AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
3
Court of Criminal Appeal 12 September 2025

LK v R

[2025] NSWCCA 143

Homicide
CRIME SENTENCING APPEAL AGAINST SENTENCE MANIFEST EXCESS MANSLAUGHTER UNLAWFUL AND DANGEROUS ACT

Citation: LK v R [2025] NSWCCA 143
Court: Court of Criminal Appeal, NSW
Date: 12 September 2025
Judges: Stern JA; Cavanagh J; Yehia J

Background

The applicant, a young man aged 17 years and four months at the time of the offence, pleaded guilty to manslaughter under s 18(1)(b) of the Crimes Act 1900 (NSW) following the death of a 16-year-old acquaintance. The two knew each other through a former girlfriend of the applicant, who had subsequently entered into a relationship with the deceased. The applicant harboured a continuing grudge and, on the evening of 13 August 2023, he sought out the deceased at a store near Coffs Harbour.

The applicant approached the deceased and his two friends and threw the first punch, initiating a fight. The deceased gained the upper hand and placed the applicant in a headlock. The applicant then retrieved a knife from his pocket and stabbed the deceased three times in the leg, causing his death. The sentencing judge accepted that the applicant had acted with excessive, though not grossly disproportionate, force in circumstances that amounted to unlawful and dangerous conduct rather than murder.

In the District Court, Judge McHugh SC sentenced the applicant to 6 years, 4 months and 15 days imprisonment, with a non-parole period of 3 years, 10 months and 16 days. An order was made under s 19 of the Children (Criminal Proceedings) Act 1987 (NSW) that the applicant serve his sentence as a juvenile offender. The applicant sought leave to appeal on the sole ground that the sentence was manifestly excessive.

  • Whether the sentence of 6 years, 4 months and 15 days for manslaughter was manifestly excessive, having regard to the applicant's youth, subjective circumstances, and comparable cases.
  • Whether the sentencing judge gave sufficient weight to the applicant's age and prospects of rehabilitation.
  • Whether comparable manslaughter cases involving young offenders demonstrated that the sentence imposed was plainly unjust.

Decision

The Court unanimously granted leave to appeal but dismissed the appeal. Cavanagh J delivered the principal judgment, with Stern JA and Yehia J agreeing.

On the applicable principles, the Court restated that a finding of manifest excess requires the applicant to demonstrate a disproportion in the sentence that is indicative of a substantive error of law. This is a very heavy practical burden. The Court applied the principles summarised in R v White [2025] NSWCCA 111, noting they apply equally to claims of manifest excess and manifest inadequacy.

The Court identified three features of the offending that supported the sentencing judge's characterisation of this as a serious example of manslaughter. First, the applicant was the aggressor, deliberately seeking out the deceased and throwing the initial punch. Second, the applicant brought a knife to the fight despite his mother having confiscated five knives from him in 2023 and expressly warning him not to carry them. Third, when the deceased got the better of him, the applicant used that knife three times. The Court observed that no fault or blame attached to the deceased and that the applicant had both instigated and armed himself for the encounter.

On the question of youth and rehabilitation, the Court acknowledged these were important factors in the sentencing discretion and that the sentencing judge was required to, and did, take them into account. Because the applicant challenged no specific finding, the Court was cautious about substituting its own assessment of the weight given to those factors. On comparable cases, the Court accepted their use was appropriate but noted that such comparisons are of limited utility in establishing manifest excess in manslaughter matters, given the very wide range of circumstances that can give rise to that offence. The Court concluded that while a lesser sentence was possible, the sentence imposed was not plainly unjust.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal reaffirmed that a manifest excess ground requires an applicant to overcome a "very heavy practical burden" of showing disproportion amounting to a substantive error of law; the mere possibility of a lesser sentence is insufficient.
  • Where an applicant makes no specific challenge to any factual finding or to the weight given to particular factors by the sentencing judge, the appellate court must exercise caution before substituting its own assessment of those factors.
  • Comparable cases in manslaughter sentencing appeals are of limited utility in establishing manifest excess, given the unusually wide spectrum of factual circumstances capable of supporting a manslaughter conviction.
  • An applicant's status as a young offender, and prospects of rehabilitation, are significant considerations in sentencing, but they do not automatically warrant a reduction in sentence where the objective seriousness of the offending is high.
  • Bringing a knife to a confrontation the offender instigated, having been warned not to carry knives, and then using that knife fatally, were identified by the Court as factors of "some importance" that supported the finding of a serious example of manslaughter.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 18(1)(b)
- Children (Criminal Proceedings) Act 1987 (NSW), ss 6, 19
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 3A(g)

Cases:
- R v White [2025] NSWCCA 111
- TH v R [2025] NSWCCA 121
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95
- R v Blacklidge (Court of Criminal Appeal (NSW), 12 December 1995, unrep)
- R v SMP [1999] NSWCCA 318
- R v TM [1999] NSWSC 504
- R v Elemes [2000] NSWCCA 235
- R v HT [2010] NSWSC 324
- R v Loveridge [2014] NSWCCA 120
- R v MR, JB and CS (young persons) (No 5) [2024] NSWSC 912
- R v JM (Sentence) [2024] NSWSC 1345
- R v Saliba (No 4) [2025] NSWSC 659