R v PP [2003] VSCA 100

2. I agree, for the reasons given by Callaway, J.A., that the application for leave to appeal against sentence should be allowed, that the sentence passed below be quashed, and that the sentence proposed by his Honour be substituted.

7. The applicant was presented in the Supreme Court on one count of murder. After a trial occupying 11 days, he was found not guilty of murder but guilty of manslaughter. He had no previous convictions or findings of guilt. The learned trial judge heard a plea for leniency on his behalf and took time for consideration. On 23rd December 2002 his Honour sentenced the applicant to six years' imprisonment with a non-parole period of four years. A declaration was made regarding 33 days' pre-sentence detention.

10. An application for leave to appeal against conviction was abandoned. The applicant seeks leave to appeal against sentence on six grounds, namely:

"1. The sentence was manifestly excessive. 2. Despite the matters referred to in the reasons for sentence the learned trial judge did not give proper weight to - * the question of remorse, * the character and conduct prior to the incident of the accused, * the remorse expressed by the accused, * the overwhelming evidence in relation to rehabilitation, * the contents of the pre-sentence report obtained from the Department of Human Services, * the time at which it was agreed the applicant had offered a plea of guilty to manslaughter - at the latest the 21st May of 2002, but probably earlier, * the evidence of the psychologist Wendy Crouch in relation to the steps taken by the applicant to demonstrate his remorse

and indicate his desire to completely rehabilitate himself,

* the totality of the character evidence called on behalf of the applicant and in particular that of the headmasters of two high schools. 3. That in view of the fact that the judge imposed the sentence on the basis of it being a non-intentional killing, a significantly lesser sentence should have been imposed. 4. The judge placed undue emphasis on the contents of victim impact statements filed at the hearing. 5. The judge placed undue emphasis on the need for general deterrence and the 'denunciation' of the community. 6. The judge should have composed a totally different disposition to that which he did."

16. There is no challenge to the learned judge's findings of fact. As there were some conflicts in the evidence, it will be best, therefore, if I set out and adopt the relevant parts of the sentencing remarks. (The editing is by the judge.) Addressing the applicant, his Honour said:

"3. You were born of 15 September 1985 and at the time of your offence you were still only 15 years of age and a student at [a] Secondary School. DH was born on 8 April 1985 and at the time of his death he was just 16 years of age and a student at [another] Secondary School. On 24 August 2001 you stabbed DH twice in the back with a filleting knife and thereby caused his death. You did so in the course of a melee which arose when DH and three other boys sought you out to fight you. 4. These events appear to have had their origins in a Carey Grammar School year 11 'after party' held on 17 August 2001. The party was conducted in a warehouse somewhere in the Docklands, between about midnight on 17 August 2001 and 4.00 am the following morning. The price of admission was $35.00 per head and for that the organisers provided a dance floor, recorded music and unlimited supplies of a limited range of alcoholic drinks. There were approximately 400 young people present at the party, including one by the name of Emlin Olaver, a student at Trinity Grammar School. You went to the party with five or so of your friends having purchased your tickets in advance. 5. Somewhere towards 4.00 am a scuffle broke out on the dance floor when Olaver stood on the foot of one of your friends, Andrew Filippopoulos, and punches began to be thrown. By all accounts you were not in any way responsible for the trouble and indeed you did your best to break it up when it started. But somehow Olaver got the idea that you were responsible for what had occurred and he resolved that he would get even with you for the wrong he perceived you to have done him. 6. In the week which followed the after party, Olaver made arrangements with a number of his friends to join him at the Kew Junction Square shopping centre on the following Friday night and there fight you. Amongst the friends with whom he made those arrangements were Mark McGuire, Joshua Czarnecki, Adrian Jacovac and DH. Somehow Olaver and his friends knew that you worked each Thursday and Friday evening in [a] shop located in the square. Their plan seems to have been to wait until you emerged after closing time at about 9.00 pm and then to assault you. 7. During that week you got warning from a friend close to Olaver that something unpleasant was planned. But despite efforts to contact Olaver, to assure him that you had done him no harm, you were unable to speak to him. 8. DH spent a large part of 24 August 2001 with his friend Adrian Jacovac. During the day both of them consumed a quantity of cannabis and a quantity of Serapax. At or about 6.00 pm they meet up with Mark McGuire and Joshua Czarnecki at the tram stop on Whitehorse Road, Balwyn, in order to travel to Kew. There were also a couple of girls, Caitlyn and Kara Smith, who were friends of DH. 9. Mark McGuire and Joshua Czarnecki spent the afternoon of 24 August 2001 together consuming between them the better part of a 30 can slab of full strength beer, and by the evening they were drunk. They took the remainder of the slab with them to the rendezvous with Adrian Jacovac and DH and the four of them and perhaps also the girls finished off what was left. 10. Before leaving on the tram to go to Kew, Caitlyn Smith endeavoured to purchase more alcohol from the Coles bottle department near to the Balwyn tram stop. But she was refused service as she was believed to be under age. When they got to Kew, Caitlyn Smith in company with Adrian Jacovac and DH made an attempt to purchase more alcohol at Leo's Supermarket in the Junction square. But on that occasion they were refused service when they were suspected of attempted theft. An incident followed in which at least Smith and Jacovac publicly abused the shop manager in loud and vile terms. Finally, Caitlyn Smith managed to purchase a four pack of Cougar bourbon and Coke from the nearby Skinny Dog Hotel. 11. Between about 8.30 pm and 9.00 pm the six of them waited behind a paling fence at the edge of the square, drinking the Cougar cans. During that time they made or received at least one mobile telephone call to or from Olaver, who was then en route from Surrey Hills. They agreed with Olaver that they would wait for him and do nothing until he arrived. In the meantime they kept a conspicuous watch on you as you worked in [the] shop. 12. As you worked in [the] shop you saw the surveillance being maintained and it concerned you. You spoke to one of the other employees of the shop, and asked him to call the police if there were any trouble, and you later spoke to your brother SP when he arrived at the shop shortly before 9.00 pm to meet one of his friends. SP was not as concerned as you were. After taking a walk down past the paling fence area he reported to you that he thought there was nothing to worry about. 13. Not long after SP arrived, a friend of yours, Dion Filippopoulos, also arrived at [the] shop. He had come to wait for you to finish work, so that you might go out together for the evening. Another friend of yours, Dimi Pagonidis was on his way to the shop in his car to collect both of you and to drive you to your destination. 14. Close to 9.00 pm Mark McGuire, Joshua Czarnecki, Adrian Jacovac and DH grew tired of waiting for Emlin Olaver to arrive. They decided that they would fight you in Olaver's absence and they left the cover of the paling fence and walked together across the square to where SP was standing with Dion Filippopoulos outside [the] shop. Mark McGuire and most probably Adrian Jacovac were each armed with a shopping trolley handle pole, concealed up their sleeves, and it is possible although not clear that one or both of Joshua Czarnecki and DH were similarly armed with poles. 15. Upon arriving in front of the shop, Adrian Jacovac entered the shop and demanded to know of you whether you knew of 'P's' whereabouts. In fact Jacovac was aware that you were the 'P' whom they had come to fight. But you did not know that your identity had been ascertained and you replied that P was not there that night and that you did not know where he was. Jacovac did not disclose that he knew who you were and he returned to join his three friends who were standing talking to SP and Dion Filippopoulos just outside the shop. 16. Almost immediately, Mark McGuire struck SP across the head with one of the shopping trolley poles. SP lurched sideways, stunned by the blow, and as he flailed around, Dion Filippopoulos retaliated by pulling McGuire's jacket over his head and raining blows upon him. The fight erupted between all six youths, with the four attackers delivering blows with the shopping trolley poles onto the heads of the two and the latter striking back with their fists and feet as best they could. As they did the fight moved from the foot path immediately outside the shop to the centre of the car park. 17. The owner of [the] shop attempted to stop the fight by standing near to the door of the shop and warning that he had called the police (although in fact he had not done so). And by all accounts the owner was to some extent successful in restoring calm, because the fight very soon began to quieten down. But before it had, you had become so agitated by what you had observed through the window of the shop, particularly the pole attack on your brother SP, that you seized up a filleting knife from the shop's knife rack and, against the pleas of co-workers, you went running out to the square yelling words to the effect that they could not bash your brother. 18. You held the knife in your right hand with the handle downwards and the blade up along the inside of your arm. And you said in evidence that you did so in order that other shop employees would not see it. But the owner of the shop did see it and as you came near to where he stood outside the shop, he commanded you emphatically to put the knife away and to get back inside and to get on with work. 19. Initially, you responded to that command by turning and walking back in or towards the shop, but as you did so the fight seemed suddenly to reactivate. According to some witnesses, it did so when SP and Dion yelled: 'come on and have a go', across the car park to where the other four boys had retreated. According to other witnesses, it occurred just as Dimi Pagonidis arrived in his car and SP yelled to him that he had been poled. According to evidence given by some of the four boys, it began again as they walked back to the far side of the car park and SP and Dion and others began to run after them. But however it occurred, it was sufficient to cause you to turn again and run with knife in hand across to the far side of the square to join in the fray. 20. There is some uncertainty about what then happened. But aspects of it are clear. Mark McGuire and Joshua Czarnecki managed to get away free and were not concerned in the remainder of the fight. Adrian Jacovac was caught near to the far side of the square but, after deploying a wheelie bin to fend off SP and Dimi Pagonidis, who were then in pursuit of him, he managed to break free and get away. DH, alone, was not so lucky. You pursued DH and you caught him near to the paling fence at the far side of the square, and when you caught him you stabbed him, twice in the back, with the filleting knife from the shop. 21. DH died from one of the wounds which you thus inflicted. The blade entered his body to the left side of his back and penetrated upwards and from left to right. It severed the aorta, causing massive internal bleeding, the collapse of his lungs and the cessation of a sufficient blood flow to vital organs. In effect, DH bled to death almost immediately."

