REGINA v DGP; REGINA v PB

REGINA v DGP; REGINA v PB - [2009] NSWSC 1154 - NSWSC 2009 case summary — Zoe

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(2) Facts 5 The events concerning the subject offence took place at Woolooware Oval on the night of 24 November 2007. At the hearing on sentence, an agreed statement of facts was tendered and marked as Exhibit J. The document, it was agreed, sets out relevant factual material for the purpose of the sentencing hearing. Accordingly, in sentencing DGP and PB, I proceed upon the basis of the factual matters set out in Exhibit J. 6 The deceased, Christopher Leicester, had arrived in Australia from New Zealand in May 2007. On the night of 24 November 2007, he met Jackson Parkes at Woolooware Railway Station. Parkes invited him to a party nearby and they began to walk towards The Kingsway heading to Woolooware Oval. 7 At the same time, Taylor Martin, Jesse Harrison and PB began to walk from Woolooware Station up Swan Street towards The Kingsway. CW, who was driving a Holden sedan, turned into Swan Street from The Kingsway. The offender, DGP, was seated in the front passenger seat. 8 The subsequent events are set out in the agreed statement of facts as follows:- " About this time the offender [PB] was seen to have an argument with another youth. This male has begun to take his shirt off and he yelled in the direction of [PB] and the car. As the car drove off Jackson PARKES observed two males yelling at the car and chasing after it as it turned onto the Kingsway. As the vehicle was driving past Woolooware Oval a male yelled something in the direction of the vehicle. [CW] pulled his vehicle over adjacent to the oval. [DGP] and [PB] got out of the vehicle and ran into the oval followed by [CW]. They approached the deceased who was walking with PARKES towards the party. The deceased was not the male who had yelled out to the car although the three Offenders believed he was. [PB] said to the deceased: "why did you yell shit at us"? and he PUSHED the deceased who pushed [PB] back. [DGP] then PUNCHED the deceased under the chin causing his head to reel back and he fell to the ground. As the deceased lay on the ground [DGP] KICKED HIM ONCE TO THE HEAD. Following this [CW] kicked the deceased to the head about three times. On the last kick a loud crack was heard. [CW] was heard to say to the deceased: "Yeah stay on the ground where you belong." [CW] was then dragged away from the deceased by an unknown person. [PB] was present encouraging the others and ready to assist if necessary. Whilst the deceased was being assaulted a number of people heard a loud crack sound. The three Offenders left the area and retuned to [CW]'s vehicle and left ." 9 Once the deceased fell to the ground, he did not regain consciousness. Ambulance and police were called to the scene. Mr Leicester was taken to St George Hospital. As a result of his injuries, he died at 2.21 pm on 25 November 2007. 10 Dr Paul Botterill, forensic pathologist, conducted the post-mortem on the deceased. Dr Botterill found that the cause of death was blunt force head injury consistent with multiple blunt force contacts. The injuries included bruising to the right temple, the right eye socket, the left cheekbone and the right side of the jaw, as well as over the limbs and trunk. The left cheekbone was also fractured. Dr Botterill also found a large amount of blood over the brain which was found to have been caused by a tear to the vertebral artery supplying blood to the brain. In his opinion, this was the direct cause of death. 11 The blood alcohol level of the deceased was 0.172, which would, in Dr Botterill's opinion, have resulted in the deceased being less likely to defend himself and to be able to prevent his head moving when struck, causing the vertebral artery to rupture. 12 Dr Botterill was unable to say which blow was primarily causative of death, and could not discount that it was the first punch to the chin. Although he could not be precise, Dr Botterill opined that the force required for a fracture (such as to the cheekbone), would be moderate to severe. The loud crack sound could, in his opinion, have been the fracturing of the cheekbone.

