Ground 7 - The Sentences, Individually and in Total, are Manifestly Inadequate
Submissions of the Crown
179The Crown submitted that the sentences imposed in this case were unreasonable or plainly unjust: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 370-371 [25]. It was submitted that the sentencing Judge had imposed sentences that were below those that could be justly imposed for the offences, consistent with sentencing standards: Bugmy v The Queen at 1028 [24].
180The Crown pointed to a series of factors in support of a submission that, individually and in total, the sentences failed to punish the Respondent adequately for very serious and highly morally blameworthy conduct. The Crown submitted:
(a) the offences were committed in public places as part of repeat offending, whilst on conditional liberty imposed only one month before for a similar offence;
(b) the offences were wanton, unprovoked and committed against unsuspecting victims who were complete strangers to the Respondent;
(c) there was no explanation for the Respondent's behaviour;
(d) the offences were part of a course of conduct involving multiple assaults and therefore did not involve a momentary aberration;
(e) the Respondent approached Mr Kelly in a deliberate way and punched him forcefully when he was not expecting it;
(f) the Respondent attacked the heads of people, an inherently more dangerous form of attack than to other parts of the body, given the vulnerability of people's heads and the extent of the injuries which can be caused if they are knocked down on a hard surface;
(g) even towards the end of the conduct, the Respondent was forcibly attacking strangers in the vicinity of police;
(h) the Respondent showed no concern for any of his victims - he ran away from the scene after he punched Mr Kelly, revealing his consciousness of guilt, yet he continued to offend - the Respondent's conduct and words indicated that he had no regard whatsoever for numerous members of the public whom he brutally attacked without warning or explanation;
(i) the Respondent's criminal behaviour in these offences showed a sharp escalation from his prior convictions, which had begun with offences relating to stolen vehicles, then assault of a police officer in the execution of duty and affray and then the Blacktown assault occasioning actual bodily harm;
(j) the Respondent's continuing attitude of disobedience for the law, his moral blameworthiness and the need for specific deterrence and protection of society, required more severe sentences to be imposed.
181For the offence of manslaughter, the Crown submitted that a starting point of eight years' imprisonment against the maximum penalty of 25 years was manifestly inadequate.
182Similarly, it was submitted that the starting point for assault occasioning actual bodily harm of 12 months against a maximum penalty of five years was manifestly inadequate.
183Further, the sentencing Judge's incorrect approach in treating the last three assaults as being of the same seriousness as Count 2 resulted in those sentences also being manifestly inadequate.
184It was submitted that his Honour's failure to have appropriate regard to general deterrence due to the prevalence of alcohol-fuelled offences of violence contributed to the manifest inadequacy of the sentences, as did the failure to take into account the specific deterrence of the Respondent.
185The Crown submitted that, on a number of occasions, this Court has stated that the public must be protected by the criminal law when going about its lawful business on public streets and other public locations: R v AEM at [94]; R v McKenna [2007] NSWCCA 113 at [2], [35].
186The Crown referred again in this context to Hopley v R and R v Carroll, together with Donaczy v R [2010] NSWCCA 143 at [53], where the importance of general deterrence in sentencing for offences of violence perpetrated in a public place, after consumption of alcohol, was emphasised.
187With respect to a number of single-blow manslaughter sentencing decisions to which his Honour's attention had been drawn, the Crown noted that the sentencing Judge stated the correct approach - that what was required was consistency of principle, not numerical equivalence: Hili v The Queen [2010] HCA 45; 242 CLR 520 at 535 [48]-[49]. The Crown submitted that previous sentencing decisions of this type pointed to a range of sentences actually imposed, but did not establish the correctness of that range: Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 at 70-71 [303]-[305].
188Despite acknowledging the correct approach, the Crown submitted that his Honour had been influenced inappropriately by the sentences imposed in these other cases. His Honour stated (R v Loveridge at [76]):
"These 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."
189However, the Crown submits that the present offence of manslaughter was not broadly similar to these other cases. During the sentencing proceedings, the Crown pointed out that there were multiple victims in this matter and that the present case is not comparable to the other cases.
