AH v R

AH v R - [2013] NSWCCA 32 - NSWCCA 2012 case summary — Zoe

[9]

The applicant's second visit to the Busby premises 21AT (as the driver of a van) along with the applicant, Barghachoun, DF, JS, AH, DP, LA, DB and NR, then left AT's premises and travelled to the Busby premises. On the way they collected JH (who was the brother of AH). 22A number of metal poles were inside the van. There was discussion on the way between some of the males to the effect that they were going to the Busby premises for the purposes of having a fight. Several people heard the applicant say that he was going to have "one on one" fight with JT. JS came into possession of a knife, either prior to arriving at the Busby premises, or at that location. The applicant was not aware at any time that JS had a knife. 23Upon arriving in the vicinity of the Busby premises, AT stopped the van around the corner and remained there. All of the others who had travelled there got out of the van and started walking towards the Busby premises. A number of them, including the applicant, were armed with metal poles. The applicant, along with DF, NR, JS, Barghachoun and others approached the Busby premises. As they did so, JT and JP were on the verandah. When JT and JP saw the group approaching they retreated inside. 24The applicant, who was armed with a pole, banged on the screen door of the Busby premises yelling for JT to come out. He then turned away from the front door. As he did so, JT opened the door and approached the applicant from behind, striking him once to the back of the head with a wooden bat. This caused the applicant to fall to the ground. JT then retreated into the house. 25At about the same time the deceased arrived at the premises in a four-wheel drive vehicle. Before the driver of that vehicle had stopped (directly in front of the house), the deceased, who had been in the front passenger seat, jumped out with a baseball bat in his hand and approached several of the people who had arrived in the van with the applicant. Three other males and two females had accompanied the deceased to the Busby premises. 26Shortly after the deceased got out of the vehicle, he became involved in the affray with those who had arrived with the applicant. The deceased was stabbed once to the chest by JS, and died as a result.

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The applicant's arrest 35On the evening of 25 April 2009 police attended the applicant's home address, where he and JS were arrested. 36During the search of the applicant's house, police also spoke with Barghachoun, who asked officers why JS had been arrested. Police told Barghachoun that JS had been arrested because of his involvement in a murder at Busby on the previous evening. When police asked Barghachoun whether he knew anything about it, he replied: "That's the first I've heard about it...I went out with my mate Luca for a while and then he dropped me off at my place...around midnight". 37When police arrived at the applicant's premises they were in possession of a search warrant which they proceeded to execute. One of the detectives spoke to the applicant and his mother about the warrant. As his mother was reading the occupier's notice the applicant said: "Fuck em, there a bunch of dogs. They don't call em pigs for no reason". 38As officers explained the warrant to the applicant's mother, the applicant received a call on his mobile phone at which time he was heard to say: "I just had fucken 8 coppers fucken barging the door. ... Fuck em - says I can't obstruct the search warrant, doesn't say I can't call em pigs and fucken dogs". 39When the applicant read out aloud the items of interest listed on the search warrant he said to the person on the phone: "They're looking for this to do with the murder this morning. I fucken been asleep. I fucken woke up now ...". 40When police commenced to search the applicant's bedroom, the applicant said to them: "Youse are a bunch of fucken retards ... So who was I supposed to have murdered anyway? ... Give me my fucken stuff back - what the fuck do you think this is?" 41When his mother tried to calm him down, the applicant said: "I don't care - fuck yous". 42After further exchanges, and as a consequence of the applicant's ongoing interference with the execution of the search warrant by the police, the applicant was charged with an offence of hindering the execution of a search warrant pursuant to s 52 of the Law Enforcement (Powers and Responsibilities) Act 2002. 43That charge was contained in a Form 1 which was tendered before the sentencing judge.

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The sentence proceedings 44In considering this ground, it is necessary to make reference to some aspects of the sentencing proceedings. 45At the outset of the proceedings, his Honour enquired as to the basis on which the plea to the charge of manslaughter had been entered. The following exchange ensued between his Honour, counsel for the Crown and counsel for the applicant (at AB 89 - 90): "His Honour And the basis upon which the plea to manslaughter was entered is what, if counsel could tell me what the agreed basis is? Crown Unlawful and dangerous act. His Honour But by application of joint criminal enterprise or extended joint criminal enterprise? Let's get it clear at the outset. Crown On the basis, the Crown says, of a joint criminal enterprise His Honour Is that agreed? Applicant Extended joint criminal enterprise, your Honour. His Honour Extended joint criminal enterprise, or joint criminal enterprise? Crown The Crown agrees its extended your Honour". 46Following this exchange, the hearing proceeded. The applicant was not called to give evidence. The only oral evidence called in the applicant's case was from a Juvenile Justice officer who was the joint author of a report which was before his Honour for the purposes of sentence. In addition to that report, counsel for the applicant tendered: (i) a report of Dr Christopher J Lennings, Psychologist; (ii) a testimonial from the applicant's employer; (iii) a report from the Westside Youth Centre, with whom the applicant had undertaken voluntary work; and (iv) two reports dealing with the medical condition of the applicant's mother. 47In the course of submissions to his Honour, senior counsel for the applicant said (at AB 112): "Now, the plea is entered on the basis that he was engaged in an unlawful and dangerous act by anticipating the possibility of injury to the other group, but his involvement in the actual death is minimal, apart from that constructive case against him if I can say that". 48Subsequently, the following exchange occurred between his Honour and senior counsel (at AB 116 - 117): His Honour Did he instigate an affray? Counsel Well, I mean, again, one of the problems with this is the fact that that's one of those inter venus (sic) type arguments; did he instigate an affray? He participated for a very short time in an affray, to which he pleaded guilty, I might say, at a very early opportunity. His Honour That's been dropped. Counsel Yes, but nevertheless, it's an indication of taking responsibility for that part of the participation. He's in the affray, clearly, when he's outside the front door, and that would put any person in fear, so we don't have any difficulty with that. And, essentially, that acknowledgement of a factual circumstance brought him very close to manslaughter anyway, because it's an acknowledgement of participation in an unlawful act, so perhaps I'm jumping about here, but in terms of the plea, of course, that has some relevance". 49The Crown's final submissions to his Honour included the following (at AB 126): "Now the question in this case, of course, is that if the court comes to the view that AH did have some insight into the fact that someone could be seriously injured that would make it more serious, and that if he had been an instigator of events which led to the affray, or that which lead to the situation with (sic) somebody was not just seriously injured but was in fact killed, his culpability would be greater still". 50What was said at that point was consistent with the Crown's written submissions to his Honour which included the following: "The offender's liability for manslaughter arises from an extended joint criminal enterprise. ... The present charge arose out of a serious breach of the peace, namely an affray, between two rival groups of young men".

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Consideration and conclusion 54For a number of reasons, we do not accept the submissions advanced on behalf of the applicant. 55Although the terms of the agreement at sentence between the Crown and the applicant lacked precision, it is apparent that what was agreed upon were the facts. The agreement did not, on a fair reading of the transcript of the sentence proceedings, extend to an agreement which limited the nature of the applicant's participation in the offending. In particular, it is apparent that the agreement as to the facts did not extend to an agreement that the applicant had intended to engage in a "one on one assault" upon JT, or that his participation in the extended joint criminal enterprise was so limited. That may well have been the applicant's position on sentence. However, it is evident from the submissions made to his Honour that it was not a position with which the Crown agreed. 56It was the Crown's position on sentence that the conduct of the applicant amounted to participation in an affray and that, in so participating, he had contemplated the possibility of serious bodily injury being inflicted upon some person. So much is clear from the terms of the Crown's submissions to his Honour, both orally and in writing. This is also the basis, properly understood, of the submissions below on behalf of the applicant. 57The fact that this was the Crown's position is also clear from his Honour's enquiry, to senior counsel for the applicant, concerning whether or not the applicant had in fact participated in an affray. It is to be inferred that the reason his Honour asked that question was because it was relevant to an issue in the proceedings which he was required to determine, namely the nature of the applicant's participation in the extended joint criminal enterprise. In responding, senior counsel for the applicant expressly acknowledged the applicant's participation in an affray. 58In our view, it is clear that despite the agreement as to the facts, there remained an issue as to the applicant's participation. As with all other factual issues on sentence that was an issue which was for his Honour to determine. 59We do not accept that his Honour misconceived the nature of the plea in any way, nor do we accept that he confused the concepts of joint criminal enterprise and extended joint criminal enterprise. In this regard, quite apart from the terms of paragraph [70], his Honour also said (at paragraph [83]): "I keep in mind that I am not sentencing the Offender for directly causing the death of Mr Boyce, nor am I sentencing him for his participation in a joint enterprise that had as its object the doing of an act of killing or inflicting grievous bodily harm" (emphasis added). 60It seems that part of the applicant's complaint before this Court is the description by his Honour of the affray as "an unlawful and dangerous act (see [51] infra). The affray was unlawful, and it was dangerous. It was not "the unlawful and dangerous act" that caused death. His Honour did not describe it as such. Nor did his Honour treat it as such. If his Honour were to have treated the affray in that manner, then his Honour would not have made the comments at paragraph [83] of his reasons recited above. Those passages of his Honour's reasons, far from exhibiting any confusion, reflect a clear understanding of the fact that the applicant was not to be sentenced on the basis of participation in a joint criminal enterprise, but rather on the basis of an extended joint criminal enterprise. What constituted that participation was a matter for his Honour to determine. 61Further, in our view his Honour did not err in concluding that the applicant had participated in the extended joint criminal enterprise in the manner alleged by the Crown. Quite apart from the express concession made by senior counsel who appeared for the applicant that the applicant had participated in an affray, the facts established that in circumstances where there had been tension between the applicant and JT, and following a visit by the applicant to the Busby premises, the applicant recruited a number of other persons and travelled back there. The applicant himself was armed with a metal pole, as were several of the other persons who were with him. 62The agreed facts also established that upon arrival, the applicant approached the Busby premises in the company of a number of other males. The applicant banged on the screen door at the front of the Busby premises, only to be struck from behind as he turned away from the door. It was at about the same time that the deceased arrived at the premises and jumped out of a vehicle armed with a baseball bat, approaching several of the people who had accompanied the applicant to the premises. It was also at this time, according to the agreed facts, that the deceased "became involved in the affray with the white van group" and was killed. 63In our view, these facts supported his Honour's conclusion as to the applicant's participation. 64For these reasons, this ground is not made out. 65It should be noted that in the course of the hearing of the appeal, and although it was not set out in any of the grounds, counsel for the applicant made a submission that because of the matters raised in support of ground 1, his Honour's conclusion as to the applicant's participation in the offending amounted to a denial of procedural fairness. For the reasons we have set out, we reject that submission. 66It was made clear at the hearing of the appeal that the five grounds advanced by the applicant were interrelated, and that grounds 2 to 5 depended, to a large extent, upon ground 1 being upheld. Although we have found that ground 1 has not been made out, it is appropriate that we deal with the remaining four grounds, to the extent that they raise issues which are independent of those raised in ground 1.