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• He has shown remorse for the offence (s.21A(3)(i)). 14 Mr Pearsall referred to the intelligence assessments that have been made on the offender. He observed that, despite his capacity, he maintained satisfactory attendance at high school and had lived a law-abiding life. He had finished Year 10 about a month before the commission of the offence. 15 It was accepted that, by the time of the offence, he "had come into the habit of drinking every second or third week-end with friends". On the night in question, he had consumed at least six 440 ml cans of Bourbon and Coke. This would have disinhibited him and impaired his judgment in the submissions made. Reliance was also placed on Mr Champion's observations as to his level of maturity. 16 It was submitted that the offender's intoxication is some mitigation in that it goes to explaining why the offender acted out of character and is relevant to the degree of deliberation involved in the commission of the offence: Regina v Coleman (1990) 47 A Crim R 306 at 327. 17 Mr Pearsall also relied upon the fact that there was no planning or premeditated violence. 18 In relation to s.19(4) of the Children (Criminal Proceedings) Act 1987, it was submitted that there are circumstances that permit the making of an order that GDP serve his sentence as a juvenile offender. Those circumstances are:- "(a) that the person is vulnerable on account of illness or disability (within the meaning of the Anti-Discrimination Act 1977), (b) that the only available educational, vocational training or therapeutic programs that are suitable to the person's needs are those available in detention centres, (c) that, if the person were committed to a correctional centre, there would be an unacceptable risk of the person suffering physical or psychological harm, whether due to the nature of the person's offence, any assistance given by the person in the prosecution of other persons or otherwise." 19 GDP gave evidence at the sentencing hearing on 18 September 2009. He gave evidence of a family break up when he was 13 years of age. He had been close to his father. He felt, after his father went to Dubbo, the loss of fatherly guidance. 20 He said, whilst he has been in custody, he has had counselling with a person from the Violent Offender's Programme. On release, he intends to live in Orange with his uncle who is involved in construction work. He said that he has resolved not to drink alcohol following his release from custody. 21 At the centre of his submissions, Mr Pearsall emphasised what he described as the limited intellectual capacity of the offender and his immaturity and in the latter respect what was said to be the offender's overreaction because of his immaturity. 22 It was submitted on behalf of DGP that the initial confrontation leading to the assault on the deceased was triggered by the mistaken belief that the deceased had verbally insulted DGP and his friends a short time before. I consider that to be an entirely irrelevant fact. It is certainly not one that operates as even the slightest mitigation. 23 It was the act of pushing by PB and the victim's pushing back that was said to have caused him to become involved in the assault as he wished to come to the aid of his friend, PB. I find that account very difficult to accept, given that both offenders, DGP and PB, ran onto the oval obviously intent on causing trouble by confronting the person who they believed to have offended them. 24 The contention advanced by Mr Pearsall was that DGP's involvement in the assault must be assessed in the context of his immaturity, low intelligence and tendency towards impulsive behaviour. He submitted that, consistent with the observation in the Juvenile Justice Report, the offender was an impulsive and immature person, and that he acted with impulsiveness and immaturity on the night of the offence. The submission was that impulsivity and the level of maturity of DGP are relevant to the question as to whether he committed an adult crime. (4) Submissions for PB 25 Mr N Steel of counsel for PB in his oral submissions at the hearing on sentence submitted, firstly, that implicit in the plea to manslaughter, there was no intention on the part of PB to inflict grievous bodily harm. He emphasised the spontaneous, unplanned nature of the offence, and the fact that there was "a quick explosion of violence". 26 The following mitigating factors under s.21A(3) of the Crimes (Sentencing Procedure) Act were relied upon:-

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27 It was also submitted that PB's culpability was less than that of his co-offenders as he was not involved in the physical assault. Although it was acknowledged that he had the initial confrontation with the deceased, it was submitted that he did not actively urge on or aid his co-offenders. To say he was the instigator, was, according to Mr Steel, putting his client's culpability too high. 28 The explanation given as to the offenders' conduct was a mistaken belief that the deceased had earlier verbally provoked them. It was submitted that this fact indicated that the attack was not purely random, although the submission that it was a spontaneous decision was also maintained. 29 In relation to PB's subjective case, it was submitted that his interest in rugby league, part time work, courses engaged in whilst in custody and his history in relation to alcohol should be taken into account. In particular, PB's level of social maturity was said to be a significant factor. Mr Steel also referred to the finding made by Ms Player that his recidivism risk is low. 30 The offender, PB, gave evidence at the sentencing hearing on 18 September 2009. He explained that he had been charged in relation to another offence, assault occasioning actual bodily harm in the company of others. He admitted to hitting the victim of that assault in the face because he thought he was going to hit him. He was heavily intoxicated at the time of that offence. 