R v KING

CATCHWORDS : CRIMINAL LAW - Manslaughter - Sentence - Excessive self-defence - Low end objective seriousness - Age of offender - Outstanding prospects of rehabilitation

LEGISLATION CITED : Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999

R v Bolt (2001) 126 A Crim R 284 R v Hamilton; R v Sandilands [2007] NSWSC 452 CASES CITED : R v Lavender (2005) 222 CLR 67 R v Muddle [2004] NSWSC 403 R v Previtera (1997) 94 A Crim R 76.

PARTIES : Anthony William King (Offender) The Crown

COUNSEL : P Winch (Offender) P Leask (Crown)

SOLICITORS : Legal Aid Commission of NSW (Offender) Director of Public Prosecutions (Crown)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST

HER HONOUR: 1 On Monday 24 October 2005, Anthony William King, who I will refer to as the offender, was charged with the murder of Jeremiah Faraimo. Mr Faraimo died as a result of a single stab wound to the neck. He was 19 years of age. 2 The entry wound was on the left side of the neck and measured 33 mm in length. It passed through the soft tissue of the neck and entered the left carotid artery, and thereafter the right carotid artery, terminating in an exit wound on the right side of the neck. The stab wound was oriented from left to right approximately horizontally at a depth of 155 mm sufficient to sever both the left and right carotid arteries. 3 At the time of the incident that resulted in the death of the deceased the offender had just turned 18 years of age eight days earlier on 16 October 2005. By reason of him being 18 years and eight days on the date that he was charged he was detained on remand as an adult prisoner. He has remained in custody since that time. Currently he has been in custody for one year 11 months and 19 days. 4 On 25 October 2006 the offender was committed to the Supreme Court for trial. He was arraigned on 13 April 2007 and pleaded not guilty to murder. The trial was listed to commence before me on 18 June 2007. On that date the offender pleaded not guilty to the charge of murder but guilty to manslaughter. The Crown accepted the plea of guilty in full satisfaction of the indictment. In so doing the Crown acknowledged that the uncontested facts supported no other conclusion than that the statutory alternative of manslaughter was the appropriate charge by reason of the offender's excessive use of force in self defence and, having regard to the facts in this case, excessive use of force in defence of another. The Crown also accepts that the fatal wound was delivered by the offender with the intention of inflicting grievous bodily harm and not with an intention to kill. The facts 5 The following summary is drawn from an agreed statement of facts, the offender's record of interview, the Report to the Coroner, a record of the 000 call placed by the offender's mother and some photographs. No other material was tendered by the Crown on sentence. Mrs King and the offender both gave evidence in the proceedings. I also draw upon their evidence. They were not cross-examined. In that regard it is also important to emphasise that the version of events given by the offender in the record of interview was not the subject of contest. In fact, in large measure, it has been incorporated into the agreed statement of facts. I accept the offender's version of events as full, frank and truthful. I am not invited by the Crown to do otherwise. 6 The incident that resulted in the death of Jeramiah Faraimo occurred on a Sunday in the early evening of 23 October 2005. It occurred at the home of the offender's parents, Alice and Lance King, at 46 Pendergast Avenue, Minto. The offender and his 20-year-old partner, Denise Poland, and their 10-month-old daughter, Shae were living with his parents, along with his four younger siblings, Kaylan, Hayley, Shiloh and Lance Junior. Other members of the offender's family were also present that evening having shared a family meal. They included the offender's older brother, Richard King along with his three-year-old daughter and the child's mother, Rachel Goodwin. 7 Some time after dinner, as Ms Goodwin was preparing to leave, Richard King, Ms Goodwin and Mrs King walked out through the front door to the front of the house. While the three were outside, three men who were unknown to the offender and his family approached the front yard along the footpath. The three men were later identified as Talai Epati, James Peni, and the brother of the deceased, Arlen Faraimo. Two of these men were drunk. Ms Goodwin's car was parked just outside the front gate on the driveway. One of them walked around the car and punched the driver's side window. The offender was at this time still inside the house. Ms Goodwin said words to the effect of, "What are you fucking doing, it's my car". Richard King also said words to a similar effect. Ms Goodwin and Richard then walked to the front fence. 8 At this point the offender came outside and joined his brother and Ms Goodwin at the fence. Mrs King went inside. Words were exchanged and a physical fight broke out between the offender and his brother on the one hand and James Peni and Tali Epati on the other. It would appear that the deceased's brother also participated in the fight. While there is some uncertainty as to which party initiated the fight it is clear that the damage or threatened damage to the car was the trigger incident. The offender and his brother maintained that James Peni and Tali Epati started the fight and Ms Goodwin, although not able to say who started the fight, recalled that Richard King attempted to stop the fight before James Peni and Tali Epati attacked him. The fight soon spilt over into the front yard. 9 I am satisfied that at this time the deceased's brother (the third person) left and ran towards Dunlop Avenue - a street close by. I infer from what followed that this was in order to call upon the assistance of others including the deceased. In the meantime, the fighting at the offender's home abated and eventually stopped. Unfortunately, as events transpired, the request for assistance was answered and a large group of people made their way from Dunlop Avenue to the offender's home. The deceased was in this group.

