Sentence Determination for Manslaughter in NSW Supreme Court

The court sentenced the defendant to 9 years imprisonment for manslaughter, considering factors such as the defendant's intoxication, lack of prior violent history, and the need for general deterrence.

Supreme Court New South Wales

Medium Neutral Citation: R v [NAME] [2015] NSWSC 746 Hearing dates: 5 June 2015 Decision date: 12 June 2015 Jurisdiction: Common Law - Criminal Before: Hall J Decision: [NAME] is sentenced to a non-parole period of imprisonment of 6 years and 9 months to commence on 3 November 2013 and to expire on 2 August 2020.

There will be a parole period of 2 years and 3 months to commence on 3 August 2020 and to expire on 2 November 2022. Catchwords: CRIMINAL LAW – Sentence – Manslaughter – Early plea of guilty – [NAME] under the influence of alcohol – [NAME] punched the [NAME] – [NAME] died from head injuries suffered – [NAME] was not known to [NAME] was unprovoked – Offence of assault on Form 1 taken into account – Discount of 25% allowed for guilty plea – Offence at least mid-range of objective seriousness – [NAME] had no history of violence – [NAME] showed remorse – No special circumstances – No variation to standard non-parole period warranted – Consideration of R v [NAME] [2014] NSWCCA 120 – Need for general deterrence in cases of this type – Sentenced to 9 years imprisonment – 6 years and 3 months non-parole period Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Cases Cited: Attorney General's Application No 1 of 2002 (2002) 56 NSWLR 146 Attorney-General under s 36 Criminal Justice Act 1988 [2005] EWCA Crim 812 Donaczy v R [2010] NSWCCA 143 Hopley v R [2008] NSWCCA 105 R v Dyer [2014] NSWSC 1809 R v Field [2014] NSWSC 1797 R v [NAME] (No 3) [2015] NSWSC 118 R v Lavender [2005] HCA 37; 222 CLR 67 R v [NAME] [2014] NSWCCA 120 R v Matthews [2015] NSWSC 49 Regina v Dodd (1991) 57 A Crim R 349 Regina v Hoerler [2004] NSWCCA 184 Regina v KT [2007] NSWSC 83 Wilson v The Queen (1992) 174 CLR 313 Category: Sentence Parties: Regina (Crown) [NAME] ([NAME]) Representation: Counsel: [redacted] [NAME] ([NAME])

Solicitors: [redacted] File Number(s): 2013/331450

REMARKS ON SENTENCE 1. On 26 September 2014, [NAME] was charged on indictment that on 3 November 2013 at Sydney in the State of New South Wales he did murder [NAME].

2. The proceedings were listed for trial commencing on 9 March 2015. On that date there was a voir dire hearing, following which the Crown elected not to proceed on the indictment.

3.

Accordingly, [NAME] was charged on indictment on 9 March 2015 that he on 3 November 2013 at Sydney in the State of New South Wales did unlawfully kill [NAME].

4. On that date, [NAME] entered a plea of guilty to the offence of manslaughter. The proceedings were then stood over for a sentence hearing on 5 June 2015.

Background 1. The relevant facts on sentence were set out in a document entitled "Crown Facts on Sentence" which was tendered and marked as Exhibit A. The facts as set out in that exhibit were agreed.

2. The facts based thereon may be shortly stated. On the evening of Saturday, 2 November 2013, [NAME] then 33 years of age, attended a buck's party for a cousin. [NAME] met his cousin and friends at a hotel at 7pm. The group drank alcohol whilst they waited for everyone to arrive.

3. By 9.30pm on the same night, [NAME], his cousin and friends were in the penthouse at [NAME] in [ADDRESS], Sydney, that had been booked for the buck's party. Food and alcoholic drinks were served.

4. At about 2:25am on Sunday, 3 November 2013, CCTV footage records [NAME] leaving the Meriton penthouse with five other males.

5. The material events thereafter were recorded by CCTV cameras. The relevant CCTV footage was tendered and became Exhibit "B" in the sentencing proceedings.

6. At about 2:37am the same night, CCTV footage from the [COMPANY] records [NAME] approaching a security guard outside the entrance of the [COMPANY] with his group behind him. They were refused entry and CCTV footage records [NAME] and the three males walking away.

