Supreme Court New South Wales Medium Neutral Citation: R v Field [2014] NSWSC 1797 Hearing dates: 16/12/2014 Decision date: 17 December 2014 Before: Fullerton J Decision: Imprisonment for 10 years comprising a non-parole period of 7 years and 6 months commencing on 4 July 2014 and expiring on 3 January 2022, with a balance of term of 2 years and 6 months expiring on 3 July 2024. Catchwords: SENTENCE - manslaughter - unlawful and dangerous act - one punch - unprovoked assault - no remorse - no evidence of intoxication - mid range objective seriousness - general deterrence Legislation Cited: Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Cases Cited: R v Carroll [2010] NSWCCA 55; 200 A Crim R 284 R v GWM [2012] NSWCCA 240 R v Loveridge [2014] NSWCCA 120 R v MD [2005] NSWCCA 342; 156 A Crim R 372 Category: Sentence Parties: The Crown Craig Steven Field (Offender) Representation: Counsel: L Carr (Crown) A Bellanto QC (Offender) Solicitors: Director of Public Prosecutions (Crown) Legal Aid NSW (Offender) File Number(s): 2012/219879 REMARKS ON SENTENCE 1HER HONOUR: On 9 December 2014 the offender was convicted after trial of the manslaughter of Kelvin Kane on 16 July 2012. He was acquitted by the jury of Mr Kane's murder. 2Mr Kane died as a result of being punched to the jaw in the carpark of the Kingscliff Beach Hotel at Kingscliff at about 9pm on 15 July 2012. 3I have received in the sentencing hearing a number of statements from members of Mr Kane's family, two of whom chose to read their statements in open Court: his partner, Suellen Harlow, and his daughter, Georgina Kane. Mr Kane's son, Bradley, also provided me with a statement, as did his sister, Wendy Apostoloff, his mother, Alice Smith, and his brother, Jeffrey Kane. 4Under the s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW) I am entitled to comment upon that material and I take this opportunity to do so lest those who have provided statements were to think, were I to refer to them later in these sentencing reasons, they were not afforded the close consideration they deserve. 5Georgina, who spoke, in part, on behalf of her brother, told me of the afternoon the family had spent together on 15 July 2012 before she and her brother left to return to Tamworth, having no reason to think that would be the last time the family would be together with their father at the helm. It was later that evening that she heard the news of what was, at that time, her father's impending death. 6In their separate ways, each member of Mr Kane's family describe him as a man of strength, depth and tenderness: a man of personal integrity who worked tirelessly on the land over many years to provide for his family, as I understand he did in a multitude of ways. To lose a father, son, brother and partner in the circumstances in which Mr Kane died has been life changing for each of them. I understand why their grief continues to overwhelm them. I also appreciate that Mr Kane's sudden and senseless death is the more painful for them when, to all accounts, he was doing little more than peacefully spending time with an old friend while his partner, Ms Harlow, was at a work dinner in another part of the hotel. 7I extend my sincere personal condolences to each of them as I do on behalf of the Court and the community. The jury verdict 8Both counsel submitted that I would be satisfied that the jury verdict in this case should be understood for sentencing purposes as reflecting a finding by them, beyond reasonable doubt, that it was the offender's deliberate act in punching the deceased to the left jaw that caused his death; that the punch was unlawful (that is, there was no reasonable possibility it was done in self-defence) and that it was dangerous, in that a reasonable person in the position of the offender would have realised that punching the deceased to the jaw, and with force, exposed Mr Kane to a significant risk of serious injury. I accept that submission. 9Although self-defence was left to the jury, as an alternative verdict to murder under s 421 of the Crimes Act 1900 (NSW), I do not consider that there is any reasonable possibility that the offender had any genuine belief that it was necessary for him to punch the deceased in self-defence. I am satisfied that the jury verdict should be understood on that basis. 10The offender gave no evidence on sentence as to his actual motivation in delivering the fatal punch, or whether he directed the punch to the jaw of the deceased, or the force with which he delivered it. He maintained the position taken at his trial that he did not deliver the punch that killed Mr Kane and that the punch which he did deliver was a glancing blow to Mr Kane's right temple which he delivered in self-defence. In those circumstances, and to the extent that the offender's motivation is discernible at all when he has chosen not to address that question, it depends upon the drawing of inferences from the eyewitness evidence, and the drawing of inferences from what the evidence reveals of the offender's conduct before and after the punch was delivered and after Mr Kane collapsed to the ground. 