MB v R

Judgment 1HOEBEN CJ at CL: Offence and sentence In 2006 the applicant was convicted after a trial by jury of one count of murder, contrary to s18 of the Crimes Act 1900. The maximum penalty for murder is life imprisonment. The offence attracts a standard non-parole period of 20 years. 2On 10 November 2006 the applicant was sentenced by Howie J to imprisonment with a non-parole period of 15 years and 6 months and a balance of term of 6 years and 6 months. The earliest date on which the applicant will be eligible for parole is 7 January 2021. 3The applicant seeks an extension of time within which to seek leave to appeal against the sentence imposed on him. The grounds of appeal relied upon by the applicant are: Ground of Appeal 1: His Honour erred in his application of the standard non-parole period legislation in the light of the principles identified in Muldrock v The Queen [2011] HCA 39; 244 CLR 120. Ground of Appeal 2: The sentence is manifestly excessive. 4It was common ground between the applicant and the Crown that "Muldrock error" had occurred in the sentencing process in that the sentencing judge had given excessive weight to the standard non-parole period and had engaged in a two stage sentencing process. On that issue generally this judgment should be read with Abdul v R [2013] NSWCCA 247. Factual background to the offence 5The facts are best dealt with by extracts from the remarks of Howie J on sentence (R v MB [2006] NSWSC 1164): "3 On the date of his death the deceased was a resident of Mayfield and a member of the Australian Air Force. He was aged 20 years. On 7 July last year he and a long-standing friend, Joe Stevenson, who was at the time resident in Victoria, decided to go out and get drunk together in Mayfield. Because they were intending to consume alcohol, the two decided to walk between the various establishments they intended to visit. 4 At the same time the offender and a number of young persons from a local football team, the Cheetahs, met together in a shed at the back of a house in Waratah Street, Mayfield for the purposes of a house warming. About a dozen young men aged between 15 and 17 years arrived at the premises some bringing alcohol. At about 10.30 pm the group moved into Waratah Street because it was getting too crowded and noisy. ... 5 ... the deceased and Mr Stevenson were walking down Hanbury Street in the direction of Waratah railway station toward the Ex-Servicemen's Club. They were both intoxicated as they had been drinking beer with spirit chasers at a hotel a short distance away. They were in high spirits as they walked along the footpath on the opposite side of the road from the park. However something about their behaviour attracted the attention of some of the young men who were in the close vicinity. I am unable to say what it was that occurred between them but it resulted in some of the group, including the offender, running into Hanbury Street to confront the deceased and Mr Stevenson. ... 6 Once again I do not know what immediately transpired but I have no doubt that the aggressors were the offender and his group and that they were surrounding the other two in a threatening manner. ... 7 At about this time the deceased and the offender began fighting. Although I am not sure of the exact order of events, I have no doubt that it was the offender who was the first to be physically violent. I do not know what it was that provoked this attack. The accused did not give evidence at the trial nor did he participate in an interview with police. He refused to discuss the matter with those preparing the juvenile justice report except to deny that he was responsible, alleging that he had been "set up". Therefore, there has never been an account given by him of the events leading up to the death of the deceased. 8 While Mr Stevenson was engaged with the other youths, one of whom punched him in the face fracturing his jaw, the deceased and the offender were involved in what could be described as fisticuffs. ... However, it seems that the deceased generally got the better of the encounter although there was no real risk of either of them inflicting any serious injury on the other. ... 10 There were, however, a number of witnesses who gave evidence of the attack upon the deceased that caused his fatal injuries. At some stage the fight between the deceased and the offender moved across the road to be directly outside the Ex Servicemen's Club. At the same time Mr Stevenson and the group around him moved into the middle of the road towards the club. The fight between the offender and the deceased appeared to come to an end, with the deceased apparently victorious because he approached some members of the group standing nearby. It was then that he was struck in the face by one of the youths and the deceased moved back as a result. Meanwhile the offender had run to where one of his group was standing with a bottle in his hand. He grabbed the bottle, bent down to break it on the road and then ran at the deceased striking him with the broken bottle in the neck. The blow was downward in a stabbing motion and with such force that it chipped one of the deceased's bones in his face. It severed his throat and he bled to death while his friend tried vainly to administer aid to him to stem the loss of blood. 11 As soon as the offender had struck the deceased, he and his group fled from the scene back towards Waratah Street and the park. The offender shortly after met up with two of the group in a laneway at the far end of the park. There he said, "I got him". Eventually a number of the group, including the offender, returned to the shed where they had earlier been drinking. At this time it was seen that the offender had a badly cut hand. There was some consternation about the events and the offender was crying. Two of the youths attempted to clean up the wound, stop the bleeding and make sure that there was no glass in it. At some stage the offender said, "I didn't mean to do it. I hope he doesn't die". ... 