M.A.H. v Regina; Regina v M.A.H. [2006] NSWCCA 226 | Case summary

27 July 2006 M.A.H. v REGINA REGINA v M.A.H. Judgment 1 GROVE J: Before the Court is, first, an appeal against conviction for murder following trial before Hislop J and a jury. His Honour sentenced the appellant to imprisonment for a total term of twenty two years with a non parole period of sixteen and a half years. A Crown appeal asserting the manifest inadequacy of that sentence and an application for leave to appeal against severity of sentence (in the alternative to the appeal against conviction) by the appellant, are the second matters. 2 The deceased, a youth aged seventeen years (ST) was last seen alive, other than by his killers, on Saturday 21 October 2000. On that day he had attended employment at a shop and his mother collected him at 4.30 pm. After arriving home, he changed some clothing and told his mother that he was going to Mount Keira and would call, on his mobile phone, to let her know if he would be back in time for tea. He told her that he was going with the appellant and there was evidence that they often drove together in a four wheel drive vehicle on that mountain. 3 He neither got in touch nor returned home. The following day his parents reported him to police as a missing person. 4 Thereafter enquiries were made of Centrelink, the Department of Immigration, the Registry of Births, Deaths and Marriages and of major financial institutions, but there was no trace of ST or any activity by him. 5 On 9 August 2003, a mutual friend of ST and the appellant, who had been aged sixteen years in October 2000 (JSK) confessed to police his involvement in the killing of ST on the evening of 21 October 2000. He was later escorted by police to an area near the Cordeaux Dam which he had indicated to them and the skeletal remains of ST were retrieved from a shallow grave. 6 JSK was charged with murder to which he pleaded guilty before Buddin J, who sentenced him to imprisonment consisting of a total term of eleven years with a non parole period of seven years. A reduction in sentence was granted to reflect an offer by JSK to give evidence against the appellant. 7 He gave that evidence. He testified that he, the appellant and ST travelled in the appellant's four wheel drive vehicle and stopped on the service road near the waters of the Cordeaux Dam. He claimed that he was bullied by the appellant who told him to hit ST. He did so with his hand and the appellant struck ST with a stick. ST fled but was chased and tackled. Then both the appellant and JSK kicked ST and repeatedly dropped a log onto his head. ST's body was placed in a boat (previously stolen by the appellant) and taken to the other side of the dam where ST was buried in the shallow grave where his remains were eventually located. Various items of ST's property were taken. 8 The appellant and JSK left. The reason given by the appellant for killing ST was that he asserted that ST had been "getting into" the appellant's girlfriend (EMG). 9 Police investigations into ST's disappearance included taking statements from the appellant and JSK. Each of them gave a pre-arranged story that they had been with ST on the late Saturday afternoon but that he had declined to join them on the four wheel drive excursion, and left them, stating that he was going to visit MG, a girl who was employed at the same shop as ST. They each claimed that they had never seen or heard from ST again. 10 After JSK's confession to police, the appellant was, on 10 August 2003, arrested and charged with murder. He denied that he had had anything to do with the killing. He gave evidence at trial to that effect. He agreed that he had visited the campsite where the boat was located and he admitted "pinching" it. When police visited the scene in 2003 the boat was still where it had been abandoned three years previously. 11 The appellant said that he believed that JSK was falsely accusing him in order to protect "other people". 12 A notice of appeal specifying seven grounds was filed but those numbered 3, 4 and 7 were not pressed. It is convenient to retain the reference numbers to the other grounds and deal with them in the order in which argument was presented. 13 Ground 5. The Trial Judge failed to give the jury any, or any proper direction(s) as to the Appellant's motive for the murder, and particularly respecting his asserted jealousy of (EMG), and the use to which such jealousy, if established, could be put. 14 There was a body of evidence at trial concerning observations of the conduct of the appellant in relation to the paying of attention by others to EMG. EMG gave evidence of an intermittent relationship with the appellant which was more intimate (when current) than their common membership of what was categorized as a close knit group of friends. 