11As to that evidence, if there is an inference adverse to the offender that aggravates the seriousness of the offence it must be drawn beyond reasonable doubt, while any inferences in his favour that may operate in mitigation, or which may explain his conduct, may be drawn on the balance of probabilities. Where the evidence simply does not allow for a finding on the issue of his motivation, no finding might be able to be made. 12It is important to emphasise that it was no part of the offender's case at trial or on sentence that alcohol played any in the death of the deceased. The offender gave no evidence that his thought processes or his judgment was affected by alcohol when he claimed to have struck the deceased with a glancing blow in self-defence. Neither was it submitted on his behalf on sentence that what Mr Bellanto QC described as a "momentary loss of self-control" or an "error of judgment" (when the offender delivered the fatal punch) might be explained by any level of intoxication. 13Although the evidence clearly shows that the offender had been drinking for some hours prior to striking Mr Kane, since no evidence was led as to how much he drank and there was no cross-examination by the Crown on that question, I am unable to make any finding that the violence which caused Mr Kane's death, and for which the offender is criminally responsible, was alcohol-related. While that differentiates this case from many others where death has been occasioned by the delivery of a single blow to the head, many of which involve men much younger than this offender and, in most cases, where death results from head injuries under the force of the victim's head hitting the ground, it does not, of itself, reduce the objective seriousness of this offending. Neither does it require any less emphasis on the need for the sentence in this case to reflect the need for general deterrence. 14The application of what proved to be lethal force against an innocent person who was making his way home from the Hotel on a Sunday evening with his friends, before he was subjected first to an unprovoked assault by the offender's friend and then an unprovoked and fatal assault by this offender, in full public view, calls for a demonstrable application of the principle of general deterrence in the sentence which is to be imposed. The question of objective seriousness 15The Crown submitted that the offence was in the mid-range of objective seriousness. Mr Bellanto submitted that I would characterise the offender's moral culpability as low and the objective seriousness of the offence as at a low level. 16An assessment of objective seriousness in this case depends upon the resolution of a number of factual issues not resolved by the jury's verdict and which remained the subject of contest on sentence. Principal among those issues is the force with which the offender delivered the fatal punch and the related question whether the punch was directed at the jaw of the deceased. 17The question whether the fatal punch was directed at Mr Kane's jaw, and the force with which it was delivered, is informed by the direct evidence of those who saw and heard the punch being delivered and the opinions of the Dr Cala, the pathologist who performed the autopsy, and Professor Hilton, who was called by the offender at trial to comment upon some of the opinions Dr Cala expressed. 18In the event that I am satisfied to the criminal standard that the force was substantial and that the punch was directed, another issue which will inform the assessment of objective seriousness is whether I am satisfied, again to the criminal standard, that the offender must have realised that, by the punch he delivered, he was exposing the deceased to a significant risk of serious injury. The events giving rise to the death of the deceased 19Much of the evidence led at trial bearing upon the events of the afternoon of 15 July 2012 was not in contest at trial. Of the events that were controversial, only a few are material for sentencing purposes. 20The offender went to the Kingscliff Beach Hotel to watch a boxing match on cable television. He arrived at about lunch time. He did not arrange to meet anyone in particular at the Hotel but expected friends with an association to the Cudgen Rugby League Club to attend during the afternoon. The offender was the coach of that club. 21By 6pm the following people had joined the offender: (1)Shaun Fathers, a friend of the offender and also associated with the Cudgen Rugby League Club; (2)Mark Frost, a friend of the offender and whose son played for that Club; and (3)Lauren Grainger, a friend of the offender, and Mr Frost's partner. 22They were joined by Rudi van Zanten and his son, Reve van Zanten, approximately 30 minutes later. Reve van Zanten played football with the Club. 23They were seated within the Hotel in a room designated for TAB betting ("the TAB Bar"). 24Lynn Burger was also at the Hotel by this time. She had arrived with a friend. They were sitting in an outdoor smoking area to the rear of the TAB Bar ("the smoking area"). 25The manager of the Hotel, Geoffrey Wallis, was also present throughout the afternoon and evening. The offender was well known to him as a local patron of the Hotel and as an electrician who did some contracting work for the Hotel group. 