R v Irvine

IN THE COURT OF CRIMINAL APPEAL 2008/3172

HODGSON JA KIRBY J HISLOP J

Friday 21 November 2008 R v CHAD KYLE IRVINE Judgment 1 HODGSON JA: I agree with Hislop J. 2 I would add that the Crown placed particular reliance on the recent decision of the Court of Criminal Appeal in R v Carroll [2008] NSWCCA 218. 3 In that case, an offender had been sentenced for manslaughter in the District Court by the imposition of a non-parole period of 18 months and a further term of imprisonment of 18 months, with the sentence to be served by way of periodic detention. The Court of Criminal Appeal by majority allowed a Crown appeal, and ordered that the non-parole period be served by way of full-time custody. 4 There were similarities to the present case. The offender was only 20 years old. The death of the victim was the result of a single head-butt, which unexpectedly caused death when the victim fell backwards and the back of his head hit the roadway with force. Just before the head-butt, the victim had said words to the effect that he would get a gun and shoot people. The offender was of excellent previous character and was deeply remorseful. 5 Consistency in sentencing is desirable, but it is not necessarily correct to use a result in one case to dictate the result in another. And there are in my opinion important differences between Carroll and the present case. 6 In Carroll, the offender was affected by alcohol and became aggressive towards the victim, in circumstances where the victim's reference to getting a gun was considered by the majority of the Court of Criminal Appeal to be no more than an idle boast. 7 In the present case, the offender's approach to the victim was with a view to achieving a proper resolution of prior unlawful conduct by the victim, by having the victim return to his car and await the arrival of police. The sentencing judge accepted that the offender believed he was defending himself when he punched the victim, after the victim had lunged at him. However, the offender was guilty of manslaughter because his behaviour was not proportionate to the circumstances. 8 In the particular circumstances of this case, in my opinion the sentence imposed was not such as to justify intervention by this Court on a Crown appeal. 9 KIRBY J: I agree with Hislop J and I also agree with the additional comments by Hodgson JA. 10 HISLOP J: The respondent pleaded guilty to a charge that on 24 March 2007 at Tenambit he unlawfully killed Shane Larkins contrary to s 18(1)(b)/24 of the Crimes Act, 1900. The maximum penalty for that offence is imprisonment for 25 years. 11 On 11 July 2008 Judge Flannery SC sentenced the respondent to imprisonment for that offence for a non parole period of two years commencing on 18 July 2008 and expiring on 17 July 2010 with a balance of term of one year commencing on 18 July 2010 and expiring on 17 July 2011. She ordered that the sentence be served by way of periodic detention. 12 On 23 July 2008 the Crown appealed against sentence on the ground that the sentence was manifestly inadequate. 13 Her Honour, in her remarks on sentence, set out the facts as follows: "…on the afternoon of 24 March 2007 the deceased drove to the Tenambit area to visit friends. An argument developed between the deceased and those friends and he decided to leave. He was observed doing a burnout as he drove away. He drove to the residence of another friend arriving at about 9pm. He remained drinking at that house until 11pm. A friend of his then offered to walk him home and attempted to take his car keys. The deceased refused to hand over his car keys and said 'no I'm driving'. He walked out of the house and got into his car. His friends encouraged him not to drive and he said 'no I am driving and I'm going to do a skid before I go'. He started his vehicle, revved the engine, which caused the wheels of his vehicle to spin slightly and he drove off. Shortly after 11pm his vehicle was seen and heard doing burnouts in Roberts Street. Between 11 and 11.30pm a number of residents of Roberts Street including the offender, his father, his sister and Matthew Parker came out to investigate the screeching of tyres. Another resident Mr McKenzie decided to get in his vehicle and follow the deceased's vehicle. Mr McKenzie saw the deceased's vehicle wipe out a bus stop sign in Roberts Street before turning into Goldringham Street. He then saw the vehicle drive straight through the junction, mount the curb and collide with a fence. Mr McKenzie did not have a pen and so went back to his house to grab one and when he returned he saw the deceased getting out of the vehicle. Meanwhile Mr Ray Irvine, Mr Parker and Kayleb Irvine had walked up Roberts Street towards Goldringham Street. A short time later the offender caught up with them. He and Mr Parker then jogged off towards Goldringham Street to try and catch up with the vehicle. When they reached the intersection they could not see the vehicle and were about to turn back when they heard the vehicle crash into something. They saw that the vehicle had crashed into a pine log fence. They walked up to the side of the Commodore and saw the deceased alight from it. Mr McKenzie, Mr Parker and the offender remonstrated with the deceased for doing burnouts in such a small street. The deceased locked up his car and walked off in the direction of Houston Avenue. Mr McKenzie returned home, spoke [to] his wife and later returned to the collision scene. The offender and Mr Parker decided to follow the deceased. Mr Parker told the police, 'that's when Chad and me decided that we would talk to this bloke to try and get him back to his car. So we both jogged up to him until we were about 10 metres away and then we walked and we sung out to him. We kept saying things like, if you want to see your car again you had better turn around and go back to it. We told him he has to go back to his car otherwise he would get in more trouble. He then said to us over and over "I don't care, I don't care a fuck." He was really unsteady on his feet. He was all over the place. After a few minutes of trying to convince him to go back to his car he started to head towards Chad. I think out of instinct I saw Chad throw a left-handed jab. I saw it hit him on the right side of his face in the cheek area. I saw the bloke stumble back. It looked like the bloke took a stumble back to get away from Chad. Chad said to me "stuff him let's get back". Chad and I walked off. As we passed the bloke he was still stumbling around like he was before. When we got to the corner of Foster Street and Clarence Street I turned back and I saw the bloke was lying on the ground. We decided that we should go back and make sure that he was okay. When we got back to him Chad checked his pulse and he was still breathing. I could tell that he was unconscious. I was standing over the top of him giving him a little tap on the cheek to try and wake him up. He stirred and made a noise like he was snoring so I thought he was all right. I thought he was sleeping because he was so drunk.'" 14 The ambulance and police were called by others, resuscitation was attempted but was unsuccessful and the deceased died at the scene. 15 Autopsy findings revealed:

(a) The overall pattern of injury was of a single blow to the left jaw area, producing fractures of the lower jaw and some local bruising and minor external damage;

(b) The deceased had an area of congenital abnormality in a vertebral artery. The cause of death was a subarachnoid haemorrhage in the region of the abnormality caused by the trauma of the blow. It could not be excluded that in this case the haemorrhage, although produced by trauma, required a significantly lesser degree of trauma to the vessel than would normally be required due to the inherent weakness of the arterial wall;

(c) The deceased had .228g of alcohol in his blood and .284g in the vitreous. 16 The respondent asserted, and it was corroborated by his companion, that it was their intention to try and convince the deceased, by talking to him, to return to his car and there await the attendance of the police. 17 The respondent at all times asserted he had struck the deceased once in self defence. He told police the deceased was behaving abusively and, "out of the blue", lunged at him. The respondent thought the deceased was going to hit him, or tackle him or something and reacted intuitively in striking him. Her Honour accepted, for the purpose of determining the objective seriousness of the offence, that the respondent thought he was defending himself when he struck the fatal blow but that his behaviour was not proportionate to the circumstances. 18 The respondent, who was a strongly built man, described the punch to police as "It was just like a shock punch, like, just defending myself punch, like, it would have had a bit of force behind it. Not as much as I can put it out but." Her Honour accepted the evidence of the doctor who conducted the autopsy that the effect of an unexpected blow denies the receiver the opportunity to ride the blow. 19 The respondent was not affected by alcohol. He had had cannabis earlier in the evening. He said in cross examination that the cannabis use had no effect at all on this offence. There was no evidence to the contrary and this aspect was not pursued on appeal. 20 The respondent was born in 1989. He was 18 years and 1 month old at the time of the subject incident. He is the youngest of four children to his parents' union. His parents separated when he was about 11 years of age. He found the separation very difficult. He lived with his mother but often spent time with his father. Both parents were supportive of him after their separation and he enjoys a close relationship with each of them. 21 He was diagnosed with attention deficit hyperactivity disorder when he was aged six. He struggled with the academic demands of schooling, often resorting to aggression and defiance to cope with his frustration. He left school at age 16. He completed a hospitality course through a local TAFE. He worked building air conditioning ducts until he was retrenched. He then worked as a brickies labourer. His employer considers him hardworking and honest and has expressed a willingness to have the respondent work with him for as long as the respondent likes. The respondent is contemplating an apprenticeship in bricklaying. 22 Prior to the commission of the offence he used cannabis regularly and acknowledged to Dr Seidler that this use was problematic and indicative of dependence. He stopped using cannabis after he was released on bail in June 2007 and appreciates the clarity of thinking and improved health that abstinence has brought. He has given up playing football and has gained considerable weight, attributing this to his increased consumption of alcohol caused by the stress associated with the prospect of sentencing. 23 The respondent had no prior criminal convictions. Her Honour found the offence was not part of a planned or an organised criminal activity, that the respondent was of good character at the time he committed the offence, that he is unlikely to re-offend, he has good prospects of rehabilitation and that he is truly remorseful. He had assisted the authorities by initially attending at the police station of his own accord. 24 Her Honour allowed a discount of 25 percent for the early plea. She found special circumstances by reason of the respondent's youth and his need for continued counselling to assist him in coming to terms with the consequences of his offending behaviour. 25 Counsel for the respondent at the sentencing hearing submitted "that this offence lies well below the middle of the range of objective seriousness for offences of manslaughter." He relied for that submission on the following matters. There was only one blow. That blow exposed an unfortunate medical condition that Mr Larkins suffered. Mr Larkins' behaviour leading up to the commission of the offence had something of a provocative flavour about it and the respondent satisfies the first limb of self defence as he thought he was defending himself when he struck the blow, although by his plea of guilty he acknowledged that his behaviour was not proportionate to the circumstance in which he found himself. 26 Her Honour held: "I do find that this offence lies well below the middle of the range of objective seriousness for offences of manslaughter for the reasons that [the respondent's counsel] gave." 27 Her Honour found: "In the light of the material before me, I do not consider that the sentence I impose need to reflect any significant measure of personal deterrence or the protection of society and the Crown does not submit to the contrary and whilst retribution and general deterrence remain of importance, that importance is reduced to an extent because of the youth of the offender and the need to foster his rehabilitation."