15 Witnesses spoke of an incident on a camping trip when a party was sitting around a fire and the appellant accused ST of flirting with EMG but when he stood up he fell over. On the following day he told another member of the party (RK) that he was going to "smash" ST because he was flirting with EMG. 16 RK also gave evidence of another occasion at EMG's house when the appellant challenged ST to "go outside". At the time he appeared angry and made an accusation similar to that which he had made near the camp fire. 17 Another incident was described concerning an observation by the appellant that EMG's phone number was in the contact list of a mobile phone belonging to another member of the group, RB. The appellant and EMG were said to be having a "short break in their relationship" at the time and the appellant in his evidence agreed that he knew RB was "taking EMG out". He said that he wanted to protect his relationship with EMG and agreed that he did become angry with RB and pulled him by the shirt from a lounge. However, the appellant disputed that he had any "issues" with ST over EMG. 18 In his final address the Crown Prosecutor put this submission to the jury concerning motive: "The reason for the murder of (ST) on 21 October 2000 was because of the absolute jealousy the accused felt in relation to ST's dealings with the accused's girlfriend (EMG). You saw him in the witness box yesterday when the questions were asked about his relationship of people flirting with (EMG). This jealousy was exhibited by a violence towards anyone that he thought was moving in on his desires of this particular lady. This occurred not only when the accused was actually going out with that lady, but even when he was not. (JSK) told you that when the accused had stated his plan to murder the deceased, he gave as his reason, 'I think (ST) was trying to get into (EMG's) pants'. " 19 His Honour referred to the issue of motive in his charge to the jury in these terms: "….The next item that was put to you by the Crown in its submission may be loosely terms 'motive' and here we had a large amount of evidence given as to the relationship between the accused and (EMG); (EMG) and (ST); and then shortly in relation to (RB) who, at one stage apparently, was going out with (EMG). The Crown put, in no uncertain terms to you, that the motive for the death of (ST) was jealousy on the part of the accused against (ST) because he flirted with (EMG). I think you were taken to much of the evidence in this regard. You will recall the evidence as to three events at various times when it is said that the accused behaved in an aggressive or violent way. You will have heard Mr Bodor's criticism of that evidence as he sought to reduce it by dealing with it in some little detail, and by referring you, reminding you of the evidence of a number of people that, to their observation, the accused was not a violent man and that the relationship between (ST) and (EMG) was that of good friends or very close friends or the like, but that was basically the nature of it. Now the Crown suggested to you that, when you consider the whole of that evidence, you will conclude that the motive for this murder was jealousy on the part of the accused. It is a matter for you, ladies and gentlemen, what conclusion you draw when you consider that evidence. The Crown, as I say, relies upon it quite strongly as supportive of (JSK's) evidence. The defence says it is not established in the way that the Crown submits and, of course, it would be quite a large step, even if there was some degree of reaction on the part of the accused to what he saw as flirting by (EMG), to then murder a good friend of some years. It is a matter for your, ladies and gentlemen, what conclusions you draw." 20 The essence of complaint raised under this ground by senior counsel (who did not appear at trial) was that the Crown was pointing to motive as a factual basis from which an inference of guilt could be drawn. It was contended therefore to be requisite that the jury be instructed that they needed to be satisfied that the asserted motive had been proved beyond reasonable doubt. No such direction was given in those terms, nor was such sought by senior counsel who appeared at trial. 21 The appellant sought to rely upon the comment of Callinan J in Penney v The Queen 1998 72 ALJR 1316 where, in relation to a passage in a charge to a jury then being examined, his Honour said: "The appellant submitted that the passage confused intention with motive: if motive is to be relied on then it must be proved beyond reasonable doubt". 22 The critical element of his Honour's remark is an understanding of "relied on" which must be understood in context as meaning "relied on as proof of guilt". The present was not a circumstantial case in which the Crown was relying upon proof of motive itself to demonstrate guilt or as an indispensable link in a chain of proof, but, as his Honour explicitly told the jury, motive was being relied upon in support of the evidence of JSK. Far from being a circumstantial case this was a prosecution which relied upon the evidence of an eyewitness to the murder, albeit a participant in its commission. 23 The argument of the appellant seeks to exaggerate the role of motive in proof of the Crown case. The limited occasions upon such a direction as is argued to have been essential was observed by Adams J in R v Pantoja NSWCCA, unreported, 5 November 1998 and he said: "There may be cases depending upon circumstantial evidence in which proof of motive is an indispensable link in the chain of proof of the guilt of the accused and thus will need to be established beyond reasonable doubt. However, such cases must be rare". 