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32
Court of Criminal Appeal 30 September 2005

R v MD, BM, NA, JT

[2005] NSWCCA 342

Also reported as (2005) 156 A Crim R 372
Assault & violenceHomicide
CRIMINAL APPEAL APPEAL BY CROWN AGAINST SENTENCE PLEA OF GUILTY TO MANSLAUGHTER OBJECTIVE GRAVITY OF THE OFFENCE YOUNG OFFENDERS

Citation: R v MD, BM, NA, JT [2005] NSWCCA 342
Court: New South Wales Court of Criminal Appeal
Date: 30 September 2005
Judge(s): McClellan CJ at CL, Simpson J, Howie J

Background

On New Year's Eve 2002, a group of young people at Emu Plains became involved in an altercation near a highway with a man named Kurt Smith and his companion. In circumstances that proved difficult to reconstruct precisely, Kurt Smith sustained severe head injuries after his head made contact with a pole and was then kicked while he lay on the ground. He later died from those injuries.

Four young respondents (identified only by initials due to their ages at the time) were originally charged with murder and related offences. Following a trial that was disrupted by the trial judge's illness, each respondent ultimately pleaded guilty to manslaughter. One respondent (JT) also pleaded guilty to common assault; two others faced additional charges arising from the same night.

The Director of Public Prosecutions appealed against the sentences imposed on all four respondents, arguing that the sentences were manifestly inadequate given the objective gravity of the offending.

  • Whether the sentences imposed for manslaughter were manifestly inadequate, having regard to the objective seriousness of the offending.
  • Whether the sentencing judge gave excessive weight to subjective factors, including the respondents' youth, absence of prior convictions, and prospects of rehabilitation.
  • Whether the sentencing of young offenders required particular treatment under the applicable legislation, including the Children (Criminal Proceedings) Act 1987 (NSW).
  • Whether a question arose as to the validity of orders made under s 19 of the Children (Criminal Proceedings) Act 1987, though this issue was not fully argued.

Decision

The Court acknowledged that the sentencing exercise was genuinely difficult. The factual circumstances surrounding the death were heavily contested, with conflicting witness accounts and significant uncertainty about precisely how each respondent contributed to the fatal injuries. The sentencing judge had found it impossible to make precise findings as to the exact role of each respondent beyond reasonable doubt.

The Court found that, on the whole, the sentences imposed were not so inadequate as to warrant intervention. The sentencing judge had appropriately balanced the objective gravity of the offending against the respondents' youth, their lack of prior convictions, their guilty pleas, and their prospects of rehabilitation. These subjective factors legitimately attracted substantial weight in the context of young offenders.

In relation to JT specifically, the Court found that the sentence was arguably manifestly inadequate, given that an intentional kick to the head of an incapacitated victim contributed to that victim's death and warranted serious punishment. However, the Court exercised its residual discretion to decline to intervene. JT's non-parole period had already expired by the time the appeal was heard, and re-sentencing at that stage would have imposed a significantly greater burden on a young first offender than would have resulted from a longer sentence imposed at the outset.

The Court did vary BM's sentence in a technical respect to correct an error in the calculation of the non-parole period, but dismissed the Crown appeals in all four matters. The Court also flagged, without deciding, a question about whether orders made under s 19 of the Children (Criminal Proceedings) Act 1987 remained valid after the respondents reached the age of 18, noting that full argument had not been heard on this point.

Orders Made

  • Crown appeals against sentence dismissed in all four matters (MD, BM, NA, JT).
  • BM's sentence varied on the manslaughter count: full term of four years imprisonment to expire on 13 October 2008, with a non-parole period of two years commencing 14 October 2004 and expiring 13 October 2006.
  • The Court noted that a question remains about the validity of orders made under s 19 of the Children (Criminal Proceedings) Act 1987 upon the respondents reaching 18 years of age, and observed that an application to the Supreme Court for a further order under that section may be available.

Key Takeaways

  • In dismissing the Crown appeals, the Court of Criminal Appeal confirmed that a sentencing judge does not err in principle by giving substantial weight to youth, absence of prior convictions, and rehabilitation prospects, even where the objective gravity of a manslaughter is significant.
  • Where a Crown appeal against sentence is upheld in principle but the respondent has already served the relevant portion of the sentence by the time the appeal is determined, a court may exercise its discretion to decline to re-sentence if doing so would impose a disproportionate additional burden on a young first offender.
  • An intentional kick to the head of a person who is incapacitated and unable to protect themselves was characterised by the Court as a serious criminal act warranting significant punishment, regardless of the offender's precise intention, particularly where it contributes to the victim's death.
  • Factual uncertainty arising from a plea of guilty to manslaughter in lieu of murder does not automatically reduce objective gravity, but it is a legitimate complexity that the sentencing court must navigate carefully.
  • The validity of orders made under s 19 of the Children (Criminal Proceedings) Act 1987 after a young offender turns 18 was left as an open question by the Court, as it was not the subject of full argument.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 5D
- Children (Criminal Proceedings) Act 1987 (NSW), s 19
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Young Offenders Act 1997 (NSW)

Cases
- Dinsdale v The Queen (2000) 202 CLR 32
- Makarian v The Queen (2005) 215 ALR 213
- Malvaso v The Queen (1989) 168 CLR 227
- R v AEM SNR & Ors [2002] NSWCCA 58
- R v Allpass (1993) 72 A Crim R 561
- R v Baker [2000] NSWCCA 85
- R v Dalton [2005] NSWCCA 156
- R v Dawes [2004] NSWCCA 363
- R v Edwards (1996) 90 A Crim R 510
- R v Elfar [2003] NSWCCA 358
- R v MA [2004] NSWCCA 92
- R v Nguyen (unreported, CCA, 14 April 1994)
- R v Pham (1991) 54 A Crim R 128
- R v Rushby [1977] 1 NSWLR 594
- R v Simpson (2001) 53 NSWLR 704
- R v Tran [1999] NSWCCA 109
- R v Troja (unreported, CCA, 16 July 1991)
- R v Wall [2002] NSWCCA 42
- R v Webb (unreported, CCA, 12 September 1997)