The Court imposed a 6-month Community Corrections Order without conviction for affray in circumstances where the offender participated in a group fight during which a co-offender fatally stabbed the victim. The Court held that 313 days served on remand (primarily referable to a murder charge later withdrawn) constituted punishment beyond what justice required for the affray offence, justifying a non-custodial disposition without conviction. The Court emphasised that care must be taken not to sentence an offender for the gravity of a death occurring during an affray where the offender was not complicit in the killing, applying R v Feretzanis and DPP v Russell. Parity with co-offenders who received 18-month CCOs in the Magistrates' Court (and who had continued to kick the deceased while on the ground) supported the lesser sentence.
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