New South Wales Supreme Court CITATION : R v Mawson, Robins & J.W.C. [2004] NSWSC 561 HEARING DATE(S) : 29/03/04, 01/04/04, 04/06/04, 11/06/04 JUDGMENT DATE : 11 June 2004 JUDGMENT OF : Buddin J DECISION : In respect of count 2 Allan James Mawson is sentenced to a fixed term of two and a half years' imprisonment to date from 20 December 2002 and to expire on 20 June 2005. In respect of count 1 Allan James Mawson is sentenced to six and a half years' imprisonment with a non-parole period of four years. The head sentence and the non-parole period will each commence on 20 September 2003. The head sentence will expire on 19 March 2010 and the non-parole period will expire on 19 September 2007 at which time he will be eligible for consideration for release to parole. In respect of count 2 Christopher James Robins is sentenced to a fixed term of two and a half years' imprisonment to date from 29 March 2004 and to expire on 29 September 2006. In respect of count 1 Christopher James Robins is sentenced to six and a half years' imprisonment with a non-parole period of four years. The head sentence and the non-parole period will each commence on 29 December 2004. The head sentence will expire on 29 June 2011 and the non-parole period will expire on 28 December 2008 at which time he will be eligible for consideration for release to parole. In respect of count 2 JWC is sentenced to a fixed term of 2 years imprisonment to commence on 18 October 2003 and to expire on 18 October 2005. In respect of count 1 JWC is sentenced to five and a half years' imprisonment with a non-parole period which will expire on 14 December 2007. The head sentence and the non-parole period will each commence on 18 October 2004. The head sentence will expire on 17 April 2010 and the non-parole period will expire on 14 December 2007 at which time he will be eligible for consideration for release to parole. These sentences are to be served in a Detention Centre. CATCHWORDS : Pleas of guilty to manslaughter and aggravated robbery - young offenders - issues of parity. Children (Criminal Proceedings) Act 1987 LEGISLATION CITED : Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Johnson v The Queen [2004] HCA 15 Mill v The Queen (1988) 166 CLR 59 Pearce v The Queen (1998) 194 CLR 594 R v Adamson (2002) 132 A Crim R 511 R v AEM (Snr) & Ors [2002] NSWCCA 58 R v Blacklidge (CCA unreported 12 December 1995) R v Cameron (2002) 187 ALR 65 R v Hearne (2001) 124 A Crim R 451 R v Henry (1999) 46 NSWLR 346 CASES CITED : R v Hill (1980) 3 A Crim R 397 R v MA [2004] NSWCCA 92 R v McDonald (CCA unreported 12 December 1995) R v Previtera (1997) 94 A Crim R 76 R v SDM (2001) 51 NSWLR 530 R v Simpson (2001) 53 NSWLR 704 R v Thomson & Houlton (2000) 49 NSWLR 383 R v Troja (CCA unreported 16 July 1991) R v Voss [2003] NSWCCA 182 Veen v The Queen (No2) (1988) 164 CLR 465 Regina PARTIES : Allan James Mawson Christopher James Robins J.W.C. FILE NUMBER(S) : SC 70048/03; 70239/03; 70078/03 P Dare SC (Crown) COUNSEL : T Evers (Offender Mawson) P Winch (Offender Robins) D Stewart (Offender JWC) S Kavanagh (Crown) SOLICITORS : Morgan Adino & Co (Offender Mawson) SE O'Connor (Offender Robins) Hill & Associates (Offender JWC) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION BUDDIN J FRIDAY 11 JUNE 2004 70048/03 - REGINA v ALLAN JAMES MAWSON 70239/03 - REGINA v CHRISTOPHER JAMES ROBINS 70078/03 - REGINA v J.W.C. REMARKS ON SENTENCE 1 HIS HONOUR: On 29 March 2004, Allan James Mawson, Christopher James Robins and JWC were each arraigned before me upon an indictment containing the following two counts. It was alleged that they each: 1 On 21 December 2002 at Fairy Meadow in the State of New South Wales, did murder George Sorompo. 2 On 20 December 2002 at Fairy Meadow in the State of New South Wales, did rob David Wain of certain property, namely, a sum of money and one briefcase containing personal papers, in circumstances of aggravation, namely, immediately before the robbery did maliciously inflict actual bodily harm upon him. 2 Each offender pleaded not guilty to murder but guilty to manslaughter. The Crown accepted each of those pleas in full satisfaction of the first count in the indictment. Each of the offenders also pleaded guilty to the second count in the indictment, namely an offence of aggravated robbery. The maximum penalty prescribed by the legislature, pursuant to s 24 of the Crimes Act 1900, for the offence of manslaughter is imprisonment for 25 years. The offence of aggravated robbery attracts a maximum penalty, pursuant to s 95 (1) of the Crimes Act, of 20 years' imprisonment. 3 The events giving rise to the two counts occurred during the late evening of 20 December 2002 and culminated in injuries to David Wain, and the death, the following day, of George Sorompo. The relevant facts in the matter are set out in the Agreed Statement of Facts, which was tendered by the Crown on sentence. As it is common ground that it accurately sets out the way in which the Crown put its case against each of the respective offenders, it is convenient to set it out in full: On Friday 20th December, 2002, a party was organised by a Ms Jade Charlesworth and her boyfriend, Bradley John Robins (identical twin of the Accused, Christopher Robins) to mark her 17th birthday. The party took place at Flat 4, No.7 Daisy Street, Fairy Meadow. The flat is situated on top of some shops in Daisy Street. It has access by stairs on Daisy Street and by stairs at the rear reached by walking down a laneway off Daisy Street, The premises are a short walk from the Charles Hotel, Fairy Meadow. A number of young people were invited to the party including each of the Accused. The group consisted of a core of seven males aged between 16 and 18 years and four females of similar age including the party holders. During the night a quantity of alcohol was consumed by those in attendance. This included beer, straight spirit and pre-mixed spirit drinks. During the evening of 20th December, 2002, Constables Luis Otero and Robert Tschentscher, were performing licensing duties in plainclothes. Part of their duties consisted of inspections of various licensed premises within the Wollongong Local Area Command with an emphasis on observing patrons as to their state of intoxication and whether anyone appeared underage. About 10.50 pm that evening, the Officers attended the Charles Hotel, Princes Highway, Fairy Meadow for a "routine walk-through". Constable Otero saw two young males sitting near the driveway entrance to the hotel bottle shop and both were drinking intoxicating liquor. Constable Otero spoke to one of the males, J.W.C., and said, "I am Constable Otero from Wollongong Police. How old are you?" J.W.C. replied, "I don't want to talk. I've had problems with my girlfriend to-day." Constable Otero noted J.W.C. to be heavily affected by intoxicating liquor and saw he was unsteady on his feet and his eyes were bloodshot. There was a stubbie of beer on the ground in front of him. Constable Otero reached down and tipped out the remaining beer from the stubbie and said, "When you leave, take this bottle with you and throw it in the bin." Constable Otero saw J.W.C. walk off with the bottle and into an alley-way. He heard the sound of a bottle being smashed. On walking over to the alley-way he saw a broken stubbie on the ground. He indicated to J.W.C. to sit on a nearby bus seat. About the same time he saw the Accused, Allan Mawson (aka Armistead). He noted that Mawson also appeared heavily affected by intoxicating liquor in that he was unsteady on his feet and smelt of liquor. Mawson kept interjecting while Constable Otero was trying to talk to J.W.C. and he was asked to move away. Mawson suddenly took hold of Constable Otero's neck. Constable Otero managed to break his grasp. J.W.C. tried to pull Mawson away from Constable Otero saying, "Don't do it, don't do it, it's not worth it, he's a cop". Constable Otero also saw Christopher Robins standing nearby. He appeared to be heavily intoxicated. Constable Otero noted he was wearing a black t-shirt, dark jeans and a black beanie. Robins approached Constable Otero and stood chest-to-chest with the officer. Constable Otero smelt intoxicating liquor on his breath and saw that his lips were a bluish colour. Around the same time, Senior Constable Tschentscher spoke to Bradley Robins, twin brother of Christopher Robins, outside the hotel and near the others. Bradley Robins was drinking from an open 440 ml can of "Woodstock" Bourbon and Cola and he had five unopened 440 ml cans of "Red Bear" vodka in a plastic bag at his feet. While speaking with Bradley Robins, Senior Constable Tschentscher was aware of (as it turned out) the presence of Christopher Robins, Allan Mawson and J.W.C. who stood close by and interjected. Tschentscher described them all as argumentative and intoxicated. About 6.30 pm on the same day, Mr George Sorompo, (the Deceased) left his home at Carters Lane, Towrandgi, to meet friends and play pool at the Charles Hotel. During the evening he was introduced to Mr David Frederick Wain (the Complainant in Count 2) by a lady named Mira whom Mr Wain had met previously and who was a cousin of the Deceased. They talked whilst watching a band playing in the hotel. Between 9 pm and 10 pm, Mr Wain went to a nearby restaurant for dinner. Around 11.30 pm he noted that the Deceased appeared quite well affected by alcohol and offered to assist him