R v MD, BM, NA, JT

[2005] NSWCCA 342

Court of Criminal Appeal (NSW)|2005-09-02|Before: McClellan CJ, Simpson J, Howie J, Greg James J, Clellan CJ

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Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2005-09-02

Before

McClellan CJ, Simpson J, Howie J, Greg James J, Clellan CJ

Source

Original judgment source is linked above.

Judgment (72 paragraphs)

[1]

Background facts 8 The events which gave rise to the charges occurred on New Year's Eve, 31 December 2002, in the vicinity of the highway at Emu Plains. It was late at night and a number of young people had gathered at Emu Park. Some of them were significantly affected by alcohol. His Honour found that the events occurred in an area of poor lighting with patches of shadow created by vegetation. There was fixed light around the vicinity of a power pole. 9 The deceased, his male companion and some young girls were walking from the railway station to a party. They passed by the oval at which a group of young people were assembled, although they were initially some distance away. 10 The trial judge found that "some members of the group, including, the offenders, moved either individually or in small groups over to the highway. There, an altercation occurred. The detail of that altercation - bearing in mind the condition of certain of the witnesses, their inability after the lapse of some considerable time to be reliably precise in many cases, and that to some extent they contradicted each other and were internally contradictory - is most difficult to ascertain". 11 Although his Honour used the term "the group" he found that it was not clear that the offenders acted as a group and did not find this to be the case. He found that some of the offenders acted individually and some acted in aid of one or more of the others. 12 The deceased was first incapacitated when his head made contact with a pole apparently causing significant injury. His Honour was uncertain how the injury occurred saying MD "somehow, in confrontation with the deceased, resorted to physical violence, and at least punched the deceased and at least, in some fashion, frightened, propelled, pushed, chased or herded the deceased, head-on into the pole. He sustained severe cerebral injuries and fell to the ground." 13 His Honour recognised the difficulties he confronted in reaching any conclusion making this plain when he said "it is not at all clear how the deceased came to collide with the pole, whether he was forced or frightened into the collision." Ultimately his Honour made the following finding:

[27]

(e) such other matters as the court considers relevant." 29 His Honour included these paragraphs in consideration of the appropriate sentence for MD. It must be remembered that MD had pleaded guilty not only to manslaughter but also to an offence in relation to his taking of the mobile phone from the deceased. 30 Manslaughter is a "serious children's indictable offence" (see s 3 Children (Criminal Proceeding) Act 1987 (NSW)). A "serious children's indictable offence" is to be dealt with according to law; s 17 Children (Criminal Proceedings) Act 1987 (NSW). The indictable offence of steal from the person is not a "serious children's indictable offence". It is an offence that could be dealt with under the sentencing regime outlined in the Young Offenders Act 1997 (NSW) or the Children (Criminal Proceedings) Act 1987 (NSW) or alternatively (as was the case in the present matter) according to law by virtue of the application of ss 18 and 31 of the Children (Criminal Proceedings) Act 1987 (NSW). 31 We do not understand his Honour's reference to the Children (Criminal Proceeding) Act 1987 (NSW) to indicate that he applied the principles outlined in s 18(1A) when sentencing for any of the manslaughter offences. Instead it seems to us that he brought these provisions to mind when considering the offence of steal from the person in relation to MD. This seems to us to be the clear inference available from the sequence of matters referred to by his Honour. This is plain from para 32 where in the second sentence his Honour stated that the offender is to be dealt with according to law. His Honour in the third sentence notes that those provisions apply to "serious indictable offences" (as opposed to "serious children's indictable offences" and, therefore, the manslaughter offence). 32 It is evident from the sentences imposed that his Honour determined to deal with the steal from person offence in relation to MD and the common assault charges in relation to BM and JT according to law. His Honour sentenced these respondents to terms of imprisonment for these offences. Had his Honour not determined to deal with MD, BM and JT according to law for these offences, the respondents would have been sentenced to a period of control pursuant to the provisions of s 33(1)(g) Children (Criminal Proceedings) Act 1987 (NSW) rather than to a term of imprisonment. 33 We are satisfied that his Honour correctly applied s 18(1A) of the Children (Criminal Proceedings) Act 1987 (NSW) in the present case.