14 The offender is a young man born on 26 June 1989. He was aged 16 at the time of the offence. He was born in Papua New Guinea and has three siblings, two younger who reside with their parents in the Newcastle area and one older brother who is in PNG. The offender's father describes his family as being within the middle to upper class in PNG. He is a person of some status and authority in his homeland. The family first came to Newcastle in 2000, when the offender was aged 11 years, so that his father could pursue a course of study. They returned to PNG in 2002 but returned again to Australia in 2004. ... 15 The offender's upbringing was uneventful and he has a strong supportive extended family in PNG. He has been described as an average student with no behavioural problems although he was suspended in Year 7 for fighting. He says that this was a response to racial taunts. He has continued his education while in custody and attained his Year 10 certificate. He appears motivated to continue with studies and self-improvement courses. A large number of certificates and reports were tendered on his behalf. His behaviour while in custody has been good. 16 A psychiatric report indicates that he has a stable mental state with no evidence of any disorders. He has been coping in custody and is supported by his parents. ... ... 18 The family has a strong religious background. The offender's father gave evidence before the Court, as did the pastor of the church that the family attends. It seems that when they first came to the Newcastle area the whole family regularly attended services and the offender was a participant in a children's programme organised by the church. At that time he was considered by the pastor to have been a "very well behaved young man". When the family returned to Australia on the second occasion, the family attended the same church but not the offender. It seems that he formed a strong relationship with a group of friends who were not part of the congregation but were members of the rugby league team for which he played. At the age of 15 the offender began drinking alcohol because of this association notwithstanding that he was encouraged not to do so by his father. ... 19 Since the commission of the offence and his incarceration the offender has conceded to the pastor that he "strayed away from his values" at the time of the offending. He has, however, expressed a recommitment to his church and his faith. ... 20 The offender has no prior criminal record. However, there is evidence before me of other acts of violence by the offender to young persons apparently when he was in a rage about some perceived wrongdoing committed by them against him. ... I am not prepared to find that the present offence was totally out of character for the offender at that time. I do accept, however, that his behaviour was to some extent a result of the company he was then keeping and that he had, in his words "moved away from the values" that had been instilled in him by his parents and through the church. ... 21 Insofar as the offender has now broken with those associates and re-established connections with his family and church I believe that it is conduct that is unlikely to reoccur. But it is still a matter of concern that the offender could, for some reason that I do not fully understand, act with such violence as he displayed to the deceased. I do accept that there was an element of peer group pressure arising from his involvement with the other youths and I do not believe that the offender was the only person responsible for all the injuries suffered by the deceased. ... ... 25 The offence is a serious example of homicide notwithstanding the Crown's concession. The offender must at least have intended to inflict grievous bodily harm of a very severe kind. He might not have intended to strike the deceased in the throat, but he armed himself with what was a very dangerous weapon and struck at the deceased with a forceful blow in the direction of his torso. ... ... 28 In my opinion the offence falls within the midrange of objective seriousness. ... Clearly the most significant factor is the offender's age both at the time of the commission of the offence and now at the time of sentencing. Section 6 of the Children (Criminal Proceedings) Act applies but there is little in the stated principles that has particular significance in the sentencing task before me so serious is the offence for which the offender is to be sentenced. 29 Generally when sentencing a person of the offender's age a court gives predominance to rehabilitation so far as it can do so consistently with the other purposes of punishment. General deterrence may play a lesser role because of the need to encourage and assist the young offender. But where the offence is one that arises from conduct frequently committed by young persons and is of grave seriousness, general deterrence may have to be appropriately reflected in the sentence. I have already indicated my opinion that general deterrence is important in dealing with offences of public violence committed by groups of young males. Further the use of bottles or glasses to inflict serious injuries on other persons in places where alcohol is being consumed is itself all too common. Therefore the court should clearly denounce such conduct and seek to deter it by the imposition of severe sentences where the injuries inflicted are grave. 30 There is positive evidence of the rehabilitation of the offender by his commitment to return to the church and readopt his family's values. He has been working positively in custody to address personal issues and continue his education. It is of concern that he refuses to acknowledge his guilt. Even though there is evidence of compassion for the deceased's family, there is no evidence of contrition or remorse for any of his conduct. It may simply be the fact that he cannot bring himself to accept what he has done. ... ... 