190The Crown pointed to the observation of McClellan CJ at CL in KT v R [2008] NSWCCA 51; 182 A Crim R 571 at 583 [41] that the range of penalty specified in so-called one-punch manslaughter cases failed to adequately reflect the need for general deterrence and retribution, and that this Court should in future accept that more significant penalties may be required when sentencing offenders for this type of offence.
191It was submitted, both at first instance and in this Court, that a number of the other sentencing cases involved some kind of interaction between the victim and offender prior to the offence. The Crown submitted that not only was the present case not of that type, but none of the other sentencing decisions involved a factual scenario of two attacks, a manifestation of consciousness of guilt and then three further attacks.
192The Crown pointed to other distinctions in the objective circumstances of other sentencing decisions and/or the subjective circumstances of the offender in those cases.
193Reference was made to the frequently cited statement by Gleeson CJ (Grove and Ireland JJ agreeing) in R v Blacklidge (NSWCCA, unreported, 12 December 1995, at page 3) to the following effect:
"It has long been recognised that the circumstances which may give rise to a conviction for manslaughter are so various, and the range of degrees of culpability is so wide, that it is not possible to point to any established sentencing tariff which can be applied to such cases."
194In these circumstances, the Crown submitted (as it did at first instance) that very limited assistance only could be provided by reference to sentences imposed in other manslaughter cases, which were much less morally blameworthy than the present case.
195The Crown submitted that manifest inadequacy of sentences flowed as well from a failure on the part of the sentencing Judge to have sufficient regard to the Respondent's breach of conditional liberty in committing these offences.
196It was submitted that error had been demonstrated and that this Court should intervene to resentence the Respondent.
The Respondent's Submissions
197Mr Boulten SC submitted that the sentencing Judge had appropriate regard to the maximum penalties for each of the offences. Further, it was submitted that the manslaughter sentencing cases referred to at the sentencing hearing demonstrated an effective range of sentence for this class of manslaughter, and that the sentence imposed upon the Respondent lay within that range.
198It was submitted that the sentencing Judge had taken into account all the matters upon which the Crown sought to rely in this Court. Emphasis was placed upon the drunken state of the Respondent, his youth and disadvantaged upbringing, all of which were taken into account by the sentencing Judge in the exercise of sentencing discretion.
199It was submitted for the Respondent that a starting point of eight years' imprisonment for the manslaughter sentence was well open to the sentencing Judge. Further, a starting point of 12 months' imprisonment for the assault occasioning actual bodily harm offence was, it was submitted, also well open to the sentencing court.
200Reference was made to sentencing statistics for offences of assault occasioning actual bodily harm and common assault, the great bulk of which were prosecuted in the Local Court. It was submitted that the sentences imposed upon the Respondent in this case were not inadequate.
Decision
201The Respondent stood to be sentenced for five separate crimes, extending from manslaughter (with a maximum penalty of 25 years' imprisonment) to assault occasioning actual bodily harm (maximum penalty of five years' imprisonment) and three offences of common assault (each with a maximum penalty of two years' imprisonment).
202As discussed earlier under Grounds 4 and 5, there was an interrelationship between these offences which served to magnify their seriousness in a number of respects. This was an unusual and highly aggravating feature of the Respondent's offences.
203A further highly aggravating feature of the offences was that all were committed whilst the Respondent was subject to conditional liberty, granted just one month before by a sentencing court for another act of serious and indiscriminate violence.
204Despite the Respondent's claimed remorse and the leniency extended to him by that sentencing court, he set out on the late afternoon of Saturday, 7 July 2012, with a number of companions, to become highly intoxicated and to venture into busy nightspots in the city of Sydney at Darling Harbour and Kings Cross.
205The Respondent was well aware of his anger management issues, which had led to a condition upon the probation order granted to him on 7 June 2012.
206As the evening of 7 July 2012 wore on, it was apparent that the Respondent intended to act in a repeated violent fashion towards persons in the street, with one attack followed by another and yet others, even following his consciousness that Mr Kelly lay prone on the ground after he had struck him.