24 The appellant complains that in telling the jury that what conclusions they drew were matters for them, his Honour impliedly invited them to speculate. I reject that contention. What was said would have been understood by the jury as an iteration of their having been earlier told that it was a matter for them to determine whether matters argued by the Crown did or did not provide support for the contentions which were being advanced. His Honour's remarks directly referred to the Crown seeking support for the evidence of JSK from the evidence of motive. That this not only would have been understood by the jury to be the basis upon which the evidence was available, it can be inferred from the absence of application by counsel that it was so understood by those present at trial. 25 Finally on this ground, it was contended that the jury "needed" to be told that having a motive does not as such, constitute proof of involvement in the crime. The authority for this need is apparently suggested to derive from the judgment of Kirby J in De Gruchy v The Queen 2002 211 CLR 85 @ 101 when his Honour said: "Where the prosecution has established strong evidence of a motive, it will often be necessary to warn the jury that they must look at all the circumstances of the case and not be unduly affected by the evidence that the accused had a motive to commit the crime. This is because of the fact that many who have powerful motives to offend never do so. Motivation is simply one item of the evidence in the case that may tend to show that a particular person committed an alleged act. The jury may therefore need to be reminded that allowance should be made for the fact that having a motive, and even expressing it, does not, as such, constitute proof of involvement in a crime." 26 Whilst every respect should be paid to his Honour's views, the observations were not expressly joined in by other members of the Court although there was agreement as to the outcome of the appeal. His Honour's observations do not establish an obligation, failure to comply with which would constitute an error by Hislop J. In fact, the caution given by his Honour that it would be a large step to murder a good friend of some years over flirting with a girlfriend would seem more advantageous to the appellant than drawing attention to the strength of the Crown evidence about motive. That would provide an understandable reason for the absence of the direction now being suggested having been sought at trial. 27 Having regard to the criticism of his Honour's having left it to the jury to draw their conclusions, it is perhaps apt also to draw attention to an earlier passage in the judgment of Kirby J in De Gruchy namely: "No general direction can be formulated to accommodate all the different circumstances that can arise. If any directions are given on the subject of motive, they should be brief because the consideration of the relevance of motive (or lack of it) is quintessentially a task for the jury , viewing questions about motive on the context of the evidence as a whole. (My emphasis). 28 Ground 5 is not made out. 29 Ground 2. The trial judge erred in permitting the Crown to treat the witness (JSK) as unfavourable, in allowing the Crown to cross examine the witness at all and/or to the extent that he did. 30 In order to appreciate the complaints made by the appellant under this ground it is necessary to recapitulate briefly some of the course of proceedings at trial. 31 JSK commenced his evidence in chief and the Crown Prosecutor led from him evidence of his plea of guilty to murder and the undertaking to give evidence against the appellant. He was then taken to his participation in the close knit group of friends which I have earlier mentioned. The situation which follows was described by his Honour in a ruling as follows: "(JSK) began to answer many questions only after lengthy pauses and often gave no answer to the question asked or said he could not answer the question". 32 A considerable thrust of the submissions by the appellant at trial was that the application by the Crown for leave to cross examine the witness at that point was premature. The argument was sought to be supported by observations concerning the status of the witness as an accomplice and by pointing to his tearful demeanour and submitting that he may have been struggling with conscience for any number of reasons, but nevertheless making a genuine attempt to give evidence. 33 The issue for his Honour then was whether JSK was making a genuine attempt to give evidence, not why he may or may not be making such an attempt. This plainly was an issue of fact for his Honour to determine and unless it is shown not to have been open to his Honour to make such a finding, his conclusion is invulnerable to challenge. His Honour was in a position of advantage in assessing in what cannot be determined from reading the transcript, namely the extent of the delay before answering and the demeanour of the witness. Using that advantage, it was clearly, in my view, open to his Honour to find as he did and he expressed it: "On the witness's evidence yesterday, I would conclude that (JSK) was not making a genuine attempt to give evidence". 