home – a three-minute ride in a taxi. About 11.40 pm the two left the hotel via the bottle shop where Mr Wain requested a cab be called. The Deceased, however, continued walking resulting in Mr Wain cancelling the taxi and catching up to the Deceased who had by this time reached Daisy Street. Mr Wain was carrying three plastic shopping bags and a black brief case. Mr Wain says he saw two young men wearing what appeared to be jeans and no shirts heading towards a fish shop trading as "Harley and John Seafood" in Daisy Street. These young men proceeded to hit the shop window with sticks. One of them also hit the bonnet of a parked car several times. The Crown says these two young men were Allan Mawson and J.W.C. Mr Wain tried unsuccessfully to get the Deceased away from the area. The Deceased called out to the two Accused who put the sticks down and walked off towards the glass entrance doorway leading to the upstairs flats in Daisy Street. At this stage Mr Wain put his shopping bags and briefcase down on the footpath outside the front doorway of the fish shop and at the same time he saw a mobile phone in the doorway near where Allan Mawson and J.W.C. had been. He put the phone in his briefcase for safekeeping and was approached by a female who had come from the alley-way leading to the rear access of the same flats above the shops. She told Mr Wain he had her mobile phone and demanded its return. He said he would not give it to her without some proof of identification and that he was going to take it to nearby Corrimal Police Station. Mr Wain saw Allan Mawson and J.W.C. at the front entrance to the flats a short distance away. He also saw a third man who the Crown says was Christopher James Robins standing in the alleyway from where the girl had come. Mr Wain told the female again that he was going to take the phone to Corrimal Police Station and he was not going to give the phone to any of these persons after the behaviour he had just witnessed. Mawson and J.W.C. left the glass entrance doorway and walked towards Mr Wain. He asked the Deceased who had just returned from the nearby public telephone (to ring a taxi) to explain the situation to them. The Deceased walked to the southern side of Daisy Street followed by the two. Mr Wain says he saw one Accused hit the Deceased to the head causing the Deceased to fall to the ground. This Accused was joined by a second person whom the Crown says was J.W.C. Neither Mawson nor J.W.C were wearing shirts. Both commenced to assault the Deceased. Mr Wain also described a third person joining Mawson and J.W.C. in the attack upon the Deceased. Mr Wain called upon the group to cease assaulting the Deceased. One of the group approached Mr Wain who called out in a loud voice several times, "Call the Police, call the Police." He says he was hit to the side of the head and fell to the ground. He felt this person take his wallet from his rear pocket, however, the wallet was connected by a chain to his belt. Mr Wain said, "You're not going to get that, mate" and he kicked the assailant before putting the wallet back into his pocket. He says he was about to try and stand up when he was kicked to the side of the head by Mawson who was then joined by J.W.C. who also kicked him. It was not until 2.00am the following morning in the hospital that he checked his wallet and realised that $35.00 in notes was missing. Due to the effects of the assault upon him by Mawson and J.W.C., Mr. Wain did not realise he had also been kicked to the head by Christopher Robins who ran off with Wain's briefcase which had been left on the footpath. A nearby neighbour, Mrs. Glenda Hare of Unit 1, 14 Daisy Street, Fairy Meadow, was wakened by the sounds of what she believed to be a drunken brawl. Her premises overlook the Charles Hotel driveway, "Harley and John Seafood" and all the shops right up to the lights at the Princes Highway intersection. She says the area is quite well lit. Although she did not witness the assault upon the Deceased, from her bathroom window she witnessed part of the attack upon Mr. Wain. She places the number of young males at the scene between three and five. From the same vantage point, her defacto husband, Mr. Dewi Toleman, saw a person he described as, "…a male and appeared to be wearing a light coloured shirt…angrily shouting towards a male on the roadway." This person kicked the male who was on the roadway to the body. Then he walked across the road to where a white panel van was parked. There was another male wearing a black top standing on the footpath next to the van. This male was standing over a shape on the grassed footpath. The Crown says the male in the black top was Christopher Robins and the shape on the grassed footpath was the recumbent form of the Deceased. Mr. Toleman says the first male in the lighter coloured top walked back across to the grassed area and joined the person the Crown says was Robins. Robins then walked across to Mr. Wain in the middle of the road and kicked him in the vicinity of his head before picking up and making off with Wain's briefcase. Mr. Toleman then saw of the arrival of a truck in Daisy Street. Mr. Neil Frederick Jackson was a sub-contract truck driver delivering newspapers. About 11.40pm on 20th December, 2002, he was about to complete his last drop at the newsagency opposite the Charles Hotel in Fairy Meadow, and turned into Daisy Street. He saw a man on his hands and knees near the middle of the road about 50 metres in front of his truck. At the same time he saw what looked like 3 young men standing over this person. None were wearing shirts. The Crown agrees that Christopher Robins had left the scene with Mr. Wain's briefcase by this time. The three men were positioned such that he could see the one closest to him clearly but the other two were obscured. He says he saw the man closest to him kick the person in the middle of the road to the face a number of times. He later identified this person as the Accused, J.W.C. Mr. Jackson drove his truck straight up to the group and stopped a few metres from where the incident was occurring. He alighted from the truck and shouted, "Pick on someone your own age." The group of three made no reply and walked to the glass doorway leading to the flats upstairs at No. 7 Daisy Street, Fairy Meadow. Mr. Jackson spoke briefly to the man on the roadway (Mr. Wain) and noted injuries to his head and face. He summoned ambulance and police on his mobile phone. While waiting the arrival of assistance, Mr. Jackson saw what he says were the same three young men emerge from the glass doorway at No. 7 Daisy Street walking off in a westerly direction. They were still not wearing shirts. One of these people, he says, was the one who had earlier been kicking Mr. Wain and whom he later identified as J.W.C. Very shortly afterwards, Mr. Jackson saw a young girl and 2 young men come out of the same doorway. The girl inquired of him as to what was going on. Jackson noted that the 2 young men with the girl (whom the Crown says was Jade Charlesworth) were twins. It is alleged and the fact is that they were Bradley John Robins and the Accused, Christopher James Robins. Christopher James Robins was wearing a black t-shirt. He pretended to have seen nothing of what went on. His arrival back at the scene was also observed by Mr. Dewi Toleman who had earlier seen him kick Mr. Wain. Ms Charlesworth asked Mr. Jackson, "What about the other guy?" He replied, "What other guy?" She said, "The other guy on the footpath." Jackson said, "Where?" She said, "On the other side of the van." Jackson looked across to the southern side of Daisy Street almost opposite the seafood shop and saw a white coloured Holden panel van. He walked over to the other side of the van with Ms. Charlesworth and Bradley Robins (leaving Christopher Robins with Mr. Wain) and saw the gravely injured George Sorompo (later to be the Deceased). This is the first time that he became aware of the presence of another injured party at the scene. Police began arriving as well as an ambulance. Mr. Jackson once again saw the young man whom he saw kicking Mr. Wain – this time he was wearing a blue coloured short sleeved shirt. This was the same young man Jackson identified to Police at the scene as J.W.C. The first ambulance at the scene was crewed by well-qualified and experienced officers Andrew Stephens and Graham Goodman. Due to the severity of Mr. Sorompo's condition they adopted what is known as a "load and go" or "urgent transport protocol" whereby time taken to treat at the scene is minimised and all steps are taken to expedite transport to hospital. Mr. Sorompo was taken to Wollongong Hospital Accident and Emergency Section and admitted with serious head injuries. He was in the Intensive Care Unit on life support until around 8pm on 21st December, 2002, when those systems were turned off in view of the recognised non-survivability of his injuries and he died shortly thereafter. A post-mortem examination was carried out on 22nd December, 2002 at the Department of Forensic Medicine, Glebe, by Professor John Hilton. The cause of death was given as closed head injury characterised by direct injury to the brain, compression from subdural haemorrhage, swelling and axonal injury. A neuropathology report by Doctor M. Rodriguez amplified these findings with a diagnosis of blunt force head injury with acute subdural haemorrhage, contusions to