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62
Court of Criminal Appeal 4 July 2014

R v Loveridge

[2014] NSWCCA 120

Also reported as (2014) 243 A Crim R 31
Assault & violenceHomicidePublic order & justice offences
CRIMINAL LAW SENTENCE CROWN APPEAL SECOND ATTACK RESULTED IN MANSLAUGHTER DISADVANTAGED UPBRINGING NO SINGLE CATEGORY OF "ONE

Citation: R v Loveridge [2014] NSWCCA 120
Court: NSW Court of Criminal Appeal
Date: 4 July 2014
Judges: Bathurst CJ, Johnson J, R A Hulme J

Background

The respondent, an 18-year-old male, pleaded guilty to five offences arising from a single evening in Potts Point on 7 July 2012. He had consumed substantial quantities of alcohol throughout the evening before committing a series of unprovoked attacks on strangers in public streets. The most serious offence was the manslaughter of Thomas Kelly, whom the respondent punched to the head without warning or provocation, causing him to fall and strike his head on the pavement with fatal consequences.

Within the same evening, the respondent also elbowed a stranger above the eyebrow causing a laceration (assault occasioning actual bodily harm), and committed three further common assaults on unconnected strangers. Notably, after delivering the fatal blow to Mr Kelly and observing him prone and unresponsive on the ground, the respondent fled and continued to attack others.

At first instance, the sentencing judge in the Supreme Court imposed a total effective term comprising a non-parole period of five years and two months and a balance of term of two years. The Crown appealed under s 5D of the Criminal Appeal Act 1912, contending that the sentences were infected by multiple errors and were manifestly inadequate.

  • Whether the sentencing judge erred by failing to give adequate weight to general deterrence in the context of alcohol-fuelled public violence
  • Whether the sentencing judge failed to give adequate weight to specific deterrence, given the respondent's unresolved alcohol and aggression issues, prior conviction, and status on conditional liberty
  • Whether the sentencing judge erred by characterising the offences as "spontaneous" and failing to find an intent to injure
  • Whether the sentencing judge double-counted subjective features when finding special circumstances
  • Whether the individual sentences and the total effective sentence were manifestly inadequate
  • Whether, if error was established, the Court of Criminal Appeal's residual discretion should be exercised to decline re-sentencing

Decision

The Court upheld the Crown appeal on multiple grounds. It found that the sentencing judge had failed to give adequate weight to general deterrence, which the Court identified as a particularly significant factor in cases involving alcohol-fuelled violence against unsuspecting strangers in public places. The Court also found that specific deterrence had been inadequately addressed, given the respondent's unresolved issues with alcohol and aggression, his prior conviction, and the fact that he was subject to conditional liberty at the time of the offending.

The Court accepted that the sentencing judge had erred in characterising the offences as "spontaneous" in a sense that minimised their seriousness, and had further erred in failing to find an intent to injure. The fact that the respondent had comprehended the force of his blow to the deceased, observed the victim lying motionless, and then ran away before committing three further assaults was inconsistent with a characterisation that reduced the gravity of the conduct.

On the question of manifest inadequacy, the Court acknowledged there is no single sentencing range applicable to all "one-punch" manslaughter cases. Each case turns on its context, surrounding circumstances, and consequences. Viewed in their totality, however, both the individual sentences and the total effective sentence fell well below what the gravity of this offending required.

The Court declined to exercise its residual discretion to refrain from re-sentencing. Having identified multiple errors that materially affected the outcome, the Court determined that re-sentencing was appropriate and proceeded to impose a total effective term of 13 years and 8 months with a non-parole period of 10 years and 2 months.

Orders Made

  • Crown appeal allowed
  • Original sentences imposed on 8 November 2013 quashed
  • Respondent re-sentenced as follows:
  • Count 3 (assault, Serrao): fixed term of 9 months from 18 September 2012
  • Count 4 (assault, Saliba): fixed term of 11 months from 18 March 2013
  • Count 5 (assault, Gazi): fixed term of 13 months from 18 October 2013
  • Count 2 (assault occasioning actual bodily harm, Compagnoni): non-parole period of 16 months from 18 July 2014, balance of term 6 months
  • Count 1 (manslaughter, Kelly): non-parole period of 7 years from 18 November 2015, balance of term of 3 years and 6 months
  • Total effective sentence: 13 years and 8 months, with non-parole period of 10 years and 2 months expiring 17 November 2022

Key Takeaways

  • General deterrence carries particular weight in sentencing for alcohol-fuelled violence committed against unsuspecting strangers in public places, and a failure to adequately reflect this constitutes a sentencing error.
  • Specific deterrence must be assessed against the individual offender's circumstances: where an offender has unresolved aggression and substance issues, a prior criminal record, and was subject to conditional liberty at the time of offending, inadequate attention to specific deterrence is a further error.
  • Characterising a series of repeated, escalating assaults on random strangers as "spontaneous" in a way that diminishes their objective gravity was identified as legal error on these facts.
  • There is no fixed sentencing range for "one-punch" manslaughter cases in NSW; the appropriate sentence depends on the specific context, circumstances, and consequences of the individual offending.
  • In dismissing the respondent's implicit submission that the residual discretion should be exercised to avoid re-sentencing, the Court of Criminal Appeal confirmed that where multiple material errors infect a sentence, re-sentencing will ordinarily follow.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 18(1)(b), 24, 59(1), 61
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 28(3)
- Criminal Appeal Act 1912 (NSW), s 5D

Cases:
- Bugmy v The Queen [2013] HCA 37; 87 ALJR 1022
- Green v The Queen [2011] HCA 49; 244 CLR 462
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- Pearce v The Queen [1998] HCA 57; 194 CLR 610
- Barbaro v The Queen [2014] HCA 2; 88 ALJR 372
- House v The King [1936] HCA 40; 55 CLR 499
- Lowndes v The Queen [1999] HCA 29; 195 CLR 665
- Hili v The Queen [2010] HCA 45; 242 CLR 520
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1
- Pattalis v R [2013] NSWCCA 171
- MB v R [2013] NSWCCA 254
- Paxton v R [2011] NSWCCA 242; 219 A Crim R 104
- Heitanen v R [2012] VSCA 173
- Attorney General's Reference No. 60 of 2009 (Appleby and Ors) [2009] EWCA Crim 2693