7. Between 2:42am and 2:59am, CCTV footage records the movements of [NAME] and his friends during which period they entered various hotels and continued drinking beer.

8. At 2:54am the CCTV footage from [COMPANY] records the [NAME], and their friends, walking past and stopping outside a kebab and pizza shop in [ADDRESS], near [NAME], Sydney. The [NAME]'s friends ordered food from the pizza shop.

9. At about 2:55am, [NAME] and his group left a hotel and walked towards [COMPANY].

10. At 2:59am, CCTV footage from [NAME]'s records [NAME] and his group speaking to the security guards outside that hotel.

11. The security guard refused them entry. The group then walked away.

12. At about 3:02:20am, CCTV footage from [COMPANY] records [NAME] and his group walking past the [NAME] and [NAME]. As they did so [NAME] and one of his friends looked back towards [COMPANY].

13. A witness who was working inside a kebab and pizza store saw [NAME] yelling back towards [NAME]'s as he walked. [NAME] yelled something like "fucking dogs" and was swearing in that direction. [NAME] then turned and continued walking in the direction of [NAME].

14. After he and his group walked past the [NAME] and [NAME] turned around at 3:02:26am and walked with apparent purpose back to [NAME].

15. A witness told police that he saw [NAME] walk back towards a male and yell "What the fuck did you just say?". He was directing those words to [NAME]. [NAME] had his hands in his pocket or by his side and the witness said "He didn't look prepared for a fight." 16. [NAME] then using his right hand struck [NAME] forcibly to the chin at 3:02:29am without warning. This caused [NAME] to stumble backwards and fall to the ground. [NAME] was visibly affected by the assault, though it caused no serious or lasting injury. 17. [NAME], who was standing next to [NAME], stepped in and used his right hand to punch [NAME] once to the left‑hand side of his face or head, just before [NAME] fell to the ground. That blow caused [NAME] to take a couple of backward steps. 18. [NAME] then took a step towards [NAME] and kicked towards him with his right foot. [NAME] blocked the kick with both his hands and took a backward step. At this time [NAME] was trying to get off the ground. 19. [NAME] threw a punch at [NAME] with his right arm at 3:02:32am that narrowly missed him. [NAME] stumbled backwards a couple of steps before regaining his balance. [NAME] moved towards him with his left arm extended towards [NAME] and threw a forceful punch at him with his right arm at 3:02:34am that connected with the front of [NAME]' head. This immediately caused him to fall backwards onto the ground, without stumbling. [NAME] did not move after falling to the ground. Witnesses heard a large crack and breaking noise. 20. [NAME] and his group left and crossed [NAME] and walked back towards the [NAME] in [ADDRESS].

21. At about 4:11am the CCTV footage records [NAME] leaving the Meriton penthouse with another. He was then identified to police by a friend of the [NAME].

22. At 4:16am on the same morning police arrested [NAME]. He was cautioned and taken to the [ADDRESS] Station. He participated in an electronically recorded interview.

Injuries to the [NAME]

1. At about 9:23am on Tuesday, 5 November 2013, life was pronounced to be extinct after doctors determined that the [NAME] had no brain activity.

2. The autopsy report completed by [NAME] indicates that the cause of death was blunt force head injury. 3. [NAME] identified the following: "a. severe blunt head injury comprising of brain swelling, bilateral subarachnoid haemorrhage, bilateral subdural haemorrhage, extensive bilateral cortical contusions/lacerations with parenchymal extension, and recent infarction; b. extensive fragmentation of the brain; c. most parts of the right brain hemisphere were herniating through a large craniectomy; d. numerous mostly smaller base of the skull fractures; e. blunt injuries (bruising and laceration) of the lips and the inner lining of the mouth on the left side, however no teeth or tongue injuries were noted and no maxillary fractures were identified."

Overview 1. On the evidence contained in the Agreed Facts, Exhibit A, it is plain that [NAME] was affected by alcohol and additionally was in an angry state of mind or disposition at the time of the assaults upon the [NAME] and his friend, [NAME]. His intoxicated state provides at least a partial explanation for his behaviour but in no way provides either justification or mitigation of the objective seriousness of the offence or the culpability of [NAME]. 2. [NAME] had been drinking alcohol on the night from some time after 7pm and continued thereafter having visited hotels until a time not long before the attack upon [NAME].