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Consideration and conclusion 69We do not accept the submissions advanced in support of this ground. 70As to the first submission, the agreed facts established that the applicant had visited the Busby premises and had left only after JT's father had intervened to quell the dispute which had arisen. Thereafter the applicant, following a telephone conversation with JT, gathered together a large number of people before returning. When he and the others returned to the Busby premises, the deceased was killed. Viewed in this way, his Honour's conclusion that the applicant was responsible for setting in train the conflict was, in our view, neither inaccurate nor oversimplified. The conflict to which his Honour was referring was the affray. 71As to the second submission, the agreed facts established that although JT had initiated the telephone conversation with the applicant following the applicant's first attendance at the Busby premises, it was the applicant who gathered others and returned. In that sense, it was the applicant who chose to resume the dispute. While the significance of this conduct to the sentence to be imposed must be assessed bearing in mind the issues of immaturity to which his Honour referred, it is an accurate statement of fact. 72As to the third submission, we do not accept that JT, by initiating the conversation with the applicant referred to in [70] above, provoked or goaded the applicant. The facts record that the applicant and JT agreed to meet again. The applicant could have walked away but chose not to do so. 73The fourth submission was advanced on the basis that the killing of the deceased was an unintended consequence of the fact that one of the people who accompanied the applicant carried a knife. We accept that such a consequence might well have been unintended. However, the agreed facts established that the offender did indeed plan and organise the second visit to the Busby premises as we have outlined, as a consequence of which the deceased was killed. In concluding, correctly, that the applicant had played an organisational role, his Honour did not overstate the facts. He recorded them accurately. 74We accept that the applicant took no part in the act which caused the deceased's death. We also accept that his involvement in the events at the Busby premises on the second occasion was short. The shortness of his involvement and actual participation were also unintended. However what took place prior to the applicant's arrival at the Busby premises on that second occasion cannot be overlooked. To do so would result in a gross distortion of the totality of the applicant's offending. Relevantly, prior to going to the Busby premises on the second occasion, the applicant had: (i) spoken with JT over the telephone; (ii) gone home and retrieved a quantity of metal poles; (iii) gone with JS to the Busby premises; (iv) avoided a confrontation with JT only through the intervention of JT's father; (v) spoken with JT again; (vi) made a decision, following that conversation, to return to the Busby premises; and (vii) recruited a large number of persons to accompany him, some of whom (like the applicant) were armed. 75The characterisation of the objective seriousness of an offence is part of the role of a sentencing judge, with which this Court will be slow to interfere. The question is whether or not the particular characterisation of the sentencing judge was open (see Mulato v R [2006] NSWCCA 282 per Spigelman CJ at [37] and Simpson J at [46]). In our view, his Honour's conclusions were clearly open in the present case. 76Having regard to all of these factors, we do not accept that the applicant's offending should be properly regarded as falling at, or even towards, the bottom end of the range as was submitted on his behalf. To reach such a view would ignore the organisational role which his Honour correctly found that the applicant had played. 77For these reasons, this ground is not made out.

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Consideration and conclusion 85His Honour sentenced the co-offender Barghachoun to an identical term of imprisonment as that imposed on the offender, with a non parole period which was 3 months longer. Barghachoun was sentenced as an adult and, like the offender, was given the benefit of a discount of 20% on account of his plea of guilty. 86JS, who stabbed the deceased, was sentenced to imprisonment for a period of 6 years, with a non-parole period of 3 years. This incorporated a discount of 20% to reflect the plea of guilty to the offence of manslaughter which he had offered to the Crown, but which had been rejected. 87The applicant's youth was, as we have outlined, a matter of which his Honour was conscious, and which he took into account on sentence. We have already concluded that the applicant was not provoked. 88In our view, the remaining matters advanced on the applicant's behalf do not support a conclusion that the applicant has a justifiable sense of grievance when his sentence is compared with the sentences imposed upon his co-offenders. 89We accept that the applicant's actions were less culpable than those of JS, whose act of stabbing caused the death of the deceased. That difference in culpability is properly reflected in the different sentences which were imposed upon the applicant on the one hand, and JS on the other. 90We do not, however, accept that the applicant's actions were far less culpable than those of Barghachoun. It is evident that Barghachoun was sentenced on the basis that, like the applicant, he was not directly involved in the act causing the death of the deceased (see R v Barghachoun [2011] NSWSC 1534 at [64]). Barghachoun was one of the participants whose attendance was organised by the applicant. His Honour found (Barghachoun (supra) at [73]) that Barghachoun had willingly participated in the events, armed himself with a metal pole, and struck a member of the other group with a baseball bat. Importantly, and unlike the applicant, Barghachoun played no organisational role and was not a party to the first visit by the applicant to the Busby premises. 91Taking all relevant matters into account, and having particular regard to what we have concluded were the entirety of the circumstances of the applicant's offending and the organisational role that he played, we do not consider that there is any disparity in the sentence imposed upon the applicant when compared with those imposed upon the co-accused. 92It follows that this ground is not made out.

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