26At approximately 7.15pm Mr Kane arrived and met with Ms Burger who was a long time friend of some 30 years standing. Mr Kane had not previously met the offender or Mr Fathers but he knew Ms Grainger and Mr Frost as he was the owner of a property they were renting. 27CCTV footage tendered by the Crown at trial showed that throughout the evening the offender, Mr Fathers, Rudi van Zanten and Reve van Zanten stayed primarily within the TAB Bar while Ms Burger and Mr Kane stayed in the smoking area. Mr Frost and Ms Grainger spent time with both groups. The CCTV footage showed everyone purchasing drinks from the Hotel bar from time to time (with the exception of Reve van Zanten). Evidence was led from a number of witnesses that Mr Frost was drunk, to the point where he was refused service at Mr Wallis' direction later in the evening. Mr Wallis gave evidence that he "made no assumptions about [the offender's] intoxication" but said that he knew the offender "can handle ... what he had". 28In the hours leading up to Mr Kane receiving the fatal punch, four significant events occurred which I am satisfied either gave rise to, or were the result of, escalating tensions between some of those present at the Hotel. These events, in combination, appear to have been the catalyst for the physical fight that erupted in the carpark at about 9pm. 29These events were: (1)A conversation between the offender and Ms Burger in the TAB Bar; (2)Interaction between Mr Fathers and Ms Burger in the TAB Bar; (3)Mr Fathers leaving the Hotel and being persuaded by the offender to return; (4)A confrontation between the offender and Ms Burger and Mr Kane, and the offender and Mr Frost, in the smoking area; and (5)The remarks made by Mr Frost to Mr Wallis. The conversation between the offender and Ms Burger 30At approximately 7.15pm Ms Burger entered the TAB Bar in order to use the Hotel toilets. After she left the toilet, CCTV footage shows her conversing with the offender for approximately 10 minutes. Both the offender and Ms Burger gave evidence that the conversation centred on Ms Burger's past relationship with a member of the Cudgen Rugby League Club. 31Ms Burger gave evidence that the conversation was brief (which is contradicted by the CCTV footage) in the course of which the offender called her a "fucking smartarse". The offender gave evidence that the conversation was "normal" and that he was not being rude. He did give evidence that he called her a "fucking smartarse" later in the night in the confrontation in the smoking area. The conversation between Mr Fathers and Ms Burger, and the allegation of Mr Fathers grabbing Ms Burger's neck 32At approximately 7.43pm, Ms Burger and Mr Fathers became engaged in a heated conversation in the TAB Bar where Mr Fathers directed derogatory remarks at her concerning her onetime relationship with a member of the football club. Rudi van Zanten and the offender gave evidence that the offender told Mr Fathers to "settle down". There was also evidence that Ms Burger taunted Mr Fathers for having spent a night in custody over a domestic issue. Ultimately, the confrontation between Mr Fathers and Ms Burger led to Mr Fathers standing up and flipping his bar stool over. The CCTV footage shows the offender stepping between Mr Fathers and Ms Burger to create distance between them. 33Ms Burger gave evidence that Mr Fathers had a finger under her chin and his hand against her neck. When she left the TAB Bar she informed Ms Grainger and Mr Kane that Mr Fathers had grabbed her by the throat. Neither of those events is revealed in the CCTV footage. 34Although there were varying accounts of who next confronted Mr Fathers, CCTV footage clearly shows Ms Grainger doing so. Mr Fathers gave evidence that he felt insulted and angry that he was falsely accused of assaulting Ms Burger. Reve van Zanten gave evidence that the offender offered to buy Mr Fathers a drink to calm him down. 35It was also largely uncontested that Mr Frost had exacerbated the tensions that were gathering at that time by repeatedly accusing Mr Fathers of choking Ms Burger despite the fact that he was not present when the incident allegedly occurred. Mr Fathers leaving the Hotel 36At approximately 8.10pm, Mr Fathers left the Hotel. He said he had "had enough" of Mr Frost and Ms Burger. When the offender realised Mr Fathers had left, he called him on his mobile telephone to persuade him to return to the Hotel. The content of the conversation is disputed. 37Rudi van Zanten gave evidence that he heard the offender say, "I'm your mate - I'll back you up if you need it". Mr van Zanten was sitting next to the offender when the call was made. The Crown relied upon this evidence at trial to establish that the offender ultimately "backed" Mr Fathers by confronting Ms Burger and others in the smoking area and "backed" him again when Mr Fathers was fighting with Mr Kane in the carpark by delivering the fatal punch. The Crown relied upon the same evidence on sentence to meet the case advanced by the offender that he was at all times a person who was intent on defusing the mounting antagonism, principally between Ms Burger and those who supported her version of events (with Mr Kane a passive supporter) and Mr Fathers who considered himself falsely accused, in support of the Crown's ultimate submission that the fatal punch was delivered in rage or anger, and not the result of a momentary loss of self-control. 