3. On the facts it is clear that at about 2:59am when the security guards at [COMPANY] turned [NAME] and his group away, [NAME] became angry and abusive, shouting insults at the security guards.

4. As he proceeded to walk past the place where the [NAME] and [NAME] were standing, the evidence is that [NAME] heard a comment which he attributed to [NAME]. Whatever the precise comment made by [NAME] or possibly somebody else may have been, [NAME] took exception to it and his already existing state of anger escalated from that point and led him to deliver a severe punch or hit to [NAME]'s head causing him to fall to the ground. 5. [NAME]' reaction in hitting out at [NAME] was clearly precipitated by [NAME]'s assault on his friend with the [NAME] intervening to prevent any further attack being launched by [NAME].

6. The CCTV footage establishes clearly enough that these events moved at a very fast pace. [NAME] by this time was plainly intent on escalating the violent incident provoked by his own actions towards [NAME]. The CCTV footage shows [NAME] delivering a ferocious punch to the [NAME]'s head. The enormous force of that punch was sufficient to cause him to fall backwards and striking his head without breaking his fall.

Subjective Factors 1. [NAME] is presently 35 years of age. He was born in 1980 and was therefore 33 years of age at the date of the offence. A considerable amount of material concerning [NAME]'s family background, his employment and personal life is the subject, firstly, of a report prepared by [NAME], Forensic Psychologist, and a number of testimonials provided by family members and friends. 2. [NAME] interviewed [NAME] at Long Bay Gaol on 14 May 2015 and subsequently produced her report of 28 May 2015 which was tendered at the sentence hearing. 3. [NAME]'s report contains a detailed history of [NAME]'s background, education, employment, relationship history and results of test assessments carried out by her in respect of his intelligence and personality. The history obtained by [NAME], confirmed in various aspects by certain of the testimonials that have also been tendered in evidence, state that [NAME] at the age of 18 entered into a traineeship as a security technician and thereafter was employed by a number of companies in relation to work involving the installation of security equipment and related matters. He was employed by a company in that field at the time of the offence. [NAME], General Manager of the company for whom [NAME] was then working, wrote favourably as to [NAME]'s personal qualities and his work performance and indicated that he is willing to explore future employment opportunities for him. 4. [NAME] noted that there was no known or family history of mental health issues and that [NAME] has never been treated for depression or anxiety. The only prior matter noted on his criminal record was mid-range PCA offence dating offence from June 2010. 5. [NAME] noted that [NAME] has completed a SMART program whilst in custody. The history obtained by [NAME] is consistent with heavy drinking of alcohol on weekends and limited use of stimulant drugs (cocaine) for about 12 months leading up to [NAME]'s arrest and imprisonment. 6. [NAME]'s account of the circumstances leading up to and surrounding the offence is inconsistent in certain respects with other evidence. He told [NAME] that he "palmed" [NAME] in the face. He claimed that he was angry about being refused entry to licenced premises immediately before the incident. He admitted to [NAME] that he had been offended by a comment that came from what is described as "the victim's group" and told her that his response was "just an impulsive action."

7. On assessment, [NAME] stated that [NAME] scored on intelligence testing a level which placed him toward the middle of the average range.

8. On clinical personality testing, there were no elevated scores on the severe personality pathology scales such as to suggest a diagnosis of personality disorder.

9. The results of testing carried out by [NAME] indicate that there has been a psychological dependence and compulsive use of alcohol by [NAME]. She considered that his attitude to drugs and alcohol has changed since being charged with the current offence and he stated to her that he believes that his position since then will precipitate a change in his behaviour post-release. [NAME] expressed the opinion that his post-release prognosis seems positive.

10. She noted that he had ongoing support from his immediate family and network of pro-social friends.

11. The testimonials which have been tendered include those from his mother, [NAME] and [NAME]. The testimonials provide a consistent account of a person who has maintained a work ethic and has been a trustworthy person with positive characteristics.

12. A number of testimonials have been tendered on behalf of [NAME], each of which I have carefully read and taken into account.