31 Although he has found his time in custody difficult, he has engaged with a psychologist (Ms Player) and other courses have been offered to him. In relation to remorse, he explained that the letter he wrote to the Court (Exhibit 6) explained how he felt about his involvement in the offence. He felt deeply sorry for the impact he had caused to Mr Leicester's family and vowed never to be involved in a violent crime again. 32 In respect of an order under s.19 of the Children (Criminal Proceedings) Act, it was submitted that special circumstances were established. Reliance was placed on s.4(b) and (c), and the evidence said to support the contention was to be found in Ms Player's report. In her report, Ms Player noted PB's emotional condition in custody and asserted that a transfer to an adult correctional centre would negatively impact on his already vulnerable mood, coping skills and mental health. She also alluded to his youthful appearance which would make him a target in an adult centre. 33 As to the sentence to be imposed, Mr Steel relied upon the cases of Regina v Clay, Lonsdale and JM [2006] NSWSC 1220 and Regina v Taiseni, Motuapuaka, Leota and Tuifua [2007] NSWSC 1090. 34 The decision of Buddin J in Clay (supra) was referred to in respect of his Honour's finding that immaturity was a significant contributing factor to the offence, despite the seriousness of the offence. The relevant offender in that case of Clay was aged 19 at the time of the offence, and aside from punching the deceased once, had played a passive role in the commission of the offence. His Honour sentenced Clay to a non-parole period of three years and a balance of term of two years. 35 Mr Steel submitted that PB's involvement in the assault was a result of his social immaturity, and that his confrontation with the deceased demonstrated that. Reliance was placed on a number of findings in Ms Player's report. It was submitted on behalf of PB that in light of these findings, and the circumstances of the offence, PB's actions were the product of immaturity and impulsivity. In particular, my attention was drawn to PB's argument with a youth on the street preceding the offence, and the impulsive decision to stop the car, run onto the oval, and engage in a verbal and physical confrontation with a stranger. 36 In the case of Taiseni (supra), each of the four offenders were responsible for the infliction of grievous bodily harm caused by one offender when he threw a chair at the victim, whilst the remaining offenders were present and participating in the joint criminal enterprise. Although their presence in the hotel was designed to confront the victim with the force of numbers, two of the offenders did not engage directly in physical force, and accordingly, Latham J found that their culpability was well below that of their co-offenders. 37 These cases, it was submitted, demonstrated a comparable range of sentences in respect of PB.

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(2) DGP does not have a criminal history. PB has a limited history which I shall refer to shortly. (3) Both offenders have demonstrated remorse. (4) Both offenders have good prospects for rehabilitation. (5) The offence did not involve a weapon. (6) The offence did not involve premeditation or planning. 39 In regard to the issue of youth and maturity, Mr Champion observed that DGP was not an adult "with life experience, maturity and judgment". However, no reference was made in Mr Champion's report to any particular level of immaturity in DGP than that expected of a person of his age. Similarly, none of the character references provided on behalf of DGP allude to any particular aspect of immaturity. Even accepting the evidence recorded in the Juvenile Justice Report, evidence of immaturity and impulsiveness has to be considered in light of the nature of the offence. The assault, as has been noted earlier, in this case was completely unprovoked one. It involved, on DGP's part, a severe blow to the head capable of causing death and with the victim lying on the ground, a kick of extreme force to the head/neck, also capable of causing death. These actions, in the context of a total lack of provocation, demonstrate the application of a very high level of violence and a willingness to injure. 40 With respect to PB, at paragraph [20] of Ms Player's report, she records the opinion of PB that it was largely his immaturity at the time of the offence that contributed to him being present at the assault of the deceased. PB also admitted that he could be influenced by his peers at times, and that his mother frequently advised him to "think before you do" (paragraph [25]). 41 This suggested to Ms Player that his "levels of social maturity may have been delayed and that this probably led to him acting more impetuously in social contexts and possibly around certain peers. It would appear that these factors were contributory to [PB]'s involvement in the offence". His emotional immaturity in social contexts, in Ms Player's opinion, may have made him vulnerable to the negative influence of others and may have caused him to behave irrationally without contemplating the consequences of his actions. Whilst she acknowledged that social immaturity and impulsivity could be observed in most adolescents, Ms Player found that these factors had an impact upon PB's offending behaviour. Regard is to be given to the offender's age and I will bring it into account in determining the appropriate sentence to be imposed with respect to PB.

