R v AH

Supreme Court of NSW|2011-09-19|Before: Johnson J, Mr AJ, Latham J

REMARKS ON SENTENCE 1JOHNSON J : The Offender, AH, appears for sentence for the crime of manslaughter. The maximum penalty for this offence is imprisonment for 25 years. 2On 22 July 2011, the Offender was arraigned before Latham J upon an indictment alleging that, on 25 April 2009, at Busby in the State of New South Wales, he did murder David Wayne Boyce. The Offender pleaded not guilty to murder, but guilty to manslaughter. The Crown accepted that plea in full satisfaction of the indictment. 3In passing sentence for the offence of manslaughter, the Offender asks the Court to take into account on sentence an offence of hindering the execution of a search warrant contrary to s.52 Law Enforcement (Powers and Responsibilities) Act 2002 , for which the maximum penalty is imprisonment for two years. 4At the outset, I observe that the Offender is not to be sentenced for directly causing the death of Mr Boyce. It is not alleged that the Offender wielded the knife which caused the fatal injury to Mr Boyce. Rather, the Offender's crime arises from his participation in events in the early hours of 25 April 2009 which saw two groups of young men coming into conflict, involving the use of violence, and with a person on the Offender's side of the conflict stabbing Mr Boyce to death. I will return to the nature of the Offender's crime, and its seriousness, later in these remarks on sentence. 5A sentencing hearing took place before me on 19 September 2011.

Seriousness of the Offence 70The Offender has pleaded guilty to the crime of manslaughter. He is to be sentenced for his participation in an extended joint criminal enterprise, in that he took part in an unlawful and dangerous act, an affray, in circumstances which objectively carried with it an appreciable risk of serious injury being occasioned to a person. 71To assist in an assessment of the seriousness of the offence, it is helpful to identify the Offender's course of conduct. 72The origin of the dispute which culminated in the death of Mr Boyce related to tension between the Offender and JT over their respective relationships with a young woman. What commenced as a telephone argument between the two young men in the early hours of 25 April 2009 moved towards physical confrontation, with the Offender (and his companions) travelling to JT's house at Busby after the Offender had collected some metal poles from his house. 73A face-to-face argument between JT and the Offender took place outside the Busby house. The intervention of JT's stepfather cooled the situation leading to the departure of the Offender and his companions. 74Regrettably and tragically, JT's friend, JP, appears to have challenged JT as to why he had allowed his stepfather to intervene and apologise on his behalf. JT's response was to, once again, become angry and to seek to contact the Offender to resume the face-to-face confrontation. 75When the Offender heard of this, the only sensible course to take was to decline any suggestion of further confrontation. Instead, the Offender took up the challenge for a further confrontation, although apparently suggesting at one point it should occur the next day. Instead, it became clear that JT and the Offender would again confront each other physically that night. 76The Offender travelled in a van with his supporters to the Busby house. He was aware that these persons were accompanying him to support him and that there were metal poles in the van capable of being used in the expected fight. 77The Crown does not contend that the Offender was aware that Mr Smith had a knife in his possession in the van. 78Having arrived near the Busby house, the Offender emerged from the van, accompanied by his companions. The Offender and others were carrying metal poles. 79The Offender spotted JT on the veranda of the Busby house, with JT and JP going back inside the house as the group approached. The Offender walked up to the house and banged on the screen door, calling for JT to come out. JT emerged and approached the Offender from behind and hit him to the back of the head with a wooden bat. 80During the course of the melee which followed, Mr Smith stabbed Mr Boyce. Blows were struck by other persons in the Offender's group, including Mr Barghachoun, to persons in JT's group. 81Soon after, the Offender fled the scene with Mr Smith, Mr Barghachoun and others. 