38The offender gave evidence at trial that he did not say, "I'll back you up if you need it". Mr Fathers gave evidence that he does not recall the offender sayings words to that effect. As with most of Mr Fathers' evidence, I regard his claimed for loss of memory as disingenuous and largely designed to avoid implicating the offender. 39The offender gave evidence that he said he would "cover" Mr Fathers in the context of funding Mr Fathers to purchase more alcohol at the Hotel after Mr Fathers said that he did not have enough money to stay or return to the Hotel. I am also unable to accept the offender's evidence. I accept the evidence of Rudi van Zanten. 40Reve van Zanten gave evidence that when Mr Fathers returned to the Hotel (apparently at the offender's urging), the offender encouraged Mr Fathers to talk with him about football. As Mr Bellanto submitted (and as I am prepared to accept), this indicates that at least at that time the offender's wish was to defuse the situation. Self evidently, it was a desire that was short lived. The argument in the smoking area 41At approximately 8.36pm, Ms Grainger, Ms Burger, Mr Frost, Mr Fathers, Mr Kane and the offender were in the smoking area of the Hotel. At 20:21:45 CCTV footage showed the offender moving with what I am satisfied is fairly described an a display of overt antagonism directed at Mr Kane and Ms Burger towards them pointing and gesticulating in their direction. Although Mr Bellanto submitted that the offender's behaviour was reactive (that is, as I understand it, the conflict between them at that time was not "inspired, promoted or continued" by him), what I regard as significant is that the stills from the CCTV footage (Ex D photographs 13-19) show Mr Fathers well clear of any engagement with Ms Burger or the others showing every indication that the offender was interceding on his behalf in an attitude of high agitation. Although I am cautious about over-interpreting body language, I am left with the unshifting impression that the offender is not acting at that time to quell the tension but is adding to it. 42The CCTV footage shows that the offender's attention is then directed at Mr Frost with whom he has an aggressive face to face encounter before he appears to be restrained by an unidentified onlooker who did not give evidence. 43The offender gave evidence that it was in this encounter that he called Ms Burger a "fucking smartarse" because of what he considered to be her role in causing the tension by making a false allegation that Mr Fathers had choked her. The offender also gave evidence that Ms Burger and Mr Kane laughed at him. The offender said he called Mr Frost a "dickhead" for making an offensive remark directed towards Mr Wallis (although, as the following summary shows, Mr Frost's remarks seem to have been made after this). The remarks made by Mr Frost to Mr Wallis 44At approximately 8.43pm, Mr Frost and Mr Wallis are shown in the CCTV footage arguing. It was uncontested that Mr Frost had made a highly offensive remark directed to Mr Wallis who had recently lost a child. A CCTV camera positioned to record the smoking area was turned around by Mr Wallis. He gave evidence that he intended to hurt Mr Frost (and did not want to be filmed doing so) but ultimately did not. 45The offender and Mr Wallis gave evidence that the offender said to Mr Wallis words of the effect, "don't do nothing stupid, don't hit him ... you'll lose your licence". 46Mr Bellanto relies upon this incident as a further example of the offender encouraging restraint in others to avoid any eruption of violence. While that might be so, it can hardly be called in aid on sentence when I am well satisfied that within minutes the offender inflicted lethal violence on a person who had, on all the evidence, literally done nothing to him save perhaps to have laughed off an insult directed at Ms Burger. The events in the carpark of the Hotel 47At approximately 9pm, Ms Grainger, Mr Frost, Ms Burger and Mr Kane left the smoking area and moved towards the car in which Ms Grainger was to drive them from the Hotel. 48At about this time Mr Fathers left the TAB Bar and walked towards the carpark, out of view of the CCTV camera. The offender and Mr Wallis are shown following behind Mr Fathers. 49While the Crown concedes it is open on the evidence to find that Mr Fathers and the offender had no joint intention to reignite tensions with those who were leaving, and accepts that the evidence does not permit a finding that the offender was aware that Mr Fathers intended to confront Mr Kane or Ms Burger, it is well established by what then follows, that was Mr Fathers' intention. 50As the offender was speaking to Mr Frost and Ms Grainger through the driver's door of the vehicle (in what I accept was an attempt to smooth relations with Mr Frost despite his earlier anger at the remark he had directed to Mr Wallis) Mr Fathers was then heard yelling at Mr Kane and/or Ms Burger at the rear passenger door. Mr Kane, who had one leg inside the car, got out of the car and was confronted by Mr Fathers. 