Submissions for [NAME] 1. [NAME] of counsel who appeared on behalf of [NAME], relied upon written submissions dated 4 June 2015 supplemented at the sentence hearing. In the written submissions [NAME] incorporated a table setting out the sequence of events as captured on CCTV footage commencing at 3:02:19 through to 3:02:35.

2. As noted in the submissions, [NAME] and [NAME] had not known each other prior to the incident and there had been no interaction between them earlier in the night. He submitted that [NAME] exhibited some interest in [NAME] and watched him as he went past and appeared to call something out to him.

3. The written submissions then describe the actions of [NAME] although it was emphasised that there was no attempt made to blame him for his own death. However, his actions were relied upon in order to gauge the objective seriousness of the case.

4. It was conceded that the [NAME]'s actions on the night were undoubtedly motivated by a desire to defend his friend [NAME], however it was submitted that the Court could not find that [NAME] had an intention to further assault the [NAME]. A blow was struck to [NAME] and almost immediately thereafter it was said that the [NAME] struck [NAME]. It was submitted that [NAME] had struck [NAME] with a very forceful blow which knocked him backwards.

5. The CCTV footage indicated that, before that blow, [NAME] had not been paying any attention to the [NAME] and was not intending to fight him.

6. It was submitted that from 3:02:29 onwards [NAME] had carried out at least two offensive acts towards [NAME] before [NAME] retaliated. 7. [NAME] then threw two punches at him, the first of which did not appear to connect.

8. It was emphasised that the entire incident between [NAME] and [NAME] took place within five seconds and no words were exchanged between them prior to [NAME] being struck. There was no evidence of any hostility between them before 3:02:29 and [NAME] had not attempted to strike the [NAME] before that time.

9. Whilst it was submitted that the Court could not conclude that [NAME] had an intention to cause [NAME] grievous bodily harm, a reasonable person, in the position of [NAME], would have realised that he was exposing the [NAME] to an appreciable risk of serious or substantial injury when he struck the fatal blow: Wilson v The Queen (1992) 174 CLR 313.

10. It was submitted that the Court would find that [NAME] committed the offence of manslaughter by reason of an unlawful and dangerous act, namely engaging in a fight with the [NAME].

11. It was again emphasised that whilst [NAME] started the physical altercations by striking [NAME], he was not paying any attention at all to [NAME].

12. It was submitted that death was most likely occasioned by a combination of the blow from [NAME] and the [NAME]'s head hitting the pavement at a time when he had been rendered unconscious by the earlier punch.

13. Apart from the prior offence of driving under the influence, it was submitted that the applicant should be taken as a person with a prior good record for the purposes of sentencing. It was further submitted that there was no evidence to suppose that [NAME] had a propensity to violence, or an inability to control himself, nor anything in his history to suggest that specific deterrence ought play a prominent role in the sentencing exercise.

14. It was accepted by [NAME] that on his own admission [NAME] had ingested a large amount of alcohol on the night. Reference was appropriately made to the observations by the Court of Criminal Appeal in R v [NAME] [2014] NSWCCA 120 concerning the problem of "alcohol fuelled violence".

15. It was submitted that it was highly unlikely that [NAME] is a risk of re-offending and that he had an excellent work ethic and was likely to obtain employment on release. It was submitted that his prospects for rehabilitation were very good.

16. It was submitted that none of the aggravating features in s 21A of the Crimes (Sentencing Procedure) Act 1999 apply.

17. Submissions were made as to the appropriate sentence with specific reliance on a number of other cases, in particular, Donaczy v R [2010] NSWCCA 143 and Hopley v R [2008] NSWCCA 105; R v Field [2014] NSWSC 1797; R v Dyer [2014] NSWSC 1809; R v Matthews [2015] NSWSC 49 and R v [NAME] (No 3) [2015] NSWSC 118. I have considered the judgments in each of those cases. It is sufficient to say that the sentencing in each of them was based upon the individual facts of each of those cases, which differed in certain respects from the factual circumstances to those that arise in the present case.

