(h) that, subject to the other principles described above, consideration should be given to the effect of any crime on the victim."
80 His Honour then said this: (ROS [35])
"35. ... Some of these factors, such as punishment, protection of the community and deterrence, pull in one direction. Others of these factors, such as rehabilitation of the offender, pull in an opposite direction. What a Court must do is, so far as is possible, balance the competing factors. ... "
81 His Honour then identified and discussed, one by one, matters relevant to the moral culpability of AJC, including:
· The serious nature of the offence, which carried a maximum penalty of 25 years imprisonment (ROS [39]).
· The fact that the offence involved the taking of a human life and the "immeasurable loss" to the family and partner of the deceased (ROS [35], [39]).
· The age of the offender (17 years 3 months) (ROS [38]).
· That the offence, which was a single punch, was below the mid range (ROS [39]).
· That it was entirely unprovoked by the deceased (ROS [40]).
· That it was an impulsive act of a relatively immature young man who had not given much thought, if any at all, to the consequences of his conduct (ROS [41]).
· That, by reason of AJC's childhood experience of being bullied, he saw himself as the champion of the vulnerable and believed, wrongly, that the deceased had tried to fight Levi (ROS [42]).
· That AJC was not under the influence of anything at the time of the attack (ROS [42]).
· That it was not a case of a larger, more powerful man attacking a smaller man (ROS [43]).
· That it was a matter of aggravation that the attack occurred in the presence of people under the age of 18 years (ROS [44]).
82 His Honour then identified features of the subjective case of AJC, which were relevant. They included:
· His unblemished character and the fact that he had no criminal record were matters in mitigation (s 21A(3)(e) and (f)) (ROS [46]).
· His public shaming in the local newspaper, contrary to the requirements of the Children (Criminal Proceedings) Act was also a matter in mitigation (ROS [45]).
· His plea of guilty was entered at the first opportunity, and attracted a discount of 25 percent (ROS [47]).
· His remorse was deep and genuine (ROS [48]).
· He had excellent prospects of rehabilitation and was unlikely to reoffend, both matters of mitigation (s 21A(3)(g) and (h)) (ROS [49]).
· His assistance to the police which was significant, reliable and truthful entitled him to a discount of 25 percent, and was also a matter in mitigation (s 21A(3)(m) and s 23) (ROS [50]).
83 His Honour concluded that personal deterrence was not a significant matter, which had been acknowledged by the Crown (ROS [51]) (CS on Sentence, p 2). On the question of general deterrence, his Honour said this: (ROS [52])
"52. GENERAL DETERRENCE. Because the offender was a juvenile when he committed the offence, general deterrence is of less significance than it would have been in the sentencing of an adult who had committed the same offence. This does not mean that general deterrence may be ignored, only that it is of less significance than it would otherwise have been. This is because there is significant public interest in the deterring not only of adults but also of juveniles of antisocial behaviour."
84 His Honour then identified his starting point as 5 years imprisonment. That term was to be reduced by 50 percent to reflect the plea of guilty (25 percent) and the assistance (25 percent). The sentence therefore reduced to imprisonment for a period of 2 years and 6 months. Consideration was then given to whether there should be a finding of special circumstances, justifying a variation to the statutory ratio between the non parole period and the time on parole. His Honour determined that, because of the offender's age and prospects of rehabilitation, a variation was justified. He fixed a non parole period of 1 year 6 months and a parole period of 1 year.
85 His Honour then addressed the question of whether the sentence should be served in full time custody or by periodic detention. His conclusion was as follows: (ROS [59])
"59. Although I consider that service of a sentence of imprisonment by periodic detention is considerably less onerous than service of a sentence on a full time basis, something which is obvious, I consider that the offender should serve the non parole period of one year six months by periodic detention as, doing so, will allow him to reside with his parents during the week and will allow his education and employment to proceed without interruption, some things considered desirable by s 6 of the Children (Criminal Proceedings) Act . "
86 The Crown, in its submissions on this appeal, acknowledged that there was no single correct sentence (Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [26]-[28]). The Court will only intervene if the sentence is so disproportionate to the matter to which it relates that error can be inferred on the part of the sentencing Judge (Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at [59]).
