R v Aslett

[2011] NSWSC 650

Supreme Court of NSW|2011-06-14|Before: Harrison J

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Court

Supreme Court of NSW

Decision date

2011-06-14

Before

Harrison J

Source

Original judgment source is linked above.

Judgment (14 paragraphs)

[1]

remarks on sentence 1HIS HONOUR: The offender James Aslett was indicted for the murder of Slobodan Simic at Cabramatta West on 2 August 2009. The Crown accepted his plea of guilty to manslaughter, entered on the first day of his trial on 2 May 2011, in complete discharge of that indictment.

[2]

The offence 2The following findings of fact are drawn from an agreed statement of facts tendered by the Crown in the sentencing proceedings. 3The offender and his cousins Douglas Aslett and WA were each charged with one count of murder in relation to the death of the deceased. They were to be tried separately. Douglas Aslett and WA are brothers. At the time of the offence the brothers resided with their mother Kathy Aslett, her boyfriend and their younger sister at Cabramatta West. The offender lived nearby in Claymore and frequently visited his cousins at their home. 4The property backed onto a vacant block of land, which was itself situated adjacent to a T-intersection in Cabramatta West. The brothers used the vacant block as a shortcut to their home through a gap in the fence at the rear of their property. 5The deceased was in a relationship with Debra Jones. She lived approximately 200 metres west of the brothers' house. 6On the evening of Saturday 1 August 2009, someone set fire to a car that was parked upon the vacant block of land. WA owned that car. The brothers spoke to each other that evening about waiting until the following day and attacking the person who set fire to the car. The offender and Douglas Aslett went to the vacant land the next day and spoke to a neighbour about who might have set fire to the car. During that conversation, Douglas Aslett expressed his belief that the deceased or his associate had done so. While the offender and Douglas Aslett were still standing on the land, the deceased rode up Sulman Road towards them on his bicycle. 7The offender and Douglas Aslett yelled out threats to kill the deceased. As he turned to run away, they threw pieces of brick or rocks at him. These struck the deceased who started bleeding. He returned to his house to wash the blood off his arm. The offender and Douglas Aslett returned to Kathy Aslett's house where they armed themselves respectively with a baseball bat and a large black saw-toothed machete. WA was there as well and he armed himself with a handgun. The offender and Douglas Aslett then ran about 100 metres up the street towards Sulman Road. WA followed them. 8The deceased would appear to have heard yelling and emerged from his house onto the street. He took off his shirt and approached the offender and Douglas Aslett. The deceased was unarmed. He encouraged the offender and his cousins to drop their weapons and fight him with their fists. The offender and Douglas Aslett swung their weapons at the deceased repeatedly. The deceased was struck by the baseball bat. At some point a friend of the deceased armed himself with a machete and came to his aid. Neither the offender nor his cousins was injured. 9WA yelled at the offender and Douglas Aslett who began to run back towards him. Witnesses to what was happening apparently saw the gun and yelled out a warning. WA fired a number of shots in the direction of the deceased as he turned away. One of the shots struck the deceased in the back. 10The offender and his cousins fled through the vacant block into Kathy Aslett's house. They discarded the baseball bat, the machete, a shirt worn by one of them, as well as the deceased's shirt and singlet, at the rear steps to the premises. They then left that property and sought refuge at a nearby property. WA disposed of the firearm in the garden of a nearby house. He fled from the area. 11Police were in attendance at the scene within minutes of the shooting. An ambulance also attended and took the deceased to hospital where he died shortly afterwards. The offender and Douglas Aslett were arrested a few hours later. The offender was released shortly thereafter but was re-arrested on 12 November 2009 following identification by a witness to the incident. The offender was interviewed by police and made certain admissions concerning his involvement in the events described above. He was later charged with the murder of the deceased. He has remained in custody since that time.