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(6) The personal circumstances of DGP 42 The offender, DGP, is, as I have stated, of Aboriginal descent. He was born on 18 May 1991 and was therefore aged 16 years and six months at the date of the offence. He is now aged 18. At the time of his arrest, he was residing with his mother and siblings in Menai, and had completed Year 10 (and the School Certificate) at a school in Caringbah. 43 His parents' marriage ended when he was 12 years of age. Following the divorce, his father remained in the Sutherland area and continued contact. At the age of 15, his father commenced a new relationship and returned to the Dubbo area. Since that time, the offender has had limited contact with his father. Mr Champion, clinical psychologist, noted that while the separation of his parents would have impacted upon him, there was no suggestion of any significant psychological disturbance in this respect. 44 According to the Juvenile Justice Report, the offender was a "young man with a history of impulse control problems, who experiences learning difficulties and who has had limited peer interaction". The offender's mother has stated that a diagnosis of Attention Deficit Disorder (ADD) was considered by a medical practitioner in the offender's early childhood, however, medication was not used to address this issue. Mr Champion noted in his report that there were some indications of such a condition present specifically in terms of issues with concentration and impulsivity. However, Mr Champion found no obvious indication of mental illness or psychological disturbance. Given his age and maturity, Mr Champion did not think that he would be particularly likely to be psychologically disordered in the future. 45 Written and verbal reports from the relevant school reveal that DGP had experienced difficulties with literacy and numeracy and that he required learning assistance throughout his high schooling. As recorded in his report, Mr Champion administered the Wechsler Adult Intelligence Scale (WAIS-III). The offender achieved a score at the bottom of the average range in terms of overall IQ. His scores demonstrated poorly developed language and verbal skills but better developed non-verbal skills and reasoning. The results of testing did not indicate the presence of developmental disability or global intellectual limitation. 46 The offender has no criminal history. In respect of his behaviour at school, he was suspended twice during Year 8 for physical violence against another student and for continued disobedience. In Year 10, he was warned for aggressive verbal behaviour. The offender explained these incidents to Mr Champion as a function of a social group at school where aggressive behaviour periodically appeared.

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54 PB disclosed to the authors of the report that he began drinking with peers at approximately 15 years of age. He estimated that he would drink approximately once a fortnight but considered this as a social use. He reported drinking four cans of pre-mixed spirit drinks (approximately six standard drinks) in one drinking session. On the night of the offence, he reported that he had consumed one can of pre-mixed Bourbon and Coke. Although he did not report any incidences of vomiting or alcohol poisoning, according to the National Health and Medical Research Council (NHMRC), this level of alcohol consumption constitutes binge alcohol use for which psychosocial harms could occur. 55 PB does have a criminal record as indicated by Exhibit C. He was sentenced to a 12 month good behaviour bond without supervision on 5 May 2009 after pleading guilty to the offence of assault occasioning actual bodily harm in the company of others. He was 15 years of age at the time of that offence. 56 The Juvenile Justice Report records that his parents' marriage broke down when he was approximately one year old. PB's mother cited domestic violence, coupled with illicit drug and alcohol use, as being the factors that contributed to their separation. Although PB maintained contact with his biological father in his childhood, they grew estranged during his adolescence. When PB was two years old, his mother began a new relationship. Their recent separation upset PB, but he reported a positive and supportive relationship with both his mother and step-father. In Ms Player's opinion, the marriage breakdown, and any violence and substance abuse, may have impacted on his early attachment style and emotional development. However, a supportive stable family context since the age of two has acted as a buffer to the potential psychological harm of the former abusive relationship. 57 The majority of PB's friendships were formed at high school and through his involvement in football. He reported that he was involved in an intermittent relationship with a peer-aged female over the year prior to his arrest and for six months after imprisonment. PB was a keen footballer and was a member of a local rugby league club for the last 13 years. He has played rugby league for his former school and the district, as well as representing NSW in touch football. 58 Upon completion of his school certificate, PB intended to begin an apprenticeship in either air-conditioning and refrigeration mechanics or concreting. During High School, PB worked part-time at McDonalds and Pizza Hut, and was paid for refereeing touch football matches. Whilst in custody, PB has engaged in several courses, including an Alcohol and Other Drugs Program, a Changing Program and a General Education Program. Currently, he is enrolled in a course in Hospitality. According to the staff at Girrakool School, he is a mature, independent worker who enjoys and participates in his schooling.