[29]

"I accept that considerations of general deterrence, generally in the case of young persons, would receive less emphasis, having regard to issues of rehabilitation, than they would with adults. It is only because of the background reports and the absence of significant prior relevant criminality that I am minded to consider at their age - approaching as it did, adulthood - that the principle of general deterrence should receive less weight than will be afforded to it in the case of adults who had done the same as these boys did." 35 During the hearing of the appeal, the Crown conceded that nothing in this paragraph in particular, or in the sentencing remarks in general, reflected error on the part of the sentencing judge in his approach to the fact that the respondents were all under the age of 18. The statement contained in the passage quoted above is a trite exposition of the principle generally applicable when sentencing young offenders. Had his Honour not approached the exercise of his discretion in this way, he would have been in error. The Crown's real complaint is that the judge must have given undue weight to the age of the respondents and the impact of this fact in determining an appropriate sentence commensurate with the seriousness of their offending. 36 Although the Crown accepts that the respondents were at the date of the offence aged 17 and 9 months (NA), 17 years and 8 months (JT), 17 years and 2 weeks (MD), and 16 years and 9 months (BM), it is submitted that none of them have been demonstrated to have lacked sufficient maturity to appreciate the risk that they were taking by their actions. Although his Honour found that they were not acting as a group, the Crown submitted that each of them should have been aware that he was not alone in his role on the attack on the victim. It is submitted that the actions of the respondents were so brutal that, even given their lack of maturity, they should have appreciated the seriousness of their actions and have been sentenced accordingly. To a significant extent these submissions fail to pay regard to the specific findings of fact that the judge was required to make in accordance with the Crown's acceptance of the pleas of guilty to the offence of manslaughter and fail to discriminate between the specific factual bases upon which each of the respondents was sentenced. 37 The Crown accepts that s 3 of the Children (Criminal Proceedings) Act 1987 defines child as any person under 18 years and accordingly the respondents stood to be sentenced in accordance with the provisions of that Act. However, it is submitted that the respondents in the present case could hardly be considered "children" in the normal colloquial sense of that word. The Crown emphasises that it has been stated that the growth from child to adult is a gradual process and for general deterrent purposes there is no significant difference between a person shortly under 18 years than a person shortly over that age (see R v Nguyen (unreported, CCA, 14 April 1994) and R v MA [2004] NSWCCA 92 at 30) offenders approaching the age of adulthood may attract less leniency in sentencing than their age might otherwise demand see R v Pham (1991) 54 A Crim R 128 at 135, R v Tran [1999] NSWCCA 109 at 10; see also R v AEM SNR and Ors [2002] NSWCCA 58 at 97-98, R v Webb unreported NSWCCA 12 September 1997 per Sully J at p 9.

[31]