10 I am also satisfied that with the arrival of this group the offender (and perhaps his brother) entertained an appreciable level of fear for both his own safety and that of his family. It is a matter of some weight that there were children in the house and that Mr King, the offender's father, was at work. In the offender's record of interview he gave the following account (pp 26-27): "…yeah, well we told them we didn't want to fight no more… by the time we said, leave it, the one that had run up Dunlop, I don't know if he went up to a house party or nothin', but ah, yeah, apparently there was a big party up there where a lot of them were gettin' on the drinks… we were just getting ready to go back inside after that little brawl. And then we seen close to 30, 40, could've been more than 40, people just makin' their way towards our front gate, which actually really scared me and my brother. And the first thing we thought of was the kids, and 'cause my mum was there. My, my dad was at work" (emphasis added). 11 The offender also stated in his record of interview that after he observed the large group of people approaching his home both he and his brother asked their mother to ring the police. Mrs King placed a call to 000 and remained in conversation with an emergency operator for 5 minutes and 32 seconds. I have listened to the recording of the call. Mrs King is clearly in great distress, repeatedly ordering people off her premises while she endeavours to give the information that the operator requires of her. She expresses her fear that the intruders will enter the house. Her distress at this prospect is palpable. In the background there are audible sounds of a fight in progress. 12 Mrs King gave evidence in the sentence proceedings. I am satisfied that because she was preoccupied with providing information to the 000 operator, and because she was required to stay on the line until the police arrived, she did not appreciate that the offender came inside the house to get a knife. I am also satisfied that if she had known that he was intent on arming himself, or if she had seen him with the knife, she would have taken steps to stop him or to disarm him.

13 The men involved in the fight in its second phase included the deceased and his brother Arlen Faraimo. I am satisfied that it was the deceased who commenced fighting with the offender's brother. It should be noted that the deceased was a larger man than the offender's brother and larger than the offender. The deceased was 190 cm in height and 133 kg in weight. The arrest photograph of the offender reflects a young man of average weight and build and considerably shorter than the deceased. The offender said: "he towered over me". I am also satisfied that while the offender was not injured, his brother sustained several injuries to the head very likely as a result of being struck over the head with a letterbox by one of the intruders. The offender described these events in his record of interview (p 28): "…the one that had the yellow singlet and the black pants, he's actually pulled the letterbox out of our fence, 'cause it's not actually concreted into the floor… And he's pulled that out, and he's made his way down to my brother, and in that split second that's when I had come out the door and seen him walking. But then that big Jeremiah bloke walking too, but he had two other big blokes standing beside him…Which just made me look wary, thinkin' I've, I've got to watch them three… Or watch this one with the letterbox… And to me, I just didn't know what to think… I was just that scared and that frightened…" He went on to recount (p 30-32): "…Its just I'm real quiet, it just takes someone real bad to actually make me set myself off… when I seen them getting closer to my brother, that's when I thought either my brother's goin' to die tonight … or it's me… And I wasn't goin' to let that happen… I didn't want to do it … not realising how pissed off I was… I lost it then mate. I just lost my temper… I seen them run towards him… so before they hit him I actually swung the knife…"