the left inferolateral temporal lobe, possible traumatic axonal injury, brain swelling and multifocal subarachnoid haemorrhage. The macroscopic features are most consistent with a significant left side convexity subdural haemorrhage causing transtentorial and subfalcine herniation. David Wain was taken to Wollongong Hospital and treated for a fractured nose, a long fracture to the left cheek under the eye and a fracture to the left temple region. He suffered soft tissue injury to the upper body and bruising to the ribs. The fractures required surgery and pinning. ALLAN JAMES MAWSON. On the evening of 20th December, 2002, the Accused, Allan James Mawson, attended the birthday party of Jade Charlesworth at Flat 4, 7 Daisy Street, Fairy Meadow. During the course of the evening he consumed a quantity of intoxicating liquor. He was spoken to by Licensing Police at the Charles Hotel, Fairy Meadow, around 10.50pm and seen to be heavily affected by liquor as well as argumentative and violent towards one of the Officers. He was in company of J.W.C. and Bradley and Christopher Robins. About an hour later, and presumably after more alcohol was consumed, Mawson was one of two young men (the other being J.W.C.) without shirts seen in Daisy Street hitting the window of "Harley and John Seafood" with sticks. Either Mawson or his companion proceeded to strike a parked vehicle as well. They were challenged by George Sorompo and walked away. After a verbal dispute with a female over ownership of a mobile phone involving David Wain, Mawson was involved in an assault with others upon George Sorompo. He was also involved in an assault upon David Wain with others during which Wain received injuries and his money and other property taken. He was identified as one of the assailants of Sorompo and Wain by Mr. Wain and arrested a short time after 12am on 21st December, 2002, near the scene by Constable Andrew Dante. He was taken to Wollongong Police Station where Detective Senior Constable Turner spoke to him. A recorded interview was commenced at 5.46am. Mawson denied involvement in any assault during the preceding evening – see Q/A's 72; 75; 79; 87; 156; 157. About 6.45am Mawson indicated that he wanted to tell the Police some additional things. A further recorded interview was commenced and he indicated he had lied in the previous interview (Q/A 24). He admitted kicking George Sorompo once in the face (Q/A 25; 43; 53; 100; 167; 269) but maintained he was the only one involved (Q/A39-40; 210; 253-256). He said he was intoxicated at the time and had been drinking Black Galliano (Q/A's 79-81; 88; 122). He said he committed the assault because he believed Mr. Sorompo was standing over J.W.C. (Q/A 131; 155). He maintained he was unaware of the presence of Mr. Wain until after he assaulted Sorompo (Q/A 178-179; 186). He said he wanted to hurt Sorompo (Q/A 197) but did not assault Wain (Q/A209; 210). He later said he could not recall whether he kicked Wain or not due to his state of intoxication (Q/A's 278-280). The Crown alleges that Allan James Mawson was one of the people who assaulted George Sorompo in Daisy Street, Fairy Meadow, on 20th December, 2002. The Crown acknowledges he was in such a state of self-induced intoxication as materially affected his intention to commit the crime of Murder as provided in Section 428B Crimes Act, 1900. That is the basis upon which the Crown accepted his plea of guilty to the alternate count of "Manslaughter" by an unlawful and dangerous act. The Crown relies upon his description by David Wain as consistent with the Accused; the plea of guilty; the admissions contained in the second ERISP. Further, Sorompo's blood is found in a DNA mix on Mawson's jeans. The Crown also alleges he was one of the people who committed the offence of "Aggravated Robbery" upon David Wain. The Crown says it was either Allan Mawson or J.W.C. who took Wain's money. Notwithstanding his denial, or, alternatively, his lack of memory, the Crown relies upon his identification by David Wain and Neil Jackson as a participant in a joint criminal enterprise. J.W.C. On the evening of 20th December, 2002, the Accused, J.W.C., attended the birthday of Jade Charlesworth at Flat 4, 7 Daisy Street, Fairy Meadow. During the course of the evening he consumed a quantity of intoxicating liquor. He was spoken to by Licensing Police at the Charles Hotel, Fairy Meadow, around 10.50pm and seen to be well affected by liquor as well as argumentative. He was in the company of Allan James Mawson and Bradley and Christopher Robins. About an hour later, and presumably after more alcohol was consumed, J.W.C. was one of two young men (the other being Allan James Mawson) without shirts seen in Daisy Street hitting the window of "Harley and John Seafood" with sticks. Either J.W.C., or Allan Mawson proceeded to strike a parked vehicle as well. They were challenged by George Sorompo and walked away. After a verbal dispute with a female over ownership of a mobile phone involving David Wain, J.W.C. was involved in an assault with others upon George Sorompo. He was also involved in an assault upon David Wain with others during which Wain received injuries and his money and other property taken. J.W.C. was identified as one of the assailants of David Wain by Neil Jackson who witnessed part of the incident. After 12.30am on 21st December, 2002, J.W.C., was spoken to inside Flat 4, 7 Daisy Street, by Detective Senior Constable David Turner. At the time he was wearing jeans, joggers and no top. It was noted he had skin and scratches off both knuckles and fingers. He said he had been upstairs with his friends all night. Downstairs in Daisy Street a short time later, J.W.C., by now wearing a blue shirt, was recognised by Neil Jackson as one of the people he saw gathered immediately around David Wain and, in particular, as the person he saw kick David Wain. J.W.C. was arrested and taken to Wollongong Police Station and a recorded interview took place with Detective Senior Constable David Turner in the presence of J.W.C.'s mother. In the interview he said he had only been drinking for an hour-and-a half (Q/A's 76-77) consisting of two beers and three 440ml bottles of bourbon mixer (Q/A's 98-100). He acknowledged being seen without a top on but maintained shortly before the Police arrived he had been involved in a friendly wrestle with Christopher Robins and his original shirt got torn so he changed it for one of Bradley Robins (Q/A's 147; 156; 165; 221-226). He denied any knowledge of any assaults in Daisy Street (Q/A's 256-264; 282-283; 312), or that any of his friends were involved (Q/A 333). In a lawfully recorded telephone conversation between J.W.C. and his girlfriend, Talitha Rianne Kay, on 24th January, 2003, the following appears: JWC: …he's um, still in hospital, yeah, as I told you, he's got a broken (distorted transmission) jaw.. TRK: Mm. JWC: …broken nose and, um, eye socket. …. JWC: And he's not in hospital, he's just, um, getting surgery. He's got to get pins put in his jaw and shit.. TRK: Fuck man. JWC: I know, it pretty psycho, man. TRK: Mm. JWC: But I didn't touch him, so I'm.. TRK: Yeah, I know. JWC: I hit the other fella and that was it. TRK: Mm. JWC: I punched him in the mouth. TRK: Mm. JWC: I don't even know if I got him in the head, you know what I mean? The Crown relies upon this as a serious conversation between two people who did not know they were being overheard. The Crown says this amounts to an admission by J.W.C. that he hit George Sorompo while denying striking David Wain. The Crown alleges that J.W.C. was one of the people who assaulted George Sorompo in Daisy Street, Fairy Meadow on 20th December, 2002. The Crown acknowledges he was in such a state of self-induced intoxication as materially affected his intention to commit the crime of Murder as provided in Section 428B Crimes Act, 1900. That is the basis upon which the Crown accepted his plea of guilty to the alternate count of "Manslaughter" by an unlawful and dangerous act. The Crown relies upon his plea of guilty and the admissions contained in the recorded telephone conversation. The Crown also alleges he was one of the people who committed the offence of "Aggravated Robbery" upon David Wain. The Crown says it was either Allan Mawson or J.W.C. who took Wains' money. Notwithstanding his denial, the Crown relies upon his identification by Neil Jackson as a person seen kicking Wain and as a participant in a joint criminal enterprise. CHRISTOPHER JAMES ROBINS. On the evening of 20th December, 2002, the Accused, Christopher James Robins, attended the birthday party of Jade Charlesworth at Flat 4, 7 Daisy Street, Fairy Meadow. During the course of the evening he consumed a quantity of intoxicating liquor. He was spoken to by Licensing Police at the Charles Hotel, Fairy Meadow, around 10.50pm and was seen to be well affected by intoxicating liquor and argumentative. At the time he was in the company of Allan Mawson, J.W.C. and his brother, Bradley John Robins. About an hour later, and presumably after more alcohol was consumed, Christopher Robins was seen in the vicinity of Allan Mawson and J.W.C., in Daisy Street, who were hitting the window of "Harley and John Seafood" with sticks. These two were challenged by George Sorompo and walked away. After a dispute with a female over ownership of a mobile phone involving David Wain, Mawson and J.W.C. were involved in an