General observations 40 Whatever be the appropriate outcome of these appeals, it must be clearly recognised that the events of the relevant night were a very significant tragedy. The victim was peacefully engaged in lawful activity when he was attacked, assaulted by a number of young people, suffered severe head injuries and died. We have kept this firmly in mind in considering the Director's submission that the trial judge's sentencing discretion has miscarried. 41 Some of the factual findings made by the trial judge lack clarity. This is not a criticism of his Honour. The findings were made difficult by the fact that, when the Crown accepted the pleas to manslaughter, an agreed statement of facts had not been settled. There was unfortunately no written agreement as to the relevant facts produced before sentence was imposed. With respect, some at least of the Crown's written submissions as to the factual basis upon which the Crown accepted the pleas of guilty and upon which the Crown agreed the trial judge should proceed to sentence lacked precision. Accordingly, his Honour was required to find the facts having regard to the extensive transcript (which, of course, did not contain all of the evidence which would have been given if the trial had continued to completion), any factual basis that was agreed between counsel for the respondents and the prosecutor and in a manner consistent with the pleas of manslaughter. 42 The difficulties confronting the judge, and to some extent the parties, in determining the factual basis of the pleas of guilty should not be underestimated. As could be imagined, there was a significant conflict and confusion in the accounts given by various witnesses of what they alleged that particular accused persons did in the events leading up to the death of the young victim. This was no doubt one of the difficulties that ultimately convinced the Crown that it was in the interests of the community to accept pleas of guilty to manslaughter rather than pursue the charge of murder. It should be noted that at the outset of the trial the Crown refused to accept a plea of guilty to manslaughter proffered by one of the four respondents but did so after a substantial part of the Crown case had been called before the jury. 43 The Crown case as presented to the jury on the charge of murder was that the respondents acted in a common purpose to inflict serious injuries upon the deceased and hence were responsible for his death regardless of the actual acts attributed to each one. In particular the Crown had to assert that there was a deliberate act of each of the respondents in participation of the common purpose committed with the intention at least that grievous bodily harm should be inflicted upon the deceased or was committed with reckless disregard to the risk of his death. No doubt part of the material relied upon by the Crown to prove the necessary mental element for the charge of murder concerned how the deceased came to suffer head injuries from his contact with a light pole in the vicinity of the melee. 44 But once the Crown determined to accept the pleas to manslaughter it had abandon to a very significant extent its original allegations. Similarly the judge was constrained by the pleas and the Crown's acceptance of them as to the facts that he could find for the purpose of sentencing each of the respondents for that offence and not the offence of murder. This has led to a degree of artificiality in determining the facts that would justify a finding of guilt for manslaughter and that could be taken into account as the basis for the imposition of sentence for that offence and not for murder. Unless these matters are borne in mind it is likely that there will arise confusion between the Crown's initial allegations on the charge of murder with the factual basis upon which the judge was asked to sentence the respondents on the charge of manslaughter. 45 Fundamental to that factual basis was that the plea in each case was proffered and accepted on the understanding that the respondents had not acted together in a common design to rob and kill the deceased. It was conceded by the Crown, consistent with its acceptance of the pleas to manslaughter, that they were not engaged in a joint enterprise with reckless disregard for whether they might kill the deceased or occasion him grievous bodily harm. This was a highly significant concession that the judge had to accept and act upon notwithstanding that on the face of it such a finding appears to be highly contrived and contrary to a common sense view of the facts leading to the killing. But it must be clearly understood that this was an unavoidable consequence of the Crown accepting the pleas of guilty to manslaughter. 46 Another highly significant matter is that each of the respondents was under the age of 18 when the offences were committed. That fact brought about a concession by the Crown that has considerable ramifications for the determination of this appeal. The question arose at the sentencing hearing as to the application of s 19 of the Children (Criminal Proceedings) Act 1987. The section is relevantly as follows:

[38]

(5) A person who is subject to an order under this section that ceases or ceased to apply on the person attaining the age of 18 years may apply to the sentencing court for a further order under this section. Any such application requires the leave of the court. 47 This section provides a capacity for a court, when sentencing a person under 21 years of age, as the respondents were, to direct that the whole or any part of the term of the sentence of imprisonment be served as a juvenile offender. Section 19(2) and s 19(3) provide limits on the eligibility of an offender to serve a sentence in this manner. If sentenced to imprisonment for other than a "serious children's indictable offence" (in the present case those offences other than manslaughter), the offender is not eligible to serve a sentence of imprisonment as a juvenile offender unless the sentence, or, if it be relevant, the non-parole period will end within 6 months after the person has attained the age of 21. However, in relation to a "serious children's indictable offence" (and manslaughter is such an offence) the offender is not eligible to serve the sentence as a juvenile offender unless the non-parole period will end within 6 months after the person has attained the age of 18 years. 48 So in the case of each of the respondents, so far as the sentence for the manslaughter offence was concerned, the judge could not make an order under s 19 unless relevantly, either the judge was satisfied that there were special circumstances under s 19(3)(a) justifying the detention of a particular respondent as a juvenile offender after he had attained the age of 18 years, or the non-parole period would end within 6 months of the respondent attaining the age of 18 years. 49 It is accepted that service of a sentence within such a centre has significant benefits for an offender as against serving a sentence within the ordinary prison system. It was conceded by the Crown at the sentencing hearing that it was appropriate for the judge to structure the sentences imposed upon the respondents so as to give each of them the advantage of an order under s 19 with the result that they would serve their non-parole periods within a juvenile justice centre. However, as will appear shortly in these reasons, the concession made by the Crown and as acted upon by the sentencing judge had the practical effect of confining, to a very substantial degree, the discretion otherwise available to the judge in determining the sentences to be imposed upon the respondents. 50 This Court is not, and the sentencing judge was not, bound by the concession made on behalf of the Director: Malvaso v The Queen (1989) 168 CLR 227. However, that concession was made by a senior Crown Prosecutor of long experience who had carriage of the matter at trial. He should be taken to have had an understanding of what was the appropriate range of sentences available to the judge to sentence the respondents upon the basis of the accepted plea and the acknowledged facts in support of the plea. It is an important consideration in determining these appeals. Having regard to the principles which this Court must apply with respect to Crown appeals, it would only be in a most unusual case that the concession, quite properly not withdrawn by the Director in this Court, would be ignored in determining the outcome of this appeal. 51 The conduct of the Crown at the sentencing hearing, particularly where that conduct can be seen to have influenced the sentencing court's assessment of the appropriate sentence to impose, is an important consideration that militates against a different sentence being substituted on appeal by the Crown: Malvaso per Deane and McHugh JJ at 240. The significance of the Crown's stance before the sentencing judge on an appeal by the Director was most recently considered in R v Dawes [2004] NSWCCA 363 where Dunford J referred to the following statement from R v Allpass (1993) 72 A Crim R 561 at 565:

[41]

"My understanding is this, and I don't know that this would help, the way in which the section is to be interpreted is if your Honour imposes a sentence which means the non-parole period expires after they turn 21 years and six months, they then will be transferred to an adult prison". 53 Our present understanding of the effect of s 19(3)(b) is that, in so far as the offence of manslaughter was concerned, each of the respondents was ineligible to serve his sentence as a juvenile offender unless the non-parole period of his sentence expired within 6 months after the respondent attained the age of 18 years. Although the respondents MD, BM and JT were sentenced for offences to which section 19(2) applied, so that the relevant date, so far as each of those sentences was concerned, was when the particular respondent attained the age of 21 years and 6 months, those sentences could not have determined the age at which each of those respondents became ineligible to serve his sentence as a juvenile offender under s 19(3) in respect of the manslaughter offence. 54 What appears to us to be an erroneous view of the operation of s 19 was continued by the Crown appearing on the hearing of the appeal. The Crown tendered a schedule indicating the date upon which each of the respondents would attain the age of 21 years and 6 months and indicating in each case what was described as the "additional term that could be imposed and still served in juvenile detention". That period ranged from 9 days, in the case of NA, to 1 year 8 days, in the case of BM. The Crown in effect asked the Court to increase the sentences of each of the respondents within the relevant additional term set out on the document. 55 It is at least arguable that the orders made by his Honour that each of the sentences imposed upon the respondents be served as a juvenile offender was contrary to s 19. The non-parole period in each case extended past the date upon which the respondent turned 18 years and 6 months and the judge made no finding that he was satisfied that there were special circumstances under s 19(3)(a). However, the Crown did not seek to have the orders set aside, but to the contrary made submissions that would have the effect of leaving those orders in place. We therefore heard no argument on the proper construction and application of s 19 to the facts of this particular case. 56 While some might query the appropriateness of the concession and the correctness of it in accordance with the operation of s 19, the concession made by the Crown before the judge that it would be appropriate to sentence the respondents so as to give them the benefit of an order under s 19 necessarily carried with it a concession that, in relation to each individual respondent, a non-parole period that would expire no later than six months beyond his 21st birthday would be adequate to meet the sentencing objectives is of fundamental importance in the determination of these appeals. 57 It is also important to emphasise that the Director does not suggest that any error of fact or legal principle can be identified in his Honour's reasons on sentence. The submission of the Director is that, the sentences being manifestly inadequate, this Court should intervene. 58 As a consequence of the trial in relation to JT proceeding the trial judge heard considerable evidence in the Crown case although his Honour had not heard evidence, if any, in the respondent's case. The transcript of the trial was tendered at the sentencing hearing and was available, with other material, when his Honour made the relevant factual findings. 59 The trial judge found that the basis for alleging the crime of murder against each respondent was "in each case very weak indeed." This was no doubt a consideration that led the Crown to change its initial response of rejecting the offer of one of the respondents to plead guilty to manslaughter. 60 Both this finding and the fact that his Honour was required to make factual findings consistent with the pleas of manslaughter and other matters conceded by the Crown had significance when the trial judge determined the appropriate sentences. These matters remain significant in these appeals. 61 The crime of manslaughter carries a maximum sentence of 25 years imprisonment (s 24 Crimes Act 1900). The felonious taking of human life has always been regarded by the law as a most serious crime. It could never be otherwise for the protection of human life must be a fundamental objective of any criminal law system in a civilised society R v Edwards (1996) 90 A Crim R 510. 62 It is important when sentencing an offender to reflect the objective seriousness of the crime concerned R v Rushby [1977] 1 NSWLR 594. The assessment of that matter depends on the factual findings made by the sentencing judge. When, as in the present matters, the factual findings of the sentencing judge are not challenged on appeal, the appeal court must consider the matter having regard only to those factual findings. 63 Because the sentencing process requires consideration of a number of matters, some of which indicate a greater sentence whereas others reflect concerns which would ameliorate the sentence, the task of the sentencing judge can be complex and difficult. For this reason it is common for courts to accept that there will be a range of sentences appropriate for any particular circumstances within a particular offence category. Provided the sentence that is imposed is accepted as falling within that range, the discretion of the sentencing judge will not have miscarried. If, however, the sentence is such that, having regard to all relevant matters, it falls outside the range, an error will be identified and an appeal court may intervene. 64 However, the High Court has recently again emphasised the importance of due weight being given to the exercise of the discretion by the sentencing judge. It has acknowledged, as this Court must, that there is no single correct sentence and judges at first instance must be allowed "as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies": Makarian v The Queen (2005) 215 ALR 213 at [27]. 65 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, CCA 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.