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(8) Risk of re-offending and prospects of rehabilitation 59 On the subject of recidivism, Mr Champion identified a number of risk factors relevant to DGP by using an instrument which he described (Assessing Risk for Violence). Those risk factors identified as being present in DGP include his youth at the time of first violent incident and substance abuse problems. Mr Champion also specified a further risk factor for which the evidence was equivocal, considering DGP has no criminal antecedents, in particular, no history of violent offences. Mr Champion noted there was a potential history of "early maladjustment" given the offence for which he was charged and his suspensions. There were, however no other indicators for such a condition. 60 On the whole, in Mr Champion's opinion, the risk of further major violence is limited. This opinion was based upon DGP not abusing alcohol or associating with peers or subcultures that engage in violent behaviour. 61 Both Mr Champion and the authors of the Juvenile Justice Report recognise that given the appropriate education and counselling, DGP has good prospects for rehabilitation. Whilst in custody, both recommend he receive remedial education, vocational training and substance abuse counselling. DGP has already participated in counselling as part of the Violent Offenders' Programme. 62 According to the authors of the Juvenile Justice Report, PB presented with a number of "positive protective factors". These included a supportive family environment, positive recreational and sporting interests and clear goals for the future. He did not identify with any attitudes endorsing violent behaviour or specify any exposure to violence during his childhood. Whilst in custody, as stated earlier, he has participated in educational courses and counselling. Given his positive response and commitment to counselling, in the opinion of the Juvenile Justice Report authors, continued intervention would be to his benefit. His level of remorse and commitment to ongoing treatment and support indicated that the likelihood of recidivism was low. 63 Similarly, Ms Player stated in her report that overall PB reveals good levels of psychosocial functioning. He did not present with drug, alcohol or gambling problems, endorse anti-social attitudes, demonstrate mental health difficulties or impulse control or anger management problems. She did note that his alcohol consumption patterns should be monitored to ensure binge drinking does not occur. Consistently with the Juvenile Justice Report, Ms Player identified a number of protective factors which reduce the risk of recidivism. In summary, she assessed his recidivism risk as low. (9) Evidence of remorse and contrition by DGP and PB 64 The agreed statement of facts records that shortly after the incident, DGP admitted what he had done and expressed remorse to a number of people. When asked by Ms Moran what had happened, DGP began to cry and said, "I was only sticking up for a mate. I only punched him once and kicked him". When questioned by police, DGP made admissions as to his involvement in the assault, including his particular actions. 65 Mr Champion noted that DGP has expressed considerable regret for having committed the offence, on the basis of the loss of life and impact on the deceased's family. This is consistent with the views expressed in the Juvenile Justice Report. 66 DGP gave evidence at the hearing on sentence in which he stated that he felt "deeply sorry for what I've done" and accepted responsibility for the loss he has caused to the deceased and his family. 67 PB expressed genuine guilt and contrition for his involvement in the offence to the authors of the Juvenile Justice Report and to Michelle Player, psychologist, and in an open letter to the Court (Exhibit 6). At no time did he minimise his responsibility for his actions. He said to Ms Player, "no one deserves to get their life taken away from them, I think about it every day". Although he had written a letter to the deceased's family apologising for his role in the attack, he advised Ms Player that he hoped that one day he could express his remorse to them in person. His evidence at the hearing on sentence demonstrated remorse and he said "I realise I've played a role that took Chris' life and it's going to eat away at me the whole rest of my life and so it should. I'm really sorry".