32 This is a case where special circumstances should be found by reason of the offender's age and in order to promote his rehabilitation. However, I must keep in mind the standard non-parole period as a guidepost to the appropriate sentence. I cannot reduce the non-parole period by factors personal to the offender such that it does not truly reflect the objective seriousness of the offending or bear a proper relationship with the standard non-parole period fixed by Parliament for the offence of murder, even where the offence is committed by a juvenile. I think that it is fair to note that the non-parole period is longer than I would have imposed but for the standard non-parole period provisions." 6As Howie J indicated, the applicant was aged 16 at the time of the offence. It should, however, be noted that he had only turned 16 ten days before the offence. Background to this application 7After having been sentenced on 27 November 2006 the applicant filed a Notice of Intention to Appeal in respect of the sentence and conviction. On 30 November 2006 Legal Aid NSW received an application for legal aid from the applicant. On 9 November 2007 the applicant was refused legal aid as the application was not considered to have reasonable prospects of success in accordance with the Legal Aid merit test. 8Notwithstanding the refusal to grant legal aid, the applicant's family raised the money for an appeal but only in relation to conviction. The appeal against conviction proceeded in this Court and on 19 August 2009 it was dismissed (MB v R [2009] NSWCCA 200). 9On 28 September 2012 the applicant telephoned a person from the Standard Non-parole Review Team of Legal Aid NSW. As a result of that conversation, the applicant made a further application for legal aid on 18 December 2012 which resulted in this matter coming before the Court. 10As indicated, there was no issue between the applicant and the Crown that error of the kind identified in Muldrock v The Queen had occurred. The Crown did not, however, accept that pursuant to s6(3) of the Criminal Appeal Act 1912 (NSW) (the Act), any lesser sentence to that imposed by his Honour was warranted in law. The Crown opposed an extension of time being granted. Delay 11The sentence was imposed on 10 November 2006. The Notice of Intention to Appeal against sentence of 27 November 2006 was not pursued. Accordingly, an extension of time of almost 7 years is sought for this application for leave to appeal against sentence. 12The competing submissions in relation to delay and finality, and the Court's consideration of those submissions are set out in Abdul v R at [31] - [59]. Those submissions and the Court's conclusions in relation thereto are incorporated into this judgment. 13The explanation for delay is not compelling. Having considered the circumstances relating to the applicant's sentence, Legal Aid NSW rejected the applicant's application as having insufficient prospects of success. Inferentially, when the applicant's family retained legal advisors to argue the conviction appeal, some consideration must have been given to whether an appeal against sentence should be pursued. From the fact that this was not done, I also infer that it was the opinion of those legal advisors that an appeal against sentence should not be pursued. 14That having been said, the decision not to proceed with an appeal against sentence may have been influenced by the approach to standard non-parole periods set out in R v Way [2004] NSWCCA 131; 60 NSWLR 168. For example, a consideration of whether to pursue an appeal against sentence based on "manifest excess" would have had to take into account that s54B(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) as interpreted by Way had prescriptive effect where a matter had proceeded to verdict. 15There is another important consideration relating to delay. Section 4 Schedule 2 of the Crimes Amendment (Sexual Offences) Act 2008 (NSW) relevantly amended the Crimes (Sentencing Procedure) Act 1999 by inserting s54D(3). This section provided: "This Division does not apply to the sentencing of an offender in respect of an offence if the offender was under the age of 18 at the time the offence was committed." 16The relevant transitional provision provided: "60 Standard non-parole periods (1) An amendment made to s54D by the Crimes Amendment (Sexual Offences) Act 2008 does not affect any sentence imposed before the commencement of that amendment." 17This means that had leave been sought to appeal against sentence at the same time as the conviction appeal was heard in 2009, and had this Court decided to intervene in relation to sentence, it would not have had regard to the standard non-parole period, notwithstanding the decision in Way. It follows, therefore, that the applicant has not gained a "windfall benefit" by his delay in not seeking leave to appeal against sentence until now. Submissions and consideration 18Since "Muldrock error" of a material kind has clearly occurred, it is necessary for this Court to consider in accordance with s6(3) of the Act whether any lesser sentence than that imposed by Howie J is warranted in law. In carrying out that exercise, the Court has to re-exercise the sentencing discretion afresh taking into account factual circumstances as they presently exist, not as they were at the time of sentence (Baxter v R [2007] NSWCCA 237; 173 A Crim R 284, Douar v R [2005] NSWCCA 455;159 A Crim R 154). Most particularly, as the Crown acknowledged, the Court has to disregard entirely the standard non-parole period: BP v R [2010] NSWCCA 159; 201 A Crim R 379 at 388 [36]. The Court is, of course, bound by the findings of the sentencing judge except to the extent that those findings might need to be reconsidered because of subsequent events. 