14 I accept from this extract that the offender genuinely feared for his safety and his brother's safety. He told police he feared that his brother was going to die. I accept that he was truthfully recounting a subjective state of belief however unlikely it might be, when viewed objectively, that either he or his brother were actually in mortal danger. I do note that none of the intruders were armed. That said, I am also satisfied that as the numbers of intruders swelled and as the fight shifted in intensity, or threatened to shift in intensity towards the front veranda, and therefore the front door of his parents' home, that the offender also had a basis for reasonably fearing for the safety of other family members. 15 It is clear on the evidence that the offender ran inside the house and armed himself with a knife as an immediate response to his well founded fears for his own safety, his brother's safety and that of his other family members. The offender said that he grabbed a knife from a wooden block that held a number of knives in the kitchen. In the record of interview the police showed him a block apparently seized from the house. The offender identified the slot from which he extracted the knife. The knife he grabbed was a 15 cm knife with a 7 cm blade. He told police that he considered taking another larger knife but said: "I thought I would get into too much trouble with that one". 16 Upon returning to the veranda he said he saw the deceased and others run at his brother on the path just below him. I accept that, with the knife in hand, he issued a warning to the deceased who, with others, were intent on continuing their aggressive and provocative conduct in the front yard of the offender's family home and towards the front door. I also accept that in the immediacy of what he then perceived as a dire threat of further injury to his brother, the offender swung or thrust the knife at the deceased striking him across the neck from his position on the veranda.

17 The offender then pleaded with his brother to return inside the house. The offender said to his brother, "Mate… Get inside, boy… you know, We're either goin' to die tonight, or just get inside, mate, and wait for the police" (record of interview, p 32). The pair ran inside, locked the door and waited for the police to arrive.

18 At approximately 8:15 pm police arrived at the premises. The police found the deceased bleeding profusely from the wound to his neck. He was being held up by his brother and two other males. Several other men had gathered around the deceased. The ambulance arrived approximately 15 minutes after police. By this time the deceased was unable to be revived. Ambulance officers advised police accordingly although death was not formally pronounced until the deceased arrived at the hospital. This was in deference to what police described as a highly emotional and volatile environment.

Richard King's confession and his wrongful arrest 19 Police spoke to the offender's brother, Richard King, some time after ambulance officers had removed the deceased. Constable Robinson approached the offender and his brother and asked whether they knew anything about what happened outside on the front yard. The offender's brother said, "The bloke came at me with a knife, and my intention was to stab him to stop him" (agreed statement of facts, par 11). The offender did not volunteer any information confirming or contradicting this account to police at that time. Richard King was then cautioned by police and was told that he was not allowed to leave the premises. He later confirmed for a second time that he had stabbed the deceased. At 10:14 pm he was arrested and taken to Macquarie Fields Police Station. At 1:56 am the following morning, 24 October 2005, he participated in a formal record of interview where he again confirmed that he had stabbed the deceased. 20 Later that morning, at 9:40 am, Pastor Kingi Williams contacted police and advised them that they had arrested the wrong person. The pastor told police that he was present when the offender informed his parents that he was responsible for the deceased's death and that his brother was taking the blame for him. Pastor Williams gave evidence before me. He was not cross-examined by the Crown. 21 At about 10:00 am that same morning the police interviewed the offender. The offender admitted his responsibility for the death of the deceased. He was arrested, cautioned and participated in a formal record of interview in which he again confessed to stabbing the deceased. I have already noted that I regard the record of interview as full, frank and truthful. He was at that time charged with murder and taken into custody. 22 I am satisfied that the only reason the offender did not immediately admit to the police that he was responsible for wielding the knife and thereby causing the death of the deceased is because of the intercession of his older brother who, for his own reasons, had decided he would in effect "take the blame" for his younger brother. I do not regard the overnight delay before the offender identified himself as the person responsible for the death of Mr Faraimo as in any way diminishing his deep and enduring acceptance of responsibility for the death of the deceased. I note that the fact that it was the offender who had wielded the knife and not his brother was only made known because the offender could not accept what his brother had done in taking the blame for him. He told police in the record of interview that as he was 18 he wanted to shoulder his own responsibility for his actions. On any view this is to the offender's credit, particularly given he was 18 by a measure of only eight days as at 24 October 2005. I will have something more to say about this aspect of the case in due course.

