Reported Decision: 207 A Crim R 307 New South Wales Court of Criminal Appeal CITATION: REGINA v AJC [2010] NSWCCA 168 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 14/7/10 JUDGMENT DATE: 8 September 2010 JUDGMENT OF: Hodgson JA at 1; Kirby J at 2; Whealy J at 127 DECISION: 1. The Crown appeal is allowed. 2. The sentence imposed upon the respondent is quashed and, in lieu thereof, he is sentenced to a period of 3 years imprisonment from 20 March 2010 until 19 March 2013, with a non parole period of 1 year 9 months to date from 20 March 2010 and expire on 19 December 2011, such term to be served by way of periodic detention. The respondent is to be released to parole on 19 December 2011. CATCHWORDS: CRIMINAL LAW - appeal by Crown against sentence - manslaughter - single punch - 17 year old offender - whether absence of planning in mitigation - discount for assistance - whether assistance of "a high order" - whether sentence manifestly inadequate - periodic detention - discretion to intervene. Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED: Children (Criminal Proceedings) Act 1987 Crimes (Appeal and Review) Act 2001 John Fairfax Publications Pty Limited re MSK, MAK, MMK and MRK [2006] NSWCCA 386 R v Sukkar [2006] NSWCCA 92; (2007) 172 A Crim R 151 House v The King (1936) 55 CLR 499 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 R v Carroll [2010] NSWCCA 55 Hopley v R [2008] NSWCCA 105 R v Hallocoglu (1992) 29 NSWLR 67 R v Chamma [2009] NSWCCA 92 KT v The Queen [2008] NSWCCA 51; 182 A Crim R 571 CASES CITED : R v Irvine [2008] NSWCCA 273 Donaczy v Regina [2010] NSWCCA 143 R v Bashford [2007] NSWSC 1380 R v Smith [2008] NSWSC 201 Regina v Zamagias [2002] NSWCCA 17 R v Previtera (1997) 94 A Crim R 76 R v Rivkin [2004] NSWCCA 7; (2004) 59 NSWLR 284 R v Burnett (1996) 85 A Crim R 76 R v Pangallo (1991) 56 A Crim R 441 R v Mouzomenos [2005] NSWCCA 203 R v JW [2010] NSWCCA 49 PARTIES: Regina (Crown/App) "AJC" (Resp) FILE NUMBER(S): CCA 2009/6807 COUNSEL: P A Leask (Crown/App) P Hamill SC (Resp) SOLICITORS: S Kavanagh - DPP (Crown/App) Giddy & Crittenden (Resp) LOWER COURT JURISDICTION: District Court LOWER COURT JUDICIAL OFFICER: Nield ADCJ LOWER COURT DATE OF DECISION: 11/3/10 IN THE COURT OF CRIMINAL APPEAL 2009/6807 HODGSON JA KIRBY J WHEALY J Wednesday 8 September 2010 Regina v AJC Judgment 1 HODGSON JA: I agree with Kirby J. 2 KIRBY J: This is an appeal against sentence by the Crown. AJC (the respondent) pleaded guilty to the manslaughter of Jamie Purdon by an unlawful and dangerous act. The act was a single punch, delivered with a closed fist, which caused Jamie Purdon to fall to the ground, striking his head. He received injuries from which he died within hours. He was 21 years old. AJC, at the time of the offence, was aged 17 years 3 months. 3 On 8 March 2010, Acting Judge Nield, sitting in Newcastle, heard submissions on sentence. He reserved his decision. On 11 March 2010, he sentenced AJC to imprisonment for 2 years 6 months, to date from 20 March 2010 and expire on 19 September 2012, with a non parole period of 18 months (to expire on 19 September 2011), to be served by way of periodic detention. 4 The Crown, in an Amended Notice of Appeal, asserts error on the part of the sentencing Judge. Before going to the notice of appeal and the arguments advanced by the Crown, I should describe the circumstances in which the incident occurred and say something about the personal history of AJC. The incident. 5 The matter proceeded by way of an Agreed Statement of Facts. The preamble to the agreed statement was in these terms: (agreed facts [4]) "4. The narrative that follows represents an agreed statement of facts. Where there is a relevant difference in the accounts of various witnesses, this is noted. The only relevant difference in the accounts concerns the description of the delivery of the single punch. A number of witnesses, at least eleven, have given statements describing the actus reus. The parties agree differences only minimally, if at all, affect that the offender's criminality, such that the use of the resources of the court on such an exercise is not justified." 6 The agreed statement, however, was supplemented by other material. It included a statement provided by AJC to the police on 29 July 2009, as well as evidence given before the sentencing Judge. 7 The incident occurred at the Maitland Show on Friday 20 February 2009. Jamie Purdon (the deceased) arrived at the show with three friends at 7.30 pm. AJC, his brother and friends, arrived shortly before. 8 Alcohol was not a factor. Although the deceased had been drinking before his arrival, that fact, as I will shortly describe, had no relevance to the confrontation which occurred that evening. The incident, from the perspective of the deceased, was entirely unprovoked. AJC was also not affected by alcohol. In his police statement, which was not challenged, he said this: (statement 29.7.09 [6]) "6. ... Joel gave me a stubby of light beer. I had a few mouthfuls only but didn't finish it. That is all I had to drink that night." 9 During the night there were a number of incidents at the showground, which his Honour described in these terms (substituting the letter "J" for the name of the young person, who is yet to stand trial: (ROS [18]) "18. ... These incidents involved verbal and physical fighting between different groups of young people attending the show. None of these incidents involved the offender. However, one of these incidents involved the group which included the deceased and a group which included (J), a juvenile aged 15 years. This incident involved some 'bracing up' between the groups but, after one of the group which included the deceased asked one of the group which included (J) the ages of his group and was told '15', the group which included the deceased 'walked away', indicating to the group that included (J) that they were 'too young' to be fought." 10 Shortly after 10.00 pm, AJC met up with J and his group. AJC knew J and had seen him earlier in the evening and had briefly spoken to him. J's group included a boy, Levi, aged 15 years, who was also known to AJC. Levi was tall and thin and thought to be vulnerable to head injury because he had a "soft head". Addressing AJC, J said this: (ROS [19]) "19. ... '(AJC), these 20 year old dudes just came and tried to fight Levi and me. I am going to get them back. They were pushing Levi around and you know how he can die if he gets hit. If they hit Levi he could have been killed. Have you got my back?'" 11 It was acknowledged in the agreed facts that the deceased had not picked on Levi, but that AJC believed J when he told him that he had done so. 12 AJC responded to J's request for assistance: "OK man", joining the group as they walked in the direction of the food court. In his statement to the police, AJC said that J "seemed pretty aggressive and aggitated" (at [18]). He said he felt some responsibility for Levi, who was aged 15, and who would otherwise remain in the hands of J (at [18]). When giving evidence on sentence, AJC elaborated, saying this: (T 16) "A. I just wanted to help him. I was – the boys were only fifteen, I was the oldest there and I didn't know what else to do." 13 As the group walked towards the food court, J led the way (at [19]). A group of 20 or 30 males and females, sensing there may be a fight, began walking behind them. AJC yelled to those following that there was a fight at the front gate. He and J then stood to one side, as the followers walked towards the front gate. He later told Dr Lennings, psychologist, that he did this "to avoid further provocation of what he saw was a tense situation" (Dr Lennings, report [15]). His Honour described what then occurred, in these terms: (ROS [20], [21]) "20. After leaving the group, J and the offender saw a group of three men walking towards the food court. One of these men was the deceased. (J) pointed towards the deceased and said 'That's him, let's go bra' to the offender. The offender who was not wearing a shirt, it having been muddied when earlier he had tripped and fallen, handed his wallet and his mobile telephone to an acquaintance to hold and he commenced to jog across the road towards the deceased and his two friends. (J) followed behind the offender. 