R v Barghachoun

Supreme Court of NSW|2011-08-03|Before: Johnson J, Mr AJ, Latham J

REMARKS ON SENTENCE 1JOHNSON J : The Offender, Saad Jamie Barghachoun, appears for sentence for the crime of manslaughter. The maximum penalty for this offence is imprisonment for 25 years. 2On 6 May 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, but guilty to manslaughter. The Crown accepted that plea in full discharge of the indictment. The sentencing proceedings came before me on 3 August 2011 and continued on 20 September 2011. 3At 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.

Facts of Offence 4An Agreed Statement of Facts was tendered at the sentencing hearing. In addition, the Offender gave evidence at that hearing. 5It will be observed that a number of persons are referred to by initials and not by their full names. The tragic events surrounding the death of Mr Boyce included the involvement of persons who were under 18 years of age and who should not be identified: s.15A Children (Criminal Proceedings) Act 1987 . Where adult members of the family of young persons are mentioned, they will also be referred to by way of initials so as to avoid indirect identification of the young persons. 6The Agreed Statement of Facts disclosed the following events. Two Gatherings of Persons at Wentworthville and Busby 7On the evening of Friday 24 April 2009, Mr Boyce (aged 23) was visiting a number of friends at a gathering at Wentworthville. Persons at this gathering were drinking alcohol. There was also a suggestion that some persons were consuming a small amount of methylamphetamine. 8At the same time, another gathering of friends was taking place at a house at Trevanna Street, Busby. These premises were leased by the "T" family - Mrs T (56 years' old), her de facto husband (55 years' old) and their son JT (17 years' old). 9JT had a number of friends visiting him and they were drinking and socialising in the backyard. JT and his friend, JP, were heavily intoxicated. One of the visitors was RM (17 years' old) who was the girlfriend of JP, and a friend of Danielle Fox (18 years' old). A Dispute Between Two Young Men, AH and JT 10At around 12.30 am on Saturday 25 April 2009, a telephone call was made during which JT asked RM whom she was talking to and, in particular, whether AH (16 years and eight months of age) was on the telephone. There had been ill feeling between JT and AH over their respective relationships with a young woman, CH. JT and AH argued over the telephone and the call ended. 11At that time, AH was in the company of his friend Joey Smith (18 years and three months of age), Ms Fox and her friend Natalie Ryan (18 years of age). Mr Smith drove that group to AH's home. 12AH got out of the car for a short time and went into the house. He returned carrying some metal poles. AH put the metal poles on the floor of the car. These metal poles came to be used in the subsequent confrontation. 13At this time, the Offender was not with AH, Mr Smith, Ms Fox and Ms Ryan. Nor was he a party to, or privy to, the conversations between Ms Fox, RM, JT, AH and Mr Smith. AH Arrives at the Busby Home 14A short time later, RM received a call from AH who stated he was outside the Busby house and wanted JT to come out and meet him. AH was there with Mr Smith, Ms Fox and her friend, Ms Ryan, waited in the car for some time on a street corner near the house. 15JT and AH argued for a short time. During this argument, JT's friend, JP, was also present. JP was carrying a metal pole (about one metre long) hidden inside his pants. Mr Smith saw the pole and said "Why do you have to be a dirty cunt for?" . JP said "In case someone jumps in" . Mr Smith took the pole and said he was going to throw it. JP said that it was JT's pole and told Mr Smith to throw it towards the fence. Mr Smith did so. 16During this argument, JT's stepfather came outside and intervened. AH refused to leave unless JT apologised. JT's stepfather apologised on his stepson's behalf and shook hands with AH. AH and Mr Smith Depart 17Mr Smith and AH left the area on foot and returned to the car with Ms Fox and Ms Ryan. They drove away. 18Meanwhile at the Busby house, JP questioned JT as to why he allowed his stepfather to intervene and apologise for him. JT became angry at his stepfather for sending AH and Mr Smith away. He attempted to contact AH so that AH would return to the area. He was unable to reach AH. RM called Ms Fox. AH and JT Agree to Fight and Both Sides Call for Supporters 19JT took the phone from RM and said "Get [AH] on the phone" . AH and JT agreed to meet again so that they could fight "one on one" . AH believed that JT was too drunk. AH originally suggested that they sort it out, by fighting one on one, the following day. 20During a telephone call, JT said that he was told that Mr Smith was bringing "more boys" . JT called his friend, Mr Boyce, on several occasions, asking him to come to Trevanna Street. Mr Boyce agreed to come and he brought several friends with him. 21Mr Smith, AH, Ms Fox and Ms Ryan travelled to AT's house. The Offender Becomes Involved 22Earlier in the evening, the Offender (aged 21 years), AT and Luca Alviggi had been socialising and driving around together in a white van. 23AT received a telephone call at some point, from either AH or Mr Smith, asking him and the people with him (Mr Alviggi and the Offender) to meet Mr Smith, AH, Ms Fox and Ms Ryan at AT's house. 