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73 It is, as the Chief Justice has observed, important to bear in mind the denunciatory role of sentencing for the offence of manslaughter: Regina v MacDonald (unreported, NSWCCA, 12 December 1995). The offence involves the felonious taking of human life, and whatever form it takes, it has always been recognised by the law as a most serious crime. The protection of human life is a primary objective of the system of criminal justice, which is reflected in the community's expectations of that system. (11) Manslaughter by unlawful and dangerous act 74 It is common ground that the pleas of guilty of the two offenders to manslaughter were entered on the basis of the commission of an unlawful and dangerous act, being the severe assaults upon Mr Leicester. 75 Manslaughter by unlawful and dangerous act, involving an appreciable risk of injury, is a category of involuntary manslaughter. Involuntary manslaughter, unlike murder, does not require proof of intent to cause death or grievous bodily harm to the victim, nor the other mental elements necessary for murder: The Queen v Lavender (2005) 222 CLR 67 at 70. 76 The physical element is the unlawful and dangerous act which causes death. The mental element concerns that act, in that the act must be willed and not an accidental one: Wilson v The Queen (1991-92) 174 CLR 313 at 328. The only relevant intent is that required to do the act, and that the act inadvertently caused death: Lavender (supra) at 82-83. To be found guilty of manslaughter by unlawful and dangerous act, the circumstances must be such that a reasonable person in the position of the accused would have realised that he or she was exposing another or others to an appreciable risk of serious injury: Wilson (supra) at 332-4; Regina v KT [2007] NSWSC 83 (Johnson J). 77 It has been said that there is no hierarchy of seriousness between voluntary and involuntary manslaughter. Spigelman CJ said as much in Regina v Hoerler [2004] NSWCCA 183 at [29]:- "Even a case where there is present an intention to kill or maim, which would constitute murder but which is reduced, by reason of provocation or diminished responsibility, to a charge of manslaughter, will not necessarily attract a higher sentence than other forms of manslaughter, including the relevant one here, ie, killing by an unlawful and dangerous act. As a five judge bench of this Court, including Gleeson CJ, Mason P, Hunt CJ at CL, Simpson and Hidden JJ, said in R v Issacs (1997) 90 A Crim R 587 at 595:- 'The argument for the appellant advanced on this appeal appeared to assume that a case of provocation manslaughter is necessarily, or at least ordinarily, worse that [sic] a case of manslaughter by unlawful and dangerous act. We do not accept that. Each case depends upon its own circumstances. The range of sentencing available in the case of manslaughter is notoriously wide. There have been cases where provocation manslaughter has resulted in non-custodial sentence."

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81 The death of Mr Leicester was a tragedy for him and his family. The victim impact statements, each of which was read in Court, poignantly conveyed the impact that Mr Leicester's death has had upon his mother, father and sister. Those statements are to be received upon the basis of accepted principles. A sentencing judge's approach to victim impact statements (from the family of a deceased victim) can only be accepted within the confines laid down by Regina v Previtera (1997) 94 A Crim R 96); Regina v Bollen (1998) 99 A Crim R 510 at 529-530; Regina v Tzanis [2005] NSWCCA 274 at [15]-[18] and Whybrow v Regina [2008] NSWCCA 270 at [17]. 82 One of the purposes of reading victim impact statements publicly at the sentencing hearing is to reinforce to the offenders, and to others who might act in a similar way, the devastating consequences of their actions. In this case, the conduct of the offenders pursuant to their joint criminal enterprise involved senseless violence of a high order committed upon a stranger in a public place. The effects of that conduct extend beyond the death of Mr Leicester. The profound consequences for the family of Mr Leicester should be made clear to the offenders and to the community at large. 83 Victim impact statements are received and considered for the purposes of s.28 of the Crimes (Sentencing Procedure) Act. Section 28(3) provides that a Court must receive a victim impact statement given by a family member and acknowledge its receipt, and may make any comment on it that the Court considers appropriate. 84 It was observed by the Court of Criminal Appeal (Johnson J in Regina v SBF [2009] NSWCCA 231 at [88]) "… There is no requirement for victim impact statements to be referred to in some shorthand way …". 85 In the present case, the impact statements made by Mr Leicester's mother, father and sister each recorded clearly and poignantly the devastating consequences that the death of their son and brother has had upon each of them as a result of the offence committed by the offenders. One of the purposes for which a Court may impose a sentence on an offender I note is "to recognise the harm done to the victim of the crime and the community": s.3A(g) of the Crimes (Sentencing Procedure) Act. 86 I am, as I have earlier stated, conscious of the limitations upon the use of the victim impact statements, in particular, those limitations flowing from the Privitera principle governing the use of such material. 87 However, it is not inappropriate to observe that the impact of crimes of homicide in cases such as the present, as revealed by the victim impact statements, remind both judges who are dealing with such cases on a not infrequent basis and the community of the appalling and devastating loss and distress that results from violent crimes, in particular, those senseless crimes of random violence involving innocent citizens.