[4]

Sentencing for manslaughter 14In R v Van Xuan Nguyen [2005] NSWSC 600 at [21] - [24], Johnson J set out the relevant sentencing principles in the case of the crime of manslaughter. In setting out the paragraphs referred to, I respectfully adopt his Honour's summary: "[21] The maximum penalty prescribed for the offence of manslaughter is imprisonment for 25 years: s.24 Crimes Act 1900. The offence of manslaughter involves the unlawful taking of a human life, and as such it has long been recognised as one of the most dreadful crimes in the criminal calendar: R v Hill (1981) 3 A Crim R 397 at 402. In R v MacDonald (Court of Criminal Appeal, 12 December 1995, BC9501664), the Court (Gleeson CJ, Kirby P and Hunt CJ at CL) said at page 8: 'Manslaughter involves the felonious taking of human life. This may involve a wide variety of circumstances, calling for a wide variety of penal consequences. Even so, unlawful homicide, whatever form it takes, has always been recognised by the law as a most serious crime. (See R v Hill (1981) 3 A Crim R 397 at 402.) The protection of human life and personal safety is a primary objective of the system of criminal justice. The value which the community places upon human life is reflected in its expectations of that system.' [22] In R v Blacklidge (Court of Criminal Appeal, 12 December 1995, BC9501665), Gleeson CJ (Grove and Ireland JJ agreeing) said at page 4: 'It has long been recognised that the circumstances which may give rise to a conviction for manslaughter are so various, and the range of degrees of culpability is so wide, that it is not possible to point to any established sentencing tariff which can be applied to such cases. Of all crimes, manslaughter throws up the greatest variety of circumstances affecting culpability.' [23] The importance of denunciation in sentencing for manslaughter has been stressed: R v MacDonald, above, at page 9. Little assistance is to be gained by reference to sentencing statistics which encompass all forms of manslaughter, save so far as they disclose a broad range within which sentences have been passed since their compilation began: R v Mohamad Ali [2005] NSWSC 334 at paragraph 61. [24] A sentence for manslaughter must reflect the seriousness of unlawfully taking the life of another human being and it is not of great moment whether the killing is characterised as coming within any particular head of manslaughter. Rather, it is a question of what sentence is required to reflect the objective facts by way of retribution and denunciation, the subjective circumstances and, if necessary, deterrence: R v Walsh (2004) 142 A Crim R 140 at 149 (paragraph 40); R v Mohamad Ali, above, at paragraph 56."

[5]

Subjective features 15The offender was born on 11 December 1990 and so was 18 years old at the date of the offence. Until the age of four he lived in the area around Nowra. His father died when he was only one or two years old. He continued to live with his mother, and after a time with her new partner. He is one of four children born of his parents' union but he has three half siblings. The period in Nowra was a happy time for him. However, when he was about 13 the family moved to Sydney. It was at this time that he started to mix with what he called "the wrong groups" and began to get into trouble. 16He started to take drugs and to drink alcohol. He had not done so previously. He left school without attaining his School Certificate. He progressed from smoking cannabis to the use of amphetamines. That had the result that he became involved in crime to obtain money to purchase drugs. He said that he had no parental supervision once he moved to Sydney, meaning that he "got a bit more freedom and [he] abused it". His mother and father tried to control him but he "just went the wrong way". He acquired a fairly extensive criminal record at a young age. He was placed under control orders. He developed a problem with anger management. 17In this last respect he said that he had trouble controlling his anger when people showed him "disrespect". He said that if that occurred "I disrespect them back". He has undertaken anger management courses when in custody on other occasions with little apparent effect. He accepted that his anger was a problem that needed to be addressed. He proposed to enrol in further courses once he is sentenced. His preference is to undertake the young offenders program rather than the violent offenders course as it is directed to people of his own age. His hope is to be able to control his anger or even to eradicate it entirely. 18During his time on remand he has been working fabricating metal products. Prior to going into custody he had never had paid employment of any sort. He now earns about $45 per week. He said that "it feels good" to be working for money rather than stealing it. He enjoys the work, which is the first opportunity he has ever had to do so. He is also doing a metal fabrication and welding course with a view to attaining a trade certificate as a welder. He has almost finished that course. He hopes to make his career in that line of work upon his release from prison. 19He proposes to live with his mother when he completes his sentence. He gets on well with her and she visits him regularly in gaol. His mother and sister attended the sentencing hearing. 20He was asked how he felt about the fact that he had participated in an incident that led to a man's death. He said that he did not feel good about it. He said, "I feel sorry for him and just wish it never happened". He apologised to the deceased's family and friends.