51What ensued over the next two and a half minutes was the subject of the evidence of eyewitnesses. The eyewitness evidence 52The Crown called evidence from twelve witnesses who saw some or all of the events in the hotel carpark which culminated in the offender punching Mr Kane in the left jaw after which he collapsed, or fell to the ground. Of those witnesses, seven saw and/or heard what I am satisfied was the delivery of the fatal punch by the offender. None of them saw or heard Mr Kane receive any other punch that landed although it would appear that Mr Fathers may have attempted to do so. The forensic evidence does not establish conclusively that Mr Kane suffered any punch other than the fatal punch. 53Of the nine witnesses who saw and/or heard what I am satisfied was the delivery of the fatal punch by the offender, six were variously positioned outside the perimeter of the carpark. None knew anyone in the car park. They were alerted to what they variously described as a swearing and screaming fight involving men and women. 54Three boys aged between 14 and 16 at the time of the offence and 16 and 18 at trial were at street level near the entrance to the carpark. They were Mr Rimmer and Mr Fearn, both of whom saw the punch, and Mr Pickard-Olsen, who heard it. Three women made their observations from external balconies on neighbouring apartment blocks overlooking the carpark. They were Ms Janssen, who made her observations over 47 metres, and Ms Hamilton and Ms Oram, over a distance of 78 metres. 55The seventh witness was Ms Burger. She saw the punch and identified the offender as the person who delivered it. She was facing Mr Kane when she said the offender stepped forward and delivered the punch. She described him as coming out from behind her left shoulder, after which Mr Kane fell to the ground. She was the only witness in the carpark when the punch was delivered who identified the offender as the person who delivered it. While I regard her evidence as compelling, in particular in so far as the relative positions of Mr Kane and the offender (and Mr Fathers) at the time of the punch, I am satisfied that she must have been mistaken when she described the punch that sent the deceased to the ground - the only punch she saw land on the deceased - as being delivered to his right temple. Whilst she remained firm in that view in her evidence, she also gave unprompted evidence, that she confuses her left and right. 56The remaining two of the nine eyewitnesses who saw and/or heard the punch were also in the carpark. 57None of the others in the carpark gave evidence of seeing the deceased punched and fall to the ground, and thus none identified the puncher, or was at least prepared to say so. Mr Evans said he heard "a pretty loud noise"; Mr Wallis heard what he described as "a loud thump". Some of them saw Mr Kane in the process of falling, others saw him on the ground. 58I acknowledge the potential in every trial that depends upon the evidence of eyewitnesses for that evidence to be unreliable. In this case, some of the vantage points from which observations were made by some eyewitnesses were not optimal given the compromised lighting, the distance over which the events were observed and, in the case of some witnesses, the fact that they were distracted by the actions of others. While there were understandable differences in their evidence as to what they saw and/or heard of the events in the Hotel carpark, including what was seen and/or heard of the delivery of the punch that killed Mr Kane, I am satisfied beyond reasonable doubt having regard to all the evidence, and consistent with the jury verdict, that it was the offender's punch to the deceased left jaw that caused him to immediately collapse or drop to the ground, and that the punch was both unprovoked and gratuitous. 59It is of no relevance to the issues that arise on sentence that Mr Kane may have received another punch, or punches, in the course of the confrontation with Mr Fathers. The critical finding for sentencing purposes is that I am satisfied that it was the rapidity of the release of arterial blood into the cranial cavity (most likely from the rupture or breach of the basilar artery) as Mr Kane head and neck were subject to rotational forces across the midline under the force of the punch, that is the most likely explanation for his immediate collapse and the immediate loss of consciousness from which he did not recover until death was pronounced the following afternoon. 60That said, what the evidence does establish is that at any one time during the two and a half minutes during which the fight continued in the carpark Mr Fathers, Mr Kane, Ms Burger and Ms Grainger were engaged in a pulling and a pushing and a shoving as they migrated first south then north across the carpark. Ms Burger gave evidence that she was intent on keeping Mr Kane from being drawn into a physical fight while Ms Grainger gave evidence that she was endeavouring to restrain Mr Fathers. Mr Frost and Mr Wallis were engaged in a one to one heated dialogue close by. No one was able to appoint the offender in any particular position in the circle of conflict as it moved across the carpark. He was, however, described by Mr Wallis, Mr Fathers and Ms Burger in various positions as the struggle continued. In written submissions on sentence, the Crown concedes that the offender may have been drawn into the fight. To the extent that is meant to convey that he was not the instigator, the concession is properly made. To the extent that the concession is relied upon as a mitigating factor, I do not consider that it has that effect. 