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Supreme Court 13 December 1999

R v Risteski

[1999] NSWSC 1248

Assault & violenceHomicide
CRIMINAL LAW SENTENCING MANSLAUGHTER UNLAWFUL AND DANGEROUS ACT PUNCH THROWN IN BRAWL.

Citation: R v Risteski [1999] NSWSC 1248
Court: Supreme Court of New South Wales
Date: 13 December 1999
Judge(s): Dunford J

Background

In the early hours of 12 October 1997, the prisoner attended the Sydney Harbour Casino with friends from a Melbourne soccer club to watch a World Cup qualifying match between England and Italy. After the match ended, a brawl broke out between the prisoner's group and a group of English tourists following the throwing of a glass. The prisoner climbed onto a small stage and delivered a heavy punch to the side of the victim's neck near his left ear. The victim collapsed unconscious, was taken to hospital, and died three days later from a basal subarachnoid haemorrhage caused by the blow.

The prisoner was originally charged with murder. He was discharged at committal due to the magistrate's reservations about the pathology evidence, but was then re-arraigned on an ex officio indictment. On the morning of trial, after reviewing further Crown material, the prisoner pleaded not guilty to murder but guilty to manslaughter on the basis of an unlawful and dangerous act, with no intent to kill or cause grievous bodily harm. The Crown accepted that plea in full satisfaction of the indictment.

The proceedings before Dunford J concerned sentencing only. The prisoner was 22 years old at the time of the offence and 24 at the time of sentencing. He had completed a cabinet-making apprenticeship, was in stable employment, and had strong family support.

  • What is the appropriate sentence for manslaughter by an unlawful and dangerous act, being a single punch thrown during a brawl?
  • What weight should be given to mitigating factors, including the late guilty plea, youth, remorse, limited prior record, and strong rehabilitation prospects?
  • What weight should be given to aggravating circumstances, including the surrounding conduct before and after the fatal blow?
  • Whether special circumstances justified a departure from the standard ratio of minimum to additional term under the Sentencing Act 1989.

Decision

Dunford J accepted that the prisoner had no intention to kill or seriously injure anyone, but emphasised that the unlawful and dangerous act itself was clearly deliberate. The prisoner had actively sought out the confrontation, climbed onto a stage to deliver the blow, and then attempted further punches and kicks at the victim while he lay unconscious on the floor. Although death resulted from a single punch without a weapon, the surrounding conduct was a significant aggravating feature.

The guilty plea, though late, was treated as evidence of acceptance of responsibility and genuine remorse. It also avoided the cost of a trial and spared the victim's family from giving evidence. Self-induced intoxication did not mitigate the seriousness of the offence, though it provided some explanation for the prisoner's behaviour.

Dunford J identified general and personal deterrence as important sentencing considerations. The absence of premeditation and intent did not reduce their relevance: the community and the individual must be shown that entering brawls and throwing punches, whatever the intent, can have irreversible consequences. The victim's family impact statement was considered, but the sentence was not increased on that account, consistent with authority at the time.

His Honour found special circumstances under s 5(3) of the Sentencing Act 1989, warranting a longer additional term relative to the minimum term. The reasons were the prisoner's youth, the fact that this was his first time in custody, and the additional hardship arising from his family being based in Melbourne, limiting their ability to visit him in New South Wales unless a transfer was arranged under the Prisoners (Interstate) Transfer Act 1982.

Orders Made

  • Sentenced to penal servitude with a minimum term of 3 years and 4 months, commencing 13 December 1999.
  • Additional term of 2 years fixed.
  • Earliest eligible parole date: 12 April 2003.
  • Exhibits returned.

Key Takeaways

  • A guilty plea to manslaughter, though entered on the morning of trial, carried mitigating weight as an acknowledgment of responsibility for the death, even where causation had remained genuinely contested up to that point.
  • The sentencing court treated the conduct surrounding the fatal blow, specifically the subsequent punching and kicking of an unconscious victim, as aggravating features, even where no physical evidence established that those later blows connected.
  • Deterrence remains a relevant sentencing consideration in manslaughter by unlawful and dangerous act, notwithstanding the absence of any intention to kill or cause grievous bodily harm.
  • Special circumstances justifying a variation from the standard minimum-to-additional-term ratio can include the combined effect of the offender's youth, first-time imprisonment, and geographic separation from family support.
  • Dunford J noted that manslaughter statistics from the Judicial Commission are of only limited assistance in sentencing, given the wide range of criminal responsibility covered by the offence.

Legislation and Cases Referenced

Legislation
- Sentencing Act 1989 (NSW), s 5(3)
- Prisoners (Interstate) Transfer Act 1982

Cases
- R v MacDonald (unreported, Court of Criminal Appeal, 12 December 1995)
- R v Blacklidge (unreported, Court of Criminal Appeal, 12 December 1995)