assault upon George Sorompo. A third person also participated in this assault. He was also involved in an assault upon David Wain with others during which Wain received injuries and his money and other property taken. After the arrival upon the scene of Neil Jackson, Christopher Robins returned with Jade Charlesworth and pretended to have seen nothing of what went on earlier with George Sorompo and David Wain. He offered assistance to Wain (who did not recognise him as an attacker) until Wain informed people that he was HIV positive. He was pointed out to Police as someone who may have been a witness to the events. Detective Senior Constable Gregory Butler spoke to him in Daisy Street, "I am Detective Butler and this is Detective Wiggins. I have been told that you are a witness to the assault." Christopher Robins replied, "No, I came over and helped the blokes." He was asked to come to Wollongong Police Station and provide a statement and did so. Robins was not under the arrest and the statement (in the form of an ERISP) was not the subject of the customary caution. In short, Christopher Robins said he walked downstairs to make a phone call. When he did so he saw a bloke laying on the street (Wain) and a truck driver. He tried to help – also with another man lying close by behind a panel van (Sorompo). He said Wain told him that two blokes with their shirts off tried to roll him (Sorompo) and he said that he tried to jump in and help and he got his head kicked in too. He said he saw no-one else in the street when he came down to use the phone except for the truck driver and the injured men. He confirmed that he had been wearing a black t-shirt with a distinctive pattern on the back when he went downstairs and this was visible in the ERISP. After making this statement/interview he was allowed to leave. About 9.55am on 19th March, 2003, Detective Senior Constable Mark Cracknell arrested the Accused at his home for the murder of George Sorompo and the assault upon David Wain. He was taken to Wollongong Police Station and took part in a recorded interview. In reference to the statement/interview of 21st December, 2002, he said, "The information, like what I said that night, um, well what I said on the tape was after the incident, like I said, I did not lie on the tape but I have left out things what happened before that, so." (Q/A 43). The Accused told Police what he saw done by Mawson and J.W.C. and that each of them were not wearing shirts at the time. As to his own involvement, he said he kicked Wain (Q/A's 79; 95-101; 106; 169-173; 189-190) and he did it for gain (Q/A 106; 257-258). He denied hitting George Sorompo (Q/A's 358-360) but acknowledged he may have gone within three to five feet from him. The Crown case against Christopher Robins is in somewhat different terms than the cases against Allan Mawson and J.W.C. There is evidence from David Wain which, depending upon its acceptance at trial, could be taken to identify Christopher Robins as an actual assailant of George Sorompo along with Mawson and J.W.C – something Robins has denied. There is also evidence indicating the presence of the Deceased's DNA in blood on the Accused's shoe. If that was to be the case, the Crown acknowledges he was in such a state of self-induced intoxication as materially affected his intention to commit the crime of Murder as provided in Section 428B Crimes Act, 1900. That would provide a basis for the Crown to accept a plea of guilty to the alternate count of "Manslaughter" by unlawful and dangerous act. There is also evidence from Ms. Glenda Hare who, in witnessing the assault upon David Wain, places the number of young men at the scene at between three and five. Christopher Robins brother, Bradley, is an identical twin. To remove any doubt, the Crown says as against Christopher Robins that he was a participant in a joint criminal enterprise with Allan Mawson and J.W.C. to seriously assault George Sorompo as follows: 1. he was a party to an understanding amounting to an agreement to commit the crime in that he was present at the time when the crime was committed (with the knowledge that it was being committed) by intentionally encouraging or assisting the other participants by his presence coupled with a readiness to give aid if required; 2. the crime having been committed by Mawson and J.W.C., he is equally guilty of the crime regardless of the part he played in its commission on the basis that his liability is primary and not derivative. The Crown accepted his plea of guilty to the alternate count of "Manslaughter" by an unlawful and dangerous act based upon the above principles: see Regina –v- Tangye (1997) 92 A Crim R 545 @ 556 per Hunt CJ @ CL; Osland –v- The Queen (1998) 159 A.L.R. 170. The Crown relies upon his plea of guilty as establishing the necessary elements plus his proximity to the assault. In alleging he was one of the persons who committed the offence of "Aggravated Robbery" upon David Wain, the Crown relies upon his plea of guilty plus the admissions contained in the recorded interview. On 21st December, 2002, a search was conducted in and around the crime scene including Flat 4, 7 Daisy Street, Fairy Meadow. Items located included wooden sticks Police believe were used to hit the seafood shop window and vehicle. Mr. Wain's black briefcase was located in the laneway behind the flats along with various personal items originally inside it. The mobile phone Mr. Wain placed in the briefcase was not recovered. 4 The facts disclose criminality of very considerable seriousness. Notwithstanding that the offences occurred during the course of a single episode of criminal misconduct, each of the offenders is to be dealt with for two separate offences. The offences were committed whilst the offenders were in the company of each other. Each offence involved acts of gratuitous violence committed upon persons who were apparently going about their lawful business on a public street. It is not easy to discern precisely what it was that precipitated the commission of these offences. What is not in issue is that one man has needlessly and tragically lost his life, and that another man has been seriously injured at the hands of three young men who inexplicably attacked them with considerable ferocity. 5 I am however prepared to accept that there was no premeditation on the part of any of the offenders, in the sense of any of them planning or organising what took place. Rather what occurred was a spontaneous outburst on the part of each of them, undoubtedly triggered by the excessive amount of alcohol which each of them had consumed, to the circumstances in which they found themselves. It can also be said in the offenders' favour that no weapons were used in these attacks although that is of course a matter of little comfort to the victims. 6 I have received a victim impact statement from the deceased's mother. As was her entitlement, she read it aloud in open court in the presence of the offenders. In it she details the impact which his death has had upon her, her husband and their extended family, and upon her son's partner. She expresses her grief, anguish and sense of despair at having lost her only child. The feelings which she expresses are entirely understandable. I am aware of course that the effect of his death upon his relatives is not, for present purposes, a relevant consideration. See R v Previtera (1997) 94 A Crim R 76. Nevertheless the court expresses its profound sympathy to all those who have suffered, and who continue to suffer, by reason of his death. 7 I am required to have regard to the relevant statutory framework that pertains to the sentencing of offenders, and to the principles enunciated in the authorities which bear upon the issue. It is common ground that I must have regard to the purposes of sentencing which are set out in s 3A of the Crimes (Sentencing Procedure) Act 1999. It is in the following terms: 3A . The purposes for which a court may impose a sentence on an offender are as follows: (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community. 8 The Court of Criminal Appeal in R v MA [2004] NSWCCA 92 characterised s 3A as being a codification and elaboration of the purposes of criminal punishment which were described by the High Court in Veen v The Queen (No2) (1988) 164 CLR 465. A majority of the court, in a passage which is particularly apposite to the present case, said: [s]entencing is not a purely logical exercise, and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guide posts to the appropriate sentence but sometimes they point in different directions. (At 476) 9 I must also, in determining the appropriate sentence, have regard to the various aggravating factors which are set out in s 21A(2) of that Act. It is apparent from the concluding words of s 21A(1) that the list is not exhaustive. As long as I take into account those factors that are relevant and known it is not necessary, as I understand the situation, to deal seriatim with each matter which is identified. Suffice it to say that I have had regard to the statutory requirements to which I have just referred, and given due weight to the matters which I regard as being of particular relevance, namely s 21A(2)(b)(e) and (m). 