61I should also make it clear that I do not accept that in delivering the fatal punch the offender was motivated to defend Mr Fathers or that there is any reasonable possibility that may have been his motivation. Suffice to say, I not only have grave doubts as to Mr Fathers' veracity in his claim to have no recall of seeing Mr Kane punched, and some doubts as to whether he was punched by Mr Kane at all (as distinct from knocked or elbowed in the course of the struggle with Mr Kane) causing him to nurse his lip, I am satisfied from the combined weight of the evidence Ms Burger and the evidence of three witnesses outside the carpark (Ms Hamilton, Mr Pickard-Olsen and Mr Fearn) that when the offender delivered the fatal punch, Mr Kane was maintaining the position (as it seems he had done for some minutes viz Mr Fathers) that he did not want to fight. Whether or not he was repeating the words verbatim, I am well satisfied that he was, if not stationary at the time he was punched, he was moving backwards as if in retreat with his hands up. 62I accept the Crown submission (again supported by the observations of the eyewitness who saw the punch that was delivered) that the punch was delivered under speed. Ms Hamilton described it as "like lightning", "in a split second"; Mr Rimmer described it as "unexpected, out of nowhere"; and Ms Janssen described it as "a straight out punch". I am also satisfied that it was received by Mr Kane without warning, affording him no opportunity to brace for its impact or to take evasive action. 63On the question of the offender's motivation, Mr Bellanto submitted that I would be satisfied that the probabilities favour the offender involving himself in the confrontation in an attempt to defuse the situation but that he suddenly "snapped" and, in the critical moment in a dynamic situation, he lost self-control and struck out with an undirected punch in the direction of Mr Kane's head. The Crown submitted that I would be satisfied beyond reasonable doubt that the offender did not, in a sudden or momentary lapse of judgment, strike out in the way suggested but, rather, that he was motivated to punish Mr Kane for what the offender believed was his gaining the upper hand in the fight with his friend, Mr Fathers, and that he aimed and delivered the punch to support his friend in an unbridled act of aggression. 64Having regard to what I am satisfied the offender said to Mr Fathers to encourage him to return to the Hotel, and his own behaviour in the smoking area and his aggressive posturing at that time, I am satisfied that the punch was directed at Mr Kane at least to put him to the ground. Whilst the offender may well have lost self-control, I am satisfied beyond reasonable doubt that in so doing he acted in a state of uncontrolled anger, unprovoked by anything Mr Kane said or did. 65Independent of the offender's motivation, whether the fatal punch was directed at Mr Kane's jaw and the force with which it was delivered are, as I have said, both significant factors to be considered in informing the objective seriousness of this offending. That question is largely informed by the direct evidence of those who saw and heard the punch being delivered, coupled with and the opinions of Dr Cala and Professor Hilton referable to the results of autopsy. 66On the issue of the degree of force the experts were in substantial agreement. Whilst neither could state with any certainty how much force was actually applied, in Dr Cala's view it was more than mild or a light application of force but how much more he could not say with certainty. He said "it could be moderate force or it could be a very severe force and anywhere in between". Professor Hilton said the force would be "substantial". He described the initiating cause of the haemorrhage as "a good blow". 67I also take into account the evidence of Mr Pickard-Olsen who described the noise of the punch as "a massive thump" and "bone shattering" and Mr Fearn's evidence that the offender threw "a lot of momentum into it - he kind of stepped forward and ... used his whole body weight to throw a big swing at him". Mr Fearn went on to say Mr Kane "rocketed to the ground. 68Even allowing for the different impressions witnesses to the same event may be left with, and allowing for differences in language and emphasis, I regard the evidence of the eyewitnesses who saw and/or heard the punch as consistent with the opinions of the experts. What cannot be overlooked is that the force of the punch, however it might have been described, sent Mr Kane to the ground. For sentencing purposes it is not to the point whether he fell or crumpled or collapsed, what is an irresistible finding is that the sheer velocity with which the punch was delivered resulted in rotational and shearing forces to the deceased's neck and the top of his spinal column as his head shifted across the midline causing the massive haemorrhage which resulted in his death. The offender's conduct after the offence 69Immediately after Mr Kane went to the ground, the offender left the Hotel with Mr Fathers. He did not pause to see what injury, if any, he had caused, much less to render assistance to the man he had sent to the ground. Again, cautioning myself against the dangers of over-interpretation, the CCTV footage and the still photographs from that footage show the offender and Mr Fathers walking closely together as they walked back into the TAB Bar and through it out of the front of the Hotel, with Mr Fathers appearing to embrace the offender as he draped his arm around the offender's shoulders. Before entering the TAB Bar, their exit was delayed by Mr Frost who appeared to call to the offender. The offender then approached and pushed at Mr Frost's chest. Mr Wallis was also apparently speaking to the offender. 