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.