34 Reaching that conclusion was well within the scope of his Honour's fact finding function. 35 An assertion was made that his Honour did not "appear to give consideration" to the extent to which giving leave to the Crown to cross examine JSK was unfair to the accused, although it was acknowledged that he made a "passing reference" to s 192 (the relevant provision in the Evidence Act). His Honour explicitly said he had taken the requirements of the provision into account and there is no reason to give his words diminished value. That the position of the accused was carefully considered by his Honour is confirmed, although confirmation in my view is unnecessary, by the terms of the order made which limited the extent of the cross examination up to an identified point in a statement previously made by the witness. His Honour was also alert to the possibility that, after resumption, JSK may begin to make a genuine attempt at giving evidence and the transcript shows that that is what eventually happened. 36 Complaint is further made that, before the ruling made it available to cross examine JSK on his statement, there should have been some consideration of the circumstance that the material in the statement related to events three years prior to its making and it therefore would have been about facts not "fresh in the memory" of JSK. It was submitted that s 165 of the Evidence Act recognizes that material recorded in such a way may be unreliable. 37 JSK was an accomplice and his evidence fell within the prescription in s 165(1)(d) of that Act but there is no reference otherwise in the provision relating to the recency of any statement taken from such a witness. What the provision requires is a warning to the jury, if requested, and, in relation to the matter raised there was no request. More significantly, however, there is no requirement to be found in s 38 of the Evidence Act with which his Honour was dealing which requires some contemporaneity between the making of a statement which may be used to cross examine the witness and the events described in the statement. 38 Next, complaint was made concerning the method of cross examination adopted by the Crown Prosecutor following the ruling. JSK was taken to his statement and asked in a variety of ways to acknowledge its content item by item. It was submitted that he was not asked specifically to adopt its truth. It does not appear that a question was directed to JSK in terms like that, but in respect of the content of the statement he was asked in respect of various items whether what was read was what he had said and whether he agreed from time to time that things read to him from it were correct. It would have been plain to all present at trial that the Crown Prosecutor was eliciting this material as JSK's testimony and no doubt that is why the suggestion now made was not raised at trial. I would reject the contention. 39 As I have indicated, his Honour limited the extent of the cross examination which he permitted. On the following day he gave a further ruling relating to some specific content of JSK's statement and inconsistencies with it which had emerged in the evidence. This gave rise to consideration of leave being granted on a basis that the evidence was unfavourable as distinguished from the basis of a witness not making a genuine attempt to give evidence. In fact some of the matters upon which the Crown Prosecutor wished to cross examine were, correctly, not opposed but insofar that as others were, it is plain that his Honour's conclusions were available and that his exercise of discretion did not miscarry. 40 The final argument raised under this ground was that his Honour gave no directions or assistance to the jury concerning the rulings by which he permitted cross examination of JSK. At the time the ruling was made, counsel were invited to consider whether his Honour should tell the jury anything beyond the fact that a ruling of law had been dealt with. No application was forthcoming. 41 It was now contended that his Honour should have given the jury a specific warning, having regard to the leave under s 38 being granted, along the lines that they should assess his consistency bearing in mind that he was unable or unwilling to answer questions put by the Crown Prosecutor and that he was prompted from a statement made three years after the events to which it related and eighteen months prior to giving evidence. 42 The authority for the requirement for such a direction was said to be found in the joint judgment in Adam v The Queen 2001 207 CLR 96@ 102-103. What was noted in that case was that no point arose about any sufficiency in the trial judge's directions about the evidence of a witness who had been cross examined following a s 38 order but it was said to be "as well to notice" that the judge had told the jury that the prosecution case depended essentially upon their believing certain witnesses but, in reference to the particular witness (who had contradicted his earlier statement when giving evidence) that they needed to disbelieve what he said in court and believe, at least part, of what he had earlier told police. 