It is necessary now to consider the relevant factors in relation to the appropriate sentence to be imposed upon the offender in relation to the charge to which he has pleaded guilty. The starting point is a recognition that the offence of manslaughter is a particularly serious crime since it involves the taking of a human life, the protection of which is the primary objective of the criminal justice system. ( Hill (1981) 3 A Crim R 397 at 402; MacDonald (NSWCCA 12 December 1985)). Secondly it is necessary to have regard to the purposes of sentencing as set out in s 3A Crimes (Sentencing Procedure) Act 1999 . Thirdly it is necessary to consider the matters set out in s 21A of the same Act, both as to aggravating and mitigating factors.
34 There are a number of aggravating factors. First, the offence involved the actual use of violence. This matter however is completely subsumed within the essential ingredients of the offence and does not call for any increase in sentence. Secondly, the offence was committed in company. This factor also appears to me to be largely subsumed within the agreed basis on which the Court has been invited to approach the sentencing task in the present matter. The nature of the joint criminal enterprise to assault the deceased necessarily involved actions in company. The third matter is that the offender has a record of a number of previous convictions. It is agreed between the Crown and the offender in the present case that I may have regard to certain aspects of the offender's criminal history for the purposes of finding aggravating factors. This arises from the fact that the offender was subject to periodic detention orders at the time of the commission of the offence and was also on a bond. They are matters which, in my view, clearly aggravate the offence.
35 In addition, the Crown has argued that the offender was the instigator of the assault upon the deceased. Ms Yehia has denied this proposition. Counsel concedes that her client, by his actions and conversations, instigated the situation that led to the physical assault but denied that there was any evidence that permitted the Court to find that he led the physical assault upon the deceased. Generally I accept the Crown's submission in relation to this aspect of the matter. It needs to be recalled that the present offender, when he confronted the deceased face to face, demanded to know his name and accused him of stealing children's mobile phones. This was in a situation where the other young men had surrounded the deceased on the remaining three sides. There is no doubt that it was the offender Avakian who confronted the deceased in the manner I have described. Moreover, his actions in producing a silver object from his pocket, pretending it was a weapon; and then making the very threatening remarks I have described earlier in this decision, especially in circumstances where the deceased was forced to his knees, sparked the flash point for the assault which followed. It may well be the case that it was not the offender Avakian who struck the first blow; but nevertheless his role in the events of the evening was a pivotal one leading to the escalation of violence which culminated in the very serious assault upon the deceased. The offender is a powerfully built tall young man and his physical presence, in the circumstances I have outlined. would have been quite intimidating. Although it is agreed that the offender did no more than punch the deceased on two or three occasions; nevertheless, I think it may be properly said that he was the instigator of the events leading up to the assault. This in my view is an aggravating factor which needs to be taken into account in the imposition of an appropriate sentence.
36 There are, it is generally conceded by the Crown, a number of mitigating factors. It is quite clear that the offence was not part of a planned or organised criminal activity. I should say that I am satisfied beyond reasonable doubt that the offender was not, in any real sense, provoked by the deceased. Ms Yehia did not submit otherwise but made a submission that the offender may have been affected by alcohol and drugs to the extent he perceived the deceased may have been about to draw a knife from his pocket. There is, of course, absolutely no evidence that the deceased had a knife. The offender, in any event, did not give evidence before me that this was his perception. It is necessary for me to state that I reject any suggestion that there was any provocation offered by the deceased towards the offender or to any of the other young men who were confronting him in such an intimidating manner.
37 The next matter requiring consideration is whether the offender has shown remorse for the offence. Again it is necessary to say that the offender has not given evidence before me as to this aspect of his response to the death of the deceased. There is, however, a statement in the report by Ms Barrier that the offender is contrite regarding the fate of the deceased and the loss to his family. There is very little beyond this, however, to indicate any depth of remorse. Ms Yehia did submit that the offender's plea and the fact that he gave himself up to the police on 7 February 2002 support the proposition that he has demonstrated remorse. There is some substance in each of these propositions although it must be conceded, I think, that the offender's actions in giving himself up to the police occurred in circumstances where his identity was by then well known to them and where the only other alternative available to him at that time would have been flight. In all the circumstances I propose to find that there have been expressions of remorse on the part of the offender and I am unable to say that they are not genuine.