82The following observations can be made concerning these matters which concern the role of the Offender in the crime: (a) it was the dispute between JT and the Offender which explained how the confrontation in the early hours of 25 April 2009 came to happen; (b) following a telephone argument with JT, the Offender escalated the dispute by travelling with his companions to the Busby house, having collected some metal poles on the way - it was the Offender who came to JT's house for this purpose, clearly prepared to engage in a physical confrontation; (c) the good sense and intervention of JT's stepfather defused the situation and the Offender left; (d) although it was JT (apparently egged on by JP) who reignited the dispute thereafter, the Offender and his companions were once again prepared to travel to JT's house for the purpose of a physical confrontation; (e) having arrived at JT's house a second time, the Offender was actively involved in approaching the premises and demanding that JT emerge, whilst the Offender was holding a metal pole which, was no doubt, he was prepared to use; (f) as it happens, JT emerged and struck the Offender over the head, with the blow effectively bringing to an end the involvement of the Offender in the physical confrontation; (g) by this time, however, the two groups of young men were engaged in a melee in the street and front yard, a process set in train by the dispute between the Offender and JT; (h) Mr Smith and Mr Boyce were only present at that time and place because of the dispute between the Offender and JT and, in that tragic context, Mr Smith stabbed and killed Mr Boyce; (i) although the Offender did not know that Mr Smith was armed with a knife, let alone that he would use it, it was objectively clear that there was an appreciable risk of serious injury being occasioned to a person as a result of the series of events set in train by the Offender that night. 83I keep in mind that I am not sentencing the Offender for directly causing the death of Mr Boyce, nor am I sentencing him for his participation in a joint enterprise that had as its object the doing of an act with the intention of killing or inflicting grievous bodily harm. 84In this case, the persons at risk of serious injury were the persons involved in the affray itself. These were the persons who emerged from the Busby house with reinforcements from the 4WD (on one side) and the persons who emerged from the van, including the Offender and Mr Smith (on the other side). 85The Offender travelled with a group of men, expecting that he would fight with JT and that his companions were prepared to assist in violence if need be, using metal poles. The Offender knew at least that JT was not alone at the Busby house and that JP was present, together with JT's stepfather who was entirely innocent in the process, and had attempted to responsibly calm the situation earlier in the evening. Yet, the Offender led the charge on the Busby house seeking to attack JT although, as it happens, it was JT who struck the Offender, apparently removing him from the action as a result. 86The Offender was an instigator of the dispute which occurred that night, leading to physical confrontation. He was no passive bystander. He said that he was prepared to fight and he acted accordingly. 87There is no evidence that the Offender engaged in any confrontation with Mr Boyce. The stabbing of Mr Boyce by Mr Smith was a tragic by-product of the events which the Offender had set in train that night. 88In the course of sentencing a co-offender, Mr Barghachoun, earlier today, I referred to sentencing cases where the Supreme Court was called upon to sentence for manslaughter arising from a melee between two groups of persons, where the criminality of the offenders arose from their participation in an affray, whether or not they engaged in physical fighting: R v Barghachoun [2011] NSWSC 1534 at [70]-[71]. As I observed in R v Barghachoun at [70], the assistance derived from these other cases is by way of illustrations of assessment of objective seriousness of offences of manslaughter, involving participation in an unlawful and dangerous act which objectively carries with it an appreciable risk of somebody suffering serious injury. 89The starting point in assessing the gravity of an offence of manslaughter is to recognise that it involves the unlawful taking of a human life. As RA Hulme J observed in R v La Rosa [2011] NSWSC 1394 at [32], there are a wide variety of ways in which the crime of manslaughter can be committed and there are an equally wide variety of ways in which an offender may be culpable. 90I am satisfied that he Offender's crime is one of considerable seriousness. He was responsible for setting in train the conflict which led to two groups of young men clashing outside the Busby house. There was an element of planning and organisation with the provision of assistance by his companions to accompany him to the fight. 91The Offender had an opportunity to walk away from the dispute after the intervention of JT's stepfather, but he chose to resume the dispute and return to the Busby house. The Offender emerged from the van armed with a metal pole, indicating his willingness to use force, and sought to confront JT for that purpose. Although he did not, in the end, strike a blow to any person, it might be concluded that the only reason that he did not do so was because JT got in first, striking him to the head. 92It was accepted in submissions for the Crown and the Offender that the Offender was not intoxicated at all by alcohol or any drugs on this night. The fact that he engaged in conduct of this type whilst sober is a further troubling feature of the case. 93In light of the above, the Offender's offence was an objectively serious crime.