87 Here, according to the Crown, there was that degree of disproportion that error should be inferred. The sentence "simply fails to mark the seriousness of the offence". The offence, according to the Crown, involved the following: (CS [34])
" ... the respondent pursuing the victim in a public place and in company in order to take revenge for a (mis)perceived wrong in circumstances where the victim posed no threat to anyone and where he was given no opportunity to defend himself from a violent and wholly unwarranted blow to his head which resulted in his death because it was of sufficient force to fell him to the ground where he struck his head. ... "
88 Pausing there, that description overstates the circumstances, as characterised by his Honour. It was, in the end, an impulsive act rather than a plan hatched five minutes beforehand.
89 The Crown drew attention to a number of cases, including R v Carroll [2010] NSWCCA 55, where Allsop P and Johnson J said this: (at [60])
"60. This Court observed in Hopley v R [2008] NSWCCA 105 at [46] that, regrettably, 'single-blow manslaughter cases (by unlawful and dangerous act) are not rare in this State'. It was said in Hopley v R at [47]:
'As the learned sentencing judge correctly observed (by reference to R v Grenenger ), this case is a further example of the disastrous consequences which can flow from a public affray in a place of lawful public resort. The violence of the Applicant was perpetrated in a public street where persons were present and where it constitutes a particular affront to civil peace to have a man killed in this way: R v Inzitari (NSW Court of Criminal Appeal, 28 March 1985). It was necessary for the Applicant to be punished for his crime and for an element of general deterrence to be reflected in the sentence.'"
90 That comment, according to the Crown, was apposite in this case. His Honour had allowed the respondent's subjective case to overwhelm the objective seriousness of the offence. Hence, according to the Crown, there were two errors:
· First, the length of the sentence itself was manifestly inadequate.
· Secondly, and separately, the sentence was inadequate because of the order that it be served by periodic detention, which carried a strong element of built in leniency (R v Hallocoglu (1992) 29 NSWLR 67; and R v Chamma [2009] NSWCCA 92 at [26] per Buddin J).
91 Counsel for AJC, in response, emphasised three matters. The first was the breadth of the sentencing Judge's discretion. Absent clear error, the circumstances in which this Court will intervene are limited.
92 Secondly, the youth and immaturity of AJC was fundamental to an understanding of his crime. The principles relevant to sentencing of young offenders were recently restated by McClellan CJ at CL in KT v The Queen [2008] NSWCCA 51; 182 A Crim R 571 at 577 ff. His Honour said this: (at 577/8)
"22. The principles relevant to the sentencing of children have been discussed on many occasions. Both considerations of general deterrence and principles of retribution are, in most cases, of less significance than they would be when sentencing an adult for the same offence. In recognition of the capacity for young people to reform and mould their character to conform to society's norms, considerable emphasis is placed on the need to provide an opportunity for rehabilitation. These principles were considered in R v GDP (1991) 53 A Crim R 112 at 115-116 (NSWCCA), R v E (a child) (1993) 66 A Crim R 14 at 28 (WACCA) and R v Adamson (2002) 132 A Crim R 511 at [30])."
93 His Honour added: (at 578)
"23. The law recognises the potential for the cognitive, emotional and/or psychological immaturity of a young person to contribute to their breach of the law. ... "
94 That is not to say that general deterrence or retribution may be completely ignored, especially where the young person has conducted him or herself as an adult might (at [25]). His Honour added: (at 578)
"25. ... In determining whether a young offender has engaged in 'adult behaviour' ( R v Voss [2003] NSWCCA 182 at [14]), the court will look to various matters including the use of weapons, planning or pre-meditation, the existence of an extensive criminal history and the nature and circumstances of the offence ( Adamson at [31]-[32]). Where some or all of these factors are present the need for rehabilitation of the offender may be diminished by the need to protect society."
95 Here, there were no weapons, there was no criminal history, and the punch was characterised as an impulsive act of a relatively immature young man. His involvement could be explained, at least in part, by his own history of having been bullied and by his mistaken belief that the deceased had bullied Levi. Whilst general deterrence and denunciation remained relevant, as Nield ADCJ recognised, the rehabilitation of the offender, and the matters identified in s 6 of the Children (Criminal Proceedings) Act 1987, were of greater importance.
96 The third matter was an analysis of recent cases in this Court, described as cases of "manslaughter arising from a single punch". Three cases were looked at in some depth: R v Hopley (supra), R v Carroll (supra), relied upon by the Crown, and R v Irvine [2008] NSWCCA 273.