10 As I have said, it is important to bear in mind the particular principles that inform the sentencing task in a case such as the present. The starting point must be the fact that a human life has been taken. The community expects that human life will be protected by the law and that those who take it will be punished. See R v Troja (CCA unreported 16 July 1991 at 2); R v McDonald (CCA unreported 12 December 1995). In R v Hill (1980) 3 A Crim R 397, Street CJ said: It has been said that manslaughter, perhaps, beyond any other crime is protean. The circumstances leading to the felonious taking of human life being regarded as manslaughter rather than murder can vary infinitely, and it is not always easy to determine in any given case what should be done in the matter of sentence. At the start it should be recognised that the felonious taking of a human life is recognised both in the Crimes Act, 1900 and in the community at large as one of the most dreadful crimes in the criminal calendar. The courts have, however, over the decades gradually manifested a willingness to recognise factual contexts which provide some basis for understanding the human tragedies that can lead to the taking of a life. The manifestation of this humanitarian tendency is necessarily attended by the utmost caution. It can be seen to be constantly written in the decisions of the courts and in the enactments of the legislature that the taking of a human life is a grave action calling for a correspondingly grave measure of criminal justice being meted out to the guilty party. In a case such as the present, where there is material justifying a degree of understanding and of sympathy towards the appellant, the task of sentencing is particularly difficult. It is necessary to evaluate the demands of the criminal justice system, the expectations of the community at large, the subjective circumstances of the person coming forward for criminal judgment and the interest of society in protecting itself and its members from criminal activity amounting, as in the present case, to the taking of a life. (at 401) 11 In R v Blacklidge Court of Criminal Appeal, 12 December 1995 unreported Gleeson CJ, with whom the other members of the Court agreed, said: The crime of manslaughter comprehends all forms of punishable homicide other than murder (Crimes Act 1900, s18). For presently relevant purposes, the crime of murder is taken to have been committed where the act of the accused, causing death, was done with intent to kill or inflict grievous bodily harm, or with reckless indifference to human life. Some forms of manslaughter, such as that with which we are presently concerned, involve conduct which would amount to murder, except for the presence of some recognised mitigating circumstance. Other forms of manslaughter, sometimes referred to as "involuntary", do not involve an intent to kill or inflict grievous bodily harm, or reckless indifference to human life. They may, for example, involve causing death by an unlawful and dangerous act. It has long been recognised that the circumstances which may give rise to a conviction for manslaughter are so various, and the range of degrees of culpability is so wide, that it is not possible to point to any established sentencing tariff which can be applied to such cases. Of all crimes, manslaughter throws up the greatest variety of circumstances affecting culpability. (at para 98) 12 I must also weigh in the balance those matters upon which the offenders are entitled to rely in order to mitigate the otherwise appropriate penalty. See s 21A(3) of the Crimes (Sentencing Procedure) Act 1999. It is convenient to now turn to consider those matters which have been put forward in mitigation on behalf of each of the offenders. For that purpose, I have been provided, in the case of each offender, with a considerable body of material. 13 I shall deal first with the offender Mawson. Information about his background appears in reports which have been prepared by Dr Lennings, a clinical psychologist, and by Dr Carne, a forensic psychiatrist. I have also been assisted with material from the Department of Corrective Services as to his progress whilst he has been in custody. His mother also gave evidence on his behalf. 14 The offender Mawson's parents separated when he was very young. His mother struggled to raise him on her own, particularly as she suffered from bouts of depression which saw her hospitalised on several occasions. The evidence indicates that the offender had a difficult upbringing and that money in the household was short. 15 The offender languished at school where he experienced learning difficulties. As a result he found studying difficult and he became rebellious. To his credit, he completed his secondary schooling at a special school for behaviourally disturbed children, where he successfully obtained his Year 10 certificate. 16 After leaving school, he worked for 10 months as an assistant to a pastry cook. He sought an apprenticeship but was unsuccessful in that endeavour. This made him angry, as did the long hours he had to work and the poor remuneration he received. Thereafter he has only had casual labouring jobs. 17 At about this time, his mother said that she observed a change in his attitude. He became hostile and angry towards her and eventually left home. She noticed that he had begun to drink heavily. He also commenced living an itinerant lifestyle in which he constantly moved between refuges, hostels, friends and also spent time living on the streets. He was socially isolated and experienced feelings of alienation. His alcohol consumption increased to the extent that he was intoxicated by alcohol and/or marijuana virtually every day. Dr Carne formed the view that the offender was chronically depressed in the period leading up to the commission of the offences. Nevertheless, it appeared that he had not previously exhibited any violent tendencies. 18 Dr Lennings administered various tests to the offender, including a psychometric assessment, which were designed to provide an understanding of his cognitive state. He formed the opinion that the offender's level of ability lay in the range between "somewhere in the borderline [mentally retarded region] to low average". Dr Lennings concludes his report with the following observations: Mr Mawson is a young man who shows impaired cognitive functioning associated with life long deficits of low intelligence and poor neuro-cognitive organisation. He reports a history suggested [sic] of oppositional and defiant behaviour prior to his involvement in the offence. He reports a history suggested [sic] of severe substance abuse as an adolescent and this also would have interacted with his poor cognitive function to result in his lack of self-regulation skills on the night in question. He does not appear to demonstrate a pattern of deficits normally associated with long-term harms associated with substance abuse. Mr Mawson's history suggests a young man with a high vulnerability for anti-social behaviour. The changes he reports following the offence appear to reflect a genuine desire to change, based on the remorse and regret he feels for his actions, and his fear of gaol. 19 When the offender entered custody he was initially observed to be very aggressive. He is reported to have since "changed his attitude dramatically". Apparently, his father, from whom he had been estranged for several years and who was also in custody at the time, moved in to share a cell with him for a period of about 4 months. According to reports from the Department of Corrective Services, this seems to have had a very positive influence upon the offender. Those reports also indicate that his conduct whilst he has been in custody has been "unimpeachable". Furthermore he has participated in a range of programmes of an educational and rehabilitative nature. He has also been given positions of responsibility in the gaol. In addition, he has developed an interest in Aboriginal art, and a number of the drawings which he has done whilst he has been in custody, were displayed to me. His interest in his Aboriginal heritage has been fostered by his father, who is of Aboriginal descent. 20 Christopher Robins' parents separated when he and his twin brother were two years old. His family life was somewhat chaotic as the boys moved from the care of one parent to the other. His relationship with his mother was turbulent and his schooling was also disrupted. When they were 15, the offender and his brother went to live on a farm near Picton, with their aunt, Linda Robins. It would appear that this alternative became available when it became clear that the Department of Community Services was intending to intervene in the family situation and send the offender and his brother to separate foster families. 21 Ms Robins gave evidence before me. She said that the offender and his brother remained living with her and her partner for about 2 ½ years. She said that he had attended the local high school without incident. She said that the offender was of particular assistance to her around the farm and with her young baby, because her partner was frequently away on business. She noticed a marked improvement in his levels of confidence and self-esteem during the time that he lived with her. She also spoke of his personal qualities and said that when he had consumed alcohol, that he was not aggressive, preferring instead to go to sleep. She said that she was in disbelief when she heard that he had committed the present offences which were totally out of character with the person she knew. 22 In February 2002 the offender and his brother returned to live with their mother in the Wollongong area. The relationship between the offender and his mother again faltered. He was banished from her home about a month prior to the commission of the offences and it seems that he thereafter had no satisfactory alternative accommodation available to him. He also lost his job and on the day of the offences is reported to have broken up with his girlfriend. He was diagnosed by a psychiatrist, Dr Robyn Young, from whom I received a report and heard evidence, as having been significantly depressed at the time of the offences. 