The Offender's Subjective Circumstances 94The Offender was born on 5 August 1992. He was 16 years and eight months' old at the time of the offence and is presently 19 years' old. 95The Offender did not give evidence at the sentencing hearing. A background report dated 12 September 2011 prepared by officers of the Department of Juvenile Justice was furnished to the Court. In addition, a helpful report dated 19 July 2011 from Dr Christopher Lennings, psychologist, was tendered. A number of references and reports were also tendered, including a letter from Lee Studdert, the senior co-ordinator of the Links to Learning Program (dated 4 August 2011), a reference from John Yiannake dated 25 August 2011, concerning the Offender's employment as a crane-fork driver in 2011, a letter from Darren Forbes concerning the Offender's employment between September 2010 and June 2011 and medical reports from Dr Qureshi concerning health problems affecting the Offender's mother. 96The Offender has a criminal history. On 24 November 2008, he was placed on an 18-month good behaviour bond for driving in a manner dangerous to the public and was fined for unlicensed driving. The Offender was subject to this good behaviour bond at the time of the present offence. 97In addition, on 26 March 2009, the Offender was charged with an offence of aggravated break and enter whilst in company. He was on bail for this offence at the time of the present offence. On 9 November 2009, he was placed on probation for 12 months, with a condition for supervision by the Department of Juvenile Justice, for the offence of aggravated break and enter whilst in company. 98The Offender is the second youngest of five children. His mother and father separated when he was seven years' old. His father now lives in Adelaide. The Offender lives with his mother, who requires hip replacement surgery. 99The Department of Juvenile Justice background report and the report of Dr Lennings provide considerable assistance concerning the Offender. Dr Lennings observed that he is a young man of quite good intelligence despite his having left education early, probably for behavioural reasons. Psychometric assessment of the Offender revealed an overall IQ which placed him in the above-average range or better than the bottom 87% of the population. However, the Offender's behavioural regulation ability, and his emotional ability or mental cognitive ability, fell within the average range, but towards the bottom end. 100Dr Lennings observed that, despite the Offender's excellent cognitive ability, he does have immaturity in his make up and has demonstrated impulsivity. Although Dr Lennings did not think there was any impairment of his ability to reason or to exercise sound judgment, he observed that 16-year old youths still need to develop adult methods of reasoning and adult methods of being able to understand and foresee consequences. Dr Lennings considered that this was a significant issue in the context of the present offence. 101The Offender completed Year 9 of high school and left school at the start of Year 10, in 2008, of his own accord, to start an apprenticeship. The evidence reveals that, in 2010 and 2011, he has been in responsible positions and has an excellent work history. 102The Offender has indicated to the Department of Juvenile Justice officers that, if he is incarcerated, he would utilise his time in detention by completing his secondary education and other studies. Evidence before the Court indicates that there are substantial opportunities for such education within the juvenile detention system. 103The Offender's conflict with the criminal law appears to have been concentrated in a period in 2008 and 2009 when he was 15-16 years' old. Since 2009, he has demonstrated a capacity for good employment and a responsible approach to assistance to his mother. 104There are still aspects of immaturity affecting the Offender. The evidence suggests that assistance is appropriate to help him to avoid conflict. However, the problems in this regard seem to be associated with his youth. 105I am conscious that the Offender has been subject to a rigorous bail regime since 2009. An assessment of his prospects of rehabilitation must take that into account. However, it seems to me on all the evidence that the Offender has good prospects of rehabilitation, involving further education to allow him to apply his intelligence in the workforce in a positive way.