18. Further submissions were made in relation to the general principle stated by the Court of Criminal Appeal in R v [NAME] in the written submissions in which it was noted that [NAME] in that case had pleaded guilty to one count of manslaughter, one count of assault occasioning actual bodily harm and three counts of assault on different people, all on the one night. Reference was made to the particular circumstances of that case in which [NAME] had shown earlier in the evening signs of aggressive and agitated behavior and involved himself in assaulting strangers without warning and for no apparent reason. 19. [NAME] in that case was, at the time of the offences, on conditional liberty for an act of violence. 20. [NAME] noted the Court of Criminal Appeal's reference in [NAME] which reaffirm the importance of general deterrence in cases where violence is perpetrated in a public street and the need for a significant degree of general deterrence in sentencing offenders for offences of violence whilst under the influence of alcohol. 21. [NAME] in his detailed and comprehensive written submissions also addressed what he referred to as the "significant facts" in the present case: at [90]-[106]. I have earlier made reference to many of these factual matters. 22. [NAME] emphasised that [NAME] had not been a person who tended to get violent when intoxicated and there was no indication from his history that this was a risk. It was submitted that he was not in an aggressive mood on the night. It was submitted that he was not drinking with the intention of causing any trouble and that he only turned back when he heard what he thought was a derogatory remark yelled at him. It was submitted that after having struck [NAME] to the face there was no evidence from which the Court could conclude that [NAME] at that time then intended to take matters further with either [NAME] or [NAME].

23. In addition to the subjective factors to which I have already referred it was submitted that [NAME] was generally remorseful and carried the guilt of what he has occasioned on his conscience. He had, and continues to have, the support of his family and it was likely, it was submitted, that he would return to employment upon release.

Crown Submissions 1. The Crown submitted that [NAME] had been earnest in giving evidence and describing his own behavior as "reckless beyond measure" and that this encapsulated the Crown's submission, which was, that the objective seriousness of this offence was above the middle of the range for a number of reasons.

2. It was submitted that after [NAME] had been refused entry, his anger was growing which was manifested in the insults that he threw over his shoulder towards the security staff at the [COMPANY].

3. Whether or not [NAME] had called out words to the effect of "Keep walking", he was not expecting the punishment that was then meted out to him by [NAME]. [NAME] had admitted of the possibility that it was not [NAME] who had called out the words to which he took offence.

Objective Seriousness of the Offence 1. The physical element for the offence of manslaughter is, of course, the unlawful and dangerous act which causes death. The mental element requires that the act must be willed and not accidental: Wilson v The Queen (1992) 174 CLR 313 at 328. To be found guilty of manslaughter by unlawful and dangerous act, the circumstances must be such that a reasonable person in the position of an accused would have realised that he or she was exposing another or others to an appreciable risk of serious injury: [NAME] (supra) at 332-4; Regina v KT [2007] NSWSC 83.

2. The maximum penalty for the offence of manslaughter is imprisonment for 25 years. There is no prescribed standard non-parole period. 3. [NAME] is to be sentenced on the basis of an unlawful and dangerous act that caused the death of the [NAME].

4. In assessing the objective seriousness of the offence of manslaughter by way of unlawful and dangerous act, 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 184 at [29].

5. In determining the sentence in the present case, I am required to consider the objective and subjective factors relevant to the offence and the aggravating and mitigating factors in accordance with the provisions of s 21A of the Crimes (Sentencing Procedure) Act 1999 and relevant sentencing principles. I am, in particular, required by law to take account of a number of matters in determining the objective gravity of the offence committed by [NAME] and the other matters to which I have referred. The sentence to be imposed is one that is appropriate to the particular crime, having regard to the gravity of the offence viewed objectively: Regina v Dodd (1991) 57 A Crim R 349 at 354.

6. Without setting out the provisions of s 21A of the Crimes (Sentencing Procedure) Act, I bear in mind that those provisions seek to identify the relevant objective and subjective factors that establish the aggravating and mitigating circumstances of the offence. That said, I accept, as has been submitted for [NAME], that there are no aggravating factors referred to in s 21A(2) that apply to this case.

7. The evidence, however, establishes that the offence of manslaughter in this case involved an unlawful attack involving a number of serious matters.

8. As to the objective seriousness of the offence requires a close and realistic analysis of the events leading up to the encounter involving the attack upon the [NAME].