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(14) Sentencing offenders involved in a joint criminal enterprise 88 A joint criminal enterprise exists when two or more persons reach an understanding or arrangement amounting to an agreement between them that they will commit a crime: McAuliffe v The Queen (1995) 183 CLR 108 at 114. The understanding or arrangement need not be express and may be inferred from all the circumstances. It need not have been reached at any time before the crime is committed. The circumstances may themselves establish an unspoken understanding or arrangement amounting to an agreement formed between them then and there to commit that crime: Regina v Tangye (1997) 92 A Crim R 545 at 556. 89 If one or other of the parties to the understanding or arrangement does, or they do between them, in accordance with the continuing understanding or arrangement, all those things which are necessary to constitute the crime, they are all equally guilty of the crime regardless of the part played by each in its commission. 90 A person participates in a joint criminal enterprise either by committing the agreed crime itself or simply by being present at the time when the crime is committed, and (with knowledge that the crime is to be or is being committed) by intentionally assisting or encouraging another participant in the joint criminal enterprise to commit that crime: Tangye (supra) at 557. The presence of that person at the time when the crime is committed and a readiness to give aid if required is sufficient to amount to an encouragement to the other participant in the joint criminal enterprise to commit the crime. 91 Despite each party to a joint criminal enterprise being equally liable, it will often not be appropriate to give each party the same sentence. As Gibbs CJ explained in Lowe v The Queen (1984) 154 CLR 606 at 609:- "It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence, have to be taken into account ." 92 To such end, the role each offender plays in an offence of manslaughter is crucial to assessing their respective culpability: Lowe (supra) at 609; Regina v Howard (1992) 29 NSWLR 242; Carruthers v Regina [2007] NSWCCA 276. The examination of the facts extends to the level of participation in the physical acts that caused death: Regina v Mamae [2001] NSWSC 936; Howard (supra); Regina v Tan [2007] NSWSC 684; Carruthers (supra). 93 Where an offender pleads guilty, any facts beyond the ingredients of the offence must be either proved by evidence or established formally in an agreed statement of facts: Gas v The Queen (2004) 217 CLR 198 at [30]. As I have stated earlier, I am bound by the facts set out in the agreed statement of facts in respect of each offender's participation in the offence. (15) Sentencing juvenile offenders 94 Section 6 of the Children (Criminal Proceedings) Act provides legislative guidelines in the exercise of criminal jurisdiction with respect to children:- " A court, in exercising criminal jurisdiction with respect to children, shall have regard to the following principles: (a) that children have rights and freedoms before the law equal to those enjoyed by adults and, in particular, a right to be heard, and a right to participate, in the processes that lead to decisions that affect them, (b) that children who commit offences bear responsibility for their actions but, because of their state of dependency and immaturity, require guidance and assistance, (c) that it is desirable, wherever possible, to allow the education or employment of a child to proceed without interruption, (d) that it is desirable, wherever possible, to allow a child to reside in his or her own home, (e) that the penalty imposed on a child for an offence should be no greater than that imposed on an adult who commits an offence of the same kind."

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100 Although the findings of Dr Botterill establish that the cause of death was blunt force head injury, they do not indicate with precision which blow was the primary cause of death. Consistent with Dr Botterill's findings, one of the blows delivered by DGP could have caused the death of Mr Leicester. It is also possible that a kick delivered by CW to the head could have been the primary cause of death. In short, both DGP and CW must be sentenced upon the basis that one or other of them inflicted the fatal wound but it is not possible to say which one of them did so. They both, however, are to be sentenced upon the basis that they meted out a high level of violence pursuant to the joint criminal enterprise. 101 Crimes of violence committed by young offenders have been the subject of particular attention by the Court of Criminal Appeal and by single judges of this Court in recent times. 102 Whether or not there has been an acceleration in the incidents of unprovoked violent crimes by young male offenders (and there is some evidence to suggest that it has), young offenders who do engage in crimes of violence that culminate in the death of an innocent victim, may expect sentencing courts to impose substantial sentences that adequately reflect the need for general deterrence in the community. 103 In KT (supra), McClellan CJ at CL at [25] observed:- "The emphasis given to rehabilitation rather than general deterrence and retribution when sentencing young offenders, may be moderated when the young person has conducted him or herself in the way an adult might conduct him or herself and has committed a crime of violence or considerable gravity ... In determining whether a young offender has engaged in 'adult behaviour' …, 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 … 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." 