Some Other Factors Relevant to Sentence 106Mr McClintock SC, for the Offender, submitted that the Offender was entitled to a 25% discount for his plea of guilty. The Crown submitted that, although it was not a plea entered at the earliest opportunity, it should nevertheless be regarded as an early plea attracting a discount not exceeding 20%. 107The Offender was committed for trial on a charge of murder. The offer to plead guilty to manslaughter was made prior to a trial date being fixed and the Crown agreed to accept the plea to manslaughter once it was offered. I consider that a discount of 20% should be allowed for the Offender's plea of guilty. 108It was submitted for the Offender that he had demonstrated contrition and remorse for his offence. The conduct of the Offender on 25 April 2009 after he had learned of the death of Mr Boyce was not consistent with contrition or remorse. Nor was his conduct when police searched his house on the evening of 25 April 2009, when the Offender behaved in an extraordinary fashion, abusing the police and ignoring his mother's plea for co-operation. There is no suggestion that the Offender was affected by alcohol or a drug at the time when he behaved in this fashion during the police search. 109The conduct of the Offender at that time points to a very angry young man who was acting in a manner which was entirely contrary to his own interests. His language and conduct was offensive, but suggests a significant measure of immaturity. 110With the passage of time since April 2009, I accept that the Offender has developed a level of insight into his conduct which has given rise to contrition and remorse. I take this into account on sentence. 111Mr McClintock SC submitted that the Offender's youth was a significant factor to be taken into account on sentence, with regard to be had to s.6 Children (Criminal Proceedings) Act 1987 and principles concerning the sentencing of young offenders. He submitted that less weight should be attached to general deterrence in sentencing the Offender. 112I have regard to the principles as summarised by Hodgson JA (Adams and Hall JJ agreeing) in AI v R [2011] NSWCCA 95 at [67]-[68]. In sentencing an offender who commits a crime at the age of 16 years and eight months, principles of retribution and general deterrence may be of less significance than when sentencing an adult offender for the same offence. Recognition is to be given to the capacity of young persons to reform and mould their character to confirm to society's norms, with considerable emphasis to be placed on the need to provide an opportunity for rehabilitation. In considering the role of retribution on sentence, the Court will have regard to emotional immaturity or a young person's less-than-fully developed capacity to control impulsive behaviour: BP v R [2010] NSWCCA 159; 201 A Crim R 379 at 381 [4]. However, as Hodgson JA observed in AI v R at [69], 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 Offender. 113In the circumstances of this case, the evidence of Dr Lennings points to the role of the Offender's immaturity in his involvement in the offence. The same can be said concerning his conduct giving rise to the Form 1 offence. I consider that the youth of the Offender is a significant factor on sentence in this case, given the prospect that he will continue to make a positive and responsible contribution to the community with further education and continued employment, with the likely prospect that he will avoid criminal activity. 114Nevertheless, general deterrence remains a factor on sentence given the approach of the courts to violent conflicts between groups of young persons in public places.

Victim Impact Statements 115A number of victim impact statements were read at the sentencing hearing by or on behalf of the mother and sisters of Mr Boyce and his younger siblings. As I observed in my remarks concerning Mr Barghachoun (at [84]), the tragic consequences for Mr Boyce's family resulting from his senseless death were explained eloquently and movingly by members of his family. Once again, on behalf of the community, the Court expresses its sympathy to the family of Mr Boyce for their tragic loss. I have regard to the victim impact statements, as part of the sentencing process, in the manner permitted by law. The Sentencing of Mr Barghachoun 116I have today passed sentence on Mr Barghachoun for manslaughter arising from his involvement in the tragic events leading to the death of Mr Boyce. 117In considering the question of sentence of this Offender and Mr Barghachoun, I have kept in mind the concept of relativity as between the sentences to be passed. That said, the roles of the Offender and Mr Barghachoun were different and there are other sentencing principles to be applied in the case of this Offender given his age at the time of the offence.