97 R v Hopley was an application for leave to appeal by an offender who had been sentenced in the District Court to a non parole period of 3 years and an additional term of 2 years. There were, according to counsel for the respondent, significant differences between the circumstances of that offender and AJC. First, the offender was 35 years old. Secondly, there was significant aggression by the offender, described by the sentencing Judge in these terms: (at [4])
"4. ... He walked directly towards Mr Birss and, without warning hit him with his left fist. After that he took a few steps backwards and adopted a fighting stance. Mr Birss seems to attempt to calm the offender, by raising his hands with his palms towards the offender, but the offender would not be calmed. He approached Mr Birss again and struck him a heavy blow with his right fist causing Mr Birss to fall to the ground hitting his head heavily ... "
98 Thirdly, the offender had a significant criminal record which included offences of drink driving, possession of drugs and assault occasioning actual bodily harm. Finally, the sentence had been imposed after trial where a jury had found him guilty.
99 R v Carroll (supra) was a Crown appeal. It had a tortuous history. The offender pleaded guilty to manslaughter arising out of a head butt to the victim's face. He was sentenced in the District Court to a non parole period of 18 months and an additional term of 18 months, the non parole period to be served by periodic detention. On a Crown appeal the Court, by majority, upheld the appeal and sentenced the offender to the same sentence, but will full time custody. Mr Carroll immediately began serving that sentence. The High Court thereafter quashed the sentence and remitted the matter to the Court of Criminal Appeal. Mr Carroll was released on bail, having been in custody for over 7 months. The Court ultimately allowed the Crown appeal, quashing the original sentence and imposing an 18 month suspended sentence.
100 Counsel for AJC pointed to a number of differences between the circumstances of AJC and Mr Carroll. First, Carroll was older. Allsop P and Johnson J (forming part of the Court of Criminal Appeal after the matter had been remitted), said this: (at [61])
"61. ... Mr Carroll was 20 years old, a young adult, at the time of the offence. The principles which apply directly to the sentencing of juvenile offenders, and the approach to general deterrence and rehabilitation, were not applicable to his case. Of course, his relative youth and his prospects of rehabilitation remained significant factors on sentence. ... "
101 Secondly, a head butt is considerably more brutal than a punch. Allsop P and Johnson J said this: (at [59])
"59. The character of a head butt that should be recognised is that it is a single blow by the head or forehead to the face (nose and mouth) of the victim delivered through the power of the neck and upper body. It is a blow of significant objective force and is inherently brutal. It was not a 'bop on the head' as Mr Game put in argument (T 24-25, 10 July 2009). The above is not to find facts, but to state what a head butt is ... "
102 Their Honours added: (at [59])
"59. ... There may have been only one blow ... but it was a blow of a violent and brutal character which made the objective characterisation of the offence by the sentence judge insupportable."
103 Thirdly, there were significant differences in the physical stature of the offender and the victim, a feature absent in the assault by AJC upon the deceased. Allsop P and Johnson J described the offender Carroll as "a 20 year old man of strong physique" compared to the victim who was "a 51 year old man of manifestly weaker stature" (at [59]).
104 Finally, alcohol was a significant factor (cf Donaczy v Regina [2010] NSWCCA 143 at [53]-[54]), unlike the present case. Allsop P and Johnson J made the following comment: (at [61])
"61. ... However, alcohol-fuelled offences of violence of this type are frequently committed by young men of his age, and general deterrence has particular application for this reason."
105 The case, according to the respondent, that was capable of providing greater assistance was R v Irvine (supra). It was a Crown appeal. The circumstances giving rise to the offence were described by the respondent in submissions in these terms: (RS 8.3.10 [11.7])
"11.7 ... a fight ... developed after the offender (the respondent in the Court of Criminal Appeal) attempted to stop the deceased from driving erratically after the latter had been drinking. The deceased did so and attempted to leave the scene on foot. He was approached by a group including the respondent. The deceased was unsteady on his feet. The respondent punched him to the head causing him to stumble back and hit his head on the ground. There was a plea of guilty. The offender was 18 years old at the time of (the) incident and had no prior criminal offences. ... "
106 The offender was sentenced in the District Court to a non parole period of 2 years with a balance of term of 1 year, the non parole period to be served by way of periodic detention. The Crown appeal was dismissed. Hodgson JA noted the following: (at [7])
"7. In the present case, the offender's approach to the victim was with a view to achieving a proper resolution of prior unlawful conduct by the victim, by having the victim return to his car and await the arrival of police. The sentencing judge accepted that the offender believed he was defending himself when he punched the victim, after the victim had lunged at him. However, the offender was guilty of manslaughter because his behaviour was not proportionate to the circumstances."
