Remarks on sentence
37Turning now to the Crown appeals on sentence, I have already noted the trial judge's finding beyond reasonable doubt that SB did not use JB's pendant in stabbing the victim.
38In the remarks on sentence, the trial judge outlined the circumstances leading up to the confrontation, making a finding that the incident was precipitated by AI locking eyes with the victim. The trial judge found the following facts:
The CCTV clearly shows what happens from this point onwards. The offender [SB], although on the phone, is walking on the road with Mr Ngatupuna and Mr Poa inside on the footpath area with the other two accused in close proximity. The first actual attack was by the offender AI who rushes in, throws a punch that misses due to Mr Ngatupuna taking evasive action. The offender AI then jumps around. The offender AI goes to the roadway area. Soon after this Mr Poa rushes at Mr AI.
The Crown alleges that this is pre-emptive self defence. Whether it is or not is not of great import because shortly thereafter Mr Ngatupuna rushes [JB] who steps backwards. Again the Crown says this is pre-emptive self defence either by Mr Ngatupuna of himself or of his friend Mr Poa. Mr Ngatupuna is much bigger than [JB] and whether he just lost his temper due to provocation or not it is not necessary to decide whether this was pre-emptive self defence. The jury have obviously found that what happened thereafter in relation to both offenders AI and [SB] either did not amount to self defence or defence of another, or was clearly excessive self-defence.
I have found in relation to [SB] that I accept that what he did was excessive self-defence, not of himself, but of his brother [JB]. Shortly thereafter whilst facing each other and still both standing, that is, Mr Ngatupuna and [JB], the offender [SB] comes into the fight. I find that whilst still standing Mr Ngatupuna is stabbed in the left arm by [SB], his arm goes limp. I find that he and [JB] forced Mr Ngatupuna back across the footpath up against the Perspex wall. Throughout this Mr Ngatupuna is trapped.
I have already found that at no stage can the offender [SB] be seen to pick up his brother [JB]'s pendant. Meanwhile I find that Mr AI now armed with a knife is keeping Mr Poa at bay and away from the scene where the two [JB and SB] brothers are fighting with Mr Ngatupuna. I find that Mr AI rushes in twice to the melee between Mr Ngatupuna and the two [JB and SB] brothers. I find that Mr AI kicks at Mr Ngatupuna at one stage when running in. I find that the other wounds occasioned to Mr Ngatupuna occurred after he was stabbed in the left arm and whilst he had been forced to the ground by the two [JB and SB] brothers. I do not find that the offender AI at any stage, although armed with a knife, stabbed Mr Ngatupuna or indeed anyone else. After Mr Ngatupuna is stabbed all three then accused flee the scene. These facts I believe are consistent with the evidence, including the CCTV and the jury verdicts.
39The trial judge then referred to the victim impact statement, noting that the victim was left lying severely wounded in the street, and that it was only due to prompt and excellent medical treatment at the hospital, when his heart evidently stopped several times, that he was able to survive.
40The trial judge proceeded to assess the objective seriousness of SB's offence as follows:
It is clear from my earlier fact finding that Mr Ngatupuna, the victim, received serious injuries. Fortunately, the victim has made quite a good recovery, although I note that he evidently has some permanent nerve damage to the top of his legs and some muscle damage around his chest. He is of course left with the physical and psychological scars of the event. Despite the large and threatening blood loss the victim was released from hospital after one week.
It is also necessary to look at the degree of violence or the ferocity of the attack as these are material considerations on sentence. Here the offender [SB] has initially just been talking on the phone and shown little apparent interest in the lead up to the incident. Also, even acknowledging that Mr Poa and Mr Ngatupuna had been seriously provoked by the offender AI and to some extent [JB], it was still first Mr Poa and then Mr Ngatupuna who actually engaged in physical contact.
In this regard I note that the offender AI did throw a punch earlier which Mr Ngatupuna was able to evade. Mr Ngatupuna is a much bigger man than the offender [SB]'s brother [JB], and [JB] was clearly back-stepping following the lunge forward by Mr Ngatupuna. It is in this context that the offender [SB] becomes involved.
