Assessing the Objective Seriousness of the Offence
85 The Crown submits that the facts disclose a very serious course of criminality in this case. It was submitted that the Offender intentionally obtained objects, namely eggs, to assault fellow citizens late at night in the street. After seeking out the victim and throwing an egg at him from a moving vehicle, the Offender returned to the victim to physically assault him. The Offender ran from the vehicle towards the victim. The Crown emphasised that KT was physically much larger than the victim. KT punched Mr Agang, causing him to fall to the footpath. From the blow and its effect, the victim was rendered unconscious. Thereafter, whilst the victim lay on the ground, KT threatened him with a further assault. KT then ran back to the vehicle and drove from the area without ever considering the welfare of the victim or rendering any assistance to him at all.
86 The Crown submitted that a civilised society cannot tolerate the behaviour exhibited by the Offender, where a citizen cannot walk the streets at night without being assaulted by projectiles thrown from a moving vehicle, and then being further assaulted and left on the footpath.
87 Ms Yehia submits that the egg-throwing conduct of KT and his companions ought be understood, using Mr Champion's words, as a pointless form of adolescent bravado or machismo which escalated, impulsively and quickly, into an incident where a single forceful blow was struck by KT to Mr Agang which, tragically, caused him to strike his head forcefully on the ground, thereby sustaining fatal injuries. Without seeking to in any way blame Mr Agang for what occurred, Ms Yehia submits that Mr Agang's act of throwing the can or bottle, and thereafter being agitated, had escalated the incident in a manner which was relevant to an assessment of KT's criminal culpability. Taking into account the single punch, the impulsive nature of the act and the absence of a follow-up assault, it was submitted that the offence lay at the lower end of the range of objective seriousness for the offence of manslaughter.
88 I have given careful consideration to the submissions advanced on this question. In assessing the objective seriousness of the crime, it is necessary to place the fatal blow in its broader factual context.
89 KT was travelling in a vehicle late at night in a suburb of Sydney, having determined to act in a way designed, at least, to frighten and upset strangers in the street. The activity was being undertaken for the enjoyment of KT and his companions, at the expense of the strangers subjected to "egging".
90 The Crown submitted this was a form of gang activity. I do not accept this submission. However, it is appropriate to characterise it as hoodlum behaviour. It was entirely predictable that a person subjected to this activity would react in an angry fashion. The sudden reaction of Mr Agang to throw his can or bottle of drink at SG's vehicle, and to remain agitated, was both predictable and, viewed in context, understandable. That act, however, did not injure any person in the vehicle or threaten to injure any person. Nor, as it happened, did it damage the vehicle.
91 KT and his companions did not simply drive away, leaving an upset Mr Agang in the street. The vehicle travelled to a roundabout and returned in the direction of Mr Agang and was parked near him. Mr Agang remained upset. He was restrained by other persons in the street and posed no threat to KT. Nevertheless, KT left the vehicle and moved quickly to the spot where Mr Agang stood.
92 KT, although 16 almost 17 years of age, was physically much larger than the slender and light Mr Agang. A photograph of KT, taken on 3 February 2006, depicts a tall young man of solid build, with a goatee beard and a mohawk haircut.
93 KT immediately invited confrontation with the words "let's fight" directed to Mr Agang. At that time, Mr Agang did not represent an actual threat to KT.
94 KT struck a very forceful blow to Mr Agang's head, causing him to fall to the ground. KT did not pull his punch. The punch was intended to hurt Mr Agang, although KT did not intend to kill him or cause him grievous bodily harm. KT's punch was intended to punish Mr Agang for his audacity in reacting to the "egging" in the way in which he did.
95 A loud crack resulted from Mr Agang's head hitting the ground. The sound was obvious to all around, including a witness to the event some distance away. I am satisfied beyond reasonable doubt that the sound was heard by the Offender. He realised that Mr Agang had been injured. Rather than offering assistance to Mr Agang, KT said loudly "You want more? I'll be back." KT and SG then departed quickly by vehicle, leaving Mr Agang lying on the footpath.
96 I accept that KT was not aware of the full extent of injuries suffered by Mr Agang at the time when he departed. In the records of interview of KT and SG, it is stated that the victim's eyes were open and that he appeared to be conscious. However, KT had heard the loud crack as the victim's head hit the footpath. Mr Agang was not immediately returning to his feet. At the time when KT determined to quickly leave the scene, he was in no position to conclude that Mr Agang was in a fit state. Rather than offer any assistance, KT made a further threat of violence directed to the victim and then departed.
97 The violence of the Offender was perpetrated in a public street where persons were present, and where it would be a particular affront to civil peace to have a man killed in this way: R v Inzitari (Court of Criminal Appeal, 28 March 1985, unreported). This was a brutal and cowardly act directed to a stranger in the street: R v MD (2005) 156 A Crim R 372 at 379 [24].
98 KT was not affected by alcohol or drugs at the time of the offence. He did not suffer from any mental illness or disorder or mental disability. I do not consider that Mr Champion's assessment that the Offender was an unsophisticated and intellectually limited individual bears in any significant way upon an assessment of the objective seriousness of this offence.
99 I have regard to the fact that a single punch was thrown and that no weapon was used. I have regard to the fact that it was the striking of Mr Agang's head on the ground which produced the fatal injuries. Nevertheless, having regard to the wider context surrounding the offence, I am satisfied that the present offence is an objectively serious one. The objective seriousness exceeds the level submitted by counsel for the Offender.
The Offender's Plea of Guilty
100 It was submitted for the Offender that a discount of 25% ought be allowed by reference to the Offender's plea of guilty: s.21A(3)(k), s.22 Crimes (Sentencing Procedure) Act 1999; R v Thomson and Houlton (2000) 49 NSWLR 383. The Crown accepted that this was an early plea, but did not concede that it was entered at the earliest opportunity.
101 The Offender was charged with murder on 7 February 2006. Evidence was given by Ms Joanne Harris of the Legal Aid Commission that she had come into the matter on 18 April 2006. The final parts of the Crown brief, including the post mortem report and record of interview with SG, were served on 7 June 2006. On 8 June 2006, Ms Harris appeared for KT before the Lidcombe Children's Court. The matter was adjourned to 19 July 2006 to permit submissions to be made to the Director of Public Prosecutions indicating a willingness on KT's part to plead guilty to manslaughter. For reasons explained by Ms Harris in her evidence relating to illness of counsel, the submission was not made to the Director of Public Prosecutions prior to 19 July 2006, on which date KT was committed for trial on the charge of murder. By letter dated 15 August 2006, Ms Harris submitted to the Director of Public Prosecutions that KT was prepared to plead guilty to manslaughter and requested that the Crown accept that plea in full satisfaction of the indictment. As I have mentioned, when KT was arraigned before Whealy J on 1 September 2006, the Crown took that course.
102 I am not at all sure that evidence which explains the reasons for a delay in plea is relevant to an assessment of discount to be given by reference to the principles in R v Thomson and Houlton: R v Stambolis (2006) 160 A Crim R 510 at 513-515 [8]-[14].
103 Nevertheless, I accept that active steps were contemplated on KT's behalf before committal for trial to offer a plea of guilty to manslaughter. A submission to that effect was not made before committal in circumstances beyond the control of KT. Soon after committal, KT offered such a plea which was accepted by the Crown on his first appearance in this Court. In these circumstances, I am prepared to allow a discount of 25% for the Offender's plea of guilty by reference to the principles in R v Thomson and Houlton.