former recreational activities and has almost entirely ceased the consumption of alcohol.

35. A report of a psychological assessment conducted in February 2008 by Professor Stephen Woods showed that the respondent suffered from Post-Traumatic Stress Disorder, with co-morbid Major Depressive Disorder, to a severe degree, without psychotic features, resulting from the events that give rise to the charge of manslaughter. Professor Woods described the respondent's emotional state as "obviously depressed and agitated"; he was observed to be physically ill prior to the consultation. His depression was described as clinically severe.

36. Professor Woods also made one alarming observation, that was not in any way challenged. He (correctly and realistically) assumed that the respondent was at risk of being sentenced to a term of full-time imprisonment. He said that if that occurred, the realistic potential for him to receive the necessary treatment for his post-traumatic stress disorder and associated depressive disorder was "minimal"; he therefore noted a risk of self harm. He recommended treatment for the respondent in the event that he was not sentenced to full-time custody.

37. In a second report, dated April 2008, Professor Woods said that the respondent had contacted him for treatment, which he agreed to provide.' Professor Woods noted that the risk of self harm had (at the time of writing the report) lessened, but he considered that the respondent still required "further and specialist" treatment, which was not, Professor Woods understood, available in a correctional centre. Sentencing considerations

38. There are no absolutes in sentencing law but it is a very unusual case of manslaughter that does not call for a sentence of full-time custody. Having said that, however, it is apposite to recall that it has long been recognised that manslaughter is a crime which may be committed in circumstances of such variety as to give to rise to sentences of equal variety: see, for example, R v Schelberger, unreported, NSWCCA, 2 June 1988, per Yeldham, Grove and McInerney JJ; R v Elliott, unreported, NSWCCA, 14 February 1991, per Hunt, Campbell and Newman JJ.

39. A fundamental aspect of the sentencing exercise is the correct identification and recognition of the objective gravity of the offence. There are two components to the assessment of that objective gravity: an examination of the precise acts (or, in. some cases, omissions) of the offender; and the consequences of those acts. There are many cases (of which this is an example) in which the consequences are out of all proportion to the act constituting the offence. Here, the respondent, acting impulsively, in the context of consumption of alcohol, a sudden but escalating dispute, and a threat of serious violence on the part of the victim, spontaneously engaged in what McClellan CJ at CL describes as an act of violence. True it was, as his Honour says, an act of violence that foreseeably, potentially could have led to injury to the victim; I have more difficulty with the proposition that “severe injury” was clearly foreseeable, and death foreseeable as "at least a possibility". This, perhaps, represents my first point of departure from the reasoning of the Chief Judge. In my opinion the proper characterisation of the respondent's conduct was of an alcohol-fuelled, foolish, possibly thuggish, spontaneous (and immature, even childish) act. He behaved impetuously, plainly without thinking, in the face of a threat from Mr Criniti. This is not to blame the victim, it is to recognise the circumstance in which the respondent acted. He could not have been expected to foresee that Mr Criniti would fall to the ground and strike his head in such a way as to cause serious injury; far less could he have been expected to foresee death. This is not a case where the use of a weapon, such as a knife, or a blunt instrument, or even kicking, dictates a conclusion that fatal consequences were foreseeable.

40. Nevertheless, that was the consequence of his act, which was undoubtedly unlawful, and it is the consequence for which he must pay the price. But it is relevant to recall that the consequence was indeed out of all proportion to his act. After all, the converse holds good. It is not at all uncommon for it to be remarked, by sentencing judges or by this Court, that an offender is fortunate not to be facing a more serious charge. That is merely another way of saying that, in such a case, the objective gravity of the conduct resulted in consequences less dire than they may have been: or that, proportionally, the conduct was more serious than the consequences it yielded, in that the consequences were (fortunately) disproportionate to the conduct. Rehabilitation

41. S 21A of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Procedure Act”) sets out the aggravating factors and mitigating factors that a sentencing court is obliged to take into account in the sentencing exercise. One of the mitigating factors is that "the offender has good prospects of rehabilitation ..." Some attention was paid to this factor by the sentencing judge, and has been by McClellan CJ at CL.

42. I have concluded that this is not a case in which the concept of rehabilitation has any role to play. The Macquarie Dictionary (I have the 19'85 revised edition) defines "rehabilitate" as: "1. to restore to a good condition, esp. in a medical sense, of persons; regenerate, or alter to an improved form. 2. to educate for resumption of normal activities, as a person handicapped by accident or disease. 3. to re-establish in good repute or accepted respectability, as a person or the character, name, etc., after disrepute. 4. to restore formally to a former capacity or standing, or to rank, rights, or privileges lost or forfeited."

