(4) He has demonstrated remorse.
54 The shooting of Mr Emmerson was a tragedy for him, his family and for his girlfriend. The victim impact statements, each of which was read in Court, poignantly conveyed the impact that Mr Emmerson's death has had in those respects. Those statements are to be received upon the basis of the principles that are well recognised: Regina v Previtera (1997) 94 A Crim R 76; Regina v Dang [1999] NSWCCA 42. I am required by law to take account of a number of matters in determining the objective gravity of the offence committed by the offender and the other matters to which I have referred.
55 The offender's individual circumstances are to be considered. He being 16 years at the time of the offence, I am required as a matter of law to have regard to the offender's youth, immaturity and limited experience, in particular, that he was not shown to have had experience with guns. By reason of those matters, it would be clearly wrong to consider him as an offender who was in the same position as an adult offender. The offender is not, by reason of his age and immaturity, to be treated for sentencing purposes as one who has no respect for the law, as would be the case with an offender who has a substantial criminal record. He is, apart from a single instance, an offender without a relevant criminal history. All such matters must be taken into account in undertaking the balancing of relevant factors.
56 In determining sentence in this matter, I have regard, firstly, to the statutory maximum penalty for manslaughter which is imprisonment for 25 years and, secondly, that manslaughter is a crime the incidents of which vary so markedly from case to case such that the range of a sound sentencing discretion is in the nature of things very wide.
57 In relation to the category of manslaughter cases to which the present case belongs, manslaughter by criminal negligence, experienced senior counsel for the Crown drew my attention to the sentences imposed in two cases, namely, Regina v Luong [2000] NSWSC 505 and Regina v Do [2001] NSWCCA 19. Mr Stratton also referred to these cases but submitted that the circumstances of each were more serious than those of the present case.
58 In Do (supra), the appellant was sentenced to penal servitude for three years to be served by way of periodic detention with a minimum term of 18 months and an additional term of 18 months.
59 The appeal was against conviction and the Court of Criminal Appeal was not called upon to determine any matter in relation to sentence. The appellant discharged a shotgun and, as a consequence, a person who was in the house with him was fatally wounded. The case proceeded upon the basis that the appellant had been "mucking around" with the shotgun. He had told police that he believed that, before placing a bullet in the gun and pulling the trigger, he had put the safety slide or switch in the on position. The appellant was held to be clearly enough aware of the danger of pointing a loaded weapon at someone and, although he was not particularly familiar with the shotgun, knew of the operation of the safety slide or switch. He had loaded the shotgun and moved the safety switch to the off position as he tried to scare the victim and squeezed the trigger several times. The evidence indicated that there was a possibility of the safety catch moving. If the appellant did not take proper care to ensure that the shotgun did not discharge, the risk was extreme.
60 In Luong (supra), a juvenile offender was sentenced following a trial. He was a high school student at the end of Year 10 at the time of the offence. He had hosted a family party for a number of friends. He owned a sawn-off rifle and one round of live ammunition. The gun and the ammunition were normally concealed in his study desk.
61 In that case, the victim entered the room and asked whether it was a real weapon. The offender removed the magazine from the weapon, cocked it and pulled the trigger. In fact, there was then loaded a round of live ammunition. The weapon discharged and struck the deceased who was about a metre away, wounding her fatally.
62 The Court in that case considered all relevant matters, in particular, objective and subjective factors, and sentenced the offender to imprisonment for four years with a non-parole period of two years.
63 Senior counsel for the Crown drew attention to certain remarks made by Sully J in that case as being applicable to the circumstances of this case. It was submitted that the sentence imposed in that case would be of assistance in the present case.
64 Sentences imposed in other cases may operate as a general reference point in sentencing but they can be no more than that. Although those cases bear a similarity to the present case, there are, of course, differences. Nonetheless, I consider the sentence imposed in Luong (supra) to be of assistance. I have earlier referred to the evidence which, in my opinion, establishes beyond reasonable doubt and consistently with the jury's verdict, that the offender, upon receiving the gun, opened it and either removed and replaced the bullet in the gun or saw the cartridge in the gun and then closed it, cocked it and pointed it towards Mr Emmerson. Those actions clearly constituted an objectively serious level of culpability in terms of criminal negligence.
65 Before stating the sentence to be imposed, it is necessary to record my conclusion that this is a case in which a finding of special circumstances should be made in terms of s.44(2) of the Crimes (Sentencing Procedure) Act. I make such a finding having regard to his youth, his good prospects of rehabilitation together with the fact that the sentence to be imposed will be his first prison sentence. These circumstances separately and together justify, in my opinion, a variation of the statutory ratio between the non-parole period and the parole period.
66 I consider, in all the circumstances, that the appropriate sentence to be imposed in this case is a sentence of imprisonment for four years with a non-parole period of two years.
67 The offender has been in custody solely in relation to the present matter since the date of his arrest, 27 March 2008. Accordingly, the sentence to be imposed will be backdated to 27 March 2008.
68 The offender is, accordingly, sentenced to a non-parole period of two years to commence on 27 March 2008 and to expire on 26 March 2010 and to a parole period of two years to commence on 27 March 2010 and to expire on 26 March 2012.
69 Accordingly, the first date upon which the offender will be eligible for parole will be 26 March 2010.
70 I make an order pursuant to s.19(1) of the Children (Criminal Proceedings) Act 1987 directing that the whole of the term of sentence of imprisonment be served as a juvenile offender.
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