38 I turn now to consider the plea of guilty. The plea was not entered of course until 12 August 2003, some days after the trial had commenced. Ms Yehia has asked me to accept that on 15 July 2003 a letter was sent by the offender's solicitors to the Director Public Prosecutions indicating that the offender was then asking the Crown to consider a plea of guilty to "an alternative charge" to murder in full discharge of the indictment. This request was made on the basis that any plea of guilty would be founded on the fact that the offender had struck the deceased several times causing some of the abrasions and bruises referred to in the post-mortem report. It was also proffered on the basis that the offender had not been armed with any weapon, that he did not stab the deceased and was not aware that any of the co-accused possessed the weapon; and, further, that he did not contemplate the use of a weapon during the assault. The Crown accepted that a letter to this effect had been received and that the Crown did not accept the offer made in the letter at that point of time.
39 I am unable to accept Ms Yehia's submission that the circumstances I have described demonstrated that the plea was entered at the earliest reasonable opportunity. As I stated in the remarks on sentence in the matter of the co-offender O'Connor, the charge of murder always carries with it the alternative of manslaughter. The offender was first arraigned on 4 April 2003. He did not offer a plea of guilty to manslaughter on that occasion and, indeed, did not do so until 12 August 2003. Ms Yehia relied upon the decision in Cardoso [2003] NSWCCA 15. However, it seems to me that the argument in the present matter must fail if for no other reason than that the letter from the offender's solicitors in July 2003 did not offer a plea of guilty to the charge of manslaughter. In its terms, it was equally consistent with being no more than an offer to plead to a charge of common assault. The plea which was ultimately accepted by the Crown in full satisfaction of the indictment was in relation to a specific and more serious charge. Secondly, as I have said, it was open to the offender to offer a plea of guilty to the charge of manslaughter as an alternative to murder well before he did. This is not to say that the offender is disentitled from claiming a discount for the plea of guilty. (s 22 of the Crimes (Sentencing Procedure) Act 1999). Indeed, I am satisfied that the offender is entitled to a discount to reflect the utilitarian value of the plea and the willingness it recognises on the offender's part to assist in and facilitate the course of justice. In my view, in the circumstances of this particular matter, a discount of 15% is appropriate in relation to the plea.
40 The final mitigating factor which needs to be examined is the question of the prospects of rehabilitation for this young man. As I said earlier, his criminal record does him little credit and, for that reason, must give the Court considerable pause as to his prospects of rehabilitation. On the other hand, his family situation appears to be particularly sound and loving. The problem with the offender in the past has been that he appears to have repeatedly turned his back on his family and those who have wanted to help him. The question which arises is whether there is sufficient evidence before the Court to satisfy it that there is some reliable prospect of a turn-around for him. It is quite apparent that his abstinence from drugs and alcohol while in custody has been to his benefit, both in terms of his mental state and his physical health. Moreover, his progress in custody is quite promising. This appears especially from the evidence provided by Captain Carter.
41 In my view, the offender has a hard road ahead of him, since it will be necessary for him to control the more destructive urges in his personality, his substance abuse and the problems that arise from mixing with friends who are bad for him. He will also need to further his education, obtain work experience and ultimately enter the workforce. None of these matters will be easy for him. He will require assistance and will need to show greater determination than he has in the past. On the other hand, his father is prepared to take him to the Northern Territory and to work with him in his proposed jewellery business. In addition, there are the others who have given evidence on his behalf and are prepared to "go into bat" for him upon his release.
42 I accept, with some considerable degree of hesitancy and caution, that there are reasonable prospects for the rehabilitation of Mr Avakian. Time alone will tell whether my cautious optimism is misplaced or not.
43 As with the offender O'Connor, I have come to the conclusion in this matter that I should regard the use of alcohol as neither an aggravating or mitigating factor. While there was a reference in the history given to Ms Barrier of the offender's state of intoxication at the time, I think it may be said, that, in his case, he was no stranger to alcohol. Further, I do not think that, having regard to the overall circumstances revealed by the facts in the evidence, alcohol played any substantial part in the events of that evening.