23 The Crown submitted that in all the circumstances the offending is properly positioned at the low end of the range of objective seriousness. 24 In accepting that submission I do not for one moment lose sight of the fact that a young life has been lost and that the death of a human being by any unlawful killing is one of the gravest offences against an ordered society: R v Bolt (2001) 126 A Crim R 284 at 293. Equally, it is well established that of all the offences in the criminal calendar the offence of manslaughter produces the greatest variety of circumstances affecting culpability and attracting, for that reason, a wide range of sentences including nominal sentences in some circumstances (see R v Lavender (2005) 222 CLR 67 per Gleeson CJ, McHugh, Gummow and Hayne JJ at 77). I am satisfied, however, that nothing other than a term of imprisonment will suffice in this case to meet the objectives of sentencing as provided for in s 3A of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Act"). Mr Winch, counsel for the offender, does not seek to persuade me to a contrary view. 25 In imposing a sentence of imprisonment I am conscious that there is a legitimate community expectation that human life will be valued by the law and that those who unlawfully kill will be punished. I am also conscious that the community expects that sentencing judges will reserve the harshest punishment for those whose conduct exhibits the highest level of moral culpability. I am satisfied that this offender's moral culpability is not of that order. 26 The sentence of imprisonment must reflect the fact that the offender's conduct in obtaining, raising and thrusting the knife at the deceased was not a reasonable response, even in the circumstances as he perceived them. The deceased was not armed. To introduce a weapon into the fight, and then to thrust or swing it with the admitted intention of inflicting serious injury was an excessive response to the threat presented by the deceased and others. However, given the dynamics inherent in the confrontation between the deceased and the offender at the front veranda, together with the vulnerability of the soft tissue of the neck to wounding when a knife is wielded with a swinging or thrusting motion, it is impossible to assess with any precision the degree of force that was actually applied by the offender such as to cause the deep, penetrating and ultimately fatal injury to the deceased. For that reason, in assessing the objective gravity of the offending for sentencing purposes, I am not prepared to make any finding on the degree of force that the offender actually used or applied. Suffice that the offender's conduct in raising and thrusting the knife at the deceased's neck was, as I have said, an excessive response. 27 I pause to emphasise that the offender did not initiate the fight with the intruders in either the first or the second phase and that the knife was initially taken by him from his mother's kitchen with the objective of deterring the intruders from inflicting further injury on his family members. I also emphasise that the circumstances as they presented to the offender did not permit of any controlled or considered reflection on his part and that his admitted loss of temper must be viewed in that context. The plea of guilty

28 Notwithstanding the fact that the plea of guilty was entered late, the Crown draws my attention to the fact that discussion between the legal representatives focusing on the statutory defence to murder as provided for in s 421 of the Crimes Act 1900, did not occur until shortly before the trial date. Given the offender's account to police in the record of interview, a verdict of not guilty to murder but guilty to manslaughter by reason of excessive self-defence should have been seen by the Crown well before trial as not open to contest. In these circumstances, I accept the Crown's submission that the offender should not be significantly penalised as a result of the delay in offering the plea to manslaughter. Accordingly, the utilitarian value of the plea is, in my view, considerable notwithstanding that it was entered late.