19There have been changes to the applicant's subjective case. In 2007 the applicant was diagnosed with a pancreatic tumour. Although the tumour has been removed, the applicant will be required to take medication for the rest of his life to compensate for the missing portion of his pancreas. That medication is required to enable the applicant to digest food. While in custody, the applicant has completed his higher school certificate, achieving above average marks in all subjects. His family continues to provide support for him. 20The applicant submitted that once the standard non-parole period is set to one side, it is necessary to give full effect to his youth and most particularly his lack of maturity. The applicant submitted that this is to be reflected in his inability to fully appreciate the potentially devastating results of his actions on the night of the offence. The applicant submitted that the sentencing judge was unable to fully give effect to those considerations because of his approach to the standard non-parole period, but that this Court is not so constrained. 21The Crown did not traverse those propositions but reminded the Court of particular aspects of the offending which justified the sentence which had been imposed: (a) The attack was unprovoked. (b) The applicant initiated the attack. (c) After the initial confrontation had come to an end, it was the applicant who had escalated the level of violence by taking a bottle, smashing it and striking the deceased. (d) The stabbing was unprovoked. (e) Neither the applicant nor his friends attempted to get assistance for the deceased. 22The matters raised by the Crown are relevant and important. They were, however, all taken into account by the sentencing judge and as findings of fact, have been taken into account by this Court. Notwithstanding those important matters, and notwithstanding the profound effect which the death of the deceased has had on his family and the terrible waste involved in the death of a young person who was held in such high esteem by all who came in contact with him, I have concluded that because of the effect of the standard non-parole period on the sentencing judge's reasoning, insufficient weight was given to the applicant's youth. 23As Howie J had acknowledged in the course of his remarks on sentence, the non-parole period set in this case was longer than the period which would have been fixed if the standard non-parole period did not apply: R v MB at [32]. 24This Court has recognised the significance of youth and immaturity in sentencing young offenders: KT v R [2008] NSWCCA 51; 182 A Crim R 571 at 577-578 [22]-[26]; BP v R at 381-382 [2]-[7], 394-397 [73]-[78], 400-401 [97]-[104], 402 [107]-[108]; AI v R [2011] NSWCCA 95 at [67]-[69]. 25Where emotional immaturity or a young person's less-than-fully developed capacity to control impulsive behaviour contributes to offending, this will be relevant to an assessment of penalty: TM v R [2008] NSWCCA 158 at [33]-36]; KT v R at 578 [23]; BP v R at 381 [4]. It has been recognised that emotional maturity and impulse control develop progressively through adolescence: BP v R at 381 [5]. 26Of course, the fact that youth and immaturity may be relevant to sentence may serve to explain why the legislature in 2008 determined that the standard non-parole period system should not apply to young offenders: BP v R at 400 [98]. 27This Court has kept in mind, as well, the need for appropriate weight to be given to general deterrence and retribution when sentencing a young offender for serious offences of violence: KT v R at 578 [25]. In AI v R at [69], Hodgson JA (Adams and Hall JJ agreeing) accepted that, in relation to crimes of violence committed in the streets by groups of young persons, considerations of general deterrence should be given substantial weight, notwithstanding the youth of the offenders. 28The applicant in this case was 16 years and two weeks' old at the time of the offence. His youth and immaturity, involving poor impulse control, contributed to the commission of this grave crime. The violent incident escalated quickly with fatal consequences. At the same time, the offence involved a violent crime committed in a public street, so that general deterrence must be accorded substantial weight on sentence. 29Taking into account these considerations, without regard being had to the standard non-parole period, it is clear (as the sentencing Judge acknowledged) that a lesser non-parole period (and sentence) is required. In this case the re-exercise of the sentencing discretion to determine whether "substantial injustice" would follow if an extension of time were not granted is determinative. I have concluded that substantial injustice would follow if an extension of time were not granted. I consider that those considerations displace the principle of finality and I would grant an extension of time. 30It follows from the above that the applicant should be re-sentenced and that in doing so full weight should be given to his youth. 31The orders which I propose are: (1) Grant an extension of time within which to bring an application for leave to appeal against sentence. (2) Grant leave to appeal against sentence. (3) Quash the sentence imposed by Howie J on 10 November 2006. (4) In lieu thereof, the applicant is sentenced to imprisonment with a non-parole period of 12 years and 6 months commencing 8 July 2005 and expiring on 7 January 2018 with a balance of term of 5 years expiring on 7 January 2023. The date upon which the applicant is eligible to be released to parole is 7 January 2018. 32JOHNSON J: I agree with Hoeben CJ at CL. 33BELLEW J: I agree with Hoeben CJ at CL.