207No other sentencing decision in this State for so-called one-punch manslaughter involves this combination of factors. Nearly all involve violent incidents (usually with some initiating event between the participants) culminating in a blow being struck giving rise to an offence of manslaughter. Far more is involved in the present case than that.
United Kingdom Cases Involving Manslaughter Arising from Violence in Public Places
208Courts in the United Kingdom have considered some of the issues arising on this appeal. In Reference By the Attorney General Under Section 36 Criminal Justice Act 1988 [2005] EWCA Crim 812, Judge LJ (Hallett J and Sir Charles Mantell agreeing) observed, at [10], that "It is in truth not realistic to treat what is described as one punch manslaughter as comprising a single identical set of circumstances", with cases involving death resulting from a single blow varying greatly in their seriousness. Judge LJ observed at [15] that "This kind of unnecessary violence, in residential areas, creates great, and justified, and increasing public concern" with people expecting "their streets to be safe".
209The Court of Appeal (Criminal Division) returned to this issue in Attorney General's Reference No. 60 of 2009 (Appleby and Ors) [2009] EWCA Crim 2693; [2010] 2 Cr App R(S) 46, where Lord Judge CJ (Thomas and Hughes LJJ and Simon and Royce JJ agreeing) again addressed the topic of single-punch manslaughter cases. Lord Judge CJ observed, at [12], that "... an additional feature of manslaughter cases which has come to be seen as a significant aggravating feature of any such case is the public impact of violence on the streets, whether in city centres, or residential areas ... Specific attention should be paid to the problem of gratuitous violence in city centres and the streets".
210Lord Judge CJ continued at [12]:
"... the manslaughter cases with which we are concerned involved gratuitous, unprovoked violence in the streets of the kind which seriously discourages law-abiding citizens from walking their streets, particularly at night, and gives the city and town centres over to the kind of drunken yobbery with which we have become familiar, and a worried perception among decent citizens that it is not safe to walk the streets at night".
This statement echoes loudly in the context of the present appeal.
211In R v Folkes [2011] EWCA Crim 325; [2011] 2 Cr App R(s) 76, Lindblom J (Laws LJ and Simon J agreeing) said at [15]:
"Every case of so-called "one punch manslaughter" is unique in its facts and in the circumstances lying behind it. This was described by the Lord Chief Justice in Appleby as a 'truism' (at [4]). The one common denominator is that a life is needlessly lost, unintended though that outcome has been. In our judgment the appellant can gain little, if any, support from the cases on which reliance is placed on his behalf. Each of those cases is quite different from his."
212Lindblom J stated at [19]:
"We recognise, as did the judge below, that there can be a real and important distinction between the crime of manslaughter when committed in public and the same offence committed in private. As was remarked by the Court in Appleby (at [12]) 'an additional feature of manslaughter cases which has come to be seen as a significant aggravating feature of any such case is the public impact of violence on the streets'."
213In R v Duckworth [2012] EWCA Crim 1712; [2013] 1 Cr App R(S) 83, Cox J (Rafferty LJ and Bevan QC agreeing) said at [12]-[14]:
"12 Both parties have drawn our attention to decisions of this Court in a number of cases involving facts where death had resulted from a single blow with a bare hand or fist. These cases include, on Miss Pinkus' part, the case of Furby [2005] EWCA Crim 3147; [2006] 2 Cr. App. R. (S.) 8 (p.64), Attorney General's Reference (Nos 60, 62 and 63 of 2009) (Declan Appleby) [2009] EWCA Crim 2693; [2010] 2 Cr. App. R. (S.) 46 (p.3110) and Attorney General's Reference (No. 64 of 2008) (Wyatt) [2009] EWCA Crim 88; [2009] 2 Cr. App. R. (S.) 59 (p.424).
13 As the judgments in these cases make clear, the category of offences subsumed under the general heading of 'one-punch manslaughter' will invariably include cases where the level of force used and the circumstances surrounding the blow render them particularly serious cases of their kind, even though the consequences must be treated as if they were unintentional and unintended.