23 Robert Steward, a clinical psychologist, administered various tests to the offender. His conclusions are set out below: Both personality scales indicate that Christopher is currently suffering psychiatric disturbance at a clinically significant level. The most prominent syndrome is a severe depressive disorder combined with depressive personality features indicating a dysfunction of long term duration. It is likely that chronic self deprecation and low levels of achievement have been contributed to by this disorder. Christopher displays significant emotional and social dysfunction and will require significant support and psychiatric assistance to function at a normal level in the community. Of particular note is the overall absence of anti-social personality features and substance dependence which indicate that Christopher should be amenable to attempts to assist him to engage in a more structured and functional lifestyle. He is generally devoid of personality characteristics associated with recidivist offenders. 24 Dr Jessica Grainger performed a neuropsychological assessment of the offender. His cognitive abilities were tested and were found to be below average, at least in the area of Verbal Comprehension and Working Memory. 25 Dr Young considered the question of the offender's history of alcohol abuse and his state of intoxication on the night of the offences. She reached the following conclusions: Christopher gave no past history of significant drug misuse, regular high alcohol intake or alcohol-related misbehaviour – particularly involving aggressive acts. In the hours preceding the offence, he drank heavily. Professor Ian Neering (School of Physiology and Pharmacology, University of NSW) in his report of 23 January 2004 estimated that at the time of the incident "Mr Robins would have been in the grossly intoxicated to comatose range of blood alcohol concentrations". I agree with his statements that "such levels would cause significant impairment of both cognitive and motor abilities…Activities that normally would be moderated by rational thought and training such as a tendency to violent outburst may occur. In particular the ability to evaluate cause and effect may be compromised." I believe that these influences would be further aggravated by the depression and Christopher's intellectual levels – assessed and presented by the two psychologists (Dr J Grainger and Robert Steward) "that in general he operated intellectually at the low end of the average scale or just below." 26 The offender had been seeing Dr Young on a regular basis for the 12 months that he was on bail prior to his going into custody. She said that he had co-operated well with the management plan which she had put in place for him. This, she believed, augured well for his future prospects of rehabilitation. This was a view also shared by Mr Steward. Dr Young also observed that the offender had been under severe stress in the first few months following his arrest because it was a condition of his bail that he was to have no contact with his twin brother with whom he was very close. A further condition that imposed a curfew upon him left him, she said, "socially isolated". Nevertheless he was conscientious in observing the conditions of his bail. 27 Because the offender JWC was aged 16 at the time these offences were committed I ordered, as the relevant legislation requires, a background report about him. See s 25 of the Children (Criminal Proceedings) Act 1987. A comprehensive report, prepared by the Department of Juvenile Justice, has been provided to me as was a report from a psychologist, Mr John Taylor. The offender's mother also gave oral evidence on his behalf. 28 JWC is the youngest of three children. His parents separated when he was about 4½. It would appear that the separation was occasioned by reason of problems that his father had developed arising from his chronic alcoholism. The relationship between the offender's parents also featured violence towards his mother. His mother has also had trouble over the years handling alcohol. The offender's mother formed a subsequent relationship with another man in which violence again played a part. The offender was apparently subjected to violent unprovoked assaults at his hands. The offender attended school but only until the end of year 8. He did not enjoy school and indeed had learning difficulties. He has acquired few vocational skills. He spent three months working at one stage as a cotton chipper but has not otherwise worked consistently, apart from odd jobs of a menial kind. 29 The offender began drinking during his teenage years and quickly developed a problem in relation to alcohol abuse. His mother told me that in the months leading up to the incident, she was pre-occupied with looking after her own parents, each of whom died during the course of 2002. As a result, she was not available to supervise her son's activities or to care for him during that time. 30 Mr Taylor arrived at the following conclusions about the offender in his report: [JWC] provided a history of having been raised in a somewhat dysfunctional family in that his parents separated when he was very young and that his mother engaged in alcohol abuse. He stated that there had been considerable financial hardship in the family during his formative years. However he maintains that he developed close relationships with both of his parents and was still living at home prior to coming to jail. He is presently assessed as having borderline intellectual ability. His Full Scale I.Q. of 77 is borderline between mild intellectual handicap and low average. His result is better than that for only about 6 percent of people of his own age. He reported having significant learning difficulties when he was at school and appears to have developed negative attitudes towards learning. He is also aware of having developed a rather poor self-esteem. The history provided by him indicates that he had a dysthymic disorder for a number of years and that at the present time he is seriously depressed. … [JWC] is experiencing great difficulty in coming to terms with what he has done. Whenever the offences were discussed with him he broke down and became very shaky and tearful. He expressed considerable remorse and regret, and said that he has apologized to the mother of the deceased. His remorse does seem to be genuine. [JWC's] personality profile is dominated by aspects of his depression, negative self-evaluation, and predisposition for substance abuse. There is no indication of any significant antisocial characteristics. It is likely that his impulse control would be inadequate when he is affected by alcohol, as is the case with many people. However, his low level of intellectual ability would have meant that he probably had fewer resources to call upon to regulate his behaviour. 31 Since he has been in custody, the offender has spent his time productively. He is currently a student at the school associated with the detention centre where he is being held. He has also enrolled in a business studies course with the objective of pursuing a career in cabinet making. His conduct, whilst he has been in custody has been exemplary, as the following extract from the background report makes clear: Reports from staff at Kariong Juvenile Justice Centre are very positive. All staff consistently report that JWC's behaviour is of a high standard and he prefers not to participate in any disruptive behaviour, despite encouragement from other detainees. Members of the school, his caseworker, Psychologist and Programs staff all report that JWC is a well behaved detainee who is likeable and good company. There have been no incidents to date and he currently has the highest amount of points on their behaviour management scheme which monitors daily behaviour and compliance with instruction and chores. 32 Furthermore, his parents are reported to have "mended their relationship". Each of them is supportive of the offender and visits him on a regular basis. The offender has an 18 year old fiancée, who is in full-time employment, who is also prepared to continue supporting him. The offender consults the detention centre's psychologist on a weekly basis and is said to be making good progress in addressing the issues that led to his present predicament. 33 The authors of the background report arrived at the following conclusions: In sum, JWC is a young man who made some poor decisions when under the influence of alcohol. Although exposed to high levels of violence as a child, he is not known to be a violent person. As a result, JWC expresses remorse for his actions and admits that he needs to be punished for his participation in the violent death of a man. JWC appears to have high levels of support from his family and a girlfriend who claims she is willing to stand by him despite the outcome. This support in conjunction with appropriate rehabilitation should significantly reduce the risk of reoffending behaviour. 