104 In KT (supra), the sentencing judge (Johnson J) (the appeal against sentence was dismissed by majority) observed (at 118):- "In my view, the factors of punishment and deterrence are significant factors on sentence on this case. General deterrence is an important factor in this case. Young persons must be made aware that vulnerability of human beings require restraint by others and a rejection of unprovoked violent assaults … This was an objectively serious offence committed by a young man living in an adult world. Although the provisions of s.6 Children (Criminal Proceedings) Act 1987 and sentencing principles with respect to young offenders remain relevant, it is appropriate in this case to reflect on the sentence the elements of punishment and deterrence which must not be subsidiary to the rehabilitation of the offender." 105 The present case is another instance of an innocent citizen being set upon in a public place, in entirely unprovoked circumstances, and subjected to serious assault involving explosive violence by young males acting together in a joint criminal enterprise. 106 In cases such as this, there is a need in sentencing for there to be a proper accounting for all relevant factors and a sentence that reflects them. General deterrence is one such factor. General deterrence, it has long been recognised in sentencing law, sends a message out to the community that those engaging in conduct of the kind involved in the present case, being criminal conduct that produces fatal consequences, can expect such offending to be addressed by substantial terms of imprisonment. 107 In KT (supra), McClellan CJ at CL observed (at [41]):- "… there is considerable force in the view that, notwithstanding the youth of the offenders, the decisions of the courts for this type of offence have provided a range of penalty which fails to adequately reflect the need for general deterrence and retribution. The recent experience of this Court indicates that the range of penalties imposed on young offenders who commit random acts of violence resulting in death may not have been sufficient to deter others from similar irresponsible criminal behaviour. In my opinion although the circumstances of an individual offence and offender must always be considered, this Court should in future accept that more significant penalties may be required when sentencing offenders for this type of offence."

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(17) Alcohol 108 It is important to recognise the role which alcohol played in the commission of this offence, in particular, in relation to DGP. DGP indicated to Mr Champion that he began drinking on the evening at about 7.00 pm on the night of the offence, and over a period of four hours, consumed approximately 12 to 16 standard drinks. This would suggest that DGP was significantly intoxicated at the time of the offence. 109 Mr Champion explained in his report the effects which intoxication can have on judgment and control, particularly in young men in their reaction and tendency to aggression. In DGP's case, his level of intoxication could have lessened his inhibitions, impaired his judgment and made him more likely to act aggressively when faced with a confrontation situation. How are the effects of alcohol to be evaluated in sentencing in the present case? 110 Clearly, heavy consumption of alcohol affected DGP, it being remembered that he was 16 years old at the time. Intoxication by alcohol will not be considered as a mitigating factor where it was not out of character for the offender to become intoxicated: Regina v Fletcher-Jones (1994) 75 A Crim R 381. In this case, it was not out of character for the offender, DGP, to become intoxicated and he knew what effect alcohol could have on him. Furthermore, he chose to drink excessively. In those circumstances, as was the case in Fletcher-Jones (supra), if anything, the voluntary ingestion of alcohol was an aggravating factor rather than a mitigating factor. 111 In my view, punishment and deterrence are significant factors on sentence in this case. General deterrence has been held to have particular relevance in cases involving unprovoked violence and aggression. As I have previously stated, young people, males in particular, frequently commit offences of this type. 112 In my opinion, this is a case where the need for general deterrence is imperative. It was said in Regina v Mitchell (2007) 177 A Crim R 94 at [29] that:- " Violence on the streets especially by young men in company and under the influence of alcohol or drugs is all too common and needs to be addressed by sentences that carry a very significant degree of general deterrence ". 113 It is an unfortunate and a disturbing fact that this Court often encounters cases in which there is a clear association between the excessive consumption of alcohol and very serious crimes of violence. The ready availability of alcohol in our community, even by persons who are under the age of 16, as in this case of the offender DGP, may, at least partly, explain that association. In this case, in his very detailed report, Mr Champion, a very experienced clinical psychologist who specialises in forensic assessments, wrote:- "Unfortunately the abuse of alcohol amongst teenagers in large groups is a fairly common phenomenon in various parts of Sydney, and certainly in the 'Shire' area … there is in my experience (from cases in which I have been involved) something of a problematic drinking culture, where violence and aggression is a not uncommon outcome. Having said this [DGP] indicated that it had not been his habit to drink and to 'look for trouble' as it were." 114 In such cases, general deterrence may be a significant matter in sentencing and, where appropriate, is to be regarded as a relevant and an important factor in determining the sentence to be imposed. I do not consider that the elements of punishment and deterrence are subsidiary to the rehabilitation of the offenders in this case.

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