107 In dealing with these submissions, I should begin with the assertion by the Crown that the length of the sentence was inadequate. Obviously a sentencing range does not emerge from a small sample of cases. Reference was also made by the Crown to the sentencing remarks of judges called upon to sentence particular offenders in "single blow" manslaughter cases (R v Bashford [2007] NSWSC 1380 (Rothman J); and R v Smith [2008] NSWSC 201 (Hulme J)) where custodial sentences were imposed. Inevitably there are differences between each case as the analysis of Hopley and Carroll (supra) amply demonstrates. Nonetheless, it seems to me clear that his Honour's starting point of 5 years was well within the range. The sentence he thereafter imposed was simply the product of that starting point and the various discounts he applied, as well as his finding of special circumstances. Apart from the discount for assistance, there was, in my view, nothing wrong with the length of the sentence or the finding of special circumstances.
108 Let me move to the second suggested error, that, in any event, the sentence was manifestly inadequate because his Honour permitted AJC to serve the non parole period by way of periodic detention.
109 In Regina v Zamagias [2002] NSWCCA 17, Howie J stated the fundamental principle, which must guide a sentencing Judge, in these terms: (at [23])
"23. It is clear that, when sentencing an offender to a term of imprisonment under that Act ( Crimes (Sentencing Procedure) Act 1999), a court is required to undertake a number of steps before finally determining the appropriate sentence. Each step requires the court to consider the objective gravity of the offence balanced against the subjective circumstances of the offender, but it is the first of those considerations that will principally determine which of the available sentencing alternatives the court should adopt. This is because at the end of the day the sentence must be commensurate with the seriousness of the crime: R v Geddes (1936) 36 SR(NSW) 554; R v Rushby [1977] 1 NSWLR 594."
(parenthesis added)
110 His Honour added: (at [28])
"28. Once the term of the sentence has been determined the court is then to consider whether any alternative to full-time imprisonment is available in respect of that term and whether any available alternative should be utilised. The availability of an alternative to full-time custody will generally be governed by the length of the term that has been determined subject to the restrictions or pre-conditions imposed by the legislature on a particular sentencing alternative."
111 Under the Sentencing Act s 6(1), a Court that has sentenced an offender to imprisonment for not more than 3 years may order that that sentence be served by way of periodic detention. Here, his Honour determined, after the application of discounts, that a term of imprisonment of 2 ½ years was appropriate. Periodic detention was therefore available. As mentioned, even had the sentencing Judge determined a 15 percent discount for assistance (that is a composite discount of 40 percent), the term would have been 3 years and periodic detention would still have been available.
112 But was periodic detention appropriate as a sentencing option? Howie J, in the same case, also identified the principle which should guide a sentencing Judge. He said this: (at [28])
"28. ... But the appropriateness of an alternative to full time custody will depend on a number of factors, one of importance being whether such an alternative would result in a sentence that reflects the objective seriousness of the offence and fulfils the manifold purposes of punishment . The court in choosing an alternative to full time custody cannot lose sight of the fact that the more lenient the alternative the less likely it is to fulfil all the purposes of punishment: R v Jurisic at 250B."
(emphasis added)
113 The manifold purposes of punishment are set out in the Sentencing Act s 3A, which his Honour included in his remarks on sentence (supra [78]). Importantly, one of those purposes is that the offender be adequately punished for the offence (s 3A(a)). They also include deterrence (s 3A(b)), rehabilitation (s 3A(d)), denunciation of the conduct (s 3A(f)), as well as the following: (s 3A(g))
"s3A(g) to recognise the harm done to the victim of the crime and the community."
114 Here, the Crown tendered a Victim Impact Statement which, with elaboration, was read to the Court by his stepfather, Mr Allen. One could not fail to be moved by his testimony. He articulated the family's need for "justice for the senseless and gutless attack that claimed" Jamie Purdon's life. His description of waiting at the hospital included the following: (T 6)
"It felt like our hearts had been ripped out of my chests. You just can't believe it. You feel weak and absolutely sick to the stomach. The first instinct was wanting to see him but we couldn't because it was part of a forensic investigation and the police couldn't allow us. Cheryl kept saying, 'I want to hold him.' ... "
115 Such material must, of course, be dealt with in a manner consistent with R v Previtera (1997) 94 A Crim R 76. I mention it only because it states what you would infer without evidence.
116 However the sentencing process, as Nield ADCJ pointed out, must strike a balance between recognising the enormity of the wrong that has been done and denouncing it, and imposing a level of punishment reflecting the moral culpability of the individual offender. In the case of a juvenile, his rehabilitation is of especial importance.