70Neither Mr Frost nor Mr Wallis nor Mr Fathers nor the offender gave any evidence as to what was said at that time. 71The offender returned alone to his home, a walking distance from the hotel, where he lived with his family and his father. The offender told his father (or told his wife but his father overheard) that he had punched someone and "he fell straight down". He asked his father to go to the Hotel to ensure the man was "alright". He gave no explanation in his evidence for why he did not attend himself. 72He has at no time expressed remorse for causing the death of Mr Kane. The forensic evidence 73Dr Cala identified the cause of death as a basal subarachnoid haemorrhage with associated cerebral oedema. The antecedent cause of death was identified as blunt force applied to the lower left side of the face in the region of the angle of the left jaw (mandible). The application of the blunt force caused rapid rotation of the deceased's head (with the possibility of an upward movement of the chin) causing a stretching and tearing of a blood vessel, causing the vessel to bleed blood into the surface of the brain, predominately accumulating at the base of the brain. 74Dr Cala opined that the site of tearing was the vertebral artery at C1 as it enters the base of the skull. Professor Hilton opined that the origin of the bleeding was a branch of the vertebral basilar system, located within and at the base of the skull. 75The significance of the disagreement at trial regarding the origin of the bleed, and the likely vessel to have been torn, was that it bore upon the rate of bleeding into the deceased's brain and, ultimately, the time during which Mr Kane may have been conscious and upright. Mr Bellanto relied upon this disagreement at trial to raise the possibility that Mr Fathers inflicted the blunt force injury to the left jaw, and that Mr Kane remained conscious and upright for a short period before being struck by the offender to the right temple. In light of the jury verdict, the significance of the disagreements between the expert regarding the origin and rate of bleeding is entirely neutralised. The evidence relied upon by the offender on sentence 76The offender relied on his evidence at trial as to his personal history and antecedents. 77The offender was aged 39 at the time of the offence and is currently aged 42. He has no relevant criminal history. He has been married for 17 years and has four children from that relationship, aged 9 to 15, and one child from a previous relationship, aged 22. He has seen little of his family since his arrest due to being in custody until his release to bail and, after that time, due to residential conditions requiring him to reside in Sydney. 78He attended school in the eastern suburbs of Sydney to Year 10. He completed an apprenticeship as an electrician in 1992. 79In 1990 he became a semi-professional footballer with South Sydney Rugby League Club. He played professional football with that Club from 1992 until 2002 when he travelled to Europe to further his football career. He retired from professional football upon his return to Australia in 2004. 80He worked as a hotel manager and football coach in Wagga until 2009 when he moved to Kingscliff. At that time he returned to the electrical trade. He also took on the position of captain/coach of the Cudgen Rugby League team. 81Whilst on bail he has coached junior rugby league and cricket in a voluntary capacity. He has been involved in the "Men of League" programme, raising funds for various charities. 82The offender tendered a reference from Alan Jones AO dated 12 December 2014. Mr Jones has known the offender for many years and has found him to be "engaging, enthusiastic, passionate and decent". He has never found him to be a violent person. He considers the offender's conduct in the commission of this offence as out of character. Objective seriousness 83I am satisfied that the objective seriousness is within the mid range for manslaughter. I do so on the following bases involving factual findings I have reached to the criminal standard: (1)The offender made the conscious decision to involve himself in a fight with a man not known to him and to deliver a punch to the man's head; (2)The punch was delivered with at least substantial force; (3)The offender must have appreciated the risk that he would cause significant injury by the delivery of that punch; (4)The punch was delivered after Mr Kane had been was expressing a clear desire that he did not wish to involve himself in violence; (5)The punch was struck without warning; (6)The punch was unprovoked by anything the deceased said or did; and (7)The violence was perpetrated in a carpark open to members of the public and in sight of neighbouring residents and visitors to the area who were attracted to the incident. 