44 It is necessary now to fix an appropriate sentence to recognise all the circumstances revealed by the facts I have outlined. The sentence must acknowledge the principles I have set out earlier in relation to the denunciatory role of sentencing particularly applicable to the crime of manslaughter. It is necessary for the Court to enshrine and uphold those principles as matters of singular importance. The sentence to be imposed must make it quite clear that acts of violence in the public streets of the suburbs of Sydney are to deplored and must be denounced by the sentencing process. This is especially so in circumstances where one person is set upon by, as happened here, a gang of young men intent upon doing violence in a brutal and cowardly manner.
45 Notwithstanding these matters, it is necessary to state, as it was in the case of O'Connor, that the offender's level of criminality in relation to the crime to which he has pleaded guilty is circumscribed by the nature of his actual involvement in the fracas. He punched the deceased several times but it was not he who stabbed the deceased.
46 I discussed the relevant distinction in the matter of O'Connor. Without repeating all that was said on the topic in that decision, I state again that it is an important distinction in determining sentence in this matter as well and for the same reasons. The person who in fact stabbed Mr Myers will regrettably not be punished for his apparent murder. The application of proper principle however requires me to place that unfortunate consequence completely to one side in the present sentencing process.
47 I have considered all possible alternatives, but have come to the conclusion that no penalty other than imprisonment is appropriate in the present matter. The sentence to be imposed, however, must denounce the prisoner's actions and must recognise the seriousness involved in a dangerous and unlawful act which has led to the death of another human being. It will be apparent from what I have said earlier that the subjective circumstances of the offender are reasonably strong, especially those which recognise his youth and the prospects for his rehabilitation with appropriate counselling. In addition, it is clear that special circumstances exist in the present case so as to warrant a variation of the statutory proportion between head sentence and non-parole period. The reason for this is that the offender would clearly benefit from a lengthy period of paroled supervision with conditions requiring general and specific counselling and the continuance of treatment for continued drug and alcohol abstention.
48 Although no specific submissions were directed to me, I have given consideration to the parity situation arising between the present offender and his co-accused O'Connor. In a number of respects, their situations are in the ultimate very similar. The present offender is four years younger than O'Connor, but on the other hand O'Connor appeared to be a rather small timid person; and indeed a person who was easily led in the assault upon the deceased. The present offender was, by contrast, a tall well-built young man and was, for the reasons I outlined earlier, the instigator of the incident leading to the commencement of the assault. The criminal record of the present offender is more serious than that of O'Connor but, in essence, there is not a great deal of difference between them in relation to that aspect of the matter. The subjective circumstances of the present offender are probably evocative of greater sympathy than those of O'Connor, although again there is not a major difference between their situations. Finally, the prospects of rehabilitation are probably greater in the case of O'Connor but this is, in my view, not a major point of distinction between them.
49 There are two areas however, where a comparison of the objective criminality of each offender in relation to the present offence leads to a difference. First, the fact that the present offender was the instigator of the incidents leading to the assault is a matter of aggravation that requires recognition in the sentence to be imposed upon him. Secondly, the fact that he was serving a periodic detention at the time and subject to a bond requires specific recognition in this sentencing process.
50 In my view, an appropriate sentence to reflect the various considerations I have outlined is, prior to discount for plea, a sentence of six years and six months imprisonment. After allowing a 15% discount for the plea, the resultant head sentence is a term of imprisonment of five years and six months. In setting a non-parole period, I will take into account the special circumstances that I have found to exist in the present case. It is agreed that I should back date the sentence to 21 October 2002.
51 Danny Avakian, I sentence you to a term of five years and six months imprisonment. The sentence is to commence on 21 October 2002. I set a non-parole period of three years and six months commencing on 21 October 2002 and ending on 20 April 2006. The offender will be eligible to be released to parole on that day, 20 April 2006.
52 I recommend that, while in custody, the offender receive appropriate counselling including psychiatric counselling, anger management counselling and counselling in relation to the control of drug and alcohol abuse.
53 I further recommend that, upon release pursuant to any parole order, the Probation and Parole Service consider, as part of any supervision programme relating to the offender, that he be required to accept the directions of the Probation and Parole Service in relation to receiving continuing counselling generally but extending to and including anger management. Further, that he be counselled and directed as to his use of alcohol and illicit drugs during any period of parole.