[6]

Pre Sentence Report 21A report dated 26 May 2011 prepared by Cheryl Robinson, an officer from the Probation and Parole Service, was tendered in the proceedings on sentence. Ms Robinson noted that even though the offender had had minimal contact with the service, he had a lengthy history with Juvenile Justice, having been sentenced to a number of control orders, bonds with Juvenile Justice supervision and fines for various offences including common assault, aggravated break and enter, larceny, destroy or damage property and drug related offences. 22Ms Robinson reported that the offender was in fact expelled from school due to aggressive behaviour towards a staff member. He had commenced a TAFE course to complete his School Certificate but did not complete it. He commenced a panel-beating course but also failed to complete it. 23Ms Robinson's perusal of departmental records indicated a pattern of hostile and aggressive behaviour towards staff and other inmates. Custodial staff have noted that the offender has on a number of occasions presented as angry and hostile, particularly when he does not get his own way. He denied making threats to other inmates and reported to Ms Robinson that he was involved with a group of inmates who may have threatened others. It was the offender's view that because of this he had been unfairly associated with their conduct. The offender acknowledged that he had certain negative behaviour patterns. 24The offender reported that he commenced consuming alcohol when he was 16 years of age and indicated that that would typically occur as binge drinking one day on the weekend, although not every weekend. This pattern continued until three months prior to the offence when he stated that his alcohol consumption increased significantly after he ceased using ice. He was then drinking daily to a level of intoxication. He reported using cannabis from the age of 14 on a daily basis with a few friends. That use increased and since 2006 he has been smoking as much as three grams per day. He reported having smoked half a gram of cannabis on the morning of the offence. He had smoked ice since the age of 16. He had a daily habit costing $500. This continued until three months prior to the offence. He also used ecstasy. 25Ms Robinson confirmed that the offender appeared to have ongoing issues with controlling his anger, evident not only in the current offence but also with respect to his behaviour generally. He acknowledged that he had an issue with authority and becomes aggressive "when he is disrespected". He has participated in anger management counselling when in juvenile custody without much success. He said he had at least learnt "not to snap before the other person", but felt otherwise that he was too young and not sufficiently motivated to gain much benefit. 26The report included the following summary: "Mr Aslett is a young man who by all accounts was afforded a stable and supportive upbringing during his formative years however appears to have been easily influenced by his peer group in his early teens which saw the offender commencing abusing illicit substances and eventually coming to the attention of the law. His problematic level of his drug and alcohol abuse, his lack of engagement in drug and alcohol interventions and his failure to acknowledge that he needs to continue to address this issue are all highlighted concerns to this Service. The offender ceased his schooling without any formal qualifications, never having engaged in paid employment and he has typically supported himself and his illicit substance and alcohol abuse through criminal behaviours. His blatant disregard for the law and society's values from a person of such a young age is also of concern. Mr Aslett acknowledged his involvement in the commission of the offence however presented as having limited insight into his offending and the consequences of his actions onto others. As previously noted, this may be due to the offender's age however this may also be due to his inability or unwillingness to explore this at this time." 27Ms Robinson concluded that the offender was suitable for a medium to high level of intervention by the Probation and Parole Service.

[7]

Submissions 28It was contended on behalf of the offender that in assessing the objective criminality of the offence I should find that what occurred was an impulsive act that took place in the heat of the moment and without significant or relevant planning. It was submitted that there was an incident involving damage to the car, which led to an altercation or argument including throwing of rocks and bricks. This quickly escalated when the offender and his cousins returned to the house to arm themselves with weapons. It was submitted that I would find that it was a very short time from start to finish of these events, and that not a great deal of thought was given to what occurred. It was submitted that the offender acted impulsively. The offender would appear to have been aggrieved at the burning of his cousin's car. He did not do what he did with cold consideration or thought. It was put on his behalf that the offender "was caught up in his feelings of being aggrieved and he acted impulsively and probably without any thought and consideration... as to what might arise". 29It was also submitted that the offender was someone, by reason of his age, his experience, his intelligence and level of maturity, who was possessed of limited resources upon which to call in his own life and mind in order to deal appropriately with the situation as it unfolded. It was conceded that his past criminal behaviour and drug use made an assessment of his rehabilitative prospects somewhat guarded. It was also conceded that the offender was a person who required a great deal of assistance to keep on the right track. A somewhat greater emphasis on rehabilitation than usual was therefore appropriate, even though specific and general deterrence could clearly not be disregarded. 30It was submitted that a discount of 15 per cent was appropriate having regard to the timing of the plea. Whereas it was not a plea at the earliest available opportunity, there was nevertheless said to be considerable utilitarian value in it for the reason that it was proffered on the first day of a trial that was likely to involve as much as, if not more than, three weeks of hearing, with significant prospects that differing witness accounts might potentially extend the course of jury deliberations much beyond that. 31The somewhat limited nature of the offender's expressions of remorse was said to be attributable to his lack of maturity and the inarticulate mode of his delivery, at least in the formal setting of the courtroom. It was contended that some allowance had to be made for these things as well as his unspectacular intellectual capacity, and that his actual statement of contrition and regret should be treated as extending beyond the literal force of the words that he uttered. 32The Crown contended that the degree of planning was not consistent with a submission that the offence was impulsive. It was submitted that there was in fact a level of premeditation to some degree. This was said to arise from the fact that the offender and his cousins were standing around the burnt out car making somewhat desultory inquiries about who may have been responsible. There was at least some interval between that, and the rock-throwing incident that followed closely upon it, and the subsequent confrontation with weapons, which had been retrieved only when the offender and his cousins retreated to their home to arm themselves for what then occurred. The Crown submitted that there was in these circumstances a definite level of premeditation and planning in the subsequent criminal activity that included the offence. 33The Crown accepted that an assessment of 15 per cent as an available discount for the plea of guilty was not inappropriate. 34Aggravating factors were said to be the fact that the offender has a record of previous convictions and that the offence was committed without regard for public safety, involving an incident that escalated into an affray including members of the neighbourhood and the discharge of a firearm. Planning has already been referred to but is specifically mentioned in the legislation as an aggravating factor. The plea of guilty is a mitigating factor.

[8]

Findings concerning the offence 35Having regard to the evidence before me I make the following findings of fact that bear upon the objective seriousness of the offence. 36First, there was no long-standing enmity or grievance that existed between the offender and the deceased. Any feelings that developed in the mind of the offender toward the deceased would appear to be those that arose in the limited circumstance that the offender was told and apparently accepted that the deceased had been responsible for burning his cousin's car the previous evening. 37Secondly, and shortly afterwards, there developed a heated exchange between the offender and his cousins and the deceased in the course of which rocks and bricks were thrown at the deceased. 38Thirdly, the offender and his cousins retreated to their home to obtain weapons that included a machete, a baseball bat and a handgun. 39Fourthly, the offender was the person armed with the baseball bat and he used it to strike the deceased. 40Fifthly, I am satisfied beyond reasonable doubt that the offender knew that his cousin WA was armed with a handgun and that the offender contemplated at least the possibility that WA might use it in the course of doing an unlawful and dangerous act towards the deceased. However, I cannot be satisfied beyond reasonable doubt that he knew it would be used in the course of the confrontation with the deceased. 41Sixthly, I am satisfied beyond reasonable doubt that the offender and at least one of his cousins had agreed that an act, involving at least a minor assault, would be perpetrated upon the deceased in the street and that the offender participated by being present, aiding his cousins or one of them to commit the agreed act. 42Seventhly, there was a degree of planning on the part of the offender to the extent that following the initial confrontation with the deceased, the offender retreated to his house to arm himself with a baseball bat before returning to confront the deceased again. 43Eighthly, there was no opportunity for the offender to intervene in any way that could have prevented WA from using the handgun to shoot the deceased. 44Finally, following the shooting the offender and his cousins fled the scene.

[12]

