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Court of Criminal Appeal 10 September 2009

APT v R

[2009] NSWCCA 230

Assault & violenceHomicide
CRIMINAL LAW AND PROCEDURE MANSLAUGHTER SENTENCE YOUNG OFFENDER

Citation: APT v R [2009] NSWCCA 230
Court: NSW Court of Criminal Appeal
Date: 10 September 2009
Judge(s): Macfarlan JA, Grove J, Hoeben J

Background

The applicant was convicted of manslaughter following a trial in which he had originally faced a murder charge. The offence arose from a late-night incident at a service station in March 2006, when a group altercation led to a fatal assault on a 27-year-old man. A co-offender, Wade Willmot, ultimately pleaded guilty to murder for stomping on the victim's head. The applicant joined the attack by kicking the victim while he lay on the ground.

The applicant was nine days short of his eighteenth birthday at the time of the offence. He had no prior convictions, a stable family background, a history of employment, and had just completed an army induction course before his arrest. Psychological assessment indicated a high likelihood of response to rehabilitation, and early signs confirmed that prediction.

The sentencing judge imposed a non-parole period of five years and twenty weeks, with a balance term of two and a half years, directing that the sentence be served as a juvenile offender until the applicant turned twenty-one. The applicant sought leave to appeal, arguing the sentence was manifestly excessive because insufficient weight had been given to his rehabilitation.

  • Whether the sentencing judge gave sufficient weight to the applicant's rehabilitation prospects such that failing to do so produced a manifestly excessive sentence.
  • Whether the sentencing judge erred in finding that the applicant's behaviour was "like an adult," thereby reducing the mitigating weight ordinarily accorded to youth.
  • Whether the sentence fell outside the range of a sound exercise of sentencing discretion.

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal on all grounds. Grove J, with whom Macfarlan JA and Hoeben J agreed, found that the sentencing judge had expressly considered the applicant's contrition, the psychologist's favourable report, and his progress in custody. The complaint was not that rehabilitation was ignored, but that it was not weighted heavily enough. The Court confirmed that questions of weight within a sentencing discretion are primarily matters for the first-instance judge, and appellate intervention on that basis is narrowly confined.

On the question of the "adult-like" behaviour finding, the Court found no error. The sentencing judge had rejected the applicant's explanation that he kicked the victim because he feared a knife, and the evidence established that the applicant kicked the victim hard on multiple occasions, including when the victim was attempting to get up. The applicant also failed to do anything effective to stop the co-offender's fatal attack after being told to stop himself.

The Court addressed the applicant's submission that the weight given to youth should not diminish based on the seriousness of the offence, acknowledging that principle as established in the authorities. However, the Court found that the sentencing judge had not reduced the youth factor because of the offence's seriousness, but rather had assessed the applicant's actual conduct as adult in character. Comparing the sentence to Judicial Commission statistics for manslaughter was of limited value, given the well-established principle that manslaughter encompasses an exceptionally wide range of circumstances, and that a central consideration in any manslaughter sentence is that the offence involves the taking of a human life.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal dismissed.

Key Takeaways

  • Appellate courts will intervene on questions of "weight" in sentencing discretion only in narrowly confined circumstances; an argument that mitigating factors were not weighted sufficiently faces a high threshold.
  • The Court of Criminal Appeal confirmed that youth as a mitigating factor does not automatically diminish based on the gravity of the offence, but a sentencing judge may legitimately find that a young offender's conduct was adult in character on the evidence.
  • In dismissing the appeal, the Court reinforced that manslaughter is almost unique in its diversity of circumstances, making comparisons to statistical sentencing ranges of limited assistance.
  • A key principle restated in this decision is that the felonious taking of a human life remains the starting point and a central element in assessing the gravity of any manslaughter offence.
  • No error was established where a sentencing judge expressly engaged with rehabilitation evidence, psychological reports, and the applicant's progress in custody, even where the resulting sentence was substantial.

Legislation and Cases Referenced

Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW)

Cases:
- Jones v R [2009] NSWCCA 169
- Markarian v The Queen (2005) 228 CLR 357
- R v Baker [2000] NSWCCA 85
- R v Bus (unreported, 3 November 1995)
- R v Forbes [2005] 160 A Crim R 1
- R v Hearne [2001] 124 A Crim R 451
- R v Schelberger (unreported, NSWCCA, 2 June 1988)
- R v Blacklidge (unreported, NSWCCA, 12 December 1995)