New South Wales Court of Criminal Appeal CITATION: APT v R [2009] NSWCCA 230 HEARING DATE(S): 17 August 2009 JUDGMENT DATE: 10 September 2009 JUDGMENT OF: Macfarlan JA at 1; Grove J at 2; Hoeben J at 30 DECISION: Appeal dismissed CATCHWORDS: CRIMINAL LAW AND PROCEDURE - Manslaughter - Sentence - Young offender - Finding by trial judge available on the evidence - No error or miscarriage of sentencing discretion LEGISLATION CITED: Children (Criminal Proceedings) Act 1987 CATEGORY: Principal judgment Jones v R [2009] NSWCCA 169 Markarian v The Queen (2005) 228 CLR 357 R v Baker [2000] NSWCCA 85 CASES CITED : R v Bus, unreported 3 November 1995 R v Forbes [2005] 160 A Crim R 1 R v Hearne [2001] 124 A Crim R 451 R v Schelberger, unreported, NSWCCA 2 June 1988 PARTIES: APT - Applicant REGINA - Respondent/Crown FILE NUMBER(S): CCA 2007/2185 COUNSEL: C Davenport SC - Applicant D Arnott SC - Respondent/Crown SOLICITORS: William O'Brien & Ross Hudson - Applicant Solicitor for Public Prosecutions - Respondent/Crown LOWER COURT JURISDICTION: Supreme Court LOWER COURT FILE NUMBER(S): 2007/2185 LOWER COURT JUDICIAL OFFICER: Studdert AJ LOWER COURT DATE OF DECISION: 4 April 2008 LOWER COURT MEDIUM NEUTRAL CITATION: [2008] NSWSC 302 IN THE COURT OF CRIMINAL APPEAL CCA 2007/2185 MACFARLAN JA GROVE J HOEBEN J 10 September 2009 APT v R Judgment 1 MACFARLAN JA: I agree with Grove J. 2 GROVE J: This is an application for leave to appeal against severity of sentence imposed by Studdert AJ in the Supreme Court sitting at East Maitland on 4 April 2008. Following a trial upon an indictment charging murder, the applicant was found not guilty of murder but guilty of manslaughter. In the trial the applicant had sought that verdict on alternative bases which I can briefly refer to as excessive self defence and unlawful and dangerous act. For the purpose of sentence his Honour found that the latter was the basis of conviction for manslaughter to the exclusion of the former. That finding has not been challenged and it accorded with submissions by counsel then appearing for the applicant (who did not appear in the appeal). 3 His Honour assessed a sentence consisting of a non-parole period of five and half years with a balance term of two and half years. The non-parole period was reduced by six weeks to give credit for pre-sentence custody and the resultant sentence was imprisonment for a non-parole period of five years twenty weeks with the balance term of two and half years. 4 The facts found by his Honour were also not disputed. In summary, shortly after midnight on Sunday 12 March 2006 the victim, David Collins, then aged twenty seven years came to a service station to which there was attached a shop, as a passenger in a car which was driven by his sister. It was her purpose in coming there to purchase some cigarettes. The applicant and four friends, two male and two female, came to the service station for the same purpose. One of the male friends was Jai Moore. The applicant and his friends were among many young people who were attending a party being held in a house located near the service station. 5 Some exchange of words took place between Jai Moore and David Collins after which there was a foot chase in which Jai Moore headed in the direction of the house where the party was being held. The applicant and his other friends followed. One Wade Willmot was coming from the house and, according to Jai Moore, he sought his assistance. Willmot tackled David Collins and brought him to the ground and then commenced to kick and stomp on him. In due course Willmot pleaded guilty to the murder of David Collins. 6 While Willmot was holding onto a fence and stomping on the victim's head, the applicant arrived and, while the victim remained on the ground, he joined Willmot in kicking him. His Honour did not find that the applicant's actions included specifically stomping on the victim's head but he found that joining in the attack constituted a crime which was extremely serious. 7 It can be mentioned that one other of the applicant's friends was also indicted and stood trial but, as his Honour observed, he was acquitted as plainly the prosecution did not prove his participation in the attack. 8 His Honour recapitulated the evidence relating to the cause of death: "Evidence was given at the trial by Dr Nadesan who had supervised at the post mortem examination. He described the extensive injuries that the deceased had suffered. Most of the many injuries were sustained to the face and the head. There were blood stains around the nose and the right side of the face, there were petechiae over the centre of the forehead and around the right eye, there were extensive contusions around the eyes and eyelids and extensive sub-conjunctival haemorrhages around the eyes and eyelids. There were contusions to the nose and the upper lip and Dr Nadesan described the facial injuries as being consistent with being caused by punches, kicks and stomping. There was a fracture of the hyoid bone and, in the doctor's opinion, there had been substantial force applied to the chin and neck area associated with this fracture. The compression injury in this area was considered by Dr Nadesan to have been causative of death. There were contusions to the trunk, to the back of the left shoulder and to both arms. There was also an abrasion to the right knee. On internal examination extensive and generalised contusion in the scalp area was observed as well as extensive leakage of blood all around the head. There was swelling in the brain covering and some subarachnoid haemorrhage. Clotted blood in the nasal cavity was observed and the lungs evidenced aspirated blood. Dr Nadesan opined that the chief mechanism causing death was mechanical asphyxia but this was aggravated by the effect of aspirated blood." 9 The applicant was nine days short of his eighteenth birthday when the crime was committed. He had no prior convictions. His Honour was specifically alert to the provisions of the Children (Criminal Proceedings) Act 1987 being enlivened. The applicant had no history of drug abuse or other misconduct and he had lived in a stable family environment. After leaving school he had engaged in gainful employment and he had enlisted in the army and just completed an induction course when he was arrested and charged. Upon release to bail he obtained new employment and the employer spoke favourably of him and was willing to offer him further employment in the future. A psychological report assessed a high likelihood of response to rehabilitative strategies. To the extent that the applicant had been in custody between verdict and sentence that prediction appeared to being fulfilled. 10 His Honour ordered that the applicant serve his sentence as a juvenile offender until he attained the age of twenty one years. 11 The applicant relies upon a single ground of appeal expressing that "his Honour failed to give sufficient weight to the rehabilitation of the applicant, resulting in a sentence that was manifestly excessive." 12 As that expression conveys, it is not contended that his Honour did not give weight to the applicant's rehabilitation prospects but rather that the weight which he applied was insufficient. 13 In R v Baker [2000] NSWCCA 85, Spigelman CJ (Hidden J and myself concurring) which was a Crown appeal asserting inadequacy of sentence, the Chief Justice stated: "The use of terminology such as 'sufficient weight' highlights the difficulty for the Crown case. Questions of weight in the exercise of a discretion are matters for the first instance judge. The circumstances in which matters of 'weight' will justify intervention by an appellate court are narrowly confined." 14 That observation has been recently reiterated in Jones v R [2009] NSWCCA 169 per Johnson J (Young JA and Latham J concurring). 15 Studdert AJ found that the applicant was genuinely contrite and remorseful. He expressly cited the favourable conclusions of the psychologist, Dr Lennings. He made express reference to the applicant's progress in custody. 16 In submissions on behalf of the applicant it was accepted that the weight to be given to youth diminishes as maturity is approached, but it was then said that the weight does not vary depending upon the seriousness of the offence. In support of this latter statement reference was made to R v Hearne [2001] 124 A Crim R 451 where at par 24 it was said in a judgment of the Court (Powell JA, Hulme and Dowd JJ): "The second submission is supported by the passage we have quoted and by the fact that in none of the cases is it suggested that the weight to be given to the element of youth varies depending on the seriousness of the offence. " 17 The second submission was earlier identified, (at par 23): "Secondly, it was submitted that the youth factor was not to be diminished (merely) because of the seriousness of the crime, reliance being placed on the observations quoted in P , [1991] 53 A Crim R 112 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'." 18 It can first be observed that his Honour did not say that weight did vary according to the seriousness of the offence. Next, what was said in Hearne should not be understood as formulating some constant factor to be applied in every case without need for variation to reflect the nature of the crime and the circumstances of its commission. The flexibility required for the exercise of judicial discretion in sentencing would be unduly hamstrung by an approach such as is implicit in the submission of the applicant: cf Markarian v The Queen (2005) 228 CLR 357 at par 27. 