14 This, in our judgment, is such a case. Although this incident was one of short duration, it was not a spontaneous incident. This was, as the sentencing judge observed, a case involving gratuitous violence used in the street and an attack of considerable ferocity against a wholly innocent victim. The offence was aggravated by the appellant's previous convictions for offences of violence and for public disorder. This was, therefore, a most serious offence of its kind."
Offending of This Type in New South Wales
214Two particular points emphasised in the United Kingdom cases have currency in this State as well.
215Firstly, it is not meaningful to speak of one-punch or single-punch manslaughter cases as constituting a single class of offences. The circumstances of these cases vary widely and attention must be given to the particular case before the sentencing court.
216Secondly, the commission of offences of violence, including manslaughter, in the context of alcohol-fuelled conduct in a public street or public place is of great concern to the community, and calls for an emphatic sentencing response to give particular effect to the need for denunciation, punishment and general deterrence. The United Kingdom decisions involve statements of serious concern by the courts of the type expressed in this State in Hopley v R, R v Carroll and Pattalis v R concerning a similar form of violent offending.
217General deterrence and retribution are elements that must assume greater importance when the crime in question is a serious one, has been committed in a particularly grave form and its contemporary prevalence is the cause of considerable community disquiet: R v Williscroft [1975] VR 292 at 299.
218Additional considerations arise where an offender has a history of alcohol-fuelled violence, and where further offences of this type are committed whilst the offender is subject to conditional liberty. In such circumstances, specific deterrence is magnified as a factor to be taken into account on sentence.
219Although the youth or relative youth of offenders who commit offences of this type remains a relevant factor on sentence, particular significance is to be given to general deterrence in sentencing young offenders who commit serious crimes of violence on a public street or in a public place. So much is clear from existing decisions of this Court, including AI v R and R v Carroll.
220The Respondent's intoxication did not assist him at all on sentence. Of course, the Respondent was sentenced before the commencement of s.21A(5AA) Crimes (Sentencing Procedure) Act 1999 on 31 January 2014. That section now excludes by statute self-induced intoxication being taken into account as a mitigating factor on sentence. However, the law at the time when the Respondent was sentenced was to a similar effect. Although an offender's intoxication, whether by alcohol or drugs, could explain an offence, it ordinarily did not mitigate the penalty: Bourke v R [2010] NSWCCA 22; 199 A Crim R 38 at 44 [26]. Courts around Australia have consistently rejected the proposition that intoxication can mitigate the seriousness of an offence or reduce an offender's culpability. Although an "out of character" exception has been acknowledged to exist, it has almost never been applied: R v GWM at [82]; ZZ v R [2013] NSWCCA 83 at [110]. The Respondent could not have called in aid the "out of character" exception. In truth, the Respondent's awareness of his aggression issues, in the context of alcohol use, meant that his intoxication was capable of operating adversely to him on sentence.
The Role of Other Sentencing Decisions on Sentence
221This Court has observed on a number of occasions that, when other sentencing decisions are provided to a sentencing court, it is important that the purpose for which the information was provided be kept in mind: Van Haltren v R [2008] NSWCCA 274; 191 A Crim R 53 at [76]; R v Dinh [2010] NSWCCA 74; 199 A Crim R 573 at [60]; RR v R [2011] NSWCCA 235; 216 A Crim R 489 at [135].
222In the present case, the bundle of sentencing decisions provided to the sentencing Judge represented nothing more than sentencing decisions in cases depending upon their particular facts and the circumstances of the offender in question. The sentencing decisions referred to at first instance did not demonstrate a range of sentences for so-called one-punch manslaughter cases. Contrary to the Crown submission at first instance, it appears that the sentencing Judge treated the other sentencing decisions as if they were comparable cases giving rise to a range (see [188] above). Not only were they not demonstrative of a range of sentences, but the circumstances of those cases were substantially different to those of the present case.
