R v Irvine [2008] NSWCCA 273

New South Wales Court of Criminal Appeal

CITATION: R v Irvine [2008] NSWCCA 273

HEARING DATE(S): 8 October 2008

JUDGMENT DATE: 21 November 2008

JUDGMENT OF: Hodgson JA at 1; Kirby J at 9; Hislop J at 10

DECISION: Appeal dismissed.

LEGISLATION CITED: Crimes Act, 1900

R v Carroll [2008] NSWCCA 218 CASES CITED : R v Zamagias [2002] NSWCCA 17 Kwok v R [2007] NSWCCA 281 Markarian v R [2005] HCA 25; (2005) 228 CLR 357

PARTIES: R v Chad Kyle Irvine

FILE NUMBER(S): CCA 2008/3172

COUNSEL: G. Rowling (Crown) S.J. Odgers SC (Respondent)

SOLICITORS: Solicitor for Public Prosecutions (Crown) Legal Aid Commission (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 08/11/0587

LOWER COURT JUDICIAL OFFICER: Flannery DCJ

LOWER COURT DATE OF DECISION: 11 July 2008

IN THE COURT OF CRIMINAL APPEAL 2008/3172

HODGSON JA KIRBY J HISLOP J

Friday 21 November 2008 R v CHAD KYLE IRVINE Judgment 1 HODGSON JA: I agree with Hislop J. 2 I would add that the Crown placed particular reliance on the recent decision of the Court of Criminal Appeal in R v Carroll [2008] NSWCCA 218. 3 In that case, an offender had been sentenced for manslaughter in the District Court by the imposition of a non-parole period of 18 months and a further term of imprisonment of 18 months, with the sentence to be served by way of periodic detention. The Court of Criminal Appeal by majority allowed a Crown appeal, and ordered that the non-parole period be served by way of full-time custody. 4 There were similarities to the present case. The offender was only 20 years old. The death of the victim was the result of a single head-butt, which unexpectedly caused death when the victim fell backwards and the back of his head hit the roadway with force. Just before the head-butt, the victim had said words to the effect that he would get a gun and shoot people. The offender was of excellent previous character and was deeply remorseful. 5 Consistency in sentencing is desirable, but it is not necessarily correct to use a result in one case to dictate the result in another. And there are in my opinion important differences between Carroll and the present case. 6 In Carroll, the offender was affected by alcohol and became aggressive towards the victim, in circumstances where the victim's reference to getting a gun was considered by the majority of the Court of Criminal Appeal to be no more than an idle boast. 7 In the present case, the offender's approach to the victim was with a view to achieving a proper resolution of prior unlawful conduct by the victim, by having the victim return to his car and await the arrival of police. The sentencing judge accepted that the offender believed he was defending himself when he punched the victim, after the victim had lunged at him. However, the offender was guilty of manslaughter because his behaviour was not proportionate to the circumstances. 8 In the particular circumstances of this case, in my opinion the sentence imposed was not such as to justify intervention by this Court on a Crown appeal. 9 KIRBY J: I agree with Hislop J and I also agree with the additional comments by Hodgson JA. 10 HISLOP J: The respondent pleaded guilty to a charge that on 24 March 2007 at Tenambit he unlawfully killed Shane Larkins contrary to s 18(1)(b)/24 of the Crimes Act, 1900. The maximum penalty for that offence is imprisonment for 25 years. 11 On 11 July 2008 Judge Flannery SC sentenced the respondent to imprisonment for that offence for a non parole period of two years commencing on 18 July 2008 and expiring on 17 July 2010 with a balance of term of one year commencing on 18 July 2010 and expiring on 17 July 2011. She ordered that the sentence be served by way of periodic detention. 12 On 23 July 2008 the Crown appealed against sentence on the ground that the sentence was manifestly inadequate. 13 Her Honour, in her remarks on sentence, set out the facts as follows: "…on the afternoon of 24 March 2007 the deceased drove to the Tenambit area to visit friends. An argument developed between the deceased and those friends and he decided to leave. He was observed doing a burnout as he drove away. He drove to the residence of another friend arriving at about 9pm. He remained drinking at that house until 11pm. A friend of his then offered to walk him home and attempted to take his car keys. The deceased refused to hand over his car keys and said 'no I'm driving'. He walked out of the house and got into his car. His friends encouraged him not to drive and he said 'no I am driving and I'm going to do a skid before I go'. He started his vehicle, revved the engine, which caused the wheels of his vehicle to spin slightly and he drove off. Shortly after 11pm his vehicle was seen and heard doing burnouts in Roberts Street. Between 11 and 11.30pm a number of residents of Roberts Street including the offender, his father, his sister and Matthew Parker came out to investigate the screeching of tyres. Another resident Mr McKenzie decided to get in his vehicle and follow the deceased's vehicle. Mr McKenzie saw the deceased's vehicle wipe out a bus stop sign in Roberts Street before turning into Goldringham Street. He then saw the vehicle drive straight through the junction, mount the curb and collide with a fence. Mr McKenzie did not have a pen and so went back to his house to grab one and when he returned he saw the deceased getting out of the vehicle. Meanwhile Mr Ray Irvine, Mr Parker and Kayleb Irvine had walked up Roberts Street towards Goldringham Street. A short time later the offender caught up with them. He and Mr Parker then jogged off towards Goldringham Street to try and catch up with the vehicle. When they reached the intersection they could not see the vehicle and were about to turn back when they heard the vehicle crash into something. They saw that the vehicle had crashed into a pine log fence. They walked up to the side of the Commodore and saw the deceased alight from it. Mr McKenzie, Mr Parker and the offender remonstrated with the deceased for doing burnouts in such a small street. The deceased locked up his car and walked off in the direction of Houston Avenue. Mr McKenzie returned home, spoke [to] his wife and later returned to the collision scene. The offender and Mr Parker decided to follow the deceased. Mr Parker told the police, 'that's when Chad and me decided that we would talk to this bloke to try and get him back to his car. So we both jogged up to him until we were about 10 metres away and then we walked and we sung out to him. We kept saying things like, if you want to see your car again you had better turn around and go back to it. We told him he has to go back to his car otherwise he would get in more trouble. He then said to us over and over "I don't care, I don't care a fuck." He was really unsteady on his feet. He was all over the place. After a few minutes of trying to convince him to go back to his car he started to head towards Chad. I think out of instinct I saw Chad throw a left-handed jab. I saw it hit him on the right side of his face in the cheek area. I saw the bloke stumble back. It looked like the bloke took a stumble back to get away from Chad. Chad said to me "stuff him let's get back". Chad and I walked off. As we passed the bloke he was still stumbling around like he was before. When we got to the corner of Foster Street and Clarence Street I turned back and I saw the bloke was lying on the ground. We decided that we should go back and make sure that he was okay. When we got back to him Chad checked his pulse and he was still breathing. I could tell that he was unconscious. I was standing over the top of him giving him a little tap on the cheek to try and wake him up. He stirred and made a noise like he was snoring so I thought he was all right. I thought he was sleeping because he was so drunk.'" 14 The ambulance and police were called by others, resuscitation was attempted but was unsuccessful and the deceased died at the scene. 15 Autopsy findings revealed: