Supreme Court New South Wales Medium Neutral Citation: R v Forbes [2011] NSWSC 1547 Hearing dates: 23 November 2011 Decision date: 16 December 2011 Jurisdiction: Common Law - Criminal Before: Harrison J Decision: Sentenced to imprisonment for 3 years, with a non-parole period of 1 year and 6 months commencing on 6 August 2011 and expiring on 5 February 2013, and to a balance of term of 1 year and 6 months commencing on 6 February 2013 and expiring on 5 August 2014. Catchwords: CRIMINAL LAW - sentence - manslaughter - plea of guilty - where offender entered into a joint criminal enterprise to threaten or use unlawful violence against a group including the deceased while some members of the group were armed with crude weapons and one was armed with a loaded shortened firearm - plea entered at first available opportunity - combined discount of 50 per cent for early plea and assistance to authorities Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Cases Cited: Gillard v The Queen [2003] HCA 64; (2003) 219 CLR 1 R v AB [2005] NSWCCA 360; (2005) 156 A Crim R 577 R v Bolt [2001] NSWCCA 487; (2001) 126 A Crim R 284 R v Chai [2000] NSWCCA 320 R v Nguyen [2005] NSWSC 600 R v Stelfox [2001] NSWSC 630 R v Sukkar [2006] NSWCCA 92; (2006) 172 A Crim R 151 Wilson v The Queen [1992] HCA 31; (1992) 174 CLR 313 Category: Sentence Parties: Crown Daniel James Forbes (Offender) Representation: P Barnett SC (Crown) P Winch (Offender) Solicitor for Public Prosecutions (Crown) Legal Aid (Offender) File Number(s): 2010/290999 Publication restriction: Yes REMARKS ON SENTENCE 1HIS HONOUR: The offender Daniel James Forbes was indicted for the manslaughter of Joshua Maynard at Raymond Terrace on or about 29 June 2010. The Crown accepted his plea to that charge on 8 June 2011. He was originally charged with murder and taken into custody on 1 September 2010 where he remained until he was granted bail some 132 days later on 11 January 2011. The murder charge was later withdrawn and replaced by the current charge. The offender's plea to manslaughter, as the Crown properly concedes, was therefore entered at the first available opportunity. The offence 2Except where specifically indicated, I make the following findings of fact, of which I am satisfied beyond reasonable doubt. They are taken from an agreed statement of facts tendered by the Crown on the sentencing proceedings. 3The deceased apparently belonged to a group known as "the Raymond Terrace Boys". The offender belonged to a group known as "the Lakeside Crew". On 29 June 2010 at about 9.00pm, members of both groups were involved in an altercation at the intersection of Salamander Place and Mount Hall Road, Raymond Terrace. The deceased and the offender were both present and involved in what occurred at this time. The offender was punched in the face and his friend Christopher Wilson sustained a facial injury and possibly concussion. The offender and Christopher Wilson, together with other members of the Lakeside Crew, subsequently left the area and went to the offender's home. 4The offender telephoned John Shedden and told him what had happened. A short time after that the offender and some of his companions gathered at Mr Shedden's home in Links Drive, Raymond Terrace. Mr Shedden then made a series of telephone calls to a number of other people, requesting them to gather at his home. One of those who came in response to that request was his brother, Chad Shedden. He brought with him a shortened firearm that he loaded in the presence of the offender. 5The offender, the Shedden brothers and at least seven others then left the Links Drive address and assembled in the street nearby. Chad Shedden was armed with the shortened firearm. Others were armed with poles, rods, pieces of masonry and brick, and a tomahawk. 6At some time between 11.30pm on 29 June 2010 and 12.10am on 30 June 2010, the deceased and three other men were travelling along Links Drive in a blue Holden Commodore. The deceased was seated in the rear on the passenger's side. The group that included the offender and the Shedden brothers stopped the vehicle. They then proceeded to attack the car with projectiles and other weapons. The car was damaged and the rear window was smashed. 7At some stage the deceased alighted from the vehicle, possibly armed with a knife or a sword. There is a factual issue about whether or not the deceased was in fact armed. However, having regard to the evidence (referred to below) given to police about this by the offender, I am satisfied beyond reasonable doubt that the deceased was armed with a knife. When the deceased moved slightly away from the door of the car, Chad Shedden discharged the firearm, shooting the deceased in the chest at close range. He died from wounds he received before reaching hospital. The offender and the others then ran back to the Links Drive address. John Shedden took possession of the firearm and later disposed of it. 8John Shedden provided a statement to the police on 2 July 2010 in which he denied any involvement in these events. 9The offender provided a statement to the police on the same day. Some of the particular matters revealed by the offender at that time included the following. He said that he had consumed about twenty alcoholic drinks on 29 June 2010 between 10.30am and 7.50pm. At about that time he was walking along Mount Hall Road with other members of the Lakeside Crew when they saw a red or maroon coloured Holden Commodore. Christopher Wilson approached the car and was attacked by a man who alighted from it. He was kneed and punched in the face. The offender was also punched in the course of this incident. 10He confirmed other details of the events described earlier. For example, he told police that when he was preparing to go to John Shedden's house, he initially took a decorative sword from his room. However, he ultimately left that item behind and so did not take it with him when he went to Links Drive. The offender recalled that there were weapons at John Shedden's house but could not remember who had them. 11The offender also told police that John Shedden made a number of telephone calls asking people to "come around". The offender said that there was "never" any discussion about what was going to happen, apart from some of the group saying, "Don't worry Chris, we'll get them back". About one hour after John Shedden made his telephone calls, Chad Shedden and other "mates" of John Shedden arrived at the premises. Chad Shedden pulled the gun from his right sleeve. The offender described the weapon as having some "wood" on it. Whilst seated in the lounge room of the premises, Chad Shedden put a cartridge into the barrel of the gun and took it out a number of times. 12The group then left the house and went to Mount Hall Road where they heard some cars driving near Salamander Place. He said that he did not remember any particular discussion amongst the group as they walked from John Shedden's house but he thought that they "would be doing something to get back at the blokes who bashed [them]". The group sat down in a reserve at the end of Salamander Place for about ten minutes. The group then walked back towards John Shedden's house. During the walk the offender saw two cars drive along Mount Hall Road, one being the Holden Commodore and the other being a white car that had been present when Christopher Wilson was assaulted. The Holden Commodore did a u-turn and drove back along Mount Hall Road and stopped near the group. The offender heard one of the occupants of the car yelling out, "Who wants to get stabbed?" Three or four men then got out of the car. One of them was the deceased. 13The offender recognised the deceased as the person who had assaulted Christopher Wilson earlier in the evening. He said that he had a knife in his right hand about 30cm to 40cm in length with a "curved edge". The offender told the police that another man from the vehicle was also armed with a knife. The offender said that he "backed up" down Links Drive after seeing the men with knives. John Shedden was a couple of metres in front of him when he heard Chad Shedden call out, "John, watch out". He then heard a loud bang and realised it was the gun firing. He saw the deceased hit by a gunshot and stumble back into the car, which then drove off. The offender told the police that he did not see who fired the gun but that John Shedden was not holding it. The only person he ever saw with a gun was Chad Shedden. Crime scene evidence 14Police examined the vehicle in which the deceased was travelling immediately prior to the offence. There were numerous linear depressions located on both sides of the bonnet. The passenger side rear vision mirror was missing, together with the base of the mirror housing. A large linear depression was to be seen on the driver's side of the boot lid about 23cm in length. The metal in the immediate vicinity was dented and was apparently caused by the same force that caused the linear depression. Scrape marks were also evident. 15The police recovered a number of items from the area in Links Drive. These included a black handled serrated knife, four separate fragments of brick or paver, a piece of metal grille, a piece of grey metal and a brown handled hammer. Police also recovered a metal star picket and a cutlery knife from a house in Salamander Place. Basis of plea of guilty to manslaughter 16It is clear from the facts that I have found that the offender is to be sentenced on the basis that he participated in a joint criminal enterprise to carry out acts that were both unlawful and dangerous. Having been subject to an attack by the deceased and others, the offender gathered people together to assist him to respond by assaulting the deceased and his companions with a view to causing them actual bodily harm. Counsel for the offender conceded that a reasonable person in the position of the offender would have contemplated that the assault and the unlawful violence carried with them an appreciable risk of serious injury to the deceased and his companions, particularly since some of the offender's colleagues were armed with items such as pavers, poles and a tomahawk, and Chad Shedden had a loaded shotgun. 17In the course of carrying out the agreement to assault and cause actual bodily harm to the deceased and others, and while the offender was still a party to this agreement, Chad Shedden discharged the weapon he was carrying thereby causing the death of the deceased. The offender participated in the joint criminal enterprise by helping to arrange for the parties to gather at the Links Drive address in order to go together, intending to assault and cause actual bodily harm to the deceased and others. In addition he was present at the time of the fatal discharge of the weapon and so was involved in an assault upon the deceased and the others with knowledge that actual bodily harm was intended to be caused to them: see R v Chai [2000] NSWCCA 320. 18In this case the unlawful act contemplated was an assault occasioning actual bodily harm upon the deceased and his companions. The act contemplated was dangerous because in all the circumstances of this case a reasonable person in the offender's position would have appreciated that the contemplated act was one which exposed others to the risk of serious injury: see Wilson v The Queen [1992] HCA 31; (1992) 174 CLR 313. See also Gillard v The Queen [2003] HCA 64; (2003) 219 CLR 1 at [10]-[26] and R v AB [2005] NSWCCA 360; (2005) 156 A Crim R 577 at [107] and [108], in which this Court discussed the concept that an accused person can be guilty of manslaughter where he knows of the presence of a firearm, whether or not he contemplates that it might be discharged. Sentencing for manslaughter 19In R v Nguyen [2005] NSWSC 600 at [21]-[24], Johnson J set out the relevant sentencing principles in the case of the crime of manslaughter. In setting out the paragraphs referred to, I respectfully adopt his Honour's summary: "[21] The maximum penalty prescribed for the offence of manslaughter is imprisonment for 25 years: s.24 Crimes Act 1900. The offence of manslaughter involves the unlawful taking of a human life, and as such it has long been recognised as one of the most dreadful crimes in the criminal calendar: R v Hill (1981) 3 A Crim R 397 at 402. In R v MacDonald (Court of Criminal Appeal, 12 December 1995, BC9501664), the Court (Gleeson CJ, Kirby P and Hunt CJ at CL) said at page 8: 'Manslaughter involves the felonious taking of human life. This may involve a wide variety of circumstances, calling for a wide variety of penal consequences. Even so, unlawful homicide, whatever form it takes, has always been recognised by the law as a most serious crime. (See R v Hill (1981) 3 A Crim R 397 at 402.) The protection of human life and personal safety is a primary objective of the system of criminal justice. The value which the community places upon human life is reflected in its expectations of that system.' [22] In R v Blacklidge (Court of Criminal Appeal, 12 December 1995, BC9501665), Gleeson CJ (Grove and Ireland JJ agreeing) said at page 4: 'It has long been recognised that the circumstances which may give rise to a conviction for manslaughter are so various, and the range of degrees of culpability is so wide, that it is not possible to point to any established sentencing tariff which can be applied to such cases. Of all crimes, manslaughter throws up the greatest variety of circumstances affecting culpability.' [23] The importance of denunciation in sentencing for manslaughter has been stressed: R v MacDonald, above, at page 9. Little assistance is to be gained by reference to sentencing statistics which encompass all forms of manslaughter, save so far as they disclose a broad range within which sentences have been passed since their compilation began: R v Mohamad Ali [2005] NSWSC 334 at paragraph 61. [24] A sentence for manslaughter must reflect the seriousness of unlawfully taking the life of another human being and it is not of great moment whether the killing is characterised as coming within any particular head of manslaughter. Rather, it is a question of what sentence is required to reflect the objective facts by way of retribution and denunciation, the subjective circumstances and, if necessary, deterrence: R v Walsh (2004) 142 A Crim R 140 at 149 (paragraph 40); R v Mohamad Ali, above, at paragraph 56." 20I have had regard to these comments in the course of my deliberations in this matter. Subjective features 21The offender was born in February 1992 and is the only child of the union of his biological parents. He has a younger maternal half-sister. He was born in Queensland but his family relocated to Raymond Terrace when he was four years old. His parents separated shortly thereafter and he remained in the custody of his mother. He had a normal childhood and a close relationship with his mother. She was "strict". 22The offender's mother had approximately three casual partners whom he appears to have liked but with whom he did not form a paternal relationship. He maintains a close and supportive relationship with his half-sister. Following his parents' separation, the offender maintained only sporadic contact with his father until he was in Year 6 but that contact became further restricted when his father was sentenced to a period in custody. He has had very little contact with his father since the age of about 15. 23The offender enjoyed school despite the fact that he was not particularly studious. He attended two primary schools without problems of any sort. He also attended two high schools. He was not disciplined for behavioural problems and was a quiet student. He was not suspended or expelled and did not fail to attend. He had good relationships with his teachers and fellow students and was not bullied. He played sport and received merit certificates for good behaviour. The offender ceased school before the completion of Year 10 to seek employment. He later completed a literacy and numeracy course through TAFE. 24The offender thereafter obtained employment as a concrete labourer at the age of 15. He remained in that employment for a few months when he resigned to seek more remunerative work. Between the ages of 15 and 18 he worked intermittently as a lighting and sound technician at concerts. He resigned from this work when he was relocated with his family to another area in circumstances referred to later in these remarks. 25The offender has no prior criminal history of any sort. I was provided with a large series of testimonials from people in many different walks of life. All spoke with one voice about the offender's kind nature and courteous disposition. A reoccurring theme of surprise was also evident. A former employer confirmed that he would re-employ the offender without hesitation. He is described by the Team Leader of Port Stephens Youth Services as having been "a real leader amongst his peer group" for close on two years and "a very confident, committed and genuinely...caring young person". He was responsible for helping to get a PCYC Outreach basketball program running in Irrawang. 26I find that the offender is a person of good character and is entitled to be given the benefit upon sentence of such favourable consideration as that finding may permit. Psychologist's report 27Danielle Hopkins, a psychologist, assessed the offender on 24 October 2011 at the request of his solicitor. Part of her report recites a history given to her by the offender with respect to the offence. It is in the following terms: "Mr Forbes has pleaded guilty to the current charge and is awaiting sentencing. In discussing the criminal behaviour, he noted events that are generally consistent with the Agreed Facts. He discussed antecedents to the offence as that it was a friend's 18th birthday. He said that it was a social event, he had consumed two 'six packs' of beer (approximately 18 standard drinks) throughout the day and was intoxicated. He noted that as the group walked home in the evening, they were accosted by a group of people and Mr Forbes was punched in the eye. He advised that some of the other members of the group were also assaulted and they all returned to one of their houses. He noted that they hatched a plan to retaliate against the group that had assaulted them earlier in the evening. Mr Forbes explained that at this time, he was aware of one of his co-offender[s] having possession of a firearm but said that he 'was not comprehending what would really happen' and believed it to be 'just big talk', explaining that he did not anticipate his co-offender to use the firearm. When Mr Forbes and his co-offenders confronted the other group of men including the victim, he said that he had seen men running in the other direction to his co-offender and began running with them. He noted that he had already begun to flee the scene when he heard the gun shot and continued to abscond." 28Ms Hopkins reported that the offender expressed what she considered to be genuine remorse and regret for his offending behaviour. He told her that he believed the offence "shouldn't have happened". He was only young. He told her that his own parents would be just as upset as the parents of the deceased. He said that he "regrets that it happened but can't take those kinds of things back" despite his desire to do so. 29The offender reported that he had not been involved with mental health professionals. He has never been prescribed psychotropic medication or been diagnosed with a mental illness. He denied any serious anxiety or psychotic symptoms. He also denied any periods throughout his life when he had been concerned about his mental health. 30The offender also noted that his mood was "good, normal" and stable. He did not present with difficulties such as appetite changes, low mood, concentration difficulties, energy problems or suicidal thoughts or thoughts of self-harm. He did not present with consistent symptoms of depression or adjustment disorder. Ms Hopkins opined that the offender was not mentally impaired and was functioning well. He advised her that the seriousness of the offence had "not sunk in yet", but he believed that it may become "real" when he is sentenced. 31Ms Hopkins expressed the following opinion with respect to the offender's risk of re-offending: "In sum, taking into account the historical, clinical and future risk factors, Mr Forbes is considered to pose a low risk of reoffence within the violent domain. [The fact] that the offending behaviour occurred when he was young and the fact that he has experienced a somewhat unstable employment history are his only risk factors. Positively, he is motivated to engage with intervention. Future risk factors such as exposure to destabilisers, including deviant peers and employment problems." 32Ms Hopkins concluded her report with the following recommendations: "When Mr Forbes returns to the community he may benefit from some support in order to monitor his adjustment back into society...Assistance with employment would be beneficial for his community stability and he may contact specialist employment services that focus on these types of barriers to employment". 33No contrary submissions were made. Aggravating and mitigating factors 34Counsel for the offender provided me with written submissions in which he contended that even though an offence that involves the death of a human being is "one of the gravest offences against an ordered society" (R v Bolt [2001] NSWCCA 487; (2001) 126 A Crim R 284), this was a case in which the death of the deceased was not something that the offender desired, contemplated, anticipated, expected or intended. Notwithstanding that submission, counsel for the offender also conceded that the seriousness of the offence in this case was such that the sentence to be imposed could not be anything other than one of full time imprisonment. 35In this context I note that the offence was aggravated by reason of the use of a weapon, even though the offender was not armed with it, or indeed armed with any weapon at all. The offence was committed in company. The shooting that caused the death of the deceased was also committed without regard for public safety, even though the discharge of the weapon was not an outcome intended by the offender. The offence as such involved no specific planning at all, but the circumstances which led to its commission were associated with limited planning, including the gathering of the group in order to pursue members of another group of young men who had assaulted one of their number earlier in the evening. These are matters that I find are aggravating factors. 36In terms of mitigating factors it is apparent that the death of the deceased was not itself planned, organised or even discussed. There was some provocation, in terms of the assaults upon the offender and Christopher Wilson, although in the scheme of things these acts were low on the scale of events that might be expected to provoke any response at all and certainly not one that corresponded to the result that eventuated. I do not consider that the provocation was significant. As discussed elsewhere, the offender has no criminal convictions and I regard him to be a person of prior good character. I accept as well that he is very unlikely to re-offend and clearly has excellent prospects for rehabilitation. This is particularly so having regard to his absence of any criminal record, his young age and his family support. 37The offender's only expression of remorse was to be found in the terms of Ms Hopkins' report. This is somewhat unsatisfactory. However, no submission was made suggesting that I should disregard it or give it less weight for that reason. It was agreed and accepted that the offender's plea of guilty was offered at the earliest opportunity with all of the attendant advantages and benefits that accompany that fact. That early plea is also itself some evidence of remorse and contrition. 38Further, the offender gave a witness statement and took part in a recorded interview in the course of which he set out in detail his role in the offence and provided details of the actions of others, including in particular John Shedden and Chad Shedden. These amount to mitigating circumstances as well. The plea of guilty and assistance to authorities 39An undertaking by the offender to give evidence on behalf of the Crown has been tendered in evidence before me. It is intended that the Crown will call the offender to give evidence in accordance with a statement given by him on 2 July 2010 and a record of interview conducted on 1 September 2010 detailing in each case what he said was the involvement of himself and others who have been charged with murder arising out of the incident in which the deceased was killed. The offender has expressed fears about each of the co-accused against whom he will be required to give evidence. The Crown accepts that these fears have a basis in fact. 40In R v Sukkar [2006] NSWCCA 92; (2006) 172 A Crim R 151, Howie J had this to say concerning assistance to authorities: "[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. [4] However, it is no longer inevitable that an offender who has provided assistance will serve the sentence in more difficult conditions. As was pointed out in R v Mostyn (2004) 145 A Crim R 304 the experience of this Court at least has been that prisoners who have provided assistance are not serving their sentences, or even a significant part of their sentences, in any more onerous conditions than prisoners in the general prison population. In Mostyn the appellant's discount was reduced when the Court came to re-sentence him because of evidence placed before this Court that indicated that he was not serving his sentence in more difficult circumstances nor was he deprived of programmes to aid in his rehabilitation. [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. It should now be accepted that an offender who has provided assistance will not necessarily be disadvantaged in the prison system and, if the offender wishes to assert otherwise, he or she should lead evidence of that fact. [6] In the present case there was simply no evidence that the respondent was at risk by reason of the assistance he had given or that the assistance would have impacted at all upon the manner in which he would be required to serve his sentence. There was no evidence placed before this Court in answer to the Crown appeal to show that in any way the respondent had been disadvantaged by the fact that he had given assistance. The Judge erred in the discount given to the respondent for his plea and assistance and one of the reasons is because he made the unjustified assumption that imprisonment would be more onerous for the respondent because of the assistance provided." 41The Crown called Det Sgt Olivares, a police officer with over 23 years' experience in the NSW Police Service. He was the officer in charge of the investigation into the offences arising out of the circumstances already described. He was asked some questions concerning the offender and what he anticipated would be the consequences for and effects upon the offender were he to be sentenced to a term of imprisonment. Det Olivares said that he was aware that the offender "had had no contact with the criminal justice system whatsoever" and that that "placed him in a position of being rather vulnerable". He gave the following evidence as well: "Q. And is there some - what can you tell me about how people who are totally naïve to the criminal justice system, about Mr Forbes' age, if they are faced with or confronted with the reality of a prison sentence? A. Well from my experience, and I can only speak from my experience, is that Mr Forbes is going to find it rather difficult, should he receive a custodial sentence. The problem he has is that he is very vulnerable. He's young and he has no experience or worldly experience in relation to dealing with what you'd call hardened adults, which is what he's likely to face should he be sentenced to a custodial sentence." 42Det Olivares also gave evidence that, by reason of either some actual acts of intimidation against the offender, including the fact that his car had been firebombed, or at least the threat of recrimination against him for agreeing to give evidence against his co-accused, in particular the Shedden brothers, he had been relocated outside the Raymond Terrace area with his family for his protection. Det Olivares confirmed that it was clear from this that the offender could anticipate that any time that he spent in custody would be particularly difficult and onerous for him and would have to be served in protection. I accept that the offender will be at risk of physical harm and reprisals during any period of incarceration that he may serve and even following his release. 43It was in these circumstances uncontroversial before me that the offender was entitled to a substantial discount for the combined effect of his early plea of guilty and his undertaking to give evidence against his co-accused. It was recognised and accepted in this context as well that the case against the Shedden brothers would be materially and significantly assisted by the particular evidence that the offender would be able to give. I accept the Crown's submission that the offender's case "does [not] get into the exceptional category of above 50 per cent". However, having regard to the particular circumstances of this case, and to the terms of s 23 of the Crimes (Sentencing Procedure) Act 1999, I consider that a discount of 50 per cent for the combined effect of his early plea of guilty and his undertaking to give evidence against his co-accused is appropriate. Contrition and remorse 44The offender did not give evidence before me. Any proper understanding of his attitude to his offending and its consequences for others is therefore principally to be gleaned from what he reported to Ms Hopkins. However, I accept that assistance to authorities may provide some evidence of remorse and contrition: R v Sukkar. Special circumstances 45It was contended on behalf of the offender that special circumstances existed in the fact that a custodial sentence would see him in prison for the first time in circumstances where the strong likelihood, approaching certainty, would be that he would serve his sentence in protective custody by reason of his undertaking to give evidence against his co-accused: see, for example, R v Stelfox [2001] NSWSC 630 at [34]. 46I am prepared to find special circumstances to justify a reduction in the non-parole period that would otherwise result from an application of the provisions of the Crimes (Sentencing Procedure) Act. The Crown did not argue against such a contention. I consider that special circumstances exist for the reasons suggested, as well as for the reason that the offender is likely to confront some difficulties obtaining employment having regard to his age, limited qualifications and experience. I note that this was one of the matters to which Ms Hopkins made particular reference. Determination of sentence 47There is no standard non-parole period for the offence of manslaughter. Moreover, the range of possible factual circumstances that may fall for consideration as manslaughter is extremely wide. 48The extent to which the offender himself intended to inflict harm of any sort on members of the opposing group emerges from his ERISP. He said that as his group was leaving the house, his intention was to "punch on" with the members of the opposing group. He explained that this was because of all of the alcohol he had consumed and because he was angry at the time at what had happened to Christopher Wilson. He agreed that he wanted to "get them back". In answer to another question about what his intention was at that stage, he said it was "whatever the group's thinking". He said that he was just following the others. In response to another question about whether he had "the intention of punching on with these blokes...if he found them", the offender responded, "Oh maybe, if I probably found them, yeah". He reiterated later that he only wanted a fight, saying, "I didn't want to bring weapons or none of that". 