21. The deceased and his friends became aware that they were being followed by the offender and (J) and, perhaps being concerned for their safety, they made towards an office. Although his friends reached the office, the deceased did not do so before the offender reached him." 14 It was at this point that AJC punched the deceased. The agreed facts included the following: (agreed facts [14/15]) "14. ... The offender caught up with Jamie Purdon, who was facing away from the offender. There were a number of witnesses to the incident and various version(s) of what happened immediately before the blow was struck. A number of witnesses describe the punch as the first contact between the offender and the deceased. A lesser number of witnesses say that the offender placed his hand on the deceased's shoulder and that the deceased turned around and either said something or raised his hand. 15. The offender struck the deceased with a single blow with a clenched fist to the head region. The evidence does not establish precisely where the blow landed. Jamie Purdon fell and hit the back of his head on the ground, ... " 15 In his statement to the police on 29 July 2009, AJC described what occurred in these words: (at [22]) "22. ... The male with the light coloured shirt was facing away from me. I put my left hand on his right shoulder. He turned around and grabbed my left arm near the wrist with his right hand. He clenched his left fist. I thought he was going to hit me. I saw his mates (I thought there were three of them) behind him. I punched him once in the lower left jaw with my right hand. He fell backwards and hit his head. I knew straight away that he was knocked out." 16 AJC was interviewed by Juvenile Justice on 27 July 2009. Their report of 31 July included an account by AJC of the confrontation: (p 2) " ... (AJC) stated his intention in approaching the victim was to verbally abuse him but stated he was aware a physical altercation may ensue. (AJC) initially reported being angry due to the bullying but stated when the victim turned around and grabbed his arm and as a consequence his emotions turned to fear. His fear included being physically hurt as the victim was also surrounded by several mates. Immediately after striking the victim, the noise of his head hitting the ground alerted (AJC) to the fact something was wrong. (AJC) left the scene, and he stated that he enquired of several people if the victim was ok. ... " 17 Somewhat later (13.1.10), AJC was interviewed by Dr Lennings for the purposes of preparing a report, to be tendered on sentence. The account he gave of the incident was as follows: (Dr Lennings, report 15.1.10 [15]) "15. ... (AJC) says he crossed the road to 'have a go' (that is tell off) this person for having a go at his brother's mate. He says he grabbed this person on the shoulder, the victim grabbed his hand, he thought the victim was going to punch him so he punched him first. The victim fell over and did not get back up. ... " 18 His Honour resolved these issues as follows: (ROS [22]) "22. Then one or other of two things happened. Either the offender punched the deceased's head with his clenched right fist or the offender placed his left hand on the deceased's right shoulder and, after the deceased had turned around, he punched the deceased's head with his clenched right fist. Whichever happened, the offender punched the deceased's head once with his closed right fist, causing the deceased to fall to the ground, thereby striking the back of his head on the ground and causing his death ..." 19 AJC collected his phone and wallet and then left the showground. Shortly thereafter he spoke to a friend, who recounted their conversation in these terms: (agreed facts [17]) "17. ... 'The guy that I hit grabbed Levi ... . If you hit [Levi], he can die. Someone came and got me and I chased after him. I ran after him and his mates were with him. I caught him, grabbed his shoulder, turned him around and hit him. He fell back and hit his head on the ground. ... His mates looked at me and then at him on the ground and I thought I'm going to have to fight them so I took off.'" 20 The following day, 21 February 2009, AJC became aware that the person he had hit had died. He told his family what had happened. On 22 February 2009, he, his parents and a solicitor attended the Maitland Police Station. He surrendered himself and was arrested. He was charged with manslaughter and then released on bail to appear before the Children's Court at Maitland on 24 March 2009. 21 His Honour noted that the deceased was an innocent victim. He played no role in what happened (ROS [40]). He had not provoked AJC. He did not even have time to defend himself against AJC's attack (ROS [40]). However, his Honour noted that it was not a case of a bigger and more powerful man picking on someone who was smaller. The deceased was more than three years older than AJC. He was 175 cm tall. He weighed 77 kg and was described as being "of average build" (Dr Nadesan, report 24.3.09, p 2). AJC was about 170 cm and weighed about 64 kg. He was of slight build. Commenting upon AJC's reasons for the attack, his Honour said this: (ROS [42]) "42. ... Frankly, I am unsure as to the offender's reason for his doing what he did. I accept that the offender was not under the influence of anything when he attacked the deceased. I accept that the offender saw himself as the champion of the vulnerable. I accept that he believed that the deceased had tried to fight Levi. But, notwithstanding accepting those things, I wonder at this as being the offender's reason for doing what he did." 22 The offence had been committed in the presence of persons under the age 18 years and that was an aggravating factor (s 21A(2)(ea) Crimes (Sentencing Procedure) Act 1999). Indeed, the attack was an unplanned, impulsive act of a relatively immature young man "who had not given much, if any at all, thought to the consequences of his conduct" (ROS [41]). His Honour found that this was a matter of mitigation (s 21A(3)(b) Crimes (Sentencing Procedure) Act) 1999. In the circumstances, his Honour characterised the offence in these terms: (ROS [39]) "39. ... As to the objective seriousness of the offence, I consider that, as the death of the deceased resulted from a single punch given by the offender, the offence falls below the middle of the range of objective seriousness for offences of its kind. This does not mean that the offence was not a serious one, only that, when considered against offences of its kind, it falls below the middle of the range of objective seriousness." Subjective case. 23 Again there was much common ground between the Crown and counsel for AJC as to matters in mitigation. AJC had entered a plea in the Children's Court at the first opportunity. Indeed, it had been entered on the day the brief was to be served. The Crown acknowledged AJC was entitled to the "maximum discount for the utilitarian value of that plea". His Honour allowed a 25% discount. 24 The plea was also an indication of AJC's remorse. There were many other indications. Referring to his decision to go to the police on the Sunday following the incident, AJC said this, when giving evidence before the sentencing Judge: (T 17) "Q. Some of the statements and the statement of facts records that you were feeling very guilty at that time? A. Of course, I didn't know what to do. Q. One thing you knew to do was the right thing in terms of going to the police? A. Yep, from day 1 I knew it was the wrong thing to do so I had – I had to go, like I had to plead guilty as well." 25 AJC's parents arranged for him to see Dr Rod Allen, a general practitioner with post graduate qualifications in psychology. Dr Allen's first consultation took place about two weeks after the incident and on a monthly basis thereafter. Dr Allen described the way in which AJC presented as follows: (Dr Allen, report 11.11.09, p 1) " ... (AJC) was deeply shocked and numb and he carries great shame at the unforseen outcome. In his words he was 'sick' at his mum and dad being so affected by these events, and 'he'd rather take it all himself'. ... " 26 Juvenile Justice, having interviewed AJC on 27 July 2009, described him in these words: (report p 1/2) "(AJC) presented to the interview as remorseful for his actions. He was visibly upset throughout the interview. (AJC) reported that he had struggled to come to terms with the fact his behaviour had contributed to the death of another person. This was supported by his mother who stated there was a dramatic change in (AJC's) behaviour after the incident as he withdrew from social life, had difficulty sleeping and eating." 27 Dr Lennings, psychologist, said AJC presented as experiencing "a post traumatic stress like reaction". He added: (Dr Lennings, report [39]) "39. There is no doubt the genuineness of A's remorse and the deep impact it has had on him, an impact that has led to some psychological pain but also a rapid escalation in learning about the self and his feelings." 28 A number of character references were tendered. Many referred to AJC's obvious remorse. There was evidence that he wanted to communicate that remorse to the deceased's parents, but did not do so because it may appear contrived or calculated to influence these proceedings. There was, however, a six hour meeting between the deceased's parents and the parents of AJC, which gave AJC some comfort (Dr Lennings, report [32]). When giving evidence before the sentencing Judge, AJC made a public apology to the deceased's family. He stood up as he did so. He said this: (T 19) "Q. I asked you before about how you felt shortly after you'd learnt that Jamie had died. This morning you've seen Mr Allen stand where you're now sitting and read to the court – not read so much but tell the court just how much of a hole there is in the family's life and you know they're sitting facing you now or watching you now. Is there anything that you would seek to take the opportunity to say to them? A. Yes, I'd like to stand. There's no words I can really say that would bring Jamie back or help youse but that night I went to the show I didn't want anything to happen, I didn't mean what I did. It may not mean much but I am sorry. As much – it's turned two lives upside down, more than two lives, your guys' lives, I didn't mean anything. I'm sorry." 29 He went on to describe the impact of his actions upon his own family and upon himself. He said this: (T 19/20) "Q. Thank you. I think you said more than two guys' lives upside down. I think it's also troubled you, according to what we read in some of these references and documents from the psychologists, that you have been concerned about the impact on your family? A. Yes. Q. Is there anything you'd like to say to your family? A. I'm sorry, youse didn't have to go through this. Q. Have you learnt anything from what you've been through, what you're going through? A. I've learnt so much. I've changed as a person. I know how to take things differently and realise that your actions have consequences, that you have to live with those consequences. I've learned how to think differently, how to take things differently, how to cope. I think I've matured, I've had to mature very, very quickly and –" 30 Dr Lennings, in his report under the heading "Attitude to the offence", recorded the following response from AJC: (Dr Lennings report [17]) "17. ... He tells me he replays the event in his mind nearly every day. He says that he does not really want to stop thinking about it, despite it being an unpleasant memory, and says it 'kind of keeps me on the right track' and keeps him motivated to achieve better things." 31 His Honour accepted his remorse as "deep and genuine" and a mitigating factor (s 21A(3)(i) Crimes (Sentencing Procedure) Act) 1999 (ROS [48]). 32 AJC had no convictions. The Crown acknowledged that he was a person of good character. His Honour accepted his character as a mitigating factor (s 21A(3)(e) and (f)) (ROS [46]). 33 AJC was the second youngest child in a family of six children. He lived at home with his parents and youngest brother. His older siblings had left home to establish their own lives. He had the support of his family. 34 Evidence was given about his schooling. There was one episode of some importance in his development, which his Honour described in these terms: (ROS [5]) "5. ... when he was aged nine years, he contracted a virus which affected his eyes, turning his eyes inward so that he appeared cross-eyed. He underwent a variety of treatments, including the wearing of glasses, over about two years without any improvement until an operation corrected the position of his eyes. During this period he was subjected to bullying by fellow pupils at his school. This bullying was mainly name calling and it occurred before and after school but not at school. Not surprisingly, or unexpectedly, he was greatly affected by this bullying during this difficult period in his life, with the result that he became withdrawn. However, following the operation, he, as it were, came out of his shell, regained his self esteem and self confidence and made friends. ..." 35 When AJC saw Dr Lennings, his mother was also interviewed. She described how her son always came to the aid of the underdog, as a consequence of the way in which he had been bullied and teased at school (Dr Lennings, report [29]). Dr Lennings formed the following view: (report [35]) "35. This is (a) tragic and terrible matter. (AJC) presents as a young man of pro-social bearing and good adjustment who at the age of 17 still carried the scars of his own bullying experiences and saw himself as something of a protector of others. At the age of 17 he was cognitively and emotionally immature despite his good cognitive skills and general psychological adjustment." 36 Dr Lennings added: (report [38]) "38. In the current situation it seems that (AJC's) age provided a context for failing to regulate emotion when confronted with a story that tapped into a key them(e) for him , the sense of outrage at the bullying experience of a young person by a more powerful older person. Compounding this was his relative lack of social sophistication as a result of the somewhat idyllic childhood he seemed to have experienced and the closeness and altruism modelled by his family. The combination led to an action which unfolded in an unexpected way." (emphasis added) 37 His Honour clearly accepted that, to use Dr Lennings' words, the story provided by J "tapped into a key them(e)" by reason of his exposure to bullying. His Honour said this: (ROS [5]) "5. ... Now, as a result of what happened to him, he regards himself as in some way a champion of the vulnerable. I accept that what happened to him during these two years shaped his view of himself." 38 Returning the respondent's history, he completed his School Certificate, his academic performance being above average. During his final year, he attended the Kurri Kurri TAFE College one evening per week, undertaking a course in welding and thermal cutting (ROS [7]). 39 Having left school, AJC was employed as an apprentice plant mechanic with Four Mile Pty Limited, which is part of the Bloomfield Group. At the same time he commenced a three year plant mechanic's course at TAFE. Juvenile Justice, in the context of its assessment of the risk of future offending, said this: (report 31.7.09, p 4) "Several protective factors were identified within (AJC's) life. Firstly his strong attachment and bonds with family and friends. He has strong social support from extended family and his connection with sporting clubs. ... " 40 Their conclusion, in terms of risk, was in these terms, referring to a Risk Assessment tool used by the Department known as SAVRY (Structured Assessment of Violent Risk in Youth): (report 31/7/09, p 5) "Overall (AJC's) risk for future violence is assessed as low. There appears to be no suggestion that (AJC) had engaged in any anti-social behaviour prior to this event. The SAVRY confirms that there are no significant risk factors that would predict an ongoing propensity towards violence. Once (AJC) enters the criminal justice system, cognitions will need to be further explored with regards to what is appropriate or otherwise with regards to dealing with bullies. In addition, he would require a low level of service for intervention in regard to offending behaviour and may also benefit from some stress management strategies." 41 Dr Lennings made a similar assessment: (Dr Lennings, report [40]) "40. ... Formal risk assessment with (AJC) is complicated by the complete lack of risk factors other than the offence itself. There is an absence of substance abuse, or anti-social peers. He is not especially impulsive. He has a good adjustment to his education and an excellent record at work. He does not suffer from a mental illness despite the residual nature of the post traumatic stress disorder. He presents as a compliant young man with a deep sense of the responsibility for his behaviour." 42 His Honour accepted that AJC had excellent prospects of rehabilitation and was unlikely to reoffend, which were both mitigating factors (s 21A(3)(g) and (h)). His Honour added: (ROS [49]) "49. ... Moreover, I do not overlook that, in the sentencing of a juvenile, even a juvenile who is close to being an adult, rehabilitation is a major, if not the major, factor to be taken into account." 43 His Honour noted that, having been 17 years 3 months at the time of the offence, AJC was to be dealt with as a juvenile and s 6 of the Children (Criminal Proceedings) Act 1987 had application. I will return to that aspect below. 44 There were two other matters which both operated to mitigate the offence. The first was that, contrary to the requirements of the Children (Criminal Proceedings) Act 1987, the Maitland Mercury had published details which, in conjunction with an earlier publication, identified AJC. The newspaper later apologised. Referring to the words of Spigelman CJ in Application by John Fairfax Publications Pty Limited re MSK, MAK, MMK and MRK [2006] NSWCCA 386 (at [18]), counsel submitted that such publication involved "a significant public shaming element". His Honour accepted that it was a mitigating factor in the determination of the appropriate sentence (ROS [33]). 45 The second, and more substantial aspect, concerned assistance given by AJC to prosecuting authorities concerning the involvement of J in the offence. His Honour said this: (ROS [50]) "50. ... I consider that the further discount in sentence should be 25 percent which, when added to the discount for the guilty plea, makes a total discount in sentence of 50 percent." 46 Against that background, let me go to the Amended Notice of Appeal filed by the Crown. The Amended Notice of Appeal. 47 The Amended Notice of Appeal identified the following grounds: Ground 1: His Honour erred in finding that the offence was mitigated by being an "unplanned" attack under the Crimes (Sentencing Procedure) Act 1999 section 21A(3)(b). Ground 2: His Honour erred in awarding a combined discount of 50 per cent for the respondent's plea and assistance because the assistance whilst timely and valuable did not warrant the discount afforded to it and because the penalty imposed was unreasonably disproportionate to the nature and circumstances of the offence. Ground 3: The sentence is manifestly inadequate. Ground 1: His Honour erred in finding that the offence was mitigated by being an "unplanned" attack under the Crimes (Sentencing Procedure) Act 1999 section 21A(3)(b). 48 The Crown accepted that there had been no extensive planning. However, there had been some planning. There was an interval of about five minutes between the time J approached AJC and provided him with information concerning the actions of a number of "twenty year old dudes" and the attack. In that five minutes, according to the Crown, AJC and others, including J, began their search for those responsible. Before the attack, AJC called out to the group following them, so that they were diverted elsewhere. That demonstrated, according to the Crown, that AJC foresaw a fight. He handed his mobile phone and wallet to an acquaintance in preparation for that fight. 49 According to the Crown, rather than the punch being an unplanned attack, it was retaliation. The sentencing Judge was therefore in error in regarding it as a matter in mitigation. 50 Counsel for AJC, in his response, drew attention to the evidence of the respondent before the sentencing Judge. He said this in re-examination: (T 23/24) "Q. My learned friend has asked you some questions about your motive. How long was there between the time that J came up to you and the time that you delivered the blow? A. I'm not sure exactly but at the most five minutes. Q. Did you think this through in any adult way? A. No, that's the bad thing that I realise now. Q. Or in any juvenile way I'm reminded? A. Yeah. Q. Did you really think it through? A. No." 51 In written submissions, prepared in advance of the hearing, counsel for AJC asserted that the blow was unplanned, with little premeditation, such that s 21A(3)(b) was engaged. That submission was repeated in oral argument (T 42). No submission was made by the Crown contradicting that assertion. It was open to Nield ADCJ to find that the offender's attack upon the deceased was an impulsive act of a relatively immature young man. 52 Dealing with these submissions, the Crown, in substance, drew attention to the middle ground between an offence aggravated by "being part of a planned or organised criminal activity" (s 21A(2)(n) Crimes (Sentencing Procedure) Act 1999) and an offence mitigated because it was "not part of a planned or organised criminal activity" (s 21A(3)(b)). The Crown was not suggesting planning at a level that made it a matter of aggravation. It was simply saying that there was some planning, so that the offence could not be described as "not part of a planned ... activity". The fact that there was some planning meant that it was neither a matter of aggravation nor a matter of mitigation. 53 It is instructive to review the sequence in the "at the most five minutes" between J's request for assistance and the punch. J's request to AJC included a statement: "I am going to get them back ... have you got my back?" (agreed facts, supra [10]). AJC responded: "OK man" (supra [12]). They then began walking in the showground, with J leading. It may be assumed that AJC knew there may be a confrontation. He acknowledged he was angry because of the account J had given that Levi had been bullied. He said to Juvenile Justice (27.7.09) and repeated to Dr Lennings (13.1.10) that he had in mind verbal abuse. It is reasonable to suppose that, as they walked, AJC did not know how events would unfold, or what he would do. His action in diverting the followers is, to my mind, more consistent with his account to Dr Lennings, that he was seeking "to avoid provocation in what he saw was a tense situation" (supra [15]), than knowing that there would definitely be a fight, as the Crown submitted. 54 At some point J saw the group, which included the deceased, and said: "That's him, let's go bra" to AJC (agreed facts supra [13]). AJC then handed his wallet and mobile phone to an acquaintance and jogged across the road towards the deceased and his two friends. It is likely that he placed his hand on the deceased's shoulder, since the deceased must have turned towards him at the time he delivered the punch. There were a number of steps in that sequence. However, they would have taken a matter of seconds. Handing over the phone and wallet was consistent with knowledge, for a second or two, that there would be a fight. It was also consistent with knowing that there may be a fight and a late decision, perhaps having touched the deceased on the shoulder, to throw a punch. Either way, in my view, it was open to his Honour to regard AJC's actions as impulsive and unplanned. I would not find error in respect of the first ground. Ground 2: His Honour erred in awarding a combined discount of 50 per cent for the respondent's plea and assistance because the assistance whilst timely and valuable did not warrant the discount afforded to it and because the penalty imposed was unreasonably disproportionate to the nature and circumstances of the offence. 55 The Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Act") makes the following provision in respect of the reduction of "penalties for assistance provided to law enforcement authorities": "23(1) A court may impose a lesser penalty than it would otherwise impose on an offender, having regard to the degree to which the offender has assisted, or undertaken to assist, law enforcement authorities in the prevention, detection or investigation of, or in proceedings relating to, the offence concerned or any other offence. (2) In deciding whether to impose a lesser penalty for an offence and the nature and extent of the penalty it imposes, the court must consider the following matters: (a) the effect of the offence on the victim or victims of the offence and the family or families of the victim or victims, (b) the significance and usefulness of the offender's assistance to the authority or authorities concerned, taking into consideration any evaluation by the authority or authorities of the assistance rendered or undertaken to be rendered, (c) the truthfulness, completeness and reliability of any information or evidence provided by the offender, (d) the nature and extent of the offender's assistance or promised assistance, (e) the timeliness of the assistance or undertaking to assist, (f) any benefits that the offender has gained or may gain by reason of the assistance or undertaking to assist, (g) whether the offender will suffer harsher custodial conditions as a consequence of the assistance or undertaking to assist, (h) any injury suffered by the offender or the offender's family, or any danger or risk of injury to the offender or the offender's family, resulting from the assistance or undertaking to assist, (i) whether the assistance or promised assistance concerns the offence for which the offender is being sentenced or an unrelated offence, (j) the likelihood that the offender will commit further offences after release. (3) A lesser penalty that is imposed under this section in relation to an offence must not be unreasonably disproportionate to the nature and circumstances of the offence." 56 When AJC surrendered himself to the police on 22 February 2009, he stated that he was willing to cooperate with the investigation. He pleaded guilty at the Children's Court on 28 April 2009. Through his solicitors he signified a willingness to make a statement. The statement was ultimately signed on 29 July 2009. Shortly before that date, J was charged with manslaughter and, indeed, with other offences. On 22 October 2009, AJC attended committal proceedings in respect of J to give evidence for the Crown. 57 The police prepared an affidavit for the purposes of the sentencing hearing. It became a confidential exhibit. It described the assistance given by AJC, commenting upon the issues arising under s 23 of the Sentencing Act. AJC's involvement was described as "pivotal" and "critical". As his Honour later remarked, the police characterised the assistance as "reliable, complete, significant and useful" (ROS [50]). They added that, because it was well known that he had provided that assistance, he was at risk of reprisal. 58 The confidential exhibit was available to counsel on this appeal and examined by the Court. 59 The Crown and counsel for AJC prepared written submissions in advance of the sentencing hearing. Both made reference to the issue of assistance. The submissions made on behalf of AJC included these words: (RS [5.1]) "5.1 Pursuant to s 23(1) of the Crimes (Sentencing Procedure) Act 1999 the Court may impose a lesser penalty than it would otherwise impose on an offender having regard to the degree to which the offender has provided assistance to law enforcement authorities. Section 23(2)(a) – (j) sets out a number of factors that the Court must consider in deciding whether to impose a lesser penalty and the nature and extent of the penalty it imposes. Section 23(3) provides that a lesser penalty that is imposed under the section must not be unreasonably disproportionate to the nature and circumstances of the offence. " (emphasis added) 60 In the oral submissions that followed, counsel for AJC emphasised that the assistance had directly resulted in the charges laid against J. It was, he said, a courageous decision by AJC to provide evidence against a person who, at that time, was "his friend" (T 40). The Crown responded that the assistance was "timely" and "of value", but not so exceptional as to warrant a combined discount of 50 percent (T 41). 61 His Honour, when sentencing AJC, recited this history (ROS [30]). He then said this: "30. I understand that (J) has been charged with the manslaughter of the deceased and with additional charges of interfering with witnesses and hindering the police investigation (see annexure (A) to exhibit E)." 62 His Honour gave a 25 percent discount for a plea of guilty, which the Crown acknowledged was entirely appropriate, and then gave the following reasons for an additional 25 percent discount for assistance: (ROS [50]) "50. THE OFFENDER'S ASSISTANCE TO POLICE. As I have said already, the offender has agreed to assist police in the prosecution of (J). He has made a statement (exhibit D) setting out the evidence that he will give on the prosecution of (J). He has attended court to give that evidence. He is prepared to attend court again to give that evidence. His assistance to police in the prosecution of (J) is considered to be reliable, complete, significant and useful. By giving this assistance, he has exposed himself to the risk of retaliation from (J) or retribution from other people, given the well known dislike by offenders of people who assist police in the prosecution of offenders. The fact that he has assisted police in the prosecution of (J) is a mitigating factor of the offence (see s 21A(3)(m) and s 23). He is entitled to a discount in sentence on account of his assistance to police. ..." 63 The Crown, in submissions on this appeal, drew attention to his Honour's finding that by giving assistance the respondent had exposed himself to the risk of retaliation from J and also the risk of retribution from others (CS [28]). There was, it submitted, no evidence that AJC, if imprisoned, would spend his sentence in more onerous conditions. 64 The Crown acknowledged that fixing a discount for assistance involved the exercise of a discretion. However, the discretion was not wholly unconstrained. The sentencing Judge must, in accordance with s 23(3) of the Sentencing Act, ensure that the lesser penalty was not "unreasonably disproportionate to the nature and circumstances of the offence". His Honour referred to s 23 in his remarks. However, he did not specifically refer to s 23(3) and the principle of proportionality. A failure to refer to that subsection, the Crown acknowledged, was not "necessarily indicative of error" especially where, as here, the parties in submissions made reference to this constraint (CS [30]). Nonetheless the assistance, whilst timely and valuable, was not, according to the Crown, of such an order as to justify the discount which had been given. In the result, the penalty was disproportionate to the nature and circumstances of the offence. 65 The Crown drew attention to R v Sukkar [2006] NSWCCA 92; (2007) 172 A Crim R 151. In that case, a discount (of the order of 22 ½ percent) had been allowed for assistance. On a Crown appeal, the discount was said to have been excessive. Latham J made the following statement, referring to a composite discount for both a plea of guilty and assistance: (at 167) "54. While there is no fixed tariff for assistance to the authorities, discounts customarily ranged between 20 percent and 50 percent. There have been comparatively rare cases where a discount in the order of 55 percent or 60 percent has been given. Generally speaking however, a discount of 50 percent is regarded as appropriate to assistance of a very high order. No doubt, that is in part a reflection of the principle that a discount for assistance must not produce a result which is disproportionate to the objective gravity of a particular offence and the circumstances of a particular offender." 66 Howie J added the following comment, to which the Crown drew attention: (at 153) "3. As Latham J points out, the discount for assistance reflects a number of considerations that impact upon the sentence to be imposed upon the offender. One factor has traditionally been that a person giving assistance will normally be at risk within the gaol environment and, therefore, may need protection for a substantial part, if not all, of the term of the sentence. When this court has expressed the view that the appropriate range for the plea of guilty and assistance is between 20 and 50 per cent, that range has been formulated on the basis that some reduction was due, not only to encourage others to give information to the authorities but also 'to compensate them for the more difficult conditions under which they will inevitably have to serve their sentences as a result of having given that information', see R v Cartwright (1989) 17 NSWLR 243 at 250." 67 Howie J pointed out that it was no longer inevitable that an offender who provided assistance would serve his sentence in more difficult conditions (at 153). His Honour added: (at 154) "5. It seems to me that the courts should now acknowledge the reality of the situation and reduce the range of discount to reflect the fact that one of the bases of the discount is no longer generally applicable. In my opinion discounts for a plea and assistance of more than 40 per cent should be very exceptionally, if at all, granted in a case where there is no evidence that the offender will spend the sentence, or a substantial part of it, in more onerous conditions than the general prison population. ... " 68 Counsel for AJC responded that it was a matter for the sentencing Judge to make an evaluation as to the value of the assistance. There was a range, as Latham J pointed out in Sukkar. His Honour had fixed a discount within that range. He had not, contrary to the submission of the Crown, based his decision upon any suggestion that AJC would be disadvantaged within the prison system. He accepted "the obvious", as stated by the police, that the young person "had exposed himself to the risk of retaliation from (J) or retribution from other people" (RS [3.4]). The determination of a composite discount of 50 percent was well open, given the "wide discretion" of the sentencing Judge. 69 Counsel for the respondent added: (RS [3.9]) "3.9 The Appellant (at AWS 30) almost, but not quite, suggests that Judge Nield may have disregarded s.23(3) of the Crimes (Sentencing Procedure) Act and the requirement that any discount for assistance not render the ultimate sentence disproportionate to the offence. ... " 70 Counsel then drew attention to his own written submission to the sentencing Judge, set out above, in which he expressly referred to the constraint in s 23(3). As a "vastly experienced sentencing Judge" his Honour was well aware of the principle of proportionality in s 23(3). 71 Dealing with these submissions, the error asserted by the Crown must meet the test in the classic statement by Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499: (at 505) " ... It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. ... " 72 Here, the Crown suggested that his Honour had regard to irrelevant considerations, namely the risk of retaliation or retribution, since there was no evidence of such risk. However, his Honour based that statement upon the suggestion by the police, in the confidential exhibit (Exhibit E), that there was a risk of reprisal. His Honour, or course, was sitting in Newcastle, dealing with a matter that had arisen in Maitland. Maitland is a relatively small town. AJC's involvement, contrary to the prohibition in the Children (Criminal Proceedings) Act 1987, had received publicity. The police had acknowledged, in the confidential exhibit, that his assistance was widely known. I believe, in that context, it was relevant for his Honour to take account of the matter identified. 73 Was there latent error, such that a 25 percent discount was so unreasonable or plainly unjust that error may be inferred? In concrete terms, adopting the words of Latham J in R v Sukkar, was it unreasonable or plainly unjust for his Honour to regard the assistance given by AJC as "of a very high order", justifying a 25 percent discount? The assistance plainly merited a significant discount. AJC had co-operated from the outset. His evidence, in combination with that of another witness, enabled the police to lay charges against J. The police believed he had been completely honest. He was prepared to give evidence at the committal and trial. He faced the risk of reprisal. In the context of a person giving assistance in a country town, that risk may be magnified. 74 However, the risk of reprisal could not be said to be substantial, unlike the risk in some cases that have attracted a discount for assistance. No other detriment was suggested. Further, the assistance was not against interest. It was an important aspect of AJC's account that he had been misled by J, when he suggested that the deceased had bullied Levi. 75 Weighing these matters, a discount of about 15 percent was appropriate. A discount of 25 percent was a stretch. It is appropriate, I believe to find error. 76 However, if an adjustment were made to the discount for assistance, and it were reduced to 15 percent, the composite discount (that is, with the plea) would then be 40 percent. Applying that discount to his Honour's starting point of 5 years, the sentence would reduce to 3 years. Periodic detention would still be available as a sentencing option (s 6(1) Sentencing Act). Ultimately, this Court has a discretion as to whether to intervene or dismiss the appeal. It is instructive, in these circumstances, to consider ground 3. Ground 3: The sentence is manifestly inadequate. 77 The Crown and AJC were both represented by Senior Counsel at the sentencing hearing. Each prepared helpful written submissions. His Honour, having heard submissions, reserved his decision. His decision, when delivered, betrayed a great deal of care, as the Crown fairly acknowledged. The Crown, in its submissions on this appeal, said this: (CS [32]) "32. A number of matters require specific acknowledgement. His Honour Acting Judge Nield was confronted with a difficult sentencing exercise because in single blow manslaughter cases there is often a significant disparity between the moral culpability of the act and the dire and unintended consequences it produced. The difficulty was enhanced in the present case because the respondent's status as a juvenile required particular sensitivity in relation to the application of the principles of retribution, deterrence and denunciation. His Honour was at pains to refer to the relevant statutory considerations and went so far as to point out the complexity of the sentencing process and the need to balance the considerations to be taken into account. His Honour approached the task with care and consideration." 78 One of the statutory considerations his Honour referred to was s 3A of the Crimes (Sentencing Procedure) Act 1999, which set out the purposes of punishment. That section makes the following provision: "s3A. 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." 79 Since AJC was a juvenile, s 6 of the Children (Criminal Proceedings) Act 1987 was also relevant. That section is in these terms: "s6. A person or body that has functions under this Act is to exercise those functions having regard to the following principles: (a) ... (b) that children who commit offences bear responsibility for their actions but, because of their state of dependency and immaturity, require guidance and assistance, (c) that it is desirable, wherever possible, to allow the education or employment of a child to proceed without interruption, (d) that it is desirable, wherever possible, to allow a child to reside in his or her own home, (e) ... (f) that it is desirable that children who commit offences be assisted with their reintegration into the community so as to sustain family and community ties, (g) ... (h) that, subject to the other principles described above, consideration should be given to the effect of any crime on the victim." 80 His Honour then said this: (ROS [35]) "35. ... Some of these factors, such as punishment, protection of the community and deterrence, pull in one direction. Others of these factors, such as rehabilitation of the offender, pull in an opposite direction. What a Court must do is, so far as is possible, balance the competing factors. ... " 81 His Honour then identified and discussed, one by one, matters relevant to the moral culpability of AJC, including: · The serious nature of the offence, which carried a maximum penalty of 25 years imprisonment (ROS [39]). · The fact that the offence involved the taking of a human life and the "immeasurable loss" to the family and partner of the deceased (ROS [35], [39]). · The age of the offender (17 years 3 months) (ROS [38]). · That the offence, which was a single punch, was below the mid range (ROS [39]). · That it was entirely unprovoked by the deceased (ROS [40]). · That it was an impulsive act of a relatively immature young man who had not given much thought, if any at all, to the consequences of his conduct (ROS [41]). · That, by reason of AJC's childhood experience of being bullied, he saw himself as the champion of the vulnerable and believed, wrongly, that the deceased had tried to fight Levi (ROS [42]). · That AJC was not under the influence of anything at the time of the attack (ROS [42]). · That it was not a case of a larger, more powerful man attacking a smaller man (ROS [43]). · That it was a matter of aggravation that the attack occurred in the presence of people under the age of 18 years (ROS [44]). 82 His Honour then identified features of the subjective case of AJC, which were relevant. They included: · His unblemished character and the fact that he had no criminal record were matters in mitigation (s 21A(3)(e) and (f)) (ROS [46]). · His public shaming in the local newspaper, contrary to the requirements of the Children (Criminal Proceedings) Act was also a matter in mitigation (ROS [45]). · His plea of guilty was entered at the first opportunity, and attracted a discount of 25 percent (ROS [47]). · His remorse was deep and genuine (ROS [48]). · He had excellent prospects of rehabilitation and was unlikely to reoffend, both matters of mitigation (s 21A(3)(g) and (h)) (ROS [49]). · His assistance to the police which was significant, reliable and truthful entitled him to a discount of 25 percent, and was also a matter in mitigation (s 21A(3)(m) and s 23) (ROS [50]). 83 His Honour concluded that personal deterrence was not a significant matter, which had been acknowledged by the Crown (ROS [51]) (CS on Sentence, p 2). On the question of general deterrence, his Honour said this: (ROS [52]) "52. GENERAL DETERRENCE. Because the offender was a juvenile when he committed the offence, general deterrence is of less significance than it would have been in the sentencing of an adult who had committed the same offence. This does not mean that general deterrence may be ignored, only that it is of less significance than it would otherwise have been. This is because there is significant public interest in the deterring not only of adults but also of juveniles of antisocial behaviour." 84 His Honour then identified his starting point as 5 years imprisonment. That term was to be reduced by 50 percent to reflect the plea of guilty (25 percent) and the assistance (25 percent). The sentence therefore reduced to imprisonment for a period of 2 years and 6 months. Consideration was then given to whether there should be a finding of special circumstances, justifying a variation to the statutory ratio between the non parole period and the time on parole. His Honour determined that, because of the offender's age and prospects of rehabilitation, a variation was justified. He fixed a non parole period of 1 year 6 months and a parole period of 1 year. 85 His Honour then addressed the question of whether the sentence should be served in full time custody or by periodic detention. His conclusion was as follows: (ROS [59]) "59. Although I consider that service of a sentence of imprisonment by periodic detention is considerably less onerous than service of a sentence on a full time basis, something which is obvious, I consider that the offender should serve the non parole period of one year six months by periodic detention as, doing so, will allow him to reside with his parents during the week and will allow his education and employment to proceed without interruption, some things considered desirable by s 6 of the Children (Criminal Proceedings) Act . " 86 The Crown, in its submissions on this appeal, acknowledged that there was no single correct sentence (Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [26]-[28]). The Court will only intervene if the sentence is so disproportionate to the matter to which it relates that error can be inferred on the part of the sentencing Judge (Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at [59]). 87 Here, according to the Crown, there was that degree of disproportion that error should be inferred. The sentence "simply fails to mark the seriousness of the offence". The offence, according to the Crown, involved the following: (CS [34]) " ... the respondent pursuing the victim in a public place and in company in order to take revenge for a (mis)perceived wrong in circumstances where the victim posed no threat to anyone and where he was given no opportunity to defend himself from a violent and wholly unwarranted blow to his head which resulted in his death because it was of sufficient force to fell him to the ground where he struck his head. ... " 88 Pausing there, that description overstates the circumstances, as characterised by his Honour. It was, in the end, an impulsive act rather than a plan hatched five minutes beforehand. 89 The Crown drew attention to a number of cases, including R v Carroll [2010] NSWCCA 55, where Allsop P and Johnson J said this: (at [60]) "60. This Court observed in Hopley v R [2008] NSWCCA 105 at [46] that, regrettably, 'single-blow manslaughter cases (by unlawful and dangerous act) are not rare in this State'. It was said in Hopley v R at [47]: 'As the learned sentencing judge correctly observed (by reference to R v Grenenger ), this case is a further example of the disastrous consequences which can flow from a public affray in a place of lawful public resort. The violence of the Applicant was perpetrated in a public street where persons were present and where it constitutes a particular affront to civil peace to have a man killed in this way: R v Inzitari (NSW Court of Criminal Appeal, 28 March 1985). It was necessary for the Applicant to be punished for his crime and for an element of general deterrence to be reflected in the sentence.'" 90 That comment, according to the Crown, was apposite in this case. His Honour had allowed the respondent's subjective case to overwhelm the objective seriousness of the offence. Hence, according to the Crown, there were two errors: · First, the length of the sentence itself was manifestly inadequate. · Secondly, and separately, the sentence was inadequate because of the order that it be served by periodic detention, which carried a strong element of built in leniency (R v Hallocoglu (1992) 29 NSWLR 67; and R v Chamma [2009] NSWCCA 92 at [26] per Buddin J). 91 Counsel for AJC, in response, emphasised three matters. The first was the breadth of the sentencing Judge's discretion. Absent clear error, the circumstances in which this Court will intervene are limited. 92 Secondly, the youth and immaturity of AJC was fundamental to an understanding of his crime. The principles relevant to sentencing of young offenders were recently restated by McClellan CJ at CL in KT v The Queen [2008] NSWCCA 51; 182 A Crim R 571 at 577 ff. His Honour said this: (at 577/8) "22. The principles relevant to the sentencing of children have been discussed on many occasions. Both considerations of general deterrence and principles of retribution are, in most cases, of less significance than they would be when sentencing an adult for the same offence. In recognition of the capacity for young people to reform and mould their character to conform to society's norms, considerable emphasis is placed on the need to provide an opportunity for rehabilitation. These principles were considered in R v GDP (1991) 53 A Crim R 112 at 115-116 (NSWCCA), R v E (a child) (1993) 66 A Crim R 14 at 28 (WACCA) and R v Adamson (2002) 132 A Crim R 511 at [30])." 93 His Honour added: (at 578) "23. The law recognises the potential for the cognitive, emotional and/or psychological immaturity of a young person to contribute to their breach of the law. ... " 94 That is not to say that general deterrence or retribution may be completely ignored, especially where the young person has conducted him or herself as an adult might (at [25]). His Honour added: (at 578) "25. ... In determining whether a young offender has engaged in 'adult behaviour' ( R v Voss [2003] NSWCCA 182 at [14]), the court will look to various matters including the use of weapons, planning or pre-meditation, the existence of an extensive criminal history and the nature and circumstances of the offence ( Adamson at [31]-[32]). Where some or all of these factors are present the need for rehabilitation of the offender may be diminished by the need to protect society." 95 Here, there were no weapons, there was no criminal history, and the punch was characterised as an impulsive act of a relatively immature young man. His involvement could be explained, at least in part, by his own history of having been bullied and by his mistaken belief that the deceased had bullied Levi. Whilst general deterrence and denunciation remained relevant, as Nield ADCJ recognised, the rehabilitation of the offender, and the matters identified in s 6 of the Children (Criminal Proceedings) Act 1987, were of greater importance. 96 The third matter was an analysis of recent cases in this Court, described as cases of "manslaughter arising from a single punch". Three cases were looked at in some depth: R v Hopley (supra), R v Carroll (supra), relied upon by the Crown, and R v Irvine [2008] NSWCCA 273. 97 R v Hopley was an application for leave to appeal by an offender who had been sentenced in the District Court to a non parole period of 3 years and an additional term of 2 years. There were, according to counsel for the respondent, significant differences between the circumstances of that offender and AJC. First, the offender was 35 years old. Secondly, there was significant aggression by the offender, described by the sentencing Judge in these terms: (at [4]) "4. ... He walked directly towards Mr Birss and, without warning hit him with his left fist. After that he took a few steps backwards and adopted a fighting stance. Mr Birss seems to attempt to calm the offender, by raising his hands with his palms towards the offender, but the offender would not be calmed. He approached Mr Birss again and struck him a heavy blow with his right fist causing Mr Birss to fall to the ground hitting his head heavily ... " 98 Thirdly, the offender had a significant criminal record which included offences of drink driving, possession of drugs and assault occasioning actual bodily harm. Finally, the sentence had been imposed after trial where a jury had found him guilty. 99 R v Carroll (supra) was a Crown appeal. It had a tortuous history. The offender pleaded guilty to manslaughter arising out of a head butt to the victim's face. He was sentenced in the District Court to a non parole period of 18 months and an additional term of 18 months, the non parole period to be served by periodic detention. On a Crown appeal the Court, by majority, upheld the appeal and sentenced the offender to the same sentence, but will full time custody. Mr Carroll immediately began serving that sentence. The High Court thereafter quashed the sentence and remitted the matter to the Court of Criminal Appeal. Mr Carroll was released on bail, having been in custody for over 7 months. The Court ultimately allowed the Crown appeal, quashing the original sentence and imposing an 18 month suspended sentence. 100 Counsel for AJC pointed to a number of differences between the circumstances of AJC and Mr Carroll. First, Carroll was older. Allsop P and Johnson J (forming part of the Court of Criminal Appeal after the matter had been remitted), said this: (at [61]) "61. ... Mr Carroll was 20 years old, a young adult, at the time of the offence. The principles which apply directly to the sentencing of juvenile offenders, and the approach to general deterrence and rehabilitation, were not applicable to his case. Of course, his relative youth and his prospects of rehabilitation remained significant factors on sentence. ... " 101 Secondly, a head butt is considerably more brutal than a punch. Allsop P and Johnson J said this: (at [59]) "59. The character of a head butt that should be recognised is that it is a single blow by the head or forehead to the face (nose and mouth) of the victim delivered through the power of the neck and upper body. It is a blow of significant objective force and is inherently brutal. It was not a 'bop on the head' as Mr Game put in argument (T 24-25, 10 July 2009). The above is not to find facts, but to state what a head butt is ... " 102 Their Honours added: (at [59]) "59. ... There may have been only one blow ... but it was a blow of a violent and brutal character which made the objective characterisation of the offence by the sentence judge insupportable." 103 Thirdly, there were significant differences in the physical stature of the offender and the victim, a feature absent in the assault by AJC upon the deceased. Allsop P and Johnson J described the offender Carroll as "a 20 year old man of strong physique" compared to the victim who was "a 51 year old man of manifestly weaker stature" (at [59]). 104 Finally, alcohol was a significant factor (cf Donaczy v Regina [2010] NSWCCA 143 at [53]-[54]), unlike the present case. Allsop P and Johnson J made the following comment: (at [61]) "61. ... However, alcohol-fuelled offences of violence of this type are frequently committed by young men of his age, and general deterrence has particular application for this reason." 105 The case, according to the respondent, that was capable of providing greater assistance was R v Irvine (supra). It was a Crown appeal. The circumstances giving rise to the offence were described by the respondent in submissions in these terms: (RS 8.3.10 [11.7]) "11.7 ... a fight ... developed after the offender (the respondent in the Court of Criminal Appeal) attempted to stop the deceased from driving erratically after the latter had been drinking. The deceased did so and attempted to leave the scene on foot. He was approached by a group including the respondent. The deceased was unsteady on his feet. The respondent punched him to the head causing him to stumble back and hit his head on the ground. There was a plea of guilty. The offender was 18 years old at the time of (the) incident and had no prior criminal offences. ... " 106 The offender was sentenced in the District Court to a non parole period of 2 years with a balance of term of 1 year, the non parole period to be served by way of periodic detention. The Crown appeal was dismissed. Hodgson JA noted the following: (at [7]) "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." 107 In dealing with these submissions, I should begin with the assertion by the Crown that the length of the sentence was inadequate. Obviously a sentencing range does not emerge from a small sample of cases. Reference was also made by the Crown to the sentencing remarks of judges called upon to sentence particular offenders in "single blow" manslaughter cases (R v Bashford [2007] NSWSC 1380 (Rothman J); and R v Smith [2008] NSWSC 201 (Hulme J)) where custodial sentences were imposed. Inevitably there are differences between each case as the analysis of Hopley and Carroll (supra) amply demonstrates. Nonetheless, it seems to me clear that his Honour's starting point of 5 years was well within the range. The sentence he thereafter imposed was simply the product of that starting point and the various discounts he applied, as well as his finding of special circumstances. Apart from the discount for assistance, there was, in my view, nothing wrong with the length of the sentence or the finding of special circumstances. 108 Let me move to the second suggested error, that, in any event, the sentence was manifestly inadequate because his Honour permitted AJC to serve the non parole period by way of periodic detention. 109 In Regina v Zamagias [2002] NSWCCA 17, Howie J stated the fundamental principle, which must guide a sentencing Judge, in these terms: (at [23]) "23. It is clear that, when sentencing an offender to a term of imprisonment under that Act ( Crimes (Sentencing Procedure) Act 1999), a court is required to undertake a number of steps before finally determining the appropriate sentence. Each step requires the court to consider the objective gravity of the offence balanced against the subjective circumstances of the offender, but it is the first of those considerations that will principally determine which of the available sentencing alternatives the court should adopt. This is because at the end of the day the sentence must be commensurate with the seriousness of the crime: R v Geddes (1936) 36 SR(NSW) 554; R v Rushby [1977] 1 NSWLR 594." (parenthesis added) 110 His Honour added: (at [28]) "28. Once the term of the sentence has been determined the court is then to consider whether any alternative to full-time imprisonment is available in respect of that term and whether any available alternative should be utilised. The availability of an alternative to full-time custody will generally be governed by the length of the term that has been determined subject to the restrictions or pre-conditions imposed by the legislature on a particular sentencing alternative." 