Consideration
59As I have said I must fix the appropriate sentence for each offence. Where, as here, the offending occurred over the space of one hour within a confined location, involving a similar pattern of behaviour, there will be some common features, and I need to avoid double counting. Those common features include drunken conduct in a public place, the random nature of the attacks on unsuspecting passers-by, the consideration that the offender was on probation at the time, and his criminal record, including the past drunken assault. The fact that a series of crimes were committed demonstrates a pattern of disregard for the law which elevates the seriousness of the individual instances of offending. As I have already pointed out, the law always treats the breach of conditional liberty as a matter aggravating the seriousness of the offending; that these were drunken assaults in public brings into play the considerations of protection of society, the need for denunciation, retribution and general deterrence. All of these considerations are relevant to the objective seriousness of the offending.
60I will deal with the offences in ascending order of seriousness. Dealing with each case of common assault, objectively there is little difference between them. Had one occurred in isolation, a different view of objective seriousness might have been formed, but for the reasons I have given I consider each one to be an offence of some seriousness. I would put the assault occasioning actual bodily harm on Mr Compagnoni at the same level of seriousness for that category of offence.
61Assessing the seriousness of a manslaughter charge is always difficult. It is often said of manslaughter that it is a most protean offence, because it covers a wide spectrum of offending from a practical joke gone wrong to a crime falling just short of murder. It is that latter category which is likely to produce the worst case and the present offending, significant as its consequences were, does not fall into that worst case category. However, the elements I have already referred to, which the manslaughter of Thomas Kelly has in common with the lesser offending, puts the case into the category of some seriousness. It is not to the point either way that the offender did not intend to kill Thomas, or expect him to die.
62It needs to be borne in mind, in assessing the objective seriousness of the offences, that the attacks were on the whole spontaneous, in the sense of being unpremeditated, even if because of his drunkenness the offender was unable to control his aggression. That he may have in his drunken state decided to give vent to it does not detract significantly from this consideration.
63It is obvious that for the manslaughter of Thomas Kelly no penalty other than imprisonment is appropriate. I have reached the same conclusion in respect of each of the other offences.
64As I have previously said, my task is to fix the appropriate sentence for the offence and the offender, and it is relevant to bring to mind matters which may favour some degree of leniency.
65First, there is the offender's guilty plea, and I have decided that the appropriate discount for each offence is 25 per cent of the sentence which would otherwise have been passed.
66I am also persuaded on the balance of probabilities that the remorse the offender has shown is genuine and this augers well for his prospects of rehabilitation and reform, considerations in the case of a young offender which facilitate the protection of the community in the longer term upon his release.
67The courts have an inclination to leniency in the case of a young offender. The purpose of this is to give the young offender a chance. However, other young people need to be able to walk our streets in safety. A breach of the peace of the type committed by the offender, notwithstanding his youth, calls for denunciation of his conduct, the exaction of retribution on behalf of the community and the deterrence of others who may put themselves in the same position.
68To the considerations of remorse and prospects of rehabilitation to which I have referred, I would add that in my judgment the offender is very unlikely to re-offend. I have the very distinct impression that from the tragic consequences his offending has brought about, he has well and truly learnt his lesson. However, he will need to muster his fortitude and resolve to maintain that determination over what for him will seem a lengthy, and onerous, term of imprisonment.
69Moreover, I have borne in mind the offender's relative social disadvantage and the difficulties of his upbringing. I have also taken into account the evidence of his efforts to overcome those disadvantages through education, training and employment. His offending has interrupted those efforts. For his own sake and in the interests of the community I hope he maintains those efforts so far as he can in prison and on his release. In this regard it is a good sign, and to his credit, that he has already initiated his participation in appropriate courses of rehabilitation.
70I find that the combination of the offender's youth, remorse, prospects of rehabilitation and the need to structure sentences for multiple offences constitute special circumstances. In the end however, it is the preservation of the statutory ratio over multiple sentences that involve partial accumulation that will hold the most sway, and the amelioration of the statutory ratio in favour of the offender will for this reason necessarily be very minor.
71For each of the offences of common assault, but for his plea, I would have imposed a sentence of about six months imprisonment. I have decided that I will round the sentence otherwise produced by strictly applying a 25 per cent discount, down to four months to avoid imbuing the process with an unreal air of precision. In due course I will impose a fixed term of four months imprisonment for each.
