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Court of Criminal Appeal 17 June 2016

Lambaditis v R

[2016] NSWCCA 117

Assault & violenceHomicide
CRIMINAL LAW PLEA OF GUILTY WHETHER SENTENCE MANIFESTLY EXCESSIVE LEAVE TO APPEAL GRANTED APPEAL DISMISSED

Citation: Lambaditis v R [2016] NSWCCA 117
Court: NSW Court of Criminal Appeal
Date: 17 June 2016
Judges: Simpson JA (with Garling J and Wilson J agreeing)

Background

The applicant pleaded guilty to manslaughter by an unlawful and dangerous act following the death of a man during a street altercation in the Sydney CBD in the early hours of 3 November 2013. The incident occurred after a buck's party at which alcohol was consumed, when the applicant and his group encountered another group near an inner-city hotel. The applicant struck one man (forming the basis of a Form 1 assault occasioning actual bodily harm), and then, after being punched and kicked by the deceased, struck the deceased a fatal blow to the head. The deceased died in hospital two days later from severe blunt head injury.

In the Supreme Court, the applicant was sentenced to nine years' imprisonment with a non-parole period of six years and nine months. The maximum penalty for manslaughter under s 24 of the Crimes Act 1900 (NSW) is 25 years. The applicant sought leave to appeal, arguing the sentence was manifestly excessive.

  • Whether the sentence of nine years' imprisonment (with a non-parole period of six years and nine months) for manslaughter by an unlawful and dangerous act was manifestly excessive.
  • Whether the sentencing judge gave appropriate weight to the applicant's personal circumstances, including his difficult childhood, limited criminal history, remorse, and the element of provocation by the deceased.
  • Whether the sentencing judge placed excessive weight on specific deterrence given the applicant's lack of prior violent offending.

Decision

Simpson JA, with whom Garling J and Wilson J agreed, dismissed the appeal. The Court found that the sentence, while significant, fell within the legitimate range of sentencing discretion and was not manifestly excessive.

The Court acknowledged the applicant's favourable personal circumstances: a minimal prior record, genuine remorse, a difficult childhood marked by parental alcoholism, and the fact that the fatal punch was delivered after the applicant himself had been struck. However, the Court observed that the sentencing judge had plainly considered all of these matters in his remarks on sentence, and no error in that weighing process was demonstrated.

The applicant's counsel pointed to several broadly comparable cases in which shorter sentences had been imposed, including R v Field, R v Dyer, R v Matthews, and R v Lane (No 3). The Court acknowledged those cases but held that the existence of lower sentences in other matters does not, of itself, establish that the sentence under challenge lay outside the legitimate range. The Court referenced R v Loveridge and R v McNeil (No 4) as cases demonstrating that the sentence imposed was well within the expected range for this category of offending.

On the specific deterrence point, the Court accepted that the applicant's background did not suggest a general tendency towards violence. Nonetheless, it concluded that some element of specific deterrence was appropriately reflected in the sentence given the circumstances of the offending, and nothing indicated that consideration had been elevated beyond what was appropriate.

Orders Made

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

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the existence of comparable cases attracting lighter sentences does not, without more, establish that a sentence under challenge falls outside the legitimate sentencing range.
  • A plea of guilty to manslaughter by an unlawful and dangerous act arising from a single fatal punch, accompanied by favourable personal circumstances, does not automatically result in a reduced sentence where the objective seriousness of the offending is significant.
  • Where a sentencing judge's remarks on sentence demonstrate that full weight was given to both the objective circumstances and the offender's personal background, an appellate court will not readily conclude that relevant evidence was overlooked or undervalued.
  • Under the principles affirmed in Bugmy v The Queen [2013] HCA 37, a difficult childhood and background of parental alcoholism remain relevant to sentencing, but their weight is always assessed in the context of the full sentencing exercise.
  • Manslaughter is a widely divergent offence, and the Court reinforced that sentences imposed by the Supreme Court in comparable one-punch death cases span a considerable range, within which sentencing judges retain substantial discretion.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 24 (manslaughter, maximum penalty)
- Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 3 Div 3, ss 21A, 44(2), 53, 53A

Cases:
- Bugmy v The Queen [2013] HCA 37; 249 CLR 571
- R v Dyer [2014] NSWSC 1809
- R v Field [2014] NSWSC 1797
- R v Lane (No 3) [2015] NSWSC 118
- R v Loveridge [2014] NSWCCA 120
- R v Matthews [2015] NSWSC 49
- R v McNeil (No 4) [2015] NSWSC 1198
- R v Previtera (1997) 94 A Crim R 76