111 Under the Sentencing Act s 6(1), a Court that has sentenced an offender to imprisonment for not more than 3 years may order that that sentence be served by way of periodic detention. Here, his Honour determined, after the application of discounts, that a term of imprisonment of 2 ½ years was appropriate. Periodic detention was therefore available. As mentioned, even had the sentencing Judge determined a 15 percent discount for assistance (that is a composite discount of 40 percent), the term would have been 3 years and periodic detention would still have been available. 112 But was periodic detention appropriate as a sentencing option? Howie J, in the same case, also identified the principle which should guide a sentencing Judge. He said this: (at [28]) "28. ... But the appropriateness of an alternative to full time custody will depend on a number of factors, one of importance being whether such an alternative would result in a sentence that reflects the objective seriousness of the offence and fulfils the manifold purposes of punishment . The court in choosing an alternative to full time custody cannot lose sight of the fact that the more lenient the alternative the less likely it is to fulfil all the purposes of punishment: R v Jurisic at 250B." (emphasis added) 113 The manifold purposes of punishment are set out in the Sentencing Act s 3A, which his Honour included in his remarks on sentence (supra [78]). Importantly, one of those purposes is that the offender be adequately punished for the offence (s 3A(a)). They also include deterrence (s 3A(b)), rehabilitation (s 3A(d)), denunciation of the conduct (s 3A(f)), as well as the following: (s 3A(g)) "s3A(g) to recognise the harm done to the victim of the crime and the community." 114 Here, the Crown tendered a Victim Impact Statement which, with elaboration, was read to the Court by his stepfather, Mr Allen. One could not fail to be moved by his testimony. He articulated the family's need for "justice for the senseless and gutless attack that claimed" Jamie Purdon's life. His description of waiting at the hospital included the following: (T 6) "It felt like our hearts had been ripped out of my chests. You just can't believe it. You feel weak and absolutely sick to the stomach. The first instinct was wanting to see him but we couldn't because it was part of a forensic investigation and the police couldn't allow us. Cheryl kept saying, 'I want to hold him.' ... " 115 Such material must, of course, be dealt with in a manner consistent with R v Previtera (1997) 94 A Crim R 76. I mention it only because it states what you would infer without evidence. 116 However the sentencing process, as Nield ADCJ pointed out, must strike a balance between recognising the enormity of the wrong that has been done and denouncing it, and imposing a level of punishment reflecting the moral culpability of the individual offender. In the case of a juvenile, his rehabilitation is of especial importance. 117 Unquestionably, as his Honour recognised, allowing an offender to serve his term of imprisonment by way of periodic detention involves leniency. In R v Rivkin [2004] NSWCCA 7; (2004) 59 NSWLR 284, the Court said this: (at [433]) "Periodic detention is, on any view, a less harsh sentence than one involving full term detention, as has been authoritatively accepted; R v Hallocoglu (1992) 29 NSWLR 67." 118 Nonetheless, periodic detention over a lengthy period does involve a very real burden (R v Burnett (1996) 85 A Crim R 76; R v Pangallo (1991) 56 A Crim R 441; R v Mouzomenos [2005] NSWCCA 203). 119 His Honour, in his remarks, referred to s 6 of the Children (Criminal Proceeding) Act which enjoins a Court, when sentencing a juvenile, to implement where possible a number of principles which his Honour stated, which were consistent with periodic detention. 120 So the issue, in the context of manslaughter, is whether such a sentence, when served by way of periodic detention, adequately reflects the objective seriousness of the offence? Counsel for AJC, in submissions to the sentencing Judge, analysed the statistics in cases of manslaughter in both the District and Supreme Courts. In the District Court, the statistics were as follows: (RS 8.3.10 [11.1]) "(i) Of 38 offenders, 66% received a full time custodial sentence, 21% received a suspended sentence, 8% received periodic detention. (ii) Of 26 offenders who pleaded guilty, about half (54%) received full time custodial sentences, 27% received a suspended sentence and 12% received periodic detention. (iii) Of 16 offenders who had no prior convictions, less than half (44%) received full time custodial sentences, 38% received (a) suspended sentence and 13% received periodic detention. (iv) There were only 4 offenders who were less than 18 years. Only 1 of these received a full time custodial sentence." 121 In the Supreme Court, the picture was rather different, although the statistics were confined to pleas of guilty for persons under the age of 18 years. In 16 cases the statistics were: · 94% received a custodial sentence, · 6% a suspended sentence, · there were no cases of periodic detention. 122 The explanation for the difference, according to the respondent's counsel, was that Supreme Court cases were likely to be objectively much worse, for the following reasons: (RS [11.2]) "11.2 ... In particular, a much smaller proportion is likely to involve involuntary manslaughter (criminal negligence and unlawful and dangerous act). Many of the cases dealt with in the Supreme Court would involve the forming of an intention to kill or seriously injure (provocation, substantial impairment or excessive self defence)." 123 The present case, of course, proceeded in the District Court. As observed in Carroll (supra) by Allsop P and Johnson J, particular care must be exercised in using sentencing statistics for crimes of manslaughter (at [63]). Statistics, without an appreciation of the facts in each case, are of limited value. Here at least they indicate that, in an appropriate case, periodic detention may be available, even in the context of manslaughter. AJC was a juvenile. A number of matters ameliorated the objective gravity of his offence. His subjective case was unusually strong. In my view, it was open to his Honour to determine that the sentence may be served by periodic detention. 124 Accordingly, the sentence in my view was appropriate, save for the discount allowed for assistance. Correcting that error would involve increasing the term of imprisonment to 3 years (with a consequential adjustment to 1 year 9 months of the non parole period). So, should this Court intervene? Notwithstanding s 68A of the Crimes (Appeal and Review) Act 2001, the Court has a limited discretion not to intervene in the context of a Crown appeal (R v JW [2010] NSWCCA 49). Here, two affidavits were filed on behalf of AJC, available on the question of discretion. The first was from a solicitor for the DPP, reporting on the committal against J, and the second from the respondent's mother. Counsel for AJC made the following submission, summarising that material and suggesting that the Court should not disturb the sentence originally imposed: (RS 12.7.10 at [5.3]) "5.3 This material shows that since the sentence was imposed, the Respondent has: (i) Given evidence in the committal proceedings of (J) in accordance with his promise. He also assisted police to find a Crown witness who they could not locate. His evidence and his attitude clearly impressed Mr Fitzhardinge. (ii) Continued to reside with his parents. (iii) Worked in full time employment, including working long hours of around 60 hours per week. (iv) Continued his education and apprenticeship. (v) Agreed to work with police in educating local youths of the dangers of being involved in fights." 125 Recognising, nonetheless, that periodic detention does involve the significant element of leniency, I believe it is appropriate to adjust the sentence by increasing the term to 3 years and the non parole period to 1 year 9 months (with rounding), to be served by way of periodic detention. Orders. 126 The orders I propose are as follows: 1. The Crown appeal is allowed. 2. The sentence imposed upon the respondent is quashed and, in lieu thereof, he is sentenced to a period of 3 years imprisonment from 20 March 2010 until 19 March 2013, with a non parole period of 1 year 9 months to date from 20 March 2010 and expire on 19 December 2011, such term to be served by way of periodic detention. The respondent is to be released to parole on 19 December 2011. 127 WHEALY J: I agree with the reasons of Kirby J and the orders that he proposes. ********** 07/02/2011 - For the purpose of anonymity a name has been changed. - Paragraph(s) 27 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.