[45]

Was MD's sentence manifestly inadequate? 69 The Director submits that his Honour has failed to impose a sentence which sufficiently marks the gravity of the offence and adequately recognises the need to deter others from committing similar acts. 70 There can be no doubt that by inflicting apparently random violence on the deceased in circumstances where he was sufficiently frightened or overcome that his head contacted the pole causing massive injuries is an act by MD warranting a sentence which marks the community's abhorrence. Citizens in this community are entitled to go about their affairs without fear of being set upon and their lives threatened. The act of violence which occurred on this evening has no doubt justifiably provoked a sense of outrage in many people. The deceased, an innocent victim of mindless stupidity, lost his life. But as we have attempted to make clear, the sentence imposed upon each respondent had to reflect the particular act or acts relied upon as the basis of the offence of manslaughter and the culpability for the death of the deceased arising from the act or acts of that respondent. 71 MD was sentenced to 5 years and 6 months on the manslaughter count and 6 months on the stealing count, the aggregate sentence being 5 years and 9 months with a non-parole period of 3 years and 9 months. It should be noted that the sentence was reduced by 10 per cent to take into account the utilitarian value of MD's plea of guilty. The undiscounted sentence was, therefore, about 6 years and 4 months. 72 If MD's act had been that of an adult a higher sentence would undoubtedly have been appropriate. If in these circumstances an adult's actions were not accompanied by remorse, a recognition that their actions were wrong, and there were prior convictions with poor prospects of rehabilitation there could be no doubt that a significantly greater term of imprisonment would have been appropriate. But even taking into account his youth and strong subjective circumstances, if it could have been shown that the respondent was directly and intentionally responsible for the impact of the deceased with the light pole, his culpability would have been such that a more severe sentence could not have been avoided. 73 The objective seriousness of MD's assault upon the deceased must be assessed in light of the fact that there was no common design to rob or inflict serious harm upon the deceased. Furthermore, the respondents did not act as a group and no respondent concerted with another. None of the respondents had in contemplation that grievous bodily harm may be caused by their acts. Their actions appear to have been mindless and, perhaps because they were fuelled by alcohol and the high spirits of New Year's Eve, undertaken without an appreciation of the harm they could bring. However, their punishment must be sufficient to deter others from similar violent conduct upon innocent members of the community. In particular young people must be made aware that the vulnerability of human beings requires restraint by others and a rejection of unprovoked violent assaults. 74 However, as we have indicated, when imposing sentences, apart from considerations of punishment and deterrence a court must assess the offender's capacity to reform and return to and make a contribution to the community. This must be of particular concern with young offenders where the opportunity to rebuild a life is more likely to be available. Unless the punishment recognises these possibilities and the circumstances of the incarceration made conducive to rehabilitation, some benefits to the community which may come from appropriate sentencing will be lost. 75 Apart from the challenge made to the overall sentences, the Crown challenges the finding of special circumstances with respect to MD and, accordingly, the non-parole period which his Honour imposed. As counsel for the respondent pointed out there are many features which could justify a finding of special circumstances in MD's case. The most significant are the factors which suggest real prospects of rehabilitation and reform. There are reflected in the following: · An acknowledgement of circumstances and consequences; · Compliance and reflection; · Genuine remorse; · Significant community based support including the prospect of full time employment upon release; · Response to custody showing a positive attitude which suggests that he is on his way to a non-offending lifestyle when released into the community; · Taking advantage of all offers whilst in custody to ensure positive options upon release; · Positive progression through the classification system; · Ability to comprehend the impact of his offending behaviour; · Willingness to embark upon counselling and courses as required; · Close and highly supportive relationship with his family;