84Mr Bellanto's submission that the offender's conduct exhibited a low level of objective criminality and moral culpability because the offender suffered a momentary lapse of judgment which was entirely out of character is not persuasive given what I am satisfied was his increasing agitation over the course of the evening. The offender's prior good character will, however, be factored into the sentence to be imposed. Mr Bellanto's submission that a non-custodial penalty is within my sentencing discretion is rejected. 85I accept that personal deterrence is not a matter of great significance in this sentencing exercise although it is not without some weight given what I have found to be the offender's increasingly agitated attitude as the evening wore on and what Mr Bellanto submitted, on the offender's behalf, was his inability to exercise self-control such that he deliberately delivered a punch with such force that an innocent man is dead. For the reasons I have already given, the need for the sentence to reflect a need for general deterrence is a dominating factor. 86There are no factors in s 21A(2) of the Crimes (Sentencing Procedure) Act that aggravate the offence. 87I accept that the following factors are available in mitigation: (1)The offender having no prior convictions (s 21A(3)(e)); (2)The offender was a person of good character (s 21A(3)(f)); (3)The offender is unlikely to re-offend (s 21A(3)(g)); and (4)The offender has good prospects of rehabilitation (s 21A(3)(h)). Special circumstances 88I am not persuaded that any proper basis has been made out to disturb the statutory ratio provided for in s 44 of the Crimes (Sentencing Procedure) Act, particularly in light of the submission put on the offender's behalf that he has achieved rehabilitation over the 18 months prior to today and since I am also satisfied, as a matter of principle, that the disturbing of the statutory ratio must be purposive (see R v GWM [2012] NSWCCA 240 at [114]). Decision 89The maximum penalty prescribed by law for the offence of manslaughter is imprisonment for 25 years. 90It is well recognised that the offence of manslaughter encompasses a wide and diverse range of conduct and varying degrees of seriousness. However, whatever form it takes, an unlawful homicide is the legal result. The taking of another's life is a criminal offence of the greatest seriousness and, in sentencing for manslaughter, it is the touchstone in fixing sentence as it is in the assessment of objective seriousness. The community is entitled to expect that since our justice system has amongst its objectives the preservation of human life that those who take it unlawfully will be punished (see R v Carroll [2010] NSWCCA 55; 200 A Crim R 284 at [49]; see also R v MD [2005] NSWCCA 342; 156 A Crim R 372 at [65]). 91It is no longer appropriate to for this Court to regard one punch or single punch cases of manslaughter as constituting a single class of offence since the objective seriousness of each case may vary widely. It is essential that the particular case under consideration is the focus (see R v Loveridge [2014] NSWCCA 120). 92In Loveridge, this Court has also emphasised that were a death occurs from a punch delivered in the context of alcohol fuelled violence in a public place an emphatic sentencing response is called for to give appropriate weight to the principles of denunciation, retribution, punishment and general deterrence. I have already made it clear that, in my view, the context and the circumstances in which this offender delivered a single punch at Mr Kane causing his death also requires the sentence to be imposed to reflect the need for general deterrence. The fact that there is no evidence that the offender's conduct was alcohol related does not, in my view, diminish the importance of this sentence serving to deter others from displays of unprovoked, uncontrolled lethal violence or to denounce that conduct and provide appropriate punishment. 93I have made allowance for the offender's good character in the sentence to be imposed and the fact that this will be the first time he has served a sentence of imprisonment. I also accept and take into account that he has a subjective case of some weight although, as I have noted, it is absent any expression of remorse or acceptance of responsibility for the death of Mr Kane. Even with the factors personal to the offender that operate in mitigation of sentence, they cannot be permitted to overcome the need for the sentence to meet the other sentencing principles to which I have referred. Sentence 94After taking into account all objective and subjective factors I have determined that an appropriate sentence is as follows: Craig Steven Field, you are sentenced to imprisonment for 10 years comprising a non-parole period of 7 years and 6 months commencing on 4 July 2014 and expiring on 3 January 2022, with a balance of term of 2 years and 6 months expiring on 3 July 2024. ********** 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: 18 December 2014