20. His Honour sentenced the applicant on the basis that this was a case of manslaughter by unlawful and dangerous act, not a homicide reduced from murder to manslaughter by provocation.

23. Mr Richter's submissions focussed on the differences between a sentence of imprisonment and a sentence of detention in a youth training centre and the importance of the applicant's being a "child" within the meaning of the Children and Young Persons Act 1989.[1] He was not just a "young offender" within the meaning of the Sentencing Act 1991[2] or a "youthful offender" of the kind referred to in some of the authorities. Specific criticisms were made of some of the things that the judge had said in his sentencing remarks and at the hearing on 18th December 2002 following receipt of a pre-sentence report. Counsel's fall-back position was that the sentence was manifestly excessive as regards both the head sentence and the non-parole period.

26. It is unnecessary for me to deal with these submissions in detail, because I have concluded that the Court should re-sentence the applicant, but two points of principle should be addressed. They bear on re-sentencing.

29. The first has to do with the sentencing of children, by which I took counsel to mean persons under the age of 18 years.[3] He initially submitted that a child should not be imprisoned except where that was necessary to protect the community or the child was "evil". He later conceded that an exception might have to be made for culpable driving causing death, because of its prevalence among young offenders and the importance of general deterrence, although he pointed out that there was no example of a 15 year-old offender being imprisoned for that offence. I do not accept the limitation for which counsel contended. There is no bright line distinction between evil children and others. What is required in every case is a sound discretionary judgment that gives appropriate weight, and usually great weight, to youthful immaturity, the better prospects that a young person has for rehabilitation and the desirability of keeping such offenders out of the adult prison system. Those considerations reinforce and complement the common law principle of parsimony and statutory provisions such as s.5(3) and (4) of the Sentencing Act.

32. The second point of principle has to do with sentences of detention in a youth training centre. Counsel was at first disposed to submit that the purpose of such a disposition was solely rehabilitation and that there was no element of deliberate punishment. Punishment, in the form of deprivation of liberty, was simply an incident of rehabilitation. I do not accept that submission. All or any of the purposes for which a sentence may be imposed, which are found in s.5(1) of the Sentencing Act, may be pursued by a sentence of detention in a youth training centre. It is true that there is much more emphasis on rehabilitation. In the end I think counsel agreed that the difference lies more in the weight to be given to the different purposes of sentencing. Deprivation of liberty is not a mere incident of rehabilitation. It is a punishment, intended as such as well as establishing conditions within which the offender's rehabilitation may be facilitated. There is no need to take the matter further for the purpose in hand.

35. In my opinion there is nothing in grounds 4 and 5.[4] As ground 2 acknowledges, the matters in mitigation on which reliance is placed were taken into account. Complaint is made only of the weight that was given to them. Accordingly the real issues in the case, presented by ground 1, the particulars thereof in ground 2, ground 3 and ground 6 are: first, whether a sentence of imprisonment, as opposed to detention in a youth training centre, was so inappropriate as to be outside the range; secondly, if it was not, whether a head sentence of six years' imprisonment was manifestly excessive; and thirdly, if a sentence of six years' imprisonment was appropriate, whether the non-parole period of four years was manifestly excessive.