[46]

All of these matters point to strong prospects of rehabilitation. 76 It is important, as the Director submits, to avoid allowing for the same subjective matters when determining both the non-parole period and the head sentence, otherwise there is the risk of double counting subjective factors. Further, the non-parole period must reflect the criminality involved in the offence R v Dalton [2005] NSWCCA 156. 77 The Crown also submits that the sentencing exercise miscarried by reason of the fact that the reports prepared by the Department of Juvenile Justice pursuant to s 25 Children (Criminal Proceedings) Act 1987 (NSW) and tendered in the proceedings contained errors. It is important to appreciate that it was the Crown that tendered the reports and at the sentencing hearing the Crown did not indicate that there was to be any dispute with regard to their contents and made no submission that they should not be given full weight. The other material tendered by the respondent was tendered by consent and without objection. 78 The present case is analogous to that in R v Elfar [2003] NSWCCA 358. In that case the Crown submitted that the sentencing judge had erred by accepting hearsay material favourable to the respondent's case where the respondent did not give direct evidence of such matters. This Court noted that the Crown had not objected to the tender of the material and had not indicated that there would be any dispute in relation to it. For these reasons the Crown's contention was rejected. 79 In our opinion, the same approach should be taken in the present case. It is important to appreciate that s 25 of the Children (Criminal Proceedings) Act 1987 (NSW) makes it mandatory that a background report covering the circumstances of the commission of the offence be tendered (s 25(2)(a)). It is also mandatory that the report address a number of subjective matters (reg 6). Accordingly, without the tender of the report in evidence sentencing error would occur. It could hardly be the case that a report which was mandatory could not be relied upon in the sentencing process. Of course, if errors are identified, this may suggest that the report should carry little weight.

[53]

In the submission it is put that I would not accept that his punching occurred with knowledge that the deceased had been propelled, or had run into, the pole. The evidence does not allow me to conclude that he did see what MD had caused to happen but he was aware of the victim lying at the base of the pole, vulnerable." 88 His Honour's findings with respect to the nature of the offence committed by each respondent are, of course, applicable to the actions of NA. However, his acts of punching the deceased when he was on the ground reflect a callous disregard for the well being of someone who must obviously have been in extreme circumstances. The head sentence was outside the available sentencing range and was manifestly inadequate. 89 In particular the non-parole period was too short to reflect the objective seriousness of the offence. His Honour found that NA showed genuine contrition and remorse and had strong prospects for rehabilitation having a close and supporting family. His Honour also observed that the circumstances of NA's detention were, and might be in the future, somewhat more onerous than would be the case with the other offenders. NA had been assaulted in custody and had remained highly anxious and emotional. His Honour's finding that special circumstances existed was based on information contained in the intensive program unit appraisal, NA's age and the nature of the offence. Even though all of these matters are significant, we believe that, but for the concession made by the Crown in respect of the application of s 19 of the Children (Criminal Proceedings) Act 1987, a greater period in custody before release to parole was required. 90 In the case of NA the concession made by the Crown has particular significance. Being born on 8 March 1985, any increase in the sentence that could be imposed and yet allow the respondent the benefit of an order that he serve the sentence in juvenile detention would be confined to nine days. But for that concession, we would have been inclined to intervene in the case of this respondent. His actions require a punishment which marks out his brutal disregard for the welfare of the deceased. The sentence does not achieve this. However, in light of the Crown's concession, which was not withdrawn by the Director on the appeal, and given the caution that this Court must exercise in intervening on behalf of the Crown, we conclude that the sentence should not be disturbed.

[56]