72For the offence of assault occasioning actual bodily harm, I would have taken a sentence of twelve months imprisonment as my starting point. After the discount this would have been reduced to nine months. Having regard to my finding of special circumstances, I would have varied the statutory ratio to impose a non-parole period of six months. As he must spend longer in gaol for the manslaughter of Thomas Kelly, I have decided that the practical approach is to simply impose a fixed term of six months duration.
73I turn now to the most difficult part of my task, which is sentencing this offender for the manslaughter of Thomas Kelly. In approaching it I have borne in mind all of the considerations set out above. During the course of argument, counsel on each side of the record referred me to comparable decisions in the interests of promoting consistency of approach. I do not propose to deal with the cases in great detail. I bear in mind that what is required is consistency of principle, not numerical equivalence: Hili v The Queen [2010] HCA 45; 242 CLR 520. The previous decisions establish a range of sentences actually imposed. They do not establish the correctness of that range: Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 at [303]-[305].
74The various cases referred to were all put forward as examples of cases where a single blow knocked the victim to the ground and death was caused by the victim's head hitting the ground, rather than by the injury directly inflicted by the punch. Most involved a relatively young offender who pleaded guilty. In R v Castle [2012] NSWSC 1603 an offender aged 40 at the time of the offence pleaded guilty to manslaughter when he struck a woman with a single blow in the course of robbing her. To that extent, the case is not similar to the present case. After a 25 per cent discount for an early plea, a non-parole period of 5 years and 8 months imprisonment was imposed, and a total sentence of 7 years and 6 months. In Donaczy v R [2010] NSWCCA 143, a 29 year old who had negative contact with his victim inside licensed premises struck him with a single blow outside the pub. The victim fell, striking his head on the ground. There was a 20 per cent discount for an early plea, and a finding of special circumstances. The non-parole period fixed was 3 years and 6 months, with a total sentence of 6 years. In R v Bashford [2007] NSWSC 1380, a 24 year old offender, who was at liberty conditionally, punched his victim outside a hotel. He received a 25 per cent discount for his plea, and a non-parole period of 3 years and 6 months was fixed, with a total sentence of 5 years and 3 months.
75In R v Smith [2008] NSWSC 201, the offender was 22 years of age, he received a 25 per cent discount, a non-parole period of 2 years and 6 months, and a total sentence of 3 years and 9 months. In R v O'Hare [2003] NSWSC 652, a 22 year old offender who received a 20 per cent discount for his plea received a non-parole period of 3 years and 6 months, with a total term of 6 years. In R v Greenhalgh [2001] NSWCCA 437, a 37 year old offender of low intellectual ability received a non-parole period of 4 years and 6 months with a total sentence of 6 years and 9 months. In R v Risteski [1999] NSWSC 1248, a 22 year old offender received a non-parole period of 3 years 6 months and a total sentence of 5 years. Finally, in KT v R [2008] NSWCCA 51 a sixteen year old with a 25 per cent discount received a non-parole period of 4 years and a total sentence of 6 years.
76These cases, which both the Crown and the defence drew to my attention, suggest most commonly for broadly similar offending for relatively young offenders a non-parole period of 3 years and 6 months is regarded as appropriate. A head sentence of between 5 and 6 years, depending on whether special circumstances are found, is commonly imposed. Occasionally higher or lesser sentences are imposed according to the particular circumstances of the case. I acknowledge that these cases provide some guidance.
77Bearing in mind all of the facts, matters and circumstances to which I have referred and deriving some guidance from the similar cases the Crown and defence have drawn to my attention, but for the guilty plea I would have imposed a sentence of 8 years on the offender for the manslaughter of Thomas Kelly. This will be reduced to 6 years, and having regard to my finding of special circumstances I consider that the minimum time that justice requires the offender to serve for this offence is 4 years imprisonment.
78I turn now to questions of cumulation, concurrency and totality. It seems to me important that the offender spend some time in prison solely referrable to each offence. After all, there are five offences having five victims, and the criminality involved in each cannot be equated. This suggests then that there must be some degree of at least partial accumulation. On the other hand, the total effective sentence should not be so large as to be crushing to a young offender, stifling his prospects of rehabilitation. This is in the community's interest, as well as his own. Therefore the approach that I have adopted is that a structure should be imposed which sees the offender spending some months in prison solely referrable to each of the common assaults, and the assault occasioning actual bodily harm. The structure I have adopted means that the offender will not start his sentence for the manslaughter of Thomas Kelly until 18th November next. Effectively, the manslaughter sentence will be served consecutively with the other sentences of imprisonment (see s47(2)(b) Crimes (Sentencing Procedure) Act).