34 The material presented on behalf of each of the offenders follows a remarkably similar but depressing pattern. I take into account in each case the fact that they have faced considerable obstacles in their lives. In particular it is appropriate that I have regard to the fact that, in respect of each offender, his awareness of the consequences of his actions may, to some extent, have been impaired by his limited cognitive ability. 35 It is clear that these offences were committed by each of the offenders whilst they were heavily intoxicated. In each case that has played a significant part in the decision by the Crown to accept pleas of guilty to manslaughter. This suggests that none of the offenders were fully aware of the consequences of their actions by reason of the large amount of alcohol which they had consumed. This is not a case however in which intoxication by itself can provide any further basis for mitigation of the otherwise appropriate penalty. 36 It is common ground that each of the offenders entered pleas of guilty at the first reasonable opportunity available to them. Indeed the Crown Prosecutor informed me that it was only just before the trial was listed to commence, that the Crown indicated for the first time that it was prepared to accept pleas of guilty to manslaughter. I have been informed that had this matter proceeded to trial it would, in all likelihood, have occupied 3 – 4 weeks of hearing time. The pleas of guilty demonstrate that the offenders have each thereby "facilitated the course of justice". See R v Cameron (2002) 187 ALR 65. The pleas of guilty are thus matters that I expressly take into account in the case of each offender. See s 22 of the Crimes (Sentencing Procedure) Act 1999. In the circumstances, I will allow a discount for the utilitarian value of the plea towards the upper end of the range identified by the Court of Criminal Appeal in R v Thomson & Houlton (2000) 49 NSWLR 383 37 I also accept that the pleas of guilty are some evidence of contrition on the part of each of the offenders. The offender Mawson is entitled to some further degree of leniency in this respect by reason of his having made admissions to the police when interviewed. Although he initially denied any involvement in either offence, he shortly thereafter indicated that he wished to speak further with police. During the course of that interview he made significant and damaging admissions, at least in respect of the first count in the indictment. I have, at the request of Mr Mawson's counsel, viewed the interviews which were conducted with him. They clearly show him to have been in a highly agitated state during the course of the second interview. He is frequently seen to be crying and is often quite hysterical. It is very difficult at times to understand what he is saying. It is also somewhat difficult to determine for whom he feels sorry, himself or his victim (that is the deceased) or perhaps both. Nonetheless I am prepared, particularly after having heard evidence from his mother and having read reports from the Department of Corrective Services, to conclude that he has demonstrated genuine remorse for the consequences which his actions have caused. He told his mother, for example, that he would never return to live in Wollongong because of the shame he feels and out of respect for the deceased's parents. Dr Carne and Dr Lennings each also expressed the view that the offender appeared to be genuinely remorseful. 38 The offender Robins likewise made admissions. Those admissions were confined to the second count in the indictment. In fact he specifically denied to police any involvement in the death of the deceased. I have also viewed his interview. I am again prepared to extend a measure of leniency to him on account of the contrition which he displayed in it. I note that he said during the course of it that he was "very sorry that it happened". Dr Young, who counselled the offender over a lengthy period of time, was also of the view that he had expressed remorse, as were other witnesses called on his behalf. 39 The offender J.W.C. made no admissions to the police when interviewed by them. Nevertheless, his pleas of guilty assume some significance given that the Crown was not able to rely in his case, as it could in relation to the co-offenders, upon admissions and forensic evidence. Moreover the Crown confirmed that JWC had apologized for his part in these offences to Mrs Sorompo, the mother of the deceased, when he saw her in a shopping centre. This action has, I was informed, provided her with a measure of comfort. JWC has also written a letter to the court in which he has expressed his remorse for his actions. The Chaplain at the Detention Centre, whom the offender has been seeing on a regular basis, also believes that he is genuinely remorseful. 40 Neither J.W.C. nor the offender Robins has any prior criminal convictions. The offender Mawson has a minor record. It consists of matters dealt with in the Local Court. There are offences in respect of which he was placed on a s 10 bond, and two minor traffic offences. The Crown properly conceded that those matters are of little moment for present purposes and can thus effectively be put to one side. That being so, it is appropriate to take into account on behalf of each of the offenders not only their absence of previous convictions, but also their prior good character. 41 The next feature of the case which is common to each of the offenders is their youth at the time of the offences. The offender Robins was 18 years 9 months at the time, the offender Mawson had just turned 18, and as I have said, the offender J.W.C. was only 16. JWC's age brought into play in his case the provisions of the Children (Criminal Proceedings) Act 1987, and in particular s 6 of that Act. 42 I accept that the age of each of the offenders, and particularly that of J.W.C. whom the legislation regards as having been a child at the time, is a relevant consideration in the present sentencing exercise. The principles to be applied in cases involving the sentencing of young offenders, especially for serious offences, are well established. In R v AEM (Snr) & Ors [2002] NSWCCA 58, the Court of Criminal Appeal said: "It is well accepted that in the case of youth, general deterrence and public denunciation usually play a subordinate role to the need to have regard to individual treatment aimed at rehabilitation…However, important as that principle is, it cannot defeat the primary purpose of punishment nor, in circumstances where young offenders conduct themselves in a way which an adult does can it stand in the way of the need to protect society". (at par 97) 43 In R v Hearne (2001) 124 A Crim R 451 the Court of Criminal Appeal cited, with apparent approval, the principle that: In sentencing young people…the consideration of general deterrence is not as important as it would be in the case of sentencing an adult and considerations of rehabilitation should always be regarded as very important indeed. (at 458) 44 The court then went to observe that: [o]f course that is not to say that other factors such as deterrence or retribution may not have a relatively greater part to play in the more serious offences than they do in the less serious ones…However it is, we think appropriate to look beyond the simple difference in facts to address the principle which is involved. It lies in at least part of the rationale for making any allowance for youth, that is, the immaturity which is usually involved. Where that immaturity is a significant contributing factor to an offence then it may fairly be said that the criminality involved is less than it would be in a case of an adult of more mature years…. the Courts have taken the view that the younger the offender, the greater the weight to be afforded to the element of youth. (at 458-9) 45 See also R v Adamson (2002) 132 A Crim R 511 at 516-7; R v Voss [2003] NSWCCA 182. I have endeavoured to strike an appropriate balance between the various competing principles which are to be applied when dealing with young offenders. 