9. The evidence establishes that [NAME], before he struck [NAME], was in an intoxicated and angry frame of mind. Whilst he described himself in evidence as a "happy drunk" when intoxicated in the past, that was not his condition on 3 November 2013. He had been twice refused entry to hotels at 2:37am and at 2:59am, and at 3:02am was seen directing abusive language at the security guards at [COMPANY]. 10. [NAME] gave evidence at the sentencing hearing. He was asked: "Q. How do you feel about your actions and your choices on that night? A. I think reckless beyond measure, really. Didn't consider anybody's welfare or my own welfare." (T 5 June 2015 at p 7)

1. In cross-examination [NAME] agreed that he had seen publicity in the media about the [NAME] case and he understood that there had been great community concern about drunken assaults in public that had fatal consequences: T 12.

2. He agreed that he concluded that the words he heard, and to which he took offence, he believed were spoken by [NAME]. He based that conclusion on the fact that he was "the closest person in the vicinity; had to have been him": T 13. He agreed that it was a possibility that someone else said the words other than [NAME], though he believed it was [NAME]: T 14. He agreed that [NAME] was simply standing there, did not walk up to him. He agreed he was standing with his hands in his pockets and he agreed that [NAME] was not ready to receive a threat of physical attack: T 13.

3. He agreed there were prior occasions when he had drunk too much: T 14. He denied that he had previously lost his temper when he had drunk excessively and said he was generally "a happy drunk": T 15. He agreed in cross-examination that [NAME] had done nothing to deserve being struck.

4. He said he was annoyed when excluded from [COMPANY], was angry when he heard someone call out to him and angry when he hit [NAME]. He however claimed that he was not angry when he struck [NAME] but was "a bit disoriented": T 17.

5. I note at this point that [NAME]'s mother gave evidence. She said her son is totally devastated about his actions and has had nightmares over the events leading to the death of [NAME]. She gave evidence that she had never observed, either as an adolescent or young adult, her son exhibiting violent tendencies: T 22.

6. When he turned around and confronted [NAME] with words to the effect of "what the fuck did you say?", and struck him, he unleashed his anger. If the words he attributed to [NAME] were in fact said by [NAME], they did not provide any reason or justification for his assault upon [NAME]. [NAME] lost all control due to his intoxicated, angry condition.

7. After knocking [NAME] to the ground, events moved quickly with [NAME] intervening to help his friend against the angry out of control [NAME]. It is artificial to the point of absurdity to suggest that [NAME]'s action in hitting [NAME] is to be seen as a separate unrelated or intervening act by [NAME]. [NAME]' reaction was in the nature of an instinctive or reflex reaction by him directly due to [NAME]'s aggressive unlawful assault upon [NAME] and almost instantaneously following [NAME]'s fall to the ground.

8. It is, in my assessment, quite wrong to segment these fast-moving and tragic events and seek to apportion the events as being partly arising from [NAME]'s actions and partly from the [NAME]'s retaliatory reaction leading to the fatal blow delivered by [NAME] to [NAME].

9. The proper analysis of these events is that [NAME] was wholly responsible for the fatal attack upon [NAME]. The evidence establishes that [NAME] and [NAME] were completely innocent by-standers who were unfortunate enough to be in the same place as [NAME].

10. The Crown submitted that the objective seriousness of the offence is above the middle of the range of objective seriousness for reasons given in submissions. [NAME] in his oral submissions stated that a finding of below mid-range objective seriousness is appropriate.

11. In my assessment, the objective seriousness of the offence of manslaughter in this case is at least mid-range. The matters upon which that assessment is made include: 1. [NAME]'s intoxicated angry state of mind which contributed to his unprovoked instigation of the offence upon [NAME] and [NAME]. 2. [NAME]'s level of violence meted out to [NAME] drew [NAME] into the violent episode he, [NAME], initiated.

3. The severity of [NAME]'s attacks upon [NAME] and [NAME] who, before the attacks commenced, were simply enjoying a night out without any interference or provocation by [NAME] or the [NAME].

4. The force with which [NAME] struck [NAME], causing him to fall to the ground, evidences a state of mind which continued up to and including the forceful punch to the head of [NAME], which propelled him backwards hitting his head on the pavement without breaking his fall.

1. This is a case of alcohol-fuelled violence of a high order. It is not in the type of case of injury inflicted in the course of a drunken brawl involving an [NAME] and victim. On the findings made to which I have earlier referred, [NAME] drew the [NAME] into a violent confrontation which was entirely of his own making.