"Rehabilitation" is give two corresponding meanings.

43. None of these, in my opinion, is precisely apt to convey the notion of "rehabilitation" as it is commonly used in sentencing law and proceedings. In that context the notion of "rehabilitation" usually carries with it, at least implicitly, the notion that the offender has been. involved in, or is at risk of, significant criminality. It imports rescue or recovery from a lifestyle of which crime and criminality are a part.

44. That is not the case here. The respondent has, apart from this single momentary aberration, no criminal history, and there is not the slightest indication that he ever would become associated with a criminal lifestyle. There is no criminal association from which he needs to be or could be rescued. That is why I have set out, in some detail, the subjective matters that were before the sentencing judge.

45. That, of course, is not to say that the respondent is not entitled to the benefit of his prior favourable history; it is to focus upon the proper recognition that should be given to that, which is more than merely giving rise to a finding of good prospects of rehabilitation. His prior history stands to his credit as a balance against his single criminal act. Consistency in sentencing

46. In recent times this Court has moved towards establishing, as a core goal of the sentencing process, consistency. I accept that consistency in sentencing has much to recommend it and is, in general, highly desirable. It has, for example, the potential to circumvent resentments and feelings of injustice on the part of offenders who commit similar crimes but are not treated equally. The availability of computer-aided statistics has made it possible to facilitate the move towards consistency. The same motivation has produced (in NSW) guideline sentences, which had their origin in R v Jurisic (1998) 45 NSWLR 209, followed by statutory authorisation in Pt 3 Div 4 of the Sentencing Procedure Act.

47. Consistency, however, is not an overriding goal; in each case, it is the selection of the correct sentence to fit the offence and the offender that is the overriding goal. Consistency must yield to the essential-justice of each case. So much, I think, emerges from the decision of the High Court in Wong v The Queen; Leung v The Queen [2001] HCA 64; 207 CLR 584.

48. It is pertinent, at this point, to return to a decision that was once frequently cited in this Court: R v Osenkowski (1982) 5 A Crim R 394. There King CJ (in the Court of Criminal Appeal, South Australia), said: "It is important that prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges. There must always be a place for the exercise of mercy where a judge's sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender's life might lead to reform. The proper role for prosecution appeals, in my view, is to enable the courts to establish and maintain adequate standards of punishment for crime, to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected, and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience."

49. Osenkowski was once an overused and overworked case that, because of its overuse and overwork, had almost worn out its welcome in this Court. That it is overused and overworked does not mean that it has no further work to do, or has no further relevance. Indeed, it was cited with approval by Gleeson CJ in Wong and Leung (at [8]).

50. Occasionally - very occasionally - there is presented a case to which Osenkowski has particular application. This is one such case. Conclusion

51. I recognise that, in most cases if not all, a favourable subjective case cannot be allowed to overpower the objective gravity of the crime under consideration. A clear-eyed approach has to be taken to the proper balancing of the two competing considerations. In this case the balancing process persuades me that the sentencing judge was not in error in the approach that she took. The, most significant aspect, to my mind, is the analysis of the proportion between what the respondent actually did, and its dire consequences. One further circumstance that I have not mentioned, which is of some (although limited) significance is that the respondent, with his father's assistance, contacted police and volunteered to attend for interview. This circumstance cannot be accorded too much weight: there was not the slightest doubt that the respondent would be identified as the perpetrator, and would be arrested and charged. However, it is some evidence of his willingness to accept responsibility for his conduct.

52. Further, I am conscious of the alarming opinion expressed by Professor Woods, and his evidence that the treatment that the respondent requires will almost certainly not be available to him in a prison setting; and the potentially dire consequences of that.

53. In the whole of the circumstances of this case, I would dismiss the Crown appeal.

54. I emphasise that this is not a decision based on the discretion which remains in the court, even where error is shown, to dismiss a Crown appeal. That discretion must be exercised upon a principled basis, and, if McClellan CJ at CL is right in finding that the sentencing judge was in error, there were no discretionary circumstances that would deflect this Court from performing its duty. My view is based upon a conclusion that the sentencing judge was not in error.

55. HISLOP J: I agree with McClellan CJ at CL. **********

25/09/2008 - The words "By majority" to be inserted before the decision in the cover sheet. - Paragraph(s) cover sheet