and concluded: "There is no doubt that a sentence of imprisonment is required. In all of the circumstances of this case, I consider that a sentence of 3 years is the appropriate one…I have come to the conclusion that in the circumstances of this case a sentence of periodic detention would reflect objective seriousness of the offence and it would fulfil the matter for the purposes of punishment." 28 The offence of manslaughter involves the felonious taking of human life and for that reason it is recognised as a most serious crime, one which carries a maximum penalty of 25 years imprisonment. However, the facts and circumstances may vary markedly from one case of manslaughter to another. 29 The Crown submitted that the offence required the imposition of a sentence which adequately reflected the need for general deterrence and retribution. The sentence imposed did not do so. A sentence of full time imprisonment was merited. Her Honour erred in finding the offence to be well below the mid range for such offences, failed to give proper weight to the force of the blow, to the fact that the deceased was drunk and stumbling and gave too much weight to the behaviour of the deceased, to the respondent's belief in the need to defend himself and to the deceased's pre-existing medical condition. By reason of the weight given to the respondent's subjective circumstances, her Honour failed to impose a sentence that properly reflected the objective seriousness of the offence. 30 Additionally, it was submitted the finding of special circumstances was appropriate to the serving of a sentence of full time imprisonment and not where the sentence is served by way of periodic detention. However, this submission ignores the principle that, having determined that no other penalty is appropriate than a sentence of imprisonment, the court must determine what the term of that sentence should be without regard to whether the sentence will be immediately served or the manner in which it is to be served and, once the term of the sentence has been determined, the court is then to consider whether any alternative to full time imprisonment is available and should be utilised - R v Zamagias [2002] NSWCCA 17 at [26], [28], Kwok v R [2007] NSWCCA 281 at [125]. 31 In my opinion, it was open to her Honour to find that the offence was well below the mid range of objective seriousness for manslaughter for these reasons

(a) Her Honour found as a fact that the respondent believed he was defending himself when he struck the deceased. This distinguishes this case from those where the attack is made on another in the absence of any perceived immediate threat.

(b) The respondent was not affected by alcohol. He was not seeking to engage in violence but was trying to persuade the deceased to return to his car. He demonstrated concern for the deceased when he returned to him upon observing him on the ground.

(c) The respondent, by his plea, had conceded that his response was disproportionate in the circumstances. However, it was night, the deceased was drunk and abusive and his lunge at the respondent came "out of the blue". With the benefit of hindsight it is apparent that there were other options which the respondent could have taken which would have avoided harm to the deceased but the respondent did not have the opportunity to reflect in a calm and measured way as to the appropriate response and instead he reacted instinctively to the threat. Her Honour had regard to the fact that the force of the blow was increased by the deceased's failure to ride with the punch.

(d) The death of the deceased would, almost certainly, not have been caused by the blow had it not been for the pre-existing abnormality of the vertebral artery, a matter of which the respondent was unaware. 32 The respondent had a strong subjective case to which her Honour had appropriate regard. Her Honour also took into account retribution and general deterrence in the assessment of which she appropriately had regard to the respondent's youth and the need to foster his rehabilitation. 33 There is no single correct sentence to be imposed in respect of a particular offence and sentencing judges have a broad sentencing discretion - Markarian v R [2005] HCA 25; (2005) 228 CLR 357 at [27], particularly in relation to the offence of manslaughter. In my opinion, her Honour's findings and the sentence which she imposed were open to her in the circumstances of this case. 34 In my opinion, the sentence imposed upon the respondent, having regard to the facts as found by her Honour, is not such as to require intervention by this Court. I propose that the appeal be dismissed. **********

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