49It is apparent that the offender neither armed himself with any weapon nor would he appear at any time up until when the deceased was killed to have taken any specific or particular act in furtherance of the enterprise beyond his limited organisation of his colleagues and his presence at the scene as a participant in it. However, the offender was aware that other members of the group had armed themselves with weapons and that one member of his group had armed himself with a shortened firearm. It is also clear that, by reason of what he saw at the Links Drive premises, he knew or might reasonably have inferred that the firearm was loaded. 50Significantly for present purposes, the Crown accepts that the shooting of the deceased was not intended by the offender as part of any attack upon the deceased or his group. Moreover, the Crown accepts that the offender did not contemplate as a possibility that the shooting would occur. These concessions accord with the facts as I find them, and mean that the offender's conduct must be assessed as falling at a significantly reduced level of criminality in the circumstances. 51It is trite to observe that the death of the deceased is a tragic and unfortunate event. The death of any member of the community as the result of unnecessary and unacceptable criminal violence will always be a very serious matter and something deserving of the sternest condemnation. In terms of assessing the objective seriousness of the offence to which the offender has pleaded guilty, however, it is also important to bear in mind that it is his particular role in the events concerned that are called up for examination. 52The Crown has emphasised that the attack, during which the deceased was killed, was a planned and organised act. The attack was in retaliation for an earlier assault. As I have already intimated, however, the level of planning involved was in my view quite low. Certainly from the offender's standpoint, there would appear to be no more than an ill-considered and vague proposal to wander the streets of Raymond Terrace in the hope that his group might encounter its rivals. The so-called plan was at no stage one that rose above the prospect that the two groups would find one another and that a fight might occur. I accept that some members of the group took crude weapons with them but that the offender did not. 53The Crown has also contended that what was involved was mob violence in a suburban residential area amounting to riot. It involved trespassing on private property at a time when residents would be expected to be in their homes. Even putting aside the presence of the firearm, the Crown contended that the conduct being engaged in carried a high risk of very serious consequences. The presence of the loaded firearm exacerbated this situation. 54The Crown submitted, having regard to the infinite scale of facts that could amount to the offence of manslaughter, that the subject offence falls towards the middle of the range of seriousness, and well above circumstances normally, or at least most often, encountered in manslaughters committed by an unlawful and dangerous act. 55In R v Stelfox, the facts of which bear some broad resemblance to the facts in the present case, Howie J said this at [29]: "[29] This appears to me to be simply a case where the prisoner, while being somewhat affected by alcohol and drugs, and perhaps being, as he described it, at the wrong place at the wrong time, chose to participate in serious criminal conduct because one or more of his close friends were involved. Unfortunately, this is not an unusual scenario for young men in our community..." 56In that case his Honour came to the conclusion that the offender's role in the enterprise which resulted in the death of the deceased "was substantial" and that it was "a serious case of manslaughter": at [17]. I agree with that assessment by his Honour. However, I consider that the present case is far removed from the seriousness of the offence committed in that case. 57I reaffirm my concern that any case of manslaughter must necessarily be viewed as serious to the extent that it results in the death of an innocent person. In the present case the offender was in all relevant and practical respects an unworldly young man with an unblemished record whose involvement in the unfolding events of the fateful evening has contributed to an unanticipated and tragic outcome. Whilst in no way condoning the unacceptable behaviour revealed by the offender's own admission of what was intended on the night, the "plan" did not involve or anticipate that there would be any more than a proportionate response in retaliation for the earlier attack upon his group. The offender intended to "punch on", but things went terribly wrong. This is a case, in conformity with the submissions made on behalf of the offender, in which he truly was in the wrong place at the wrong time. 58There is as well the very troubling spectre of the role played in all of these events by