Due to the facts that I have found, although it cannot be seen on the CCTV, just shortly after or just prior to joining Mr Ngatupuna and [JB], that the offender [SB] has armed himself. The first wound occasioned to Mr Ngatupuna is whilst they are still standing. When they go to ground other wounds are inflicted by the offender [SB]. The degree of violence is therefore considerable but is tempered by the fact that [SB] clearly becomes engaged only after Mr Ngatupuna has physically attacked [JB].
Further, in assessing the objective gravity of the offence it is necessary to look at the intention with which the offender [SB] has inflicted the harm in this case on Mr Ngatupuna. In this regard, and also looking at the nature of the injuries inflicted, I will not take into account as an aggravating factor circumstances that would warrant conviction for more serious offences. On the question of intention the jury have clearly found that the offender [SB] intended to inflict grievous bodily harm.
However, I have found that he was motivated by a desire to extricate his brother [JB] from the much larger Mr Ngatupuna. This does not explain why both he and the offender AI found themselves outside Rockdale Station both armed with knives. On balance though I am willing to accept that due to the offender [SB]'s non aggressive behaviour in the lead up to the incident that using the knife was something that he did in the agony of the moment caused by his brother [JB] being attacked by Mr Ngatupuna. This to some extent lessens the objective gravity of this very serious offence.
There appears to be little evidence of this being a planned organised activity. I find that there was little deliberation and there was practically no time at all for the offender [SB] to react. Indeed, the stabbing incidents follow very quickly, his joining Mr Ngatupuna and [JB]. The offender gave evidence on trial and consistently stated that his motivation was to defend his brother. He repeated this on evidence on sentence.
However, even having found that he was in possession of a weapon I do not find that the offender [SB] set out that afternoon to use a knife and inflict grievous bodily harm on Mr Ngatupuna. The fight did not last long, but there was enough time for the offender [SB] to inflict a number of injuries. Despite the offender AI having initiated the whole incident I cannot come to the conclusion on all the evidence that [SB] was intervening in an assault to back his brother [JB] up. [SB] did not launch an unprovoked attack which would have been objectively more serious.
This is a case involving violence on the streets of Sydney and deterrence is always an important consideration. People need to be protected against unprovoked attacks whilst going about their ordinary business. Taking all these matters into account, in regard to the offender [SB], I have come to the conclusion that the objective seriousness of the offence falls below the middle range for offences of this kind, but not appreciably so.
41The trial judge then considered the objective gravity of AI's offence:
In assessing the objective gravity of the offender AI's matter, I note that he was acquitted by the jury of the more serious charge and convicted on the count of reckless wounding in company, which carries ten years imprisonment. Further, the standard non parole period of four years is not applicable to this offence due to the offender being a juvenile at the time of its commission. Nevertheless a maximum penalty of ten years shows that it is considered to be serious by the legislature. As with the offender [SB] it is necessary to look at the extent and nature of the injuries, the degree of violence as well as the intention of the offender.
Here the jury verdict on the alternative count means that they have accepted that this offender did not intend, either directly or recklessly, that grievous bodily harm would be occasioned to Mr Ngatupuna. Further, the offender AI did not stab anyone. Although he was the initiator of the incident he was not, except for one kick, actually involved in the physical altercation that involved Mr Ngatupuna being wounded. The jury verdict means that he should have foreseen the possibility that Mr Ngatupuna would be wounded by the offender [SB] and it also means that they have accepted that he was acting in company.
A case involving significant wounding such as this does not by virtue of that factor alone fall into the worse case category. It is necessary to look at the offender's mental state. The offender was verbally and physically aggressive in the time leading up to the actual stabbing incident. Throughout that incident he was armed with a knife, but fortunately he did not use that knife. The degree of violence, as I have already mentioned, was considerable and there is absolutely no excuse for the offender AI not only keeping Mr Poa at bay by waving his knife, but also on two occasions running over to the area where the stabbings occurred and on occasion launching a kick.
The offender AI maintained in evidence that he only intended to have a fist fight one on one with Mr Ngatupuna. However, as soon as the incident flared up he became armed with a knife and he used this to ward off Mr Poa. Taking the offender AI's aggressive stance from the very beginning of the incident right through to the end and acknowledging that he did not stab anybody although he wielded a knife I have come to the conclusion that this matter falls below the middle of the range for offences of this type. However, it does not fall into the lowest range, because of the nature of the wounding and the violence involved.
42The trial judge noted, as aggravating features of the offences, that they were committed while SB was on a bond and AI was on parole; and that they involved the actual and/or threatened use of a weapon.
43The trial judge then considered the subjective case of SB:
The offender [SB] is now just twenty years of age, having been only eighteen at the time of the offence. The offender gave evidence both in the trial and before me on sentence. At all times he maintained that he did not anticipate getting into a physical fight and that he only became involved after his brother [JB] was attacked by Mr Ngatupuna. He said that he became involved to defend his brother. I have already found that he did not pick up the pendant from the ground, but I do accept that this all happened very quickly as stated. The jury verdict means that the offender wounded Jordan Ngatupuna with intent to do grievous bodily harm and I have found in that regard that the jury verdict means that he was using excessive self defence in defence of his brother [JB].
I have also had regard to the pre-sentence report and to evidence on sentence given by the offender's father [LB]. [LB] spoke about the family, including his wife and sons. All were present in court. He said that his son [SB] was not the kind to get into fights. This is borne out by his criminal record, which contains one set of offences in May 2008 involving non violent crimes for which he was still serving a bond at the time of this offence. It was also obvious that the offender [SB] was very short in stature and quite light in weight, being at the time of the offence approximately five feet tall and weighing fifty-five kilograms. His father spoke candidly about being concerned about the peer group that he was associating with and making changes to his schooling to try and avoid bad influences. He also spoke of the depression and big impact on the family that the involvement of his two sons [SB] and [JB] initially in this crime had caused and subsequent to [SB] being convicted.
The offender [SB] was born in Australia and is identified as coming from a Lebanese cultural heritage. According to the pre-sentence report he had an unremarkable and happy childhood. Until going into custody on this matter he was residing at home and he plans to return there when he is released from prison. He agreed with his father's evidence and the pre-sentence report, whereby he said he began associating with a group of negative peers at about age fourteen onwards. Despite this his criminal record remained clear until the one set of offences already mentioned in 2008. In this regard, having already taken into account as an aggravating feature that he was on a bond at the time of this offence, his record does, I find, entitle him to some leniency, because of the lack of violent antecedents.
Evidently he gained his school certificate at around age sixteen and commenced year 11, but lost interest and stopped going to school. The pre-sentence report notes just prior to coming to custody [SB] had enrolled and commenced participation in a financial planning course through an internet college. However, he has deferred this study due to his incarceration.
He gave the pre-sentence report writer a history of using drugs from age sixteen, including ecstasy, cocaine and benzodiazepine medication. However, he claimed that he was abstinent from any drug use for four months prior to his arrest for this offence and that drug use had nothing to do with the matter before the court. He also stated that he was not under the influence of alcohol at the time of the commission of the offence.
Whilst in custody there is no record of any failing of urine tests and he has been in custody for 531 days. This long period clearly lends support to the fact that he has continued, albeit partly due to his incarceration, to stay free of drugs and alcohol.
The offender has steadfastly refused to acknowledge that he used anything other than the pendant picked up from the ground in the spur of the moment to inflict the stab wounds on Mr Ngatupuna. I have found to the contrary. However, the pre-sentence report writer notes the offender made no attempt to excuse his behaviour and acknowledged that it was the wrong thing to do, although the report then goes on to state:
"Whilst the offender was able to verbalise that he feels bad for what he did to the victim it is considered that his comprehension of victim empathy is at this time only surface level."
The offender did repeat in evidence before me on sentence that he felt bad about what had happened and acknowledged that his behaviour was inexcusable. There is still an element of denial throughout the offender's evidence, but I do accept that he was genuinely concerned about the serious nature of the injuries he had inflicted on Mr Ngatupuna. On the issue of remorse I cannot be certain that he is fully and genuinely remorseful, however, he at least deserves some credit for facing up to the serious repercussions of his actions on that day.
The offender has been employed throughout most of his custodial sentence and has worked in areas such as the furniture unit, the laundry and as a cleaner in the living unit. He gave evidence that he had not been breached for any offences whilst in custody.
In mitigation I note that he has no history of similar matters and no violence on his record. I note that he was only aged eighteen at the time. This has been his first time in custody and he has been on remand without knowing his fate for a considerable period. Given his coming to terms with drug use and the long period already in prison I find that he has reasonable prospects of rehabilitation. If he is able to return home on his release and receive further support from his family and perhaps counselling to try and have him achieve an understanding of the really serious nature of the offence of this type that [sic] I find that he is unlikely to re-offend in this way.
The pre-sentence report notes that the offender [SB] presented as being somewhat immature and at times appeared to have considerable difficulty in being able to verbally express himself. However, he remained polite and cooperative throughout. As noted he was only eighteen at the time and it is a great pity, given his relatively stable upbringing, his lack of serious criminal antecedents, that he finds himself before the court at such a young age on such a serious charge. He has been assessed as being suitable for medium level intervention by the Probation and Parole Service in regard to treatment drug use [sic] and anger management counselling.
44The trial judge reached the following conclusions in relation to SB:
Here I find that the offence involved in the offender [sic] was not really a planned organised criminal activity despite having found that both he and the offender AI were armed. The offender's whole behaviour leading up to the actual stabbing incident was more one of disinterest whilst using a phone than being part of an apparent planned and organised attack. In this regard my finding is bolstered by the fact that it seems to have been precipitated by the offender AI's actions and the two victims were really random passers-by. There was no evidence given that would allow the court to accept beyond reasonable doubt that the two offenders premeditated this attack.
I have also found that the offender does not have any significant record of previous convictions. In fact he has no violent convictions at all and although I have found as an aggravating factor that he was on bail at the time I have also found that his record does entitle him to leniency. In addition I have previously found that with further support and counselling the offender is likely [sic] to re-offend in this manner. Also that he has reasonable prospects of rehabilitation, given the fact that he has come to terms with his drug use and the long period that he has already spent in prison. I have previously found that he has exhibited some, though not great remorse and still needs to gain further insight into this particularly serious offence.
Given these findings and the fact that I have found that the objective gravity is below the middle of the range, but not appreciably so, I intend to set a non parole period that is shorter than the standard period of seven years for offences of this type. There has been no plea of guilty in this matter. However, I do find special circumstances due to the offender's young age at the time of the offence and the fact that he will be spending his first time in prison and I believe that both he and society will benefit from a longer than normal period on parole to ensure his continued rehabilitation.
45The trial judge then considered the subjective case of AI:
I will now turn to the subjective features of the offender AI and then return to the actual sentences for both offenders at the end.
At the outset it should be noted that AI was a juvenile at the time of this offence.
He did not give evidence on sentence before the court, however, exhibit 1 contained a report of Dr Peter Champion, clinical psychologist, dated 2 June 2010, a letter from the Legal Aid Commission dated 19 April 2010 confirming completion of the Burn Crime Prevention Workshop, merit certificate awards from Putland Education and Training Unit, a certificate of achievement for successfully completing Offence Focus program on 19 March this year, a certificate of achievement for successfully completing Managing Anger program on 6 May last year as well as sentencing statistics. I have also had regard to a confidential background report from Juvenile Justice dated 27 May and exhibit 2 on sentence is a letter from STARTTS, the New South Wales service for the Treatment and Rehabilitation of Torture and Trauma Survivors.
The offender AI was born in Beirut, Lebanon and has no siblings. His parents separated when he was about four years of age and he remained with his father. When the offender was about twelve years of age his father remarried in Lebanon to [his second wife] , who is an Australian citizen, and together they came out to Australia when the offender was around fifteen years of age and have lived together at their current address in Arncliffe since.
Evidently the offender's time in Lebanon has impacted significantly on his behaviour, according to the Juvenile Justice Report and the report of Dr Peter Champion. The Juvenile Justice Report also confirmed this with the offender's aunt [...] and his father [...]. The offender experienced gunfire, explosions and helicopters firing from the air and was witness to the death of a man who was shot in front of him and other schoolchildren whilst he was on a school excursion.
On his arrival in Australia he attended the Kogarah Intensive English Centre from 30 April 2007 to 14 November 2007. He needed to do this in order for him to be able to gain access to school. His English has evidently improved significantly and even more so since he has been in custody. The offender has shown an interest in studying at TAFE and has expressed a desire to train as a plumber.
The offender confirmed that during his time in Australia he has begun to associate with peers who were not a good influence. He has candidly admitted to beginning drug and alcohol use from around fifteen years of age. He has used cannabis regularly and moved into ice and cocaine use at about aged sixteen. At the time of his offending he was using ice and/or cocaine approximately two days per week and acknowledges that this was strongly linked with his offender related activities. As pointed out, he was actually on parole for a violent offence for assault occasioning actual bodily harm when this offence was committed.
The offender has indicated a willingness to seek alcohol and drug counselling in the community, but has not considered entering into a residential drug and alcohol rehabilitation program. Evidently he has been challenging towards staff and other detainees with incidents in gaol, including intimidation and physical altercations being noted in the Juvenile Justice Report. The offender explains this by his feeling of injustice and about the need to survive in custody.
Although he did not give evidence before me on sentence he did express regret to both the Juvenile Justice Report writer and to the psychologist regarding his actions and the impact that this had on the victim. I am well aware that very considerable caution should be exercised in relying on offender's statements to psychologists and report writers when there is no evidence on sentence. In many cases only very limited weight can be given to such statements. Here, though, a careful examination of the evidence on sentence points to a psychologically damaged young man, who is still growing up and needs to fully understand the true meaning of remorse. Given his background and the difficult time he has had adjusting to a new life in Australia with such a background I am of the view that he is beginning to realise that he cannot act in this aggressive and violent fashion. In saying this I do note that at no stage during the whole altercation did this offender actually use a knife, but as mentioned earlier, he was the initiator of the whole incident and used it only to wield off Mr Poa.
Dr Champion also points to the effect that his poly drug use may have had in relation to this offence. Evidently he had been smoking ice a day or more before the offence, he then spoke of drinking up to half a bottle of spirits and inhaling three grams of cocaine, which he shared with four others, and smoking a cone of cannabis the night before the offence. He told Dr Champion that as a result he had been feeling hung over on the day of the offence, but had also been feeling other effects, such as feeling that his body was numb, such as having an angry head, feeling generally angry, whilst also feeling that he had power and was strong and feeling that nothing can take me down. He also spoke of having been paranoid and thinking that people might stab or shoot him. If this account is accurate, and I have no other account to go on, that he may well have been significantly substance affected at the pertinent time. That is the conclusion to which Dr Champion came.
Increasingly courts are noticing offences, especially involving violence where the drug ice, either alone or in combination with other illicit and/or legal substances such as alcohol, is involved. Much of the violence is totally inexplicable and quite often the offender has no explanation. In this case the offender AI from the outset with his actions has acted in an aggressive fashion. Although he locked eyes with Mr Ngatupuna, the primary victim, there was little reason for this to escalate in the way that it did. The offender has said that Mr Ngatupuna did not deserve to get stabbed and that he only expected a 'punch on'. Although he saw nothing wrong with this type of physical confrontation he did acknowledge that the stabbing was wrong. The tortured and illogical thinking behind these types of comments to both Juvenile Justice and Dr Champion, as well as his evidence during the trial, lead me to accept that he probably was affected by various substances, particularly ice, at the time of this offence. This does, of course, not excuse his conduct, but goes in some measure to explain how an incident so benign at first turned into such a serious one.
Since being in custody he has expressed a desire to move away from his previous circle of friends by redirecting his interests into fitness training, and joining a martial arts group. What he really needs to achieve on being released is a worthwhile occupation, continue with his English learning and hopefully be able to train for a useful trade, such as being a plumber. His family is still supportive and he will need all the help he can get. I agree with the summary of Dr Champion in which he states, inter alia:
"In sum, AI presents as a psychologically damaged young man. His traumatic experiences probably resulted in anxiety, mood disturbance and also impacted on his social functioning. There is a history given of poly-substance abuse of some severity which has impacted on his mental state, paranoia, and also his psychological functioning, anger management, impulse control. There is a need for psychotherapeutic input, mood/anxiety disorder which will need to continue when he is released as well as AOD, or alcohol and drug intervention."
This appears to encapsulate the various problems that this young offender faces, not only now but on release. He needs to address these, otherwise he is at considerable risk of reoffending. Dr Champion says:
"Those risk factors which can be seen to be present include a previous history of violence, young age at a time of the first violent incident, employment problems, substance use abuse problems, early mal-adjustment, prior supervision failure, impulsivity, potential exposure to destabilisers, potential exposure to stress."
Fortunately Dr Champion finds that the risk factor for which there is no compelling evidence, is psychopathy. However, he concludes:
"In some there are significant risk factors present, the question being whether AI would be willing, or able, to utilise those therapeutic and support services which would be available to him in the community to address these. If he can use the services, avoid substance use, avoid his old associates there is potential for change. If he cannot, then there is a risk of further offending. At this stage I would have to rate his progress as guarded."
I agree with this assessment and also with the case plan devised by Juvenile Justice. He will need to follow each of the matters set out therein and have the support of his family in order to achieve rehabilitation and overcome the risk of reoffending. Given his age, the fact that he is still maturing and has been in custody for a considerable period, I am, on balance, if these matters are attended to, convinced that he has reasonable prospects of rehabilitation and hopefully will be unlikely to reoffend in a violent fashion in the future.
In his case, whilst there was no plea of guilty entered I do note that he was found not guilty of the more serious charge, and guilty of the alternative count. Both Dr Champion and Juvenile Justice recommend that the offender try and undergo the STARTTS program. Given the offender's unfortunate early years in Lebanon and his consequent behaviour I can only recommend to authorities that he be allowed to commence this whilst in prison and if possible to continue it on release.
46The trial judge reached the following conclusions in relation to AI:
It must be remembered that the offender was a young person at the time of this offence. The principle of giving special consideration to the youth of an offender has long been accepted. In R v C unreported 12/10/89, NSW CCA Chief Justice Gleeson accepted a submission that in sentencing young people the consideration of general deterrence is not as important as it would be in the case of sentencing an adult and considerations of rehabilitation should always be regarded as very important indeed.
Although having decided to deal with this matter by way of law, special principles applicable to children under s 6 of the Children's Criminal Proceedings Act still have to be taken into account. However, the nature of the offence and the actual age of the offender at the time of the offence can both diminish the significance of these factors. Here the offence of which the offender has been found guilty was a violent offence, albeit where the stabbing was not actually perpetrated by this offender and also he was over seventeen years of age at the time. Nevertheless, rehabilitation remains an important issue for a young man of the age of this offender.
I also accept from the various documentary material before me that this offender has cognitive, emotional and psychological immaturity as a result of his very troubled background and use of illicit substances. Thus the Court needs to place some emphasis on rehabilitation rather than general deterrence and retribution as it is important that this young man eventually become a useful and worthwhile member of society.
Having said that, I still need to take into account the need for general and specific deterrence, given that this was a violent crime with serious repercussions for the victim. I have been provided with statistics by counsel for the offender and have had regard to them given their acknowledged limitations.
I have taken into account s 3A and s 5(1) of the Crimes (Sentencing Procedure) Act and having considered all possible alternatives I am satisfied no penalty other than imprisonment is appropriate in this case. Given the offender's age, his mental condition as described by Dr Champion and the other material, I am satisfied that special circumstances exist and that I should make an order directing any sentence to be served as a juvenile offender.
This is due to the offender being a juvenile at the time this offence was committed, the problems clearly set out in the Juvenile Justice report and the report of Dr Champion and the need for specialised care and counselling.
Accordingly, I will direct that the following sentence be served as a juvenile offender.
47On the basis of those considerations, the trial judge passed the sentences set out in par [5] above.