38. As to the first issue, I agree with the reasons the judge gave for rejecting the option of detention in a youth training centre. His Honour said:

"36. Bearing in mind your previous good character, your previous good record, your prospects of rehabilitation, your youth and, as much as anything, the need to avoid adult prison if possible, I determined during the course of your plea to direct that a pre-sentence report be prepared to establish your suitability for a Youth Training Centre Order and as to the availability of necessary facilities. The report has since been supplied and, not surprisingly, it shows that you are regarded as suitable for such an order and that the necessary facilities are in place. Consequently, I have given a great deal of thought as to whether it would be appropriate to make a Youth Training Centre order instead of sentencing you to imprisonment. 37. In the end, however, I have decided that it would not be appropriate. The crime of manslaughter carries a maximum penalty of 20 years imprisonment and, as I have said already, yours is a serious case of manslaughter. The maximum period for which I could direct that you be detained in a Youth Training Centre is only three years and, even after giving full weight to everything which militates in your favour, I do not consider that three years detention in a Youth Training Centre is an adequate penalty. Despite your youth and the provocation to which you may have been subjected on the night of the offence, and despite the fact that your offence appears to me as an isolated aberration against an otherwise unblotted record, I do not consider that a head sentence of only three years detention is adequate to punish you to the extent which is just in all the circumstances." (Footnote omitted.)

42. The mere fact that the judge sought a pre-sentence report did not mean that his Honour considered that a youth training centre disposition was open. It meant only that he wished to consider that disposition on the basis of full information. There is no indication that his Honour acted, as Mr Richter submitted, on the basis that, if there were to be imprisonment, it would have to exceed three years and therefore three years' detention in a youth training centre must be inadequate. On the contrary, as I read the sentencing remarks, he considered three years' detention in a youth training centre, not three years' imprisonment, as an option, but rejected it notwithstanding the very favourable terms of the pre-sentence report. [5]

45. The difficulty was that all the relevant purposes of sentencing could not be achieved by three years' detention in a youth training centre. Notwithstanding the applicant's age, this was a bad example of manslaughter by unlawful and dangerous act. The melee was dying down and it was the applicant's associates who re-ignited it. The applicant then pursued the victim across the car park, armed with a knife (which involved a significant escalation from the pole that had been used to beat his brother) and stabbed him twice in the back.[6] Just punishment, tempered by reference to the applicant's immaturity, was required and general deterrence was not irrelevant. There is a public interest in deterring violent fights and the use of lethal weapons, albeit a knife that lay ready to hand and had not been acquired for a criminal purpose. A maximum of three years' loss of liberty was not enough.[7]

48. For a reason that will shortly appear, it is unnecessary to decide the second issue. I turn to the third issue on the assumption that the head sentence was within the range.

51. No reason was given for selecting a non-parole period of four years except that, giving full weight to the competing sentencing considerations and mitigatory factors, his Honour had concluded that the nature and gravity of the offence, the need to manifest denunciation and the importance of deterrence required the applicant to serve not less than four years of the sentence.[8]

54. The problem is that the facts of this case cried out for a lower than usual non-parole period. Earlier the judge had said:

"30. Evidence given in the course of the trial and further evidence given on plea leaves little doubt that until the commission of the offence you were a young person of outstanding good character and reputation. It shows you to have been and still to be devoted to your family, respectful of authority, assiduous in the pursuit of your studies and closely involved in your church and in assisting persons younger than yourself. Witness after witness has spoken of your friendly and caring disposition and of your qualities of leadership. The principal of the high school which you were attending at the time of the offence and the principal of the high school which you have been attending since the offence have both spoken in very favourable terms of your attitude to work and extracurricular activities and of your academic standards. Other witnesses have spoken of extracurricular studies which you have pursued in the Greek language and theology and of your participation in multi-cultural cultural activities sponsored by the Greek community and in charitable works for the disadvantaged and the elderly. You are without prior convictions and you have never been involved with the illicit use of drugs or other substances. 31. I am also persuaded that you harbour a deep sense of shame and remorse over the loss of life and grief which your conduct has caused. Dr Wendy Crouch, clinical psychologist, has given evidence of the treatment under which you have been since the commission of the offence and of the debilitating effect upon you of the sense of shame and remorse by which you are oppressed. A similar impression of genuine remorse emerges from the evidence of Mr Colin Richardson of the Department of Human Services."

Other favourable findings concerning the applicant's prospects of rehabilitation were made elsewhere in the sentencing remarks. It was accepted that the offence was out of character, committed by a boy of 15.