29 As I have already noted the offender was aged 18 years and eight days at the time of the offence. A pre-sentence report was tendered which records, relevantly, that the offender has had no prior contact with the Probation and Parole Service. This is consistent with the fact that he has no prior criminal record of any kind. I have also read and taken into account the report of Dr Neilssen, a forensic psychiatrist. 30 The offender's parents emigrated from New Zealand, met and married in Sydney in 1984. Mr King is the middle child of six siblings. It is clear that he grew up in a home and family environment that was stable and supportive. The evidence of Pastor Williams supported this. The evidence of the offender's mother, Mrs King, leaves me in no doubt about it. Pastor Williams gave evidence that he has known Mr and Mrs King for close to 30 years having met them through his ministry to members of the Maori community in South West Sydney. He has had personal experience of them as people of great heart and benevolence. He said he knows the family to be regarded as valuable and respected members of his congregation. He also knows them to be well-known and well-regarded members of the general community. This is of significance since the offender was living within the family home with his partner and small child and was, in a practical sense, a member of that household at the time of his offending.

31 As far as the offender is concerned, Pastor Williams said (T10/37-41): "I've always found Anthony to be, probably in comparison with the rest of his siblings, somewhat introverted, introspective, much quieter demeanour than some of his older siblings… a reserved lad." 32 He went on to say that he has not known the offender to be aggressive or violent in any way over the course of his association with him from a very young boy. Pastor Williams offered the offender his unqualified support upon his release from prison as he makes the all important and inevitable adjustment from full-time custody to the resumption of his civilian life. 33 The evidence from Tom Ratima, consistent with the pre-sentence report and Dr Neilssen's report, is that the offender was in full-time work as a removalist in Mr Ratima's company for a period of three years prior to his detention on remand. Mr Ratima gave evidence that he regarded the offender as (T12/21-23): "One of our most respected workers and very responsible, outstanding in every aspect of the job and he's been dearly missed."

Mr Ratima also confirmed that there was work available for the offender in his company immediately upon the offender's release from prison. 34 I note that Mr King has been in a long-term relationship of five years and has a daughter currently aged two years with her third birthday due on 22 December of this year. This reflects the fact that she was an infant at the time that Mr King went into custody. His relationship has survived his detention of almost two years as a remand prisoner. The Probation and Parole Service have confirmed that Mr King and his partner have plans for a continued life together. When asked what his plans were when released from custody, Mr King said in evidence before me (T6/11-12): "To keep following on with work and follow up with my fatherhood, now that I've got a daughter."

I have no reason to doubt the sincerity of his intentions and the commitment of his former employer, his partner, his pastor and his family to help him achieve his plans and wishes.