Offending of this type in NSW 1. [ADDRESS] of Criminal Appeal in R v [NAME] [2014] NSWCCA 120 examined sentencing in what is described as one-punch manslaughter cases both in the United Kingdom and in New South Wales: at [208]-[220]. [ADDRESS] noted observations that had been expressed in the United Kingdom as to the unnecessary violence such offences create and justified increase in public concern with people expecting "their streets to be safe": Attorney-General under s 36 Criminal Justice Act 1988 [2005] EWCA Crim 812 per Judge LJ at [15]. In that case, the observation was made at [12]: "The manslaughter cases with which we are concerned involved gratuitous, unprovoked violence in the streets of the kind which seriously discourages the law-abiding citizens from walking their streets, particularly at night and gives the city and town centres over to the kind of drunken yobbery with which we have become familiar, and a worried perception among decent citizens that it is not safe to walk the streets at night." 1. [ADDRESS] in [NAME] stated that this statement echoed loudly the context of the appeal in [NAME] and it, of course, echoes loudly in the present case.

2. Although reference is often made to one-punch or single-punch manslaughter cases as constituting a particular class of case, as the Court in [NAME] observed the circumstances of these cases vary widely: at [215]. Additionally, in [NAME] the Court of Criminal Appeal stated that the commission of offences of violence, including manslaughter, in the context of alcohol-fuelled conduct in a public street or public place, is of great concern to the community and calls for an emphatic sentencing response to give particular effect to the need for denunciation, punishment and general deterrence. It is clear in the present case that the sentence to be imposed must, in an appropriate way, give effect to the principle of general deterrence in the sentencing exercise.

3. I have previously referred to the fact that a number of sentencing cases have been referred to in the course of the submissions for [NAME]. Such cases, of course, do not disclose a range or tariff. When sentencing for manslaughter, a court is always to have regard to the full context in which death has occurred. The surrounding circumstances may bear upon the objective gravity of the offence and the moral culpability of [NAME]: [NAME] at [229] and cases therein referred to.

4. There are some similarities to the facts in [NAME] to this case although there are also facts that distinguish that case from the present, including the fact that in that case [NAME] had a history of violent offences and was the subject to conditional liberty at the time of the offence in question.

5. It is to be remembered of course in sentencing that the branch of the criminal law encompassing involuntary manslaughter reflects the value placed by the law upon human life: R v Lavender [2005] HCA 37; 222 CLR 67 at 87 [60]; [NAME] at [231].

6. The attack upon [NAME] was, as in the case of [NAME], both cowardly and unprovoked. It is a serious example of unlawful and dangerous act manslaughter which deserves substantial punishment. [NAME] in the present case, as I have earlier noted, was aged 33 years of age at the time of the offence, [NAME] in [NAME] was 18 years and 4 months. There is no equivalent circumstance in the present case to that case in terms of a deprived upbringing as [NAME] in the present case appears to have had a generally supportive family background. In determining the sentence I have, of course, brought into account all of the subjective factors in the present case including the fact that this is the first time [NAME] has been in custody. Equally, I have had regard, as earlier indicated, to the fact that general deterrence and specific deterrence are most significant factors. Although there is no evidence of prior instances of alcohol-fuelled violence by [NAME], the facts and circumstances of the present case, so far as specific deterrence is concerned, indicates that [NAME] has a potential vulnerability to outbursts of violence in circumstances where excessive drinking and frustration and/or anger combine. On this basis, I consider that specific deterrence is a factor to be given some consideration and weight as appropriate in the sentencing exercise.

Victim Impact Statements 1. Victim Impact Statements prepared on behalf of the parents and sister of [NAME] were received by the Court. The statements express in clear and very dignified terms on behalf of the family the grievous effect and the immense loss arising from the death of their son and brother and the impact it has had upon each one of them. The loss of a young man of great promise in the circumstances with which this case is concerned is exceptionally painful and tragic and the cause of overwhelming grief. On behalf of the Court I extend my condolences to the family of the [NAME], for the immense loss that they have endured and will continue to endure. Nothing of course can address the immense loss that has occurred.