43 I do not perceive Adam as authority for the general proposition now advanced that, in effect, whenever a s 38 order is made, a judge is obliged to give some direction along the lines contended. Whether anything is required at all will depend upon the circumstances that have arisen. As I have noted, no one at trial suggested that some direction was needed. 44 Hislop J gave the jury several directions which negative any claimed disadvantage. He cautioned them about the effect of delay on the capacity to test evidence and directed them therefore to scrutinize the evidence with great care. The conventional emphatic direction about the status of JSK as an accomplice and the possible effects upon the credibility of his evidence was given. He recapitulated at length the reasons advanced on behalf of the appellant as to why JSK should not be believed, and so doing should be viewed in the way the case had always been presented and conducted by the Crown from the very opening address which included the unambiguous concession: "So, when you look at all the bits and pieces that the Crown paints around (JSK's) evidence, it really boils down to this: if you cannot accept (JSK's) word, beyond reasonably doubt obviously, then the Crown case must fail….". 45 I can readily appreciate why counsel might regard any elaboration as likely to enhance the credibility in the jury's mind of the content of the statement upon which the anticipated cross examination would be based and thus, in the vernacular, "the less said the better". That was the posture adopted at trial. His Honour committed no error in refraining from unnecessary explanation. The argument in support of ground 2 should be rejected. 46 Ground 6. The Trial Judge erroneously omitted to give a complete direction to the jury particularly regarding the limits to which established lies of the Appellant could be used by them. 47 Prior to the addresses of counsel there was an exchange in which his Honour sought to establish the extent to which the Crown was seeking to rely upon the telling of lies by the appellant (as distinct from inviting the jury to reject his testimony) and what directions, if any, were being sought. The Crown Prosecutor specified that he was relying upon such lies on the issue of the appellant's credibility and not as evidence of a consciousness of guilt in proof of the elements of the crime. 48 Senior counsel for the appellant made reference to Zoneff v The Queen 2000 200 CLR 234. In relation to the issue he said in response to an invitation to comment on some remarks by the Crown Prosecutor: "I am just cautious and concerned about any directions in relation to lies. There can be two avenues for that. One is lies generally affecting the credibility of a witness, which is, as I understand it, the sense in which the Crown seeks a direction. I do not know that a direction is warranted there, as such". 49 Thereafter the Crown Prosecutor confirmed that he was not seeking to rely upon "consciousness of guilt". Thus it came to pass that his Honour directed the jury in these terms: "The next matter I want to make reference to is the fact that the accused gave evidence in this case. I want to make it clear to you that, because the accused has given evidence, that does not mean that he has assumed any burden of proof. The onus of proof at all times remains on the Crown. However, once the accused has entered the witness box, he is a witness, like any other witness. He was, of course, strenuously cross examined by the Crown, who suggested that he was a liar. It is fair to say that you have heard a lot of questions which attribute lies to the accused. You will make up your own mind about whether he was telling untruths and, if he was, whether he was doing so deliberately. It is for you to decide what significance those suggested lies have in relation to the issues in the case, but I give you this warning: Do not follow a process of reasoning to the effect that, just because a person is shown to have told a lie about something, that is evidence of guilt. You will recall the questions that were put to him by the Crown, and the inconsistencies that were apparent from that evidence. The Crown, in particular, in its submission to you, pointed out that, in the statement he gave to the police on 30 July 2003, he had said that (ST) could not have been four wheel driving, as he only had a ute. He had not been with the accused. You will recall the evidence that generally there were no seats in the back of the four wheel drive vehicle belonging to the accused. But you will also recall, and consider, the evidence of (RK) that sometimes he had seen people in the back of the vehicle. When considering that evidence, you will also keep in mind that it was put to you by the defence that (RK) had an animosity, to put it one way, against the accused. There was also evidence from (SF), you will recall, that he rode in the back, four wheel driving, on one occasion, and the evidence of (KB) that, again, while four wheel driving, he had sat in the front passenger's seat, the accused was driving the vehicle, and there were two people in the back of the vehicle, as he put it, on the tray of the ute. So, the Crown Prosecutor has submitted to you that that is a clear inconsistency. He puts it as a lie, and so on. They are all matters for you to consider members of the jury, when you make your determination on the facts". 