35 The pre-sentence report cites the fact that on a Friday evening Mr King would regularly gather in the backyard of his home with friends and, under the watchful eye of his father, share a carton of full strength beer. The report goes on to note that at age 18 the offender commenced using cannabis on a recreational basis gradually increasing to daily use but without any associated drug use of any other kind. The offender described the effect of cannabis as having a mellowing effect upon him. He told the probation and parole officer that he had consumed no alcohol on the day of the offence but would have smoked three or four joints of cannabis. For that reason I do not regard the alcohol and drug issues as they relate to the offender as having any relevant impact on his offending. That said, I note that since being in prison, the offender has had no alcohol or drugs of any kind. He told me that while he "feel(s) a whole lot better without it" (T6/39), he has taken up smoking cigarettes, an addiction which he is making valiant efforts to give up. I regard his taking up of cigarettes as an unfortunate consequence of his being on remand for such a lengthy period of time, a matter about which I will have something to say in due course. 36 Whilst in custody the offender has been of exemplary character. He has incurred no internal charges and the wing officer reported to the probation and parole officer that Mr King is at all times respectful to both officers and inmates and has been entirely compliant with the routine to which he has been subject. I also note that the offender has had regular contact with the prison chaplain and has made the commitment to improve his literacy skills having left school in year nine. 37 I am satisfied that the offender has genuine insight into his behaviour and the way in which it contributed to the fatality at his family home on 23 October 2005. The fact that the offender avoids any mention of the impact of those events upon himself is consistent with his genuine regard not only for those within his own family who have suffered as a consequence of his failure of judgment and his loss of control but, as importantly, for the purposes of these sentence proceedings, his appreciation of the impact of his conduct upon the family of the deceased. He gave evidence of his desire to seek forgiveness from the deceased's family and his readiness and willingness to have an audience with them and to speak with them face to face. That is, of course, beyond the power of this Court to order or arrange although I do note that the offender is not only willing to participate in such a conference but I have every reason to believe that this would be facilitated by Pastor Williams were the family of the deceased willing to participate. 38 In that context, it is appropriate that I acknowledge that I have received and considered information about the deceased and the impact of his death upon his family. I have received statements from the young sisters of the deceased, Arljanita Faraimo and Jenarl Faraimo, respectively four and six years of age. It is clear that they loved their brother for the protection he gave them and their mother. They miss him since he walked with them from school in Samoa and walked them home. They miss him because he has died and they want to see him when they go to heaven. A statement from Mr Faraimo's mother makes it clear that the deceased was a person upon whom she depended. It is also clear that he helped around the home, cooking and cleaning and looking after his young sisters. She also has a belief that whilst she has lost her son, she will one day see him although thoughts of him cause her pain. I take these matters into account in accordance with the principles enunciated in R v Previtera (1997) 94 A Crim R 76. 39 I have every sympathy for the Faraimo family for the loss of their son and brother. The pain of his young sisters is all the more acute because they find it difficult to understand why their brother has been taken from them. Mrs Faraimo also tells me in her statement that at the deceased's funeral 'the Tongan boys' who knew and remembered the deceased said that they were not only sad at his passing but that they had learnt a lot from what had happened. I take this to mean that in Mr Faraimo's death there is an acknowledgement from young men close to him (perhaps even those in his company on the night of his death) that no good comes of violence or the threat of violence when groups of men confront one another in anger. However justified that anger may appear in the heat of the moment, whether it erupts to seek to right a perceived wrong or to defend a challenge to territory or to family or for some other reason, violence or the threat of it carries the risk of tragic consequences as was the case here.

40 It is perfectly clear that both the King family and the Faraimo family have suffered in different ways as a result of the tragic events of 23 October 2005. The inescapable fact is that while both the offender and the deceased were caught up in these the events I am satisfied that it was neither the desire nor intent of either of them that they would bring shame on their families or cause them pain.

The statutory sentencing scheme - the Crimes (Sentencing Procedure) Act 1999 41 In determining the sentence to be imposed upon this offender I must have regard to the relevant aggravating and mitigating factors as provided for in s 21A of the Crimes (Sentencing Procedure) Act 1999. 42 So far as the aggravating factor provided for in s 21A(2)(c) is concerned, and notwithstanding the fact that the offence with which I am concerned involved the use of a weapon, the Crown concedes that since the weapon was a household implement, seized by the offender with the intention of deterring or repelling an attack and ultimately used by him in self-defence, that this factor does not weigh heavily in aggravation of the penalty otherwise to be imposed.

43 In so far as s 21A(2)(g) is concerned, I have already acknowledged the emotional harm to Mr Faraimo's family as a result of his death and the loss that his family has suffered as a consequence. In assessing the objective gravity of the offence I take into account the fact that a young man's life has been lost. 44 In so far as the matters specified in s 21A(3) have the potential to mitigate the offence, inclusive of matters relevant to the offender himself which operate to mitigate the offending, the Crown concedes that I should be well satisfied that the evidence supports the following findings:

Section 21A(3)(b) and (c) The offence was not part of a planned or organised criminal activity. That much is plain on the evidence. Rather the offence was a spontaneous reaction to the circumstances that confronted the offender when the deceased, together with a large number of other men, entered the yard of his family home and made plain their intentions either to cause injury or to threaten to do so. There is no suggestion that the offender's conduct resulted from feelings of enmity towards the deceased or, for that matter, any member or members of the group with whom the deceased was associated. The deceased was in fact unknown to Mr King. For these reasons I give some weight to the fact that the offender was provoked by the deceased's conduct and behaviour.