2. I have noted the provisions of Division 2, 'Victim Impact Statements' of Part 3 of the Crimes (Sentencing Procedure) Act 1999, in particular, s 28 thereof. I have, of course, closely considered the victim impact statements in this case as significant material before the Court. In determining the sentence to be imposed I have based my determination on the evidence and findings to which I have referred above. As there were no submissions made in relation to s 28 of that Act, I have determined that any sentence should not be increased by virtue of the statements to which Division 2 applies.

Form 1 Offence 1. [NAME] has come before this Court for sentence on a charge of manslaughter with an offence of Assault Occasioning Actual Bodily Harm to [NAME] to be taken into account on a Form 1. 2. [NAME] of counsel in his written supplementary submissions dated 11 June 2015 has comprehensively addressed the Form 1 offence, which [NAME] has requested be taken into account on sentence.

3. The principles that determine the proper approach to sentencing for Form 1 offences were addressed in the guideline decision Attorney General's Application No 1 of 2002 (2002) 56 NSWLR 146, in particular, at paragraphs [39]-[45] which are conveniently set out in [NAME]'s written submissions.

4. The issue, as has been submitted on [NAME]'s behalf, is whether there is a need for, having regard to the Form 1 offence, a greater emphasis on personal deterrence and the element of retribution for the additional offence. The submission was that the Court would not make the sentence for the principal offence more severe than it would otherwise have been, or, in the alternative, any increase in severity ought to be a modest one for reasons set out in the submissions.

5. As I have already indicated, the issue of personal deterrence is a matter to which I have had regard and brought into account in determining the sentence to be imposed in respect of the offence of manslaughter and in sentencing [NAME] I consider no greater emphasis need be given in respect of that aspect by reason of the Form 1 offence.

6. I have concluded that the sentence which I propose to impose in respect of the offence of manslaughter to which [NAME] has pleaded, sufficiently in itself addresses both the issue of personal deterrence and the element of retribution. The assault upon [NAME] was a circumstance to which I have had specific regard in determining the culpability of [NAME] in respect of the offence charged, it being integrally linked to the assault upon [NAME] as I have earlier stated.

Remorse 1. There is evidence of remorse by [NAME] both in his evidence, his mother's evidence, and the materials that have been tendered and received as exhibits in these proceedings.

2. I proceed upon the basis that the evidence does establish that [NAME] is remorseful for his offending conduct and I have taken that into account in determining the sentence to be imposed. I consider on the evidence his prospects of rehabilitation to be reasonable.

3. I consider [NAME]'s prospects of rehabilitation to be reasonable.

Special Circumstances 1. It was submitted on behalf of [NAME] that a finding of special circumstances is appropriate upon the basis that the Court would recognise that [NAME]'s incarceration in respect of the subject offence represents his first time in prison.

2. As I have earlier indicated in the consideration of [NAME]'s subjective circumstances I have had regard to and brought into account the particular matters that have been identified in the evidence and in submissions, including the fact that this is the first time [NAME] has been in custody. Upon consideration I do not consider that special circumstances ought to be found upon the basis that has been advanced. Application of the statutory ratio in the present case will, I consider, maintain what I consider to be the requisite non-parole period having regard, in particular, to the objective seriousness of the offence, including the issues of personal and general deterrence.

3.

Accordingly, I do not propose to make any adjustment to the statutory ratio on the offence in question on the basis of special circumstances.

4. For the purpose of [NAME]'s guilty plea the Crown accepted that the plea was an early plea. There was no dispute that the maximum discount for the early plea of 25% is appropriate.

Sentence 1. Having regard to all the subjective and objective factors before the application of the 25% discount for [NAME]'s plea of guilty a head sentence of 12 years imprisonment is appropriate for the offence of manslaughter in this case.

2. After the application of the 25% discount, the head sentence to be imposed is a term of imprisonment for 9 years. 3. [NAME], you are convicted of the offence of manslaughter. I sentence you to a non-parole period of imprisonment of 6 years and 9 months to commence on 3 November 2013 and to expire on 2 August 2020. There will be a parole period of 2 years and 3 months to commence on 3 August 2020 and to expire on 2 November 2022.

Accordingly, the head sentence is a term of imprisonment for 9 years with a non-parole period of 6 years and 9 months. The first date upon which you will be eligible to be released to parole accordingly will be on 3 August 2020.

********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 June 2015