Determining the Appropriate Sentence 118Earlier in these remarks, I have addressed the question of the objective seriousness of the Offender's crime. Manslaughter may take many forms and it is necessary to determine penalty in the circumstances of the case. A constant factor is that persons who commits the crime of manslaughter are criminally involved in the taking of a human life. 119For reasons expressed earlier, I am satisfied that the present offence is a serious example of the crime of manslaughter. It is necessary to punish the Offender for this crime. It is necessary that the sentence denounce the commission of the offence, with that feature measured to an extent by the Offender's youth in the manner which I have described. Again, it is necessary that the sentence reflects an element of general deterrence, once again measured because of the Offender's youth, given the approach of the criminal law towards offences involving violence between groups of young men committed in public places. 120The Offender was subject to a good behaviour bond and a grant of conditional bail at the time when he committed this offence. These factors operate significantly against him on the question of sentence. In April 2009, at least, it does not seem that the brakes on criminal conduct which conditional liberty is meant to apply were operating in the Offender's case. 121I accept that the approach of the Offender in 2008 and 2009, when he was 15-16 years' old, is markedly different to the approach which he demonstrates at the present time. This provides a positive foundation for the future, with good prospects of rehabilitation in conjunction with appropriate supervision and assistance. 122Mr McClintock SC submitted that it would be open to the Court, in the circumstances of this case, to proceed by way of a non-custodial sentence. The Crown submitted that a sentence of full-time custody was the only appropriate sentence to be imposed upon the Offender in all the circumstances of the case. 123I am satisfied that the objective seriousness of the crime is such that the only appropriate sentence that should be imposed is one of full-time custody. If this point was reached, Mr McClintock SC submitted that the Court should make an order under s.19(3) Children (Criminal Proceedings) Act 1987 that any sentence of imprisonment be served as a juvenile offender. 124The Offender is to be sentenced in respect of a serious children's indictable offence so that he is not eligible to serve a sentence of imprisonment as a juvenile offender after he has attained the age of 18 years, unless the requirements of s.19(3) of the Act are satisfied. 125I make a finding of special circumstances, for the purpose of s.19(3), upon the basis that the only available educational and vocational training, or therapeutic programs that are suitable to the Offender's needs are those available in detention centres and because, if the Offender is committed to a correctional centre, there would be an unacceptable risk of him suffering physical or psychological harm: s.19(4)(b) and (c). I have regard to s.19(4A) in reaching this conclusion. My reasons for these conclusions arise from an acceptance of the evidence of Dr Lennings and the opinions of the Department of Juvenile Justice officers, Jennifer Pink and Jono Wheaton, both of whom gave evidence at the sentencing hearing, in conjunction with the tender of the background report which they had written. In my view, the Offender is at a crucial point in his development and the range of educational, vocational and therapeutic resources in the juvenile justice system are essential to further his rehabilitation. 126Taking into account all objective and subjective factors, I take as a starting point, before application of the 20% discount for the plea of guilty, a sentence of imprisonment for five years. After applying the 20% discount, a head sentence of four years' imprisonment will be imposed. I am satisfied that a finding of special circumstances should be made for the purpose of s.44 Crimes (Sentencing Procedure) Act 1999 so as to vary the relationship between the non-parole period to be fixed and the head sentence. In this regard, I am satisfied that the Offender will require an extended period of supervision and assistance in the community upon his release, and that it is in the public interest that he have an extended period for that purpose. In light of the finding of special circumstances, a non-parole period of two years should be fixed. 127Will the Offender please stand. For the offence of manslaughter, and taking into account the Form 1 offence, you are convicted and sentenced to imprisonment comprising a non-parole period of two years commencing on 2 December 2011 and expiring on 1 December 2013 with a balance of term of two years commencing on 2 December 2013 and expiring on 1 December 2015. 128The earliest date upon which you will be eligible for release on parole is 2 December 2013. 129In accordance with s.19 Children (Criminal Proceedings) Act 1987 , I make an order directing that the whole of the term of imprisonment of the Offender is to be served as a juvenile offender.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 December 2011

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