223Although the decision of the High Court of Australia in Barbaro v The Queen [2014] HCA 2; 88 ALJR 372 restricts the capacity of the Crown to propose to a sentencing Judge a numerical range of penalty in a particular case (at 376-380 [20]-[43]), there is no impediment to the provision of other sentencing decisions which may bear upon the exercise of the sentencing discretion. The decision in Barbaro v The Queen narrows the long-standing ethical rule which permitted a prosecutor to inform the court of an appropriate range of penalty, including a period of imprisonment, by reference to relevant decisions: Clause 93(e), New South Wales Barristers' Rules (which commenced on 6 January 2014). However, a prosecutor or defence counsel may hand up to a sentencing Judge other sentencing decisions, where it is clear that those decisions are relevant to the exercise of sentencing discretion in the case at hand. So much is clear from Hili v The Queen at 536-537 [53]-[54] and Barbaro v The Queen at 379 [41].
224It must be emphasised, however, that the sentencing decisions handed to his Honour in the present case were not said by the prosecutor to reveal a range of sentences, nor did his Honour appear, initially at least, to approach them on this basis. However, his Honour's use of the decisions appeared to become somewhat clouded. As the extract from the remarks on sentence set out at [188] above indicates, his Honour had regard to these other sentencing decisions as if they did disclose a range of sentences applicable to the present case.
225For the reasons emphasised in the United Kingdom cases, and in what has been said already in this judgment, the sentencing decisions provided to his Honour in this case did not provide a range of sentences for so-called one-punch manslaughter cases.
226There is, in truth, no range of sentences for offences of manslaughter which may be said to have a single common component relating to the mechanism of death (such as the victim's head striking the ground after a blow to the head). To the same effect, there is no range of sentences for manslaughter offences said to have been committed by use of a knife or a rock or some other implement.
227The myriad circumstances of manslaughter offences render it unhelpful to speak in terms of a range of sentences, or tariff, for a particular form of manslaughter. Gleeson CJ made this clear in R v Blacklidge (see [193] above), in a passage cited regularly in cases such as R v Hoerler [2004] NSWCCA 184; 147 A Crim R 520 at 530 [40].
The Respondent's Offences
228There were particular features of the present case which rendered the Respondent's crimes grave examples of offences under the provisions for which he was prosecuted.
229When sentencing for manslaughter, a court must always have regard to the full context in which death was caused: R v Hoerler at 531 [44]. The surrounding circumstances may bear upon the objective gravity of the offence and the moral culpability of the offender: R v Hoerler at 531 [44]; R v Wilkinson (No. 5) [2009] NSWSC 432 at [61].
230Taking into account the context and surrounding circumstances in which the offence was committed, this was a grave offence of manslaughter committed by an offender with a history of violent offences, who was subject to conditional liberty at the time of the offence.
231The branch of the criminal law encompassing involuntary manslaughter reflects the value placed by the law upon human life: The Queen v Lavender [2005] HCA 37; 222 CLR 67 at 87 [60].
232The Respondent's attack upon Mr Kelly was cowardly and unprovoked. Despite it being inflicted by a single punch, the Respondent's killing of Mr Kelly was a serious example of unlawful and dangerous act manslaughter which deserved substantial punishment: Heitanen v R [2012] VSCA 173 at [14].
233We are well satisfied that the sentence imposed for the manslaughter of Mr Kelly was manifestly inadequate.
234The offence of assault occasioning actual bodily harm committed against Mr Compagnoni occurred first in time. The maximum penalty for an offence under s.59(1) Crimes Act 1900 is imprisonment for five years. The context and surrounding circumstances in which that offence of violence was committed rendered it a serious example of a s.59(1) offence, committed by an offender with a history of violence who was subject to conditional liberty at the time.
235The assault upon Mr Compagnoni caused a cut above his eye. This was a clear example of actual bodily harm. It must be kept in mind that an assessment of the seriousness of an offence of assault occasioning actual bodily harm cannot take into account that the extent of harm inflicted was of a type that did not include more serious injury which could constitute grievous bodily harm: McIntyre v R [2009] NSWCCA 305; 198 A Crim R 549 at 558 [44].