24Meanwhile, Daniel Plesko (the cousin of AT), David Bosevski and Jason Hubbard arrived at AT's house in a separate car. 25From AT's premises, a number of persons travelled in a large white van belonging to Mr Alviggi's father, towards the Busby house. They were Ms Fox, AH, Mr Smith, the Offender, Jason Hubbard, Mr Plesko, Mr Alviggi, Mr Bosevski and Ms Ryan. Prior to arriving at the Busby house, the group picked up Jesse Hubbard. 26AT was driving the van, two other people were passengers in the front, and the rest were seated in the cargo section in the rear of the van. 27Various metal poles were inside the van. There was discussion in the van between some of the males to the effect that they were going to the house for the purpose of a fight. 28Mr Smith had possession of a knife. There is no evidence that the Offender knew about the knife or knew that Mr Smith was in possession of it, prior to arriving at the Busby house. Arrival of The Two Groups at the Busby House 29AT stopped the van around the corner on Kaluga Street, Busby. He remained with the van while others got out and commenced walking towards the Trevanna Street house. As they were walking, a number of the males were carrying metal poles. 30The Offender was carrying a hollow metal pole concealed up his sleeve. He was aware that some others in his group were also carrying metal poles. 31As AH, Mr Smith and the Offender (and others) approached the premises, two males - JT and JP - were on the veranda of the Busby house. They saw the group approaching and retreated inside the house. 32A 4WD vehicle drove towards the Busby house. Before the driver had stopped the vehicle (directly in front of the house), Mr Boyce, who was in the front passenger seat, jumped out with a baseball bat in his hand and approached several people from the van group. Three other males (Emery Newton, Greg Phoenix and Josh Tyrell) and two females (Casey Tyrell and Renee Hosking) were also in the 4WD. The Two Groups Confront Each Other and Mr Boyce is Stabbed 33Shortly after Mr Boyce got out of the 4WD, he became involved in the affray with the persons who had emerged from the van. 34Mr Boyce was stabbed once to the chest by Mr Smith. The wound penetrated his heart causing death. Blood from Mr Boyce was later analysed. Alcohol was detected as 0.065g/100 mL of blood. Methylamphetamine was also detected as being less than 0.02 mg/L. 35Mr Boyce was found lying apparently unconscious in the front yard of the Busby house. The person who called "000" was apparently not aware, when the call was made, that Mr Boyce had been stabbed. 36There is no evidence that the Offender saw Mr Smith with the knife or saw Mr Smith stab Mr Boyce. 37Josh Tyrell, who had emerged from the 4WD, was struck to the head and the shins as he was trying to get inside the house. At one point during the affray, the Offender struck Mr Tyrell in the shins with a baseball bat. Mr Tyrell was later treated at hospital for a cut to the side of his head, broken fingers on his right hand and stitches to his right shin. 38Greg Phoenix, who also emerged from the 4WD, was struck to the head by one of the males who had emerged from the van. 39Before leaving the area, Mr Smith smashed the front window of the Busby house. Mr Smith then used a pole to strike and damage a vehicle that was parked in the driveway of the house. The Offender and Others Flee the Scene 40Mr Smith, the Offender, AH and the other persons from the van quickly left the area and returned to the van. AT drove away from the area. 41As the van was driving away, males inside the van were saying "we showed them" . AH said "We wasted our time, [JT] didn't even come out" . The Offender said "Which one was [JT] , everyone was hitting everyone, I was hitting people but who the hell was [JT] " . Someone said that a person had been "knocked out" . 