19 His Honour was clearly alert to take into account the youthful status of this particular offender. Not only did he make the order for service as a juvenile until the age of twenty one, but in his remarks on sentence he stated: "In sentencing young offenders rehabilitation is generally of primary importance. In a case such as the present where the offender has conducted himself like an adult in committing a crime of violence, the need to protect the community requires that deterrence and retribution be given greater weight than might otherwise have been called for and, of course, in the present case, as previously observed, the offender was almost 18 years of age when he committed this crime: see Lal v R [2007] NSWSC 445 and in particular the judgment of McClellan CJ at CL at [33]; and see also R v Bus (unreported, CCA, 3 November 1995). 20 The principal thrust of the written and oral submissions by senior counsel on behalf of the applicant was directed to the contention that conduct of the applicant should not be classified as "adult behaviour". His Honour referred to this in observing that "in a case such as the present where the offender has conducted himself like an adult in committing a crime of violence, the need to protect the community requires that deterrence and retribution be given greater weight than might otherwise have been called for ….". This was a statement in conformity with well established authority and his Honour had cited the often quoted passage from R v Bus Unreported NSWCCA 3 November 1995. 21 There are often indicators tending to classify behaviour such as the use of weapons, the level of violence and the propensity of an offender to repetitive criminality. In this instance there was no suggestion of the use of a weapon by the applicant and he was, as noted, without prior conviction. 22 It was submitted that the behaviour of the applicant should have been assessed by his Honour to have been spontaneous and juvenile. That submission ignored the unchallenged factual findings by the sentencing judge. Significant among these were that the applicant observed that the victim had his hands up "protecting his face" and his explanation for kicking him as he lay on the ground was that he thought the victim was going to "pull out a knife", an explanation expressly rejected by the judge (Remarks On Sentence (ROS) pars 11 and 24). 23 Further, a witness saw the victim trying to get up and the applicant "kicked him then" (ROS par 17). His Honour expressed his satisfaction beyond reasonable doubt that the applicant "personally kicked the deceased hard on a number of occasions" (ROS par 28). 24 It is true that his Honour also found that the applicant responded (after the conduct abovementioned) to an exhortation to stop (ROS par 27) but neither did he do anything effective to dissuade Willmot from completing the fatal attack. 25 No error in the finding that the behaviour of the applicant was "like an adult" has been demonstrated. 26 It is not a circumstance pointing to his Honour's sentence being excessive to observe, as was put, that the applicant did not personally stomp on the victim's head. His Honour found in his favour that he did not. If he had done so, I apprehend that his culpability would have been elevated somewhat. 27 Reference was made to the statistics of sentences for manslaughter collected by the Judicial Commission. In R v Forbes [2005] 160 A Crim R 1 Spigelman CJ observed that manslaughter is almost unique in its protean character as an offence, that a wide range of circumstances may constitute the crime and that matters of fact and degree arise in all categories on manslaughter. This observation was in conformity with long standing authority, for example, in R v Schelberger, unreported NSWCCA 2 June 1988 it was said that little assistance can be gained from considering the sentences passed for the offence (of manslaughter) in other cases where the circumstances can be so different. Importantly it is well established that a starting point for the consideration of an appropriate penalty and a key element in the assessment of the gravity of any offence of manslaughter is the circumstance that it involves the felonious taking of a human life: R v Blacklidge (unreported, NSWCCA, 12 December 1995). The removal of "felony" from statutory language does not undermine the stated principle. 28 The ground of appeal relied upon by the applicant is not made out. The sentence lay well within the range of the sound exercise of discretion by the learned sentencing judge. 29 I would grant leave to appeal against sentence but dismiss the appeal. 30 HOEBEN J: I agree with Grove J. ********** 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.