Special circumstances 50Counsel for the offender submitted that a finding of "special circumstances" for the purposes of s 44(2) of the Crimes (Sentencing Procedure) Act 1999 was justified and warranted by reason of the offender's age, his lack of education, his apparent immaturity, his past drug addiction and the need for the monitoring of anger control strategies and general rehabilitation. In my view these are all matters that warrant consideration under this head. However, the last two are to my mind predominant. 51There is clear evidence that the offender has difficulty controlling his anger, or what was once referred to somewhat less euphemistically as an inability to control his temper. The circumstances that give rise to these proceedings are a significant manifestation of that unfortunate propensity. There appears to be no evidence of the aetiology of that propensity in this offender, whether in terms of his social, cultural or psychological background. I have no medical or other specialised opinion evidence that explains this characteristic, if indeed it is explicable. Its resistance to modification or its anticipated amenability to treatment are therefore matters of speculation. 52Doing the best that I can, I would anticipate that the offender would be likely to require assistance with impulsive aggressive behaviour for some time. Even if treatment is available during his time in custody, the period following his release on parole is likely to be the most important in this regard if a regression to inappropriately aggressive or combative responses to what he currently perceives as offensive or disrespectful is to be avoided. 53It may be that this inability to control anger is a function of his age, his intelligence, his level of education and his immaturity. Whatever be the precise contributors to the problem, I consider that the offender has a distinct difficulty dealing with conflict, whether real or merely perceived, that will retard his rehabilitation unless closely monitored and addressed following his release. I find that there are special circumstances.

[13]

Determination of sentence 54The death of the deceased was a tragic event in every respect. He was cynically singled out for retribution by a group of self-styled vigilantes whose only motivation was an unverified suspicion that he had set fire to a car owned by one of them. In the offender's case he gave evidence about his dealings with people who showed him "disrespect". He used that term as a verb in the awkward way of popular contemporary street culture to embrace the notion that a real or perceived lack of respect somehow justified any means at hand to restore it. It was indicative in my view of a callously judgmental attitude to other members of society, based on an inflated assessment of his own importance. The word was used in an apparent attempt to justify or rationalise his impoverished ability to control both his emotions and his behaviour conformably with the requirements of civilised life. Although the offender did not himself shoot the deceased, his narcissistic and self-indulgent behaviour was gratuitous and uncalled for. I am unfortunately reminded of the words used by Truman Capote, in his famous and tragic account of true events in his book In Cold Blood, which he uses to describe one of the central characters. Those words are as follows: "You are strong, but there is a flaw in your strength, and unless you learn to control it the flaw will prove stronger than your strength and defeat you. The flaw? Explosive emotional reaction out of all proportion to the occasion." 55There can never be a valid or acceptable reason for people to resort to violence to settle scores or to seek revenge. The deceased died as a result of precisely such conduct. The community will not tolerate it and the courts might be expected to take the same approach. There emerges in a case such as the present both an opportunity and a need to reinforce the public abhorrence of senseless deaths. 56It was submitted by way of mitigation on behalf of the offender that what occurred in this case happened "in the heat of the moment". I indicated during submissions, and I repeat now, that the only heat that was generated in the circumstances came from the offender and his cousins. In other words, I am not prepared to afford the offender the benefit of any doubt that might otherwise flow from the consequences of acts performed in response to a threat or a situation beyond his control. On the contrary, the offender and his cousins were the source of the confrontation and the force behind its continuation and escalation. There was no moment and no heat that arose or was produced except as the result of their wholly inappropriate and unacceptable behaviour. 57I have read a victim impact statement from the brother of the deceased. He spoke of his own reaction to the death, as well as that of the extended family. His mother in particular would appear to be labouring with the burden of grief in her senior years in a very disabling way. The death of the deceased is undoubtedly a terrible and unending fact of life for her and the rest of the family. Nothing that I have said in the course of delivering these remarks should be taken as in any way derogating from or diminishing the importance of the life of the deceased in the eyes of his family and friends who remember him. I am however mindful of the principles referred to in R v Previtera (1997) 94 A Crim R 76 and R v Bollen (1998) 99 A Crim R 510, and I must conform to them. 58Taking into account all of the objective facts and all of the subjective circumstances, and other factors required to be taken into account under s 21A of the Crimes (Sentencing Procedure) Act, I consider that the appropriate sentence in this case is one of imprisonment for 7 years with a non-parole period of 4 years and 6 months. It is accepted that the commencement date for any sentence that I impose is 12 November 2009 and I propose to order that the sentence to be imposed will operate from that date. The sentence as proposed also has regard to my finding of special circumstances. 59James Aslett, for the manslaughter of Slobodan Simic to which you have pleaded guilty you are sentenced to imprisonment. I set a non-parole period of 4 years and 6 months, which will be taken to have commenced on 12 November 2009 and which will expire on 11 May 2014, and a balance of term of 2 years and 6 months commencing on 12 May 2014 and expiring on 11 November 2016. The first day upon which you will be eligible for release on parole is 12 May 2014.