50 There was no application to supplement this direction. It might be noted that immediately following these directions, his Honour turned to the issue of prior good character raised by the appellant and he included an appropriate direction that they should take the demonstrated prior good character into account when assessing the appellant's credibility as well as on the issue of guilt itself. 51 Ground 6 is not sustained. 52 Ground 1. The finding of the jury was unreasonable in that the jury acting reasonably, and in all the circumstances, ought to have entertained a sufficient doubt as to the guilt of the Appellant. 53 This ground cannot succeed unless the guilty verdict was "unreasonable and cannot be supported". The ultimate question for this Court is whether it was open to the jury to be satisfied of the guilt of the appellant to the requisite standard: M v The Queen 1984 181 CLR 487. 54 As already observed, this was a case where the evidence included the testimony of a direct eyewitness to the killing. That JSK was a participant in the murder does not alter his capacity to speak of what he saw any more than it inhibits his speaking of what he himself did. If the jury accepted his testimony, conviction was virtually inevitable. There is an implied recognition of this in the appellant's submissions which seek to consolidate a schedule of matters which are described as "a lengthy cross examination of JSK endeavouring to establish a number of matters". What is required to be established is that no reasonable jury could accept and act on JSK's testimony. The tabulation of matters obviously represent things upon which argument may be founded, however, the existence of capacity to advocate a contention does not demonstrate that the contrary is unreasonable. 55 It is stating the obvious that in the years before his confession to police JSK engaged in deception about his knowledge of the circumstances of ST's murder. It is hardly surprising that his conduct during that period would enable pointed criticism which could be advanced by way of vigorous cross examination. That does not render his testimony necessarily incredible. 56 In my view the jury was clearly not bound to reject the evidence of JSK and it follows that it was open to them to be satisfied beyond reasonable doubt of the appellant's guilt. To the extent that the trial transcript can be examined without the benefit of seeing the witnesses, I would conclude that there is no basis for intervention by this Court against the integrity of the verdict. 57 None of the grounds of appeal against conviction should be sustained and I would dismiss that appeal. 58 I turn to the appeals concerning sentence. Although MAH is technically a respondent to the Crown appeal and an applicant for leave to appeal against sentence himself, it should avoid confusion if I continue to refer to him throughout the judgment as "the appellant". 59 The Crown appeal expresses a single ground that the sentence was manifestly inadequate but in the course of argument, it was contended that the learned sentencing judge had committed an identifiable error "in dismissing the victim impact statement as irrelevant" on the basis of reasoning in R v Previtera 1997 97 A Crim R 76, in consequence of which his Honour failed to take into account considerations, including the increased culpability of murdering a friend of whose family circumstances and likely effect upon whom he would have been aware, and, an increase of harm to a substantial degree by a breach of trust and an exacerbation of the harm done by the conduct of the respondent. 60 His Honour did not ignore the content of the victim impact statement. He stated: "ST's mother read a victim impact statement. That statement details the devastating consequences upon the family of ST which lost their son as the result of a senseless act of criminality. The uncertainty surrounding ST's disappearance, the searching and waiting for news that he may yet be alive, the raising and dashing of hope and then the final reality must have been traumatic in the extreme. It is impossible to summarise the loss which has been occasioned in a few short paragraphs, and to do so, or attempt to do so, would only be to detract from their content". 61 His Honour did go on to say that, as he understood current binding authority, the victim impact statement was not relevant to the sentence to be imposed on the offender but that remark should be understood in the context of his later precision when he explained that he was not treating the effect of the death of the victim on others as a relevant consideration to aggravate the offence. (Emphasis added). 