46 So far as the offender JWC is concerned, it is necessary to consider the impact of s 19(3)(a) of the Children (Criminal Proceedings) Act 1987 which provides that, where the offender has turned 18 and the sentence is, as it is here, one imposed according to law, then it must be served in an adult gaol unless "special circumstances" are shown. "Special circumstances" appear pursuant to s 19(4), to include "the degree of vulnerability of the person" and "the availability of appropriate programs at the place the person will serve the sentence". I am persuaded that the offender is able to satisfy each of those requirements particularly as it is clear from the material which has been placed before me that he has made very significant progress to date in his present environment. My attention was also drawn to s 19(2)(a) which makes provision for a young offender to serve a sentence in a detention centre beyond the age of 21 if the non-parole period which is imposed upon him or her will end within 6 months after the offender has attained that age. A submission was advanced on behalf of JWC, that I could, and indeed I should, accordingly fashion a sentence which would enable him to remain in a detention centre for the entirety of his non-parole period. I indicated that I had been originally inclined to impose an effective non-parole period which would extend past, but only by a very short period of time, the date upon which the offender would attain the age of 21 years and six months. The Crown however, very fairly indicated that it would nonetheless be an appropriate exercise of my discretion to impose sentences which would have the effect which was contended for by JWC. Upon reflection, I am disposed to accept the submission and will in due course pronounce orders that will have that effect. In doing so, I have borne in mind the remarks made by the Court of Criminal Appeal in R v AEM (Snr) & Ors (supra). " A transfer to an adult gaol will involve considerable dislocation. Given that last year saw considerable improvement in his behaviour and maturity, the Court should, to the extent that it is able, encourage that. It is far preferable, and in the end works towards the greater protection of the community, if an offender can complete a term of imprisonment with insight into the wrongdoing which placed him or her there, with increased maturity and with skills. He should be given an opportunity to further develop both personally and educationally and we consider that some further period in a Juvenile Justice Centre will better assist that process." (at para 199) 47 The custodial history of each of the offenders is slightly different. The offender Mawson was arrested on the day of the offences (20 December 2002) and has been in continuous custody since then. The sentences to be imposed upon him will commence from that date. The offender J.W.C. was arrested on 1 May 2003. He was in custody until 13 October 2003 when he was released on bail. He remained on bail until 1 April 2004 when I remanded him in custody following his pleas of guilty. I will take into account in his case that period of pre-trial custody. The offender Robins was arrested in March 2003 and had spent no time in custody prior to the day upon which he entered his pleas of guilty. Accordingly his sentences will commence on 29 March 2004. 48 The Crown Prosecutor does not take issue with the fact that this is an appropriate case in which I should find "special circumstances" within the meaning of s 44(2) of the Crimes (Sentencing Procedure) Act 1999. That is particularly so as each of the offenders is being exposed to his first experience of gaol and is likely to require a considerable degree of supervision upon his release into the community. I am also inclined to the view, particularly given their prior good records, the support which each enjoys and the progress that each has made since the commission of the offences, that each of the offenders has very good prospects of rehabilitation. 49 Each of the offenders stand for sentence in respect of two separate, serious offences, albeit that they were committed almost simultaneously and during the same course of conduct. In other words there are features of each offence which are common, but nonetheless there is conduct on the part of each offender which is directed to two different victims, which have produced different consequences. Accordingly I am obliged to impose an appropriate sentence in respect of each matter. I am also to have regard to the principles of totality. See Mill v The Queen (1988) 166 CLR 59; Pearce v The Queen (1998) 194 CLR 594 and Johnson v The Queen [2004] HCA 15. It is common ground that it is appropriate that I should, in the circumstances, impose sentences that are partially concurrent with, and partially cumulative upon, each other. It is also necessary to impose sentences which will properly reflect both the objective gravity of the individual offences as well as the total criminality involved. It is also necessary to give effect to the various matters referred to in s 3A of the Crimes (Sentencing Procedure) Act 1999. Those considerations bear not only upon the length of the overall sentences to be imposed but also upon the non-parole periods. See R v Simpson (2001) 53 NSWLR 704. 50 I must of course also have regard to the issue of parity. Not surprisingly there are features which distinguish the cases of the various offenders. The offender Robins contends that the objective gravity of his involvement in the offence of manslaughter is somewhat less because he was not, on one view of the evidence, an active participant in this offence. The offender Mawson contends however that the subjective features of his case, and in particular his early admissions and his intellectual deficits, are more powerful and thus entitle him to greater leniency. Moreover it is apparent that Robins played a most significant role in the aggravated robbery offence, he being the person who stole the victim's brief case. In the final analysis, only the offender Robins argued (and then only faintly so), that I should draw a distinction between himself and the offender Mawson. 51 In my view, neither the application of principle requires, nor the circumstances of this case demand, that such fine distinctions should entail any differentiation in the sentences to be imposed upon these two offenders. Nor subject to one matter, is there any reason to draw any distinction between the sentences to be imposed on JWC, and the other two offenders. That matter is of course his age relative to that of his co-offenders. In my view that entitles him to a greater measure of leniency and I intend to reflect that factor in the sentences which I shall impose upon him. It is common ground that it is appropriate to do so. 52 So far as the appropriate range for the offence of aggravated robbery is concerned, I have had regard to the decision of the Court of Criminal Appeal in R v Henry (1999) 46 NSWLR 346. That guideline also has applicability to a juvenile offender. See R v SDM (2001) 51 NSWLR 530. 53 The various authorities to which I earlier referred make plain that there is no established tariff for the offence of manslaughter. Nevertheless I have been provided with statistics held by the Judicial Commission in relation to sentences imposed for this offence. Despite the remarks to which I have just referred, and notwithstanding the limitations inherent in such material, I have derived some assistance from it. Orders 54 In respect of count 2 on the indictment I sentence Allan James Mawson to a fixed term of two and a half years' imprisonment to date from 20 December 2002 and to expire on 20 June 2005. Pursuant to s 45 of the Crimes (Sentencing Procedure) Act 1999 I decline to set a non-parole period in respect of that sentence by reason of the length and structure of the sentence which I am about to impose in respect of count 1. In respect of count 1 on the indictment I sentence Allan James Mawson to six and a half years' imprisonment with a non-parole period of four years. The head sentence and the non-parole period will each commence on 20 September 2003 and thus are to be served partly concurrently with and partly cumulatively upon the sentence imposed in respect of count 2. The head sentence will expire on 19 March 2010 and the non-parole period will expire on 19 September 2007 at which time he will be eligible for consideration for release to parole. 55 In respect of count 2 on the indictment I sentence Christopher James Robins to a fixed term of two and a half years' imprisonment to date from 29 March 2004 and to expire on 29 September 2006. Pursuant to s 45 of the Crimes (Sentencing Procedure) Act 1999 I decline to set a non-parole period in respect of that sentence by reason of the length and structure of the sentence which I am about to impose in respect of count 1. In respect of count 1 on the indictment I sentence Christopher James Robins to six and a half years' imprisonment with a non-parole period of four years. The head sentence and the non-parole period will each commence on 29 December 2004 and thus are to be served partly concurrently with and partly cumulatively upon the sentence imposed in respect of count 2. The head sentence will expire on 29 June 2011 and the non-parole period will expire on 28 December 2008 at which time he will be eligible for consideration for release to parole. 56 In respect of count 2 on the indictment I sentence JWC to a fixed term of 2 years imprisonment to commence on 18 October 2003 and to expire on 18 October 2005. Pursuant to s 45 of the Crimes (Sentencing Procedure) Act 1999 I decline to set a non-parole period in respect of that sentence by reason of the length and structure of the sentence which I am about to impose in respect of count 1. In respect of count 1 on the indictment I sentence JWC to five and a half years' imprisonment with a non-parole period which will expire on 14 December 2007. The head sentence and the non-parole period will each commence on 18 October 2004 and thus are to be served partly concurrently with and partly cumulatively upon the sentence imposed in respect of count 1. The head sentence will expire on 17 April 2010 and the non-parole period, will, as I have said, expire on 14 December 2007 at which time he will be eligible for consideration for release to parole. These sentences are to be served in a Detention Centre. ********** Last Modified: 08/03/2004 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.