59. There is no standard non-parole period[9], but a non-parole period of four years in relation to a head sentence of six years' imprisonment is a common disposition. It usually implies that there is no special reason to emphasize the penal element of the non-parole period (as, for example, where the head sentence itself is moderate) and that there are reasonable prospects of rehabilitation without special factors. Here the head sentence was stern, the applicant's prospects of rehabilitation were outstanding and there was the ever-present need to facilitate his early release from the adult prison system if that could properly be achieved.

62. There is perhaps little more that can usefully be said about the third issue. To some extent it is a matter of impression, and I bear in mind our obligation not simply to substitute our views for the carefully considered views of the sentencing judge, but it is also to some degree a matter of practice.[10] The plea understandably focussed on dispositions that would not involve incarceration in an adult prison. I share the judge's view that a sentence of imprisonment was necessary. It is unfortunate, although entirely understandable, that nothing was said about the length of any non-parole period in the course of the plea. That does not, however, absolve us from intervening if we consider that his Honour, unassisted by submissions, fell into error. In my respectful opinion, the non-parole period was manifestly excessive in the circumstances of this case.

65. That reopens the sentencing discretion.[11] I have given anxious consideration to the head sentence as well as the non-parole period, but I have also taken the judge's views into account. His Honour had the advantage of presiding at the trial and hearing the plea. It is evident that he, too, gave anxious consideration to the case and I agree that this was a bad example of manslaughter by unlawful and dangerous act. The circumstances of the offence were, however, exceptional and its being out of character for the offender, his service of the sentence in protective custody[12] and his prospects of rehabilitation must all be taken into account at both stages of the disposition. That is not to deny that rehabilitation may be given more weight in fixing the non-parole period.

68. In all the circumstances, should the other members of the Court agree, I would grant leave to appeal, allow the appeal and substitute a sentence of five years' imprisonment with a non-parole period of two-and-a-half years. In response to those who will say that even that is too severe, I refer to what I said, in the context of culpable driving, in R. v. Tran[13]. There are cases where detention in a youth training centre is an appropriate response to a homicide committed by a young person, but this was not one of them.

73. I agree with Callaway, J.A., that, for the reasons he has stated, the application for leave to appeal should be granted, the appeal should be allowed and a sentence of five years' imprisonment with a non-parole period of two-and-a-half years should be substituted for the sentence imposed by the trial judge.

[1] See the definition in s.3 and ss.137-139 and 276.

[3] That understanding is based on counsel's reliance on the United Nations Convention on the Rights of the Child, especially articles 1, 37 and 40.

[4] See R. v. PP [2002] VSC 578 at [27], [34], [40] and [41].

[5] I attach no importance to his Honour's use of the expression "head sentence" in relation to a sentence of detention. Counsel submitted that, because the court does not fix a non-parole period and a detainee may be released at the discretion of the Youth Parole Board, that expression was inapposite. I doubt that that is so. There is still a maximum period of confinement with the minimum period being determined by the Board.

[6] See paras. 17-19 of the sentencing remarks, set out at [4] above.

[7] Compare Attorney-General v. Benfield (unreported, Court of Criminal Appeal, 13th September 1976) and R. v. Misokka (unreported, Court of Appeal, 9th November 1995) at 4-6.

[8] Compare Power v. R. [1974] HCA 26; (1974) 131 C.L.R. 623 at 629; Deakin v. R. [1984] HCA 31; (1984) 58 A.L.J.R. 367, 11 A.Crim.R. 88; Bugmy v. R. [1990] HCA 18; (1990) 169 C.L.R. 525 at 531, 536, 538; R. v. Pope [2000] VSCA 108; (2000) 112 A.Crim.R. 588 at [28].

[9] R. v. VZ [1998] VSCA 32 at [15]; R. v. Pope at [28].

[10] Sentencing Act 1991 s.5(2)(b).

[12] The applicant has in fact been transferred to the Melbourne Juvenile Justice Centre pursuant to s.244 of the Children and Young Persons Act, but that is an exercise of executive discretion.

[13] [2002] VSCA 52; (2002) 4 V.R. 457 at [11]- [14] and the cases there cited. Buchanan and Vincent, JJ.A. concurred. See also Director of Public Prosecutions v. SJK and GAS [2002] VSCA 131 at [65] per Phillips, C.J., Chernov and Vincent, JJ.A.