42Mr Smith was heard to say "I think I stabbed him ... fuck fuck fuck" . Another person in the van said "I can't believe you stabbed him" . Mr Smith was asked by someone in the van "Where did you stab him?" . Mr Smith replied "In the ribs, I had to protect my mate" . Ms Ryan saw Mr Smith with the knife in the van. 43The evidence is not clear as to who was sitting where in the van in the journey to and from the Busby house. There were several conversations going on simultaneously, and there was music playing in the van. It is not clear exactly who said what, or what was heard by whom. Mr Smith is reported to have said about the knife that "It has blood on it" . He passed the knife to someone who wiped it clean with a tissue. 44It is agreed that the Offender was not the person who cleaned the knife, but that he was in the van at this time, carrying a metal pole. Police and Ambulance Arrive at the Busby House 45Police arrived shortly after the Offender and the others had left the scene. 46Ambulance officers attended soon after (at about 3.18 am) and observed that Mr Boyce had sustained a stab wound to his chest. He was conveyed to Liverpool Hospital, where he was found to be in cardiac arrest and efforts to resuscitate him failed. He was pronounced dead at 4.03 am. Disposal of the Knife 47The van eventually arrived back at AT's house. 48AT was handed the knife by Mr Smith. He secreted it in a drain near his house. He has been sentenced in the Local Court for his role in getting rid of the knife. 49Ms Fox and Ms Ryan walked out on to the street and waited by Mr Smith's car. When AH and Mr Smith came out, they all got in the car and drove to an industrial area nearby. They then drove to Mr Smith's house. 50AH lay down in Mr Smith's house and fell asleep. Ms Fox received a call and was informed that someone had been stabbed and that the person was dead. Ms Fox told AH this news and AH told Mr Smith. 51Mr Smith began to create a false alibi. He said to Ms Fox "We weren't there, we were at home watching movies. If you have to give a statement use that as an alibi" . Ms Fox said "Yeah lets stick with that story" . 52Later in the morning, Mr Smith drove Ms Ryan home. When she was dropped off, Ms Fox said "Don't say anything" . Mr Smith then drove Ms Fox home. Arrest of AH and Mr Smith and the Police Speak to the Offender 53On the evening of 25 April 2009, police attended AH's home address. There they arrested Mr Smith and AH. 54Mr Smith and AH exercised their right to silence. 55During the search of AH's house, police spoke with the Offender. He asked officers why Mr Smith had been arrested. Police told him that Mr Smith was arrested in relation to a murder at Busby the previous evening. They asked the Offender whether he knew anything about it. He replied falsely "That's the first I've heard about it. I went out with my mate Luca for a while and then he dropped me off at my place .... Around midnight" . He said that earlier in the evening he saw Mr Smith "but he didn't want to do nothing so I called my mate Luca" . He told police that he would be prepared to make a statement to that effect. 56The Offender was taken back to the police station and he agreed to provide a formal statement. He told police that, on 24 April 2009, he was with Mr Smith and he did not see AH at all. He said that he went to bed at around 11.00 pm. At about 6.00 pm on 25 April 2009, he went to Mr Smith's house, woke him up and then went to AH's house. He said that, about 10 minutes later, police arrived. 57On 26 April 2009, police spoke with AT. He showed police where he had secreted the knife. Police located a brown-handled knife in a leather sheath in a drain. It was later examined and DNA recovered from the side of the blade near the tip matched the profile of Mr Boyce. Arrest and Charging of the Offender 58On 26 April 2009, the Offender was arrested and charged for accessory after the fact to murder, make false statement, conceal serious indictable offence and affray. He exercised his right to silence. Progress of Charges Against the Offender 59In February 2010, a charge of murder, on the basis of extended joint criminal enterprise, was laid against both the Offender and AH. 60In November 2010, a contested committal hearing took place at the Downing Centre Local Court. On 2 February 2011, the Offender was committed for trial for affray and murder. The charges of conceal serious indictable offence and make false statement were withdrawn and dismissed. 61As mentioned earlier, the Offender pleaded guilty to manslaughter at arraignment in the Supreme Court of New South Wales before any trial date was set. The Crown accepted this plea in full satisfaction of the indictment. 62It was agreed at the sentencing hearing that the Offender spent six weeks and five days in custody on this matter. As a result, any sentence of imprisonment will date from 27 October 2011.