Section 21A(3)(e) I have already noted that the offender was a young man at the time of the offending. I propose to give considerable weight to that matter particularly given the fact that he has spent almost two years in an adult prison. As Adams J observed in R v Hamilton; R v Sandilands [2007] NSWSC 452, remand custody is spent in maximum security in conditions significantly harsher than those to which a sentenced prisoner is often subject. This offender is also a young man without any record of previous convictions and therefore, otherwise than this offence, a man of good character. Section 21A(3)(i) and (k) I propose to give full weight to the offender's plea of guilty notwithstanding the fact that it was entered late. I have no reason to doubt that the offender is profoundly remorseful at having caused the death of the deceased. Whilst he may not be a young man who exhibits his emotions audibly or visibly, I was impressed by the considered way, indeed the modest way, in which he presented as a witness in his own sentence proceedings and answered the questions I asked of him. I regard his remorse as genuine, deep and enduring. I have no doubt that the events of 23 October 2005 will remain in his memory for the duration of his life. Section 21A(3)(h) I consider that the offender has outstanding prospects of rehabilitation. I accept that he has not only made constructive use of his time in custody but that on his return to his family and community he will continue to make good of his life and contribute materially to his immediate family, his extended family and the community of his church. I do not consider that he is likely to reoffend. 45 I have already noted that manslaughter is one category of criminal offence that has attracted a wide range of penalties. I have been provided with two decisions of this court at first instance, namely, R v Andrew Glen Muddle [2004] NSWSC 403 per Bell J and R v Hamilton; R v Sandilands [2007] NSWSC 452 per Adams J, where sentences were imposed for manslaughter on the basis of the application or use of excessive force in circumstances of self-defence where no more than an intention to cause grievous bodily harm was established. In each case a non-parole period of two years and six months was imposed. In each case, however, the relevant offender had a lengthy criminal history and in the case of Muddle, a criminal history for assault, firearms offences, stealing and breaching domestic violence orders. In the case of Hamilton, the offender's criminal history provided a circumstantial or contextual link with the deceased and the circumstances that ultimately resulted in the deceased's loss of life. By contrast, as I have noted, Mr King is a young man who has no prior convictions or contact with the criminal justice system. 46 While each case must proceed on its own facts, I consider that the objective criminality revealed by the evidence before me, together with the subjective case that the offender has presented, serves to distinguish this case from the authorities to which I have been referred. Accordingly, whilst I am guided by them, I do not regard myself as compelled to pass sentence in direct alignment with them. 47 In all the circumstances I have come to the view that an appropriate non-parole period, after allowing a 25 per cent discount for the utilitarian value of the plea of guilty and after finding special circumstances justifying a variation in the ratio provided for in s 44 of the Sentencing Act, is a term of 22 months with a balance of term of 26 months. The sentence is to be backdated to commence on 24 October 2005. Accordingly, Mr King is eligible to be released to parole at the expiration of the non-parole period which expired on 23 August 2007. Whether he is to be released is, of course, a matter for the Parole Board. Suffice for me to emphasise that in passing this sentence and, in particular in structuring the sentence the way that I have, providing for an extended period of supervision should that be considered necessary, I have had regard to the fact that the author of the pre-sentence report considered that Mr King was suitable for medium-low level of intervention by the Probation and Parole Service and, that when released into the community, he will have the security of full-time employment, a loving relationship with his partner and daughter all underpinned by the continued support of his family.

15/10/2007 - Date changed on coversheet - Paragraph(s) N/A 05/02/2008 - Spelling mistake on coversheet - Paragraph(s) Not applicable

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