62 The victim impact statement is not evidentiary in the sense that it is unsworn. In order to make findings adverse to an offender, including matters of aggravation, a sentencing judge is required to be satisfied of foundational facts beyond reasonable doubt: The Queen v Olbrich 1999 199 CLR 270. Obviously, such a finding has to be derived from evidence. The statutory duty to acknowledge receipt of the statement was fulfilled and as above recited, his Honour made an appropriate comment. 63 The consequences to which the Crown adverted amount to no more than circumstances in which the crime was committed and his Honour took these into account. 64 He summarized his findings: "….the offender was jealous of the relationship between ST and the offender's girlfriend, EMG, and believed that ST was flirting with EMG. In consequence he decided to murder ST. He disclosed his intent to JSK during the week before the murder. He made plans to carry out his decision. Such plans involved selecting the site for the murder, recruiting JSK to assist him, arranging to meet ST on the afternoon of 21 October 2000 and obtaining a shovel. On 21 October 2000 the offender, ST and JSK met, ostensibly to go four wheel driving in the offender's four wheel drive vehicle. The offender, ST and JSK drove in that vehicle to a campsite in bushland in the Cordeaux Dam area. There ST was struck by JSK and the offender. He attempted to run away but was tackled and whilst down, the offender and JSK kicked him in the head until he was semi-conscious. They took a large log and forcibly dropped it onto ST's head a number of times. They then conveyed ST, who by then was comatose if not deceased, by row-boat from the campsite to a remote part of the dam area and there buried him in a shallow grave. At the instigation of the offender, all personal items were removed from ST and a version of events which the offender and JSK would relate, if questioned, was agreed upon". 65 He found that the offence involved premeditation, planning and violence and was accompanied by a specific intention to kill. He expressly adopted some remarks of Buddin J which had been made when sentencing JSK: "…this was a cowardly and cold blooded killing perpetrated upon a young man who would have had absolutely no reason to suspect that he was to be murdered by two of his friends". 66 The Crown contended that there was an extreme degree of culpability evident in some six factors which were identified in submissions. It was accepted that three of these had been taken into account by his Honour namely the specific intention to kill, the commission of the crime in company, and the pre planning, although it was the Crown submission that the lastmentioned should have been assessed as significantly increasing the objective seriousness of the murder. 67 A fourth factor was said to be discernible in the recruitment of JSK, a sixteen year old student, which was a matter of such materiality to the assessment of the appellant's culpability that the failure to mention the matter when considering the issue of objective criminality was indicative that his Honour either failed to take the matter into account or attribute to it significant weight, as it deserved. 68 As his Honour pointed out, there was no specific oral evidence tendered in relation to the facts for the purpose of the sentencing phase of proceedings. The whole trial had been conducted in his presence and his Honour would have been well aware of the compendious evidence concerning the relationships within the close knit group of young people and the circumstances in which JSK was used in carrying out the appellant's design. It was not obligatory for his Honour to incant the obvious, and that he did not does not demonstrate that he failed to give appropriate consideration to the extent of the appellant's culpability for killing one of the group of his teenage friends and using another one of them to carry out his purpose. 69 Next it was submitted that the failure to take into account the significant abuse of trust amounted to "a fundamental error in the exercise of sentencing discretion". The Crown did not, and could not, rely upon the formulation of the aggravating factor mentioned in s 21A (2)(k) of the sentencing statute that the offender abused a position of trust or authority. A "position of trust" does not equate with the mutuality of trust which exists between social associates such as within the close knit group disclosed in the evidence. The Crown's submission was that the appellant's abuse of friendship and trust (in that sense) were objective factors which affected the relative seriousness of the offence. 70 Again, those circumstances were to the forefront of the context in which the whole trial was conducted and I would not infer that his Honour approached his assessment of sentence ignoring these matters. It is plain that when his Honour observed that the ostensible purpose of the outing, during which the murder was committed, was an activity in which the victim joined for the purpose of recreation with friends, that he was alert to the circumstance that the appellant was abusing the friendship. 