the Shedden brothers. Each has a significant criminal history, as the evidence tendered before me reveals. Chad Shedden has spent time in custody, including convictions and sentences for violence and drug related offences. John Shedden has been convicted of armed robbery and assault and has served terms of imprisonment. Neither has a conviction for offences involving the use or possession of firearms. Each was also in relative terms considerably older than the offender and other members of the Lakeside Crew. It is clear that they were influential in what occurred. Moreover, in terms of the influences that may have been at play or in some way exerted upon the offender in particular, I observe that Det Olivares gave evidence that Chad Shedden had at one time been in an intimate relationship with the offender's mother. The presence of the Shedden brothers at the events of the evening and their participation in them in my view added a malevolent dimension that the offender at least did not foresee or appreciate and certainly did not comprehend. 59In dealing with the various layers of criminal responsibility, this Court should be slow to characterise as identical or even similar those events that on closer examination are revealed to have significant differences. I have in mind, for example, the differences between the involvement of the offender in the death of the deceased in cases like R v Stelfox and the corresponding but different role of the current offender. Each pleaded guilty and was convicted of the same offence but the dissimilarities in my view produce a significantly different sentencing outcome. The relationship between the death of the deceased and the presence of the offender at the scene in this case is very little more than spatial and contemporaneous. He did not contribute to the death of the deceased in any direct causal sense and he had no opportunity to prevent it or to withdraw from the enterprise on the theoretical assumption that he had been apprised of what was about to occur. The objective seriousness of the criminal acts to which this offender has pleaded guilty are in my view at the lower end of the scale of criminality for this offence. 60It strikes me as uncontroversial that at the time of the events that give rise to these proceedings, the offender was inexperienced in life and unfamiliar with the potential consequences of violence. He was also naïve and gullible, and upon the basis of his uncontested record of interview, he was easily led. I recognise and accept that part of the sentencing exercise is to punish and generally to deter others from committing like offences. That exercise necessarily requires a proper balance to be struck between the consequences flowing from the commission of an offence concerned with the death of an innocent person and the need to give meaningful recognition of the subjective characteristics of the particular offender. 61I have not been provided with a victim impact statement. That is not to suggest that the death of the deceased has not had a terrible and enduring impact upon the close relatives and friends of the deceased. Nothing that I have said in the course of delivering these remarks should be taken as in any way derogating from or diminishing the importance of the life of the deceased in the eyes of those who remember him. 62Taking into account all of the objective facts and all of the subjective circumstances, and other factors required to be taken into account under s 21A of the Crimes (Sentencing Procedure) Act, I consider that the appropriate sentence in this case is one of imprisonment for 3 years with a non-parole period of 1 year and 6 months. The commencement of that sentence should be backdated to 6 August 2011 to take account of the period already served before bail was granted. I order that the sentence I impose will operate from that date. The sentence as proposed also takes into account my finding of special circumstances and the combined discount for the early plea of guilty and assistance to authorities. 63I also wish to record in the strongest and most emphatic terms that for the reasons and in the circumstances highlighted in the course of these remarks, the offender is known to be potentially very vulnerable and liable to extra curial punishments within the prison system unless special and urgent steps are taken to prevent this occurring. I will direct that a copy of these remarks be taken out and forwarded as a matter of urgency to Commissioner Woodham at Corrective Services NSW, in the expectation that my concerns are addressed and proper protective protocols are instituted and followed. 64Daniel James Forbes, for the manslaughter of Joshua Maynard, to which you have pleaded guilty, I sentence you to imprisonment for 3 years, with a non-parole period of 1 year and 6 months commencing on 6 August 2011 and expiring on 5 February 2013, and to a balance of term of 1 year and 6 months commencing on 6 February 2013 and expiring on 5 August 2014. I direct that the offender be released on parole on 5 February 2013. I direct that as a condition of the offender's parole he be required to submit to the supervision and direction of the Probation and Parole Service during the period of parole that I have specified. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 August 2012