Seriousness of the Offence 63The 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. He went with a group of men, whilst he was armed with a metal pole, with the intention of using the pole as a weapon and he did strike a person with another implement, namely a baseball bat. 64It is important to 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. 65In 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, AH and Mr Smith (on the other side). 66Although submissions were made at the sentencing hearing which suggested a small distinction between the bases upon which the Crown and the Offender submitted that the offence of manslaughter was made out in this case, I do not think that anything turns upon any such distinction. 67The Offender travelled with a group of men, expecting that a fight was to occur with other persons. With others, he responded to a call for assistance on behalf of his friend, AH. Expecting that a fight would occur, he emerged from the van holding a metal pole. He participated in the physical confrontation, striking Mr Tyrell in the shins with a baseball bat. The Offender was not a passive bystander, but an active participant in the affray. 68There is no evidence that the Offender engaged in any confrontation with Mr Boyce. Nor does the evidence suggest that the Offender was aware that Mr Smith was armed with a knife, let alone that he used it to stab Mr Boyce during the fight. 69The Court was taken to a limited number of sentencing cases, including R v Diab [2005] NSWCCA 64, which were far removed from the circumstances of the present case. 70The Supreme Court has had recent experience of sentencing persons for manslaughter arising from an affray between two conflicting groups. The context for those sentencing decisions, the conflict between members of two rival motorcycle clubs at Sydney Airport in March 2009, bore a number of significant differences from this case. However, persons were sentenced for manslaughter upon a basis not far removed from this Offender who came to assist their side of the conflict, even though (as to some) they did not get involved in any physical fighting, although willing to assist if required. 71In considering the question of sentence for such an offender, RA Hulme J observed that the role of the particular offender was, relatively speaking, minor. His Honour observed, however, that such an assessment did not mean that the particular offence was anything other than a serious one with the absence of such factors simply meaning that the culpability of the particular offender was less than that of others: R v La Rosa [2011] NSWSC 1394 at [34]. Other manslaughter sentencing decisions for persons arising out of the Sydney Airport incident include R v Pirini [2011] NSWSC 1395; R v Aouli [2011] NSWSC 1393 and R v Costa [3011] NSWSC 1392. I do not refer to these cases as comparable sentence cases. Rather, the assistance derived from them concerning an assessment of objective seriousness for offences of manslaughter involving participation in an unlawful and dangerous act which objectively carried with it an appreciable risk of somebody suffering serious injury. The offenders in the cases which I have mentioned did not strike the fatal blows and some did not strike any blows at all. Nevertheless, their crimes of manslaughter were serious. 72The 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 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. 73The Offender's crime is one of considerable seriousness. There was some element of planning and organisation in that there was a call for assistance with a confrontation and a willingness on the part of the Offender to participate for that purpose. The Offender emerged from the van armed with a metal pole, indicating his willingness to participate. He struck a member of the other group with a baseball bat. 74I accept the Offender's evidence that he had been consuming ice that evening. That may serve to partly explain his involvement, but it cannot excuse it. It is apparent that others involved in the confrontation, in particular those from the Busby house, were affected by alcohol. A physical confrontation between two groups of young men who are alcohol or drug affected is the very scenario where very serious injury or death can occur. 75The Offender was a willing participant in the confrontation and he himself used violence in the course of that confrontation. His was an objectively serious crime.

The Offender's Subjective Circumstances 76The Offender gave evidence at the sentencing hearing. He was 21 years' old at the time of the offence and is now 23 years' old. 77The Offender was placed on 18 months' probation in July 2003 at the Bidura Children's Court for an offence of robbery in company. In November 2005, he was sentenced at the Liverpool Local Court for a number of traffic offences, the most serious being driving whilst his licence was suspended, for which he was placed on an 18-month good behaviour bond and disqualified from driving for 12 months. 78A presentence report dated 18 July 2011 was tendered at the sentencing hearing, together with a report of Dr Emma Collins, psychologist, dated 7 July 2011. In addition, a number of other reports and references were tendered which described the Offender in favourable terms in his response to this offence since April 2009. This material included a report of Toby Raeburn, psychiatric nurse practitioner, dated 21 July 2011, a letter from Joanne Perry, social welfare manager of Inspire Community Services, dated 29 July 2011 and references from Antonio Alviggi dated 20 May 2011, James Moffat dated 18 May 2011, Jade Carroll dated 2 August 2011 and a letter from the Offender's mother dated 3 August 2011. This letter, together with a medical report dated 19 July 2011 referred to health problems affecting the Offender's mother and the role of the Offender in the care of his mother. 79The presentence report was favourable to the Offender. The report of Dr Collins indicated that the Offender achieved a score that placed him within the below-average-to-average range of ability, outperforming 18% of the normative sample for his age. 80I accept that the Offender has good prospects of rehabilitation.