71 The sixth factor contended by the Crown was the brutal nature of the attack. No doubt many different descriptions could be given but the summary given by his Honour which I have quoted, although brief, offers no indication that he underestimated the circumstances. I would take his reference earlier to the considerable evidence tendered at trial as incorporating consideration of matters derived therefrom for the purpose of sentence. 72 In so saying, I am not expressing any reservation about the correctness of the Crown's description that the life of ST, aged seventeen years, was brutally and callously taken. 73 The issue on the Crown appeal is whether his Honour's imposition fell outside the range of available sentence. Save the minimal prior conviction, there was little by way of mitigation available to the appellant. His continued denial of guilt inherently excluded it being found that he harboured remorse for his crime. I consider that the determinative issue is whether the application of principles mandated by s 6 of the Children's (Criminal Procedure) Act 1987, as his Honour did, has resulted in a sentence of the manifest inadequacy as asserted by the Crown. It is to be noted that his Honour was assisted by the provision of a tabulation referring to some forty six instances of sentences on juveniles for the crime of murder. Whilst in his remarks his Honour noted the range therein, he did not refer to individual cases. In my view the sentence determined by his Honour can be demonstrated to be well within the range of any pattern of sentencing that can be derived from the collation. A sample of cases in which lesser sentences were imposed support this view. 74 Calleja. Aged seventeen with a long prior record including armed robbery and kidnap. Strangled an elderly lady after tying her up in her home. An escapee from detention at the time. Total term twenty years, minimum term fifteen years. (Slattery AJ 19 July 1991). 75 McAuliffe brothers. Aged seventeen years eleven months and sixteen years ten months. In company with a third offender attacked two men with a hammer to rob them. Death as a result of a victim falling from cliff near site of the attack. Nil prior records. Each, total term twenty years, minimum term twelve years (Wood J 7 August 1992). 76 Verney. Aged sixteen. Shot mother and baby sister. Minor prior record. Concurrent total terms twenty years, minimum term thirteen years. (NSWCCA 23 March 1993). 77 Kane. Aged sixteen. Convicted ten years after offence. With co-offender attacked teacher in home with baseball bat and suffocated him with plastic bag over the head. Minor prior record. Total term nineteen years, minimum term ten years six months (Barr J 17 November 2000; NSWCCA 3 May 2001). 78 All of the foregoing cases followed jury verdict and did not involve any reduction reflecting pleas of guilty. 79 In any assessment of sentence minds may, of course, differ. Given the whole of the material I would consider that his Honour's imposition was lenient but I am unpersuaded that it was manifestly inadequate. The term selected by his Honour was compatible with the guides provided and available from other cases although his Honour expressly recognized that these were guides and not precedents: R v Mungomery 2004 151 A Crim R 376. 80 I would dismiss the Crown appeal. 81 It follows from what I have already said that I am necessarily unpersuaded that the sentence was excessive. 82 The essence of the appellant's submission was that the sentence was "especially" heavy for a person of the appellant's youth and maturity and was therefore potentially crushing. Attention was also drawn to the sentence imposed on JSK and it was contended that the appellant was "entitled" to harbour a justifiable sense of grievance by reason of the contrast in sentence received by his co-offender. 83 There is no need to summarise the well known principles relating to parity of sentence on co-offenders: Lowe v The Queen 1984 154 CLR 606. 84 If the respondent harbours a sense of grievance, it is not justifiable. JSK earned the discount on sentence because of his plea of guilty. He was further entitled to lenience by reason of his offer of assistance which he discharged by giving evidence against the appellant. It may be observed that in so doing his time in custody may be more onerous, and possibly even fraught with danger, for reasons which are notorious concerning the position of those who assist authority in that fashion. 85 So far as the contention that the term was "crushing" it was, as I have said, within the range of the sound exercise of discretion. The power of this Court to intervene requires, as a condition precedent to being enlivened, a conclusion that some lesser sentence was warranted: s 6(3) Criminal Appeal Act 1912; R v Simpson 2001 NSWLR 704 @ 720. In my opinion no such lesser sentence is warranted. 86 I would order:

M.A.H. v Regina; Regina v M.A.H.

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