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Supreme Court 7 December 2007

R v CK; R v TCS

[2007] NSWSC 1424

Assault & violenceHomicide
CRIMINAL LAW SENTENCE JUVENILE OFFENDERS OFFENCE COMMITTED IN COMPANY UNPROVOKED ASSAULT UPON YOUNG MALE.

Citation: R v CK; R v TCS [2007] NSWSC 1424
Court: Supreme Court of New South Wales
Date: 7 December 2007
Judge(s): Latham J

Background

On the evening of 31 December 2006, two 15-year-old offenders, CK and TS, attended a New Year's Eve community function near Griffith, New South Wales. After returning to the main street of Griffith in the early hours of 1 January 2007, CK approached a 17-year-old male, AF, who was walking past with a friend toward his own group. CK confronted AF without provocation, head-butted him, and TS then punched AF to the head.

AF collapsed shortly after the assault and was pronounced dead at Griffith Base Hospital at 3:50 a.m. A post-mortem examination established that he died from a subarachnoid haemorrhage (bleeding around the brain). Both offenders voluntarily attended Griffith police station later that day and were charged on 2 January 2007, remaining in custody from that date.

Both CK and TS pleaded guilty to manslaughter by an unlawful and dangerous act, first in the Griffith Children's Court and again when arraigned in the Supreme Court. The matter came before Latham J for sentencing.

  • What sentence was appropriate for each juvenile offender convicted of manslaughter by an unlawful and dangerous act, committed in company?
  • What weight should be given to the offenders' youth, prospects for rehabilitation, early guilty pleas, and other subjective factors?
  • Was a finding of special circumstances (warranting a longer-than-usual supervision period on parole) justified?
  • How should the sentences be differentiated between the two offenders, given that CK was the instigator and was subject to an existing bond at the time?

Decision

Latham J characterised the offence as falling at the lower end of the available range for manslaughter, consistent with the plea entered, but emphasised its objective seriousness as a senseless, unprovoked, and callous assault upon a young man who posed no threat. The fact that the offence was committed in company was treated as an aggravating feature.

Her Honour considered the comparable cases of R v O'Hare, R v LAL & PN, and R v KT, each involving juvenile or youthful offenders who pleaded guilty to manslaughter through one or more unprovoked blows to an unknown victim. Latham J adopted the sentencing range identified by the Chief Judge at Common Law in R v LAL & PN as a guide.

A 25 per cent discount was applied to each sentence in recognition of the early guilty pleas. Her Honour also found special circumstances in both cases, primarily because of the offenders' need for extended supervision and counselling following release from custody, justifying a departure from the standard one-third balance of term.

CK received a longer non-parole period than TS because he was the clear instigator of the assault and was serving a bond at the time of the offence. Both sentences were directed to be served in a juvenile justice centre pursuant to section 19 of the Children (Criminal Proceedings) Act 1987, with parole supervision to be conducted by the Probation and Parole Service.

Orders Made

  • CK: Convicted of manslaughter. Sentenced to a non-parole period of 4 years (commencing 2 January 2007, expiring 1 January 2011), with a balance of term of 2 years (expiring 1 January 2013). Sentence to be served in a juvenile justice centre; parole supervision by the Probation and Parole Service.
  • TS: Convicted of manslaughter. Sentenced to a non-parole period of 3 years and 6 months (commencing 2 January 2007, expiring 1 July 2010), with a balance of term of 2 years and 6 months (expiring 1 January 2013). Sentence to be served in a juvenile justice centre; parole supervision by the Probation and Parole Service.

Key Takeaways

  • Manslaughter by unlawful and dangerous act, even where the fatal violence consists of only one or two blows, carries significant objective gravity when committed in an unprovoked group context, and will be treated as an aggravating factor under established sentencing principles.
  • Where juvenile offenders are sentenced for serious indictable offences in the Supreme Court, section 19 of the Children (Criminal Proceedings) Act 1987 permits the court to direct that the sentence be served in a juvenile justice centre rather than an adult correctional facility.
  • A finding of special circumstances, extending the balance of term beyond the standard proportion, was warranted by the need for lengthy post-release supervision and counselling for juvenile offenders with rehabilitation potential.
  • Differentiation between co-offenders is appropriate where one was the clear instigator and was already subject to a court order at the time of the offence, even where both offenders' overall criminality is otherwise similar.
  • An early guilty plea attracted a 25 per cent discount on sentence, reflecting the utilitarian value of that plea and the offenders' demonstrated willingness to accept responsibility.

Legislation and Cases Referenced

Legislation
- Children (Criminal Proceedings) Act 1987 (NSW), s 19

Cases
- R v Voss [2003] NSWCCA 182
- R v O'Hare [2003] NSWSC 652
- R v LAL & PN [2007] NSWSC 445
- R v KT [2007] NSWSC 83