117 Unquestionably, as his Honour recognised, allowing an offender to serve his term of imprisonment by way of periodic detention involves leniency. In R v Rivkin [2004] NSWCCA 7; (2004) 59 NSWLR 284, the Court said this: (at [433])
"Periodic detention is, on any view, a less harsh sentence than one involving full term detention, as has been authoritatively accepted; R v Hallocoglu (1992) 29 NSWLR 67."
118 Nonetheless, periodic detention over a lengthy period does involve a very real burden (R v Burnett (1996) 85 A Crim R 76; R v Pangallo (1991) 56 A Crim R 441; R v Mouzomenos [2005] NSWCCA 203).
119 His Honour, in his remarks, referred to s 6 of the Children (Criminal Proceeding) Act which enjoins a Court, when sentencing a juvenile, to implement where possible a number of principles which his Honour stated, which were consistent with periodic detention.
120 So the issue, in the context of manslaughter, is whether such a sentence, when served by way of periodic detention, adequately reflects the objective seriousness of the offence? Counsel for AJC, in submissions to the sentencing Judge, analysed the statistics in cases of manslaughter in both the District and Supreme Courts. In the District Court, the statistics were as follows: (RS 8.3.10 [11.1])
"(i) Of 38 offenders, 66% received a full time custodial sentence, 21% received a suspended sentence, 8% received periodic detention.
(ii) Of 26 offenders who pleaded guilty, about half (54%) received full time custodial sentences, 27% received a suspended sentence and 12% received periodic detention.
(iii) Of 16 offenders who had no prior convictions, less than half (44%) received full time custodial sentences, 38% received (a) suspended sentence and 13% received periodic detention.
(iv) There were only 4 offenders who were less than 18 years. Only 1 of these received a full time custodial sentence."
121 In the Supreme Court, the picture was rather different, although the statistics were confined to pleas of guilty for persons under the age of 18 years. In 16 cases the statistics were:
· 94% received a custodial sentence,
· 6% a suspended sentence,
· there were no cases of periodic detention.
122 The explanation for the difference, according to the respondent's counsel, was that Supreme Court cases were likely to be objectively much worse, for the following reasons: (RS [11.2])
"11.2 ... In particular, a much smaller proportion is likely to involve involuntary manslaughter (criminal negligence and unlawful and dangerous act). Many of the cases dealt with in the Supreme Court would involve the forming of an intention to kill or seriously injure (provocation, substantial impairment or excessive self defence)."
123 The present case, of course, proceeded in the District Court. As observed in Carroll (supra) by Allsop P and Johnson J, particular care must be exercised in using sentencing statistics for crimes of manslaughter (at [63]). Statistics, without an appreciation of the facts in each case, are of limited value. Here at least they indicate that, in an appropriate case, periodic detention may be available, even in the context of manslaughter. AJC was a juvenile. A number of matters ameliorated the objective gravity of his offence. His subjective case was unusually strong. In my view, it was open to his Honour to determine that the sentence may be served by periodic detention.
124 Accordingly, the sentence in my view was appropriate, save for the discount allowed for assistance. Correcting that error would involve increasing the term of imprisonment to 3 years (with a consequential adjustment to 1 year 9 months of the non parole period). So, should this Court intervene? Notwithstanding s 68A of the Crimes (Appeal and Review) Act 2001, the Court has a limited discretion not to intervene in the context of a Crown appeal (R v JW [2010] NSWCCA 49). Here, two affidavits were filed on behalf of AJC, available on the question of discretion. The first was from a solicitor for the DPP, reporting on the committal against J, and the second from the respondent's mother. Counsel for AJC made the following submission, summarising that material and suggesting that the Court should not disturb the sentence originally imposed: (RS 12.7.10 at [5.3])
"5.3 This material shows that since the sentence was imposed, the Respondent has:
(i) Given evidence in the committal proceedings of (J) in accordance with his promise. He also assisted police to find a Crown witness who they could not locate. His evidence and his attitude clearly impressed Mr Fitzhardinge.
(ii) Continued to reside with his parents.
(iii) Worked in full time employment, including working long hours of around 60 hours per week.
(iv) Continued his education and apprenticeship.
(v) Agreed to work with police in educating local youths of the dangers of being involved in fights."
125 Recognising, nonetheless, that periodic detention does involve the significant element of leniency, I believe it is appropriate to adjust the sentence by increasing the term to 3 years and the non parole period to 1 year 9 months (with rounding), to be served by way of periodic detention.