"His offence, as I have already referred to, was not one of applying direct physical violence to the deceased, but he stands convicted of two offences. They include complicity in the manslaughter, committed by assaulting the companion with a view to preventing the companion going to the aid of the deceased, and the offence of assaulting the companion. It is important, in proper application of sentencing principle, to have regard to how the elements of these offences overlap. In this case they overlap considerably. So far do they overlap that, although in each case I have fixed a sentence appropriate for the particular offence, I have determined that the sentences should be concurrent but it must be remembered that there is an additional component in the assault on Sean Clifford relevant to the overall sentencing that the motivation for that assault was not simply to assault the companion, but also to deter assistance being given to the deceased which is reflected in the manslaughter sentence." 93 BM was the youngest of the respondents. He was aged 16 years and 9 months at the time of the offence. He had no previous criminal history. No doubt his immaturity was a factor in his actions that night. His Honour found that BM was genuinely remorseful and that he had good prospects of rehabilitation. He was the subject of stringent conditions, with which he complied, when he was on bail. 94 BM was sentenced to 4 years imprisonment and a non-parole period of 2 years in respect of the manslaughter charge. He was also sentenced to a fixed term of 6 months in relation to the common assault. On the face of it those sentences seem manifestly inadequate as punishment for a manslaughter offence of this nature. However, when regard is had to the peculiar and somewhat technical basis upon which the respondent accepted criminal liability for the death of the deceased and upon which the judge was required to sentence him, it is impossible to find that the sentence was unjust. On the factual basis upon which the respondent was to be sentenced, his culpability for the death of the deceased was at the very lowest end of the spectrum. 95 However, an error did occur in the sentences imposed upon this respondent that the court must address. His Honour said in his reasons on sentence:

[69]

The assault on Clifford seems to be, as far as I can ascertain, such that I should not find it to be more culpable than swinging a punch at Clifford. I cannot find that it caused any particular harm to Clifford." 100 This passage reflects the difficulty that his Honour faced in determining a set of facts that was consistent with the plea of guilty to manslaughter but did not amount to murder and yet was also consistent with the conflicting evidence before him as to the acts committed by the particular respondent. It emphasises the artificiality of the factual findings that were caused by the Crown's acceptance of the plea of guilty to manslaughter on the basis that the respondents did not act in furtherance of a joint criminal venture between themselves. 101 We have already indicated that in this regard a serious difficulty arises from his Honour's finding that the respondent said "wake up" at the time he delivered the kick and yet that isolated kick was the basis upon which the respondent had to be sentenced for manslaughter. In these circumstances, the sentence had to be imposed upon a finding that, although the kick may have contributed to the deceased's injuries, it was inflicted without the intention of causing any real harm. That was the basis upon which the trial judge sentenced the respondent and the Crown does not assert that his Honour made any erroneous findings of fact. 102 JT was sentenced to imprisonment for 4 years with a non-parole period of 2 years 6 months for the offence of manslaughter. That sentence commenced on 3 April 2003 and the non-parole period expires on 3 October 2005. He was sentenced to a fixed term of 6 months for the offence of common assault, the sentence commencing on 3 January 2003 and expired on 3 July 2003. The aggregate sentence was one of 4 years 3 months with an overall no-parole period of 2 years 9 months. 103 The respondent's subjective circumstances are similar to those of the other respondents. He was 17 at the time of the offences, having been born on 3 April 1985, and was taken into custody on 3 January 2003. Although there were, apparently, some problems early in his remand, these were rectified and he has taken the opportunity to complete various educational courses. His mother, sister and girlfriend have remained supportive of him. Apparently his early childhood left him without the benefit of a positive male model and he has lived in circumstances where he has been accustomed to some degree of violence around him. 104 Having regard to the psychological report provided on sentencing his Honour concluded that JT has reasonable prospects of rehabilitation, particularly in light of the further report from the Geraldton Anderson Walpole School at Kariong which points out that there is no discipline problem, that he was compliant, helpful, interested and motivated at all times. 105 In the case of this respondent the sentence imposed is in our view manifestly inadequate to punish the respondent having regard to the objective seriousness of the offence. This is notwithstanding that we accept that it was a difficult sentencing exercise arising from the acceptance of the plea of guilty to manslaughter and the conflicting accounts of what the respondent did to the deceased. But an intentional kick to the head of another person in a position where the victim was apparently injured and unable to protect himself is a serious criminal act regardless of its purpose or the intention behind it. Where it contributes to the death of the victim, it warrants a very significant punishment to denounce such conduct and to deter others. The sentence imposed does not in our opinion reflect the culpability of the respondent for the death of the deceased. 106 Of particular significance to the determination of the appeal is the fact that, because he was taken into custody on 3 January 2003, JT's sentence expires on 3 October 2005. In these circumstances, if the appeal were upheld and he were to be re-sentenced, any further term would impose a significantly greater burden on him than if a longer sentence had been imposed initially. This is very significant matter to be weighed in the exercise of discretion where the respondent is a young man of no prior convictions serving his first sentence in custody. Notwithstanding the gravity of the offence, such an additional punishment could not be justified in all the circumstances of this case.