Some Other Factors Relevant to Sentence 81Mr Button SC, for the Offender, submitted that the Offender was entitled to a discount in the order of 20%-25% for his plea of guilty. The Crown submitted that, although it was not a plea entered at the earliest opportunity, it should be regarded nevertheless as an early plea attracting a discount not exceeding 20%. 82Although there is evidence of an offer to plead guilty to a charge of affray made at an early time, the offer to plead guilty to manslaughter was not made until the proceedings were before this Court. I propose to allow a 20% discount for the Offender's plea of guilty. 83Mr Button SC submitted that the Offender was entitled to a discount because of his willingness to assist the prosecution, including a willingness to give evidence against Joey Smith at his trial for murder. At the time when this submission was made on 3 August 2011, there had been no statement proffered to the Crown on behalf of the Offender as part of an offer to assist in the trial of Mr Smith. Given the significance which Mr Button SC sought to attach to this issue, I adjourned the sentencing hearing to allow this aspect to be explored formally. When the hearing resumed on 20 September 2011, I was informed that the Crown did not propose to call the Offender at the trial of Mr Smith and that his offer of assistance was of no value. Mr Button SC submitted that the Offender's offer showed at least a willingness to facilitate the course of justice. 84I take into account the Offender's offer to assist the Crown but, having done so, I do not consider that it provides any real assistance to him on sentence. It was an offer made late in the process and was one where the Crown saw no value in the evidence which he might give at the trial of Mr Smith. The credit to which the Offender is entitled, in these circumstances, rises no higher than an offer of assistance which suggests a willingness to assist the Crown authorities, but with no assistance of value actually being provided. 85It was submitted that the Offender had demonstrated contrition and remorse. I bear in mind that the Offender left the scene with Mr Smith and AH and, when initially questioned by the police, provided a false account as to his movements on 24 and 25 April 2009. At the time when he provided this false account, he was aware that a man had died in the confrontation. The Offender's initial approach is not indicative of contrition and remorse. 86However, the evidence suggests that the Offender has developed some insight into his conduct and has remorse. I take into account his remorse, which assists a favourable assessment of his prospects of rehabilitation.

Victim Impact Statements 87Victim impact statements were read at the sentencing hearing. Statements were made by the mother and sisters of Mr Boyce and his younger siblings. The tragic consequences for Mr Boyce's family resulting from his senseless death were explained eloquently and movingly by members of his family. 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 AH 88I have referred earlier in these remarks to the involvement of a young person, AH, in the tragic events leading to the death of Mr Boyce. AH has pleaded guilty to manslaughter and is to be sentenced by me today: R v AH [2011] NSWSC 1535. In accordance with proper sentencing practice, where possible the same Judge should sentence co-offenders: Dwayhi v R [2011] NSWCCA 67; 205 A Crim R 274 at 284-286 [33]-[46]. A separate sentencing hearing was conducted with respect to AH given that his plea was entered at a later time than the present Offender. 89In considering the question of sentence of this Offender and AH, I have kept in mind the concept of relativity as between the sentences to be passed. That said, the roles of the Offender and AH were different and additional sentencing principles apply to AH, who was 16 years and eight months' old at the time of the offence.

Determining the Appropriate Sentence 90Earlier in these remarks, I addressed 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, of course, is that a person who commits the crime of manslaughter is criminally involved in the taking of a human life. 91The present offence is a serious example of the crime. It is necessary to denounce and punish the Offender for his crime. It is necessary as well that the sentence reflect an element of general deterrence given the approach of the criminal law towards offences involving violence between groups of young men committed in public places. 92Given the Offender's insight and remorse developed in the period since his crime, less weight ought be given to specific deterrence and the Offender's good prospects of rehabilitation must be taken into account. 93I bear in mind the Offender's age and the evidence of his character generally. He was involved in a serious offence in 2003 which was dealt with in the Children's Court by way of a non-custodial penalty. To the extent that the Offender's involvement in this present offence suggests that he had not learned the lessons from the 2003 offence, I am satisfied that he has made substantial progress since 2009. 94I have taken into account as well the relatively strict bail conditions to which the Offender has been subject whilst these proceedings have been on foot together with his willingness to assist, through Inspire Community Services, by volunteering in programs which will allow him to emphasise to young persons the risks of involvement in group violence. 95Mr Button SC submitted that the circumstances of this case, objective and subjective, were such that the Court should suspend 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. 96In my view, the objective seriousness of the crime is such that the only appropriate sentence which should be imposed is one of full-time custody. If this point was reached, Mr Button