236Each of the three offences of assault contrary to s.61 Crimes Act 1900, committed against Mr Serrao, Mr Saliba and Mr Gazi, carried a maximum penalty of two years' imprisonment. In assessing the seriousness of those offences, it is not permissible to take into account the absence of any injury to those persons, as the infliction of actual bodily harm would render the offences different and more serious offences: McIntyre v R at 558-559 [45].
237In the context and surrounding circumstances of these offences, including the preceding events, awareness and stated intent of the Respondent (considered in the context of Grounds 4 and 5 above), these were grave examples of s.61 offences.
238We do not think that sentencing statistics in the District Court or the Local Court for offences under s.59(1) or s.61 were of any assistance to the sentencing court when determining sentences for the Respondent arising out of the events on the evening of 7 July 2012.
239The sentencing Judge considered, in the context of totality, the avoidance of a sentence which would be crushing for the Respondent. Courts are not unfamiliar with descriptions of sentences as "crushing", but that does not articulate some applicable test: Ta'ala v R [2008] NSWCCA 132 at [42] (Grove J, Campbell JA and Johnson J agreeing).
240In Paxton v R [2011] NSWCCA 242; 219 A Crim R 104 at 132 [215], with the concurrence of Tobias AJA and Hall J, Johnson J said:
"An assessment whether a particular sentence is a 'crushing sentence' must have regard to the offence or offences committed by the offender, the maximum penalties and standard non-parole periods relevant to those offences, and all objective and subjective factors which should be appropriately brought into account on sentence, together with principles concerning accumulation, concurrency and totality. As Grove J observed in Ta'ala v R at [42], 'justice is individual and each offence and each offender requires assessment'."
241We are satisfied that each of the sentences imposed upon the Respondent, and the total effective sentence imposed, were manifestly inadequate. Consideration of the objective circumstances of the offences, and the subjective circumstances of the Respondent, and proper application of principles concerning accumulation, concurrency and totality ought to have resulted in the imposition of substantially greater sentences than those actually imposed.
242This conclusion is not based merely upon the view that, if any one of us had been the sentencing Judge at first instance, we would have exercised our discretion differently to that of the sentencing Judge in this case: Lowndes v The Queen [1999] HCA 29; 195 CLR 665 at 671-672. Rather, we have concluded that patent and latent errors have been demonstrated on the part of the sentencing Judge, so that a number of individual grounds of appeal and, in particular, the final ground have been made good.
243In R v Carroll, Allsop P and Johnson J said at 59-60 [62]:
"In R v MD [2005] NSWCCA 342; 156 A Crim R 372 at 387 [65], this Court (McClellan CJ at CL, Simpson and Howie JJ) said:
'In many cases where an offender is convicted of manslaughter there will be exculpatory matters and personal circumstances that can lead the court to significantly ameliorate the sentence which might otherwise be imposed. However, as this Court pointed out in R v Troja (unreported, Court of Criminal Appeal, NSW, No 606394 of 1990, 16 July 1991) it is important for the court to ensure that the subjective circumstances of an individual offender do not divert the court from imposing a sentence which adequately reflects the part which the law must play in upholding the protection of human life and in punishing those who take it.'
We are satisfied that the sentencing judge was diverted in this case by Mr Carroll's undoubtedly strong subjective circumstances so as to impose a sentence which did not reflect the serious objective circumstances of the offence: R v Dodd at 354. We find that ground 2 is made good, and serves to explain how an unreasonable or plainly unjust sentence was imposed at first instance."
244We are satisfied that the sentencing Judge in the present case was diverted from imposing appropriately adequate sentences by reference to the Respondent's subjective circumstances. It should be said, however, that unlike R v Carroll, the present Respondent's subjective circumstances were not especially helpful to him. He was a young man with a deprived upbringing. However, he had prior convictions, including for offences of violence, and was subject to conditional liberty at the time of these offences. The evidence concerning his risk of reoffending and prospects of rehabilitation was problematic, although (as stated earlier) the sentencing Judge made findings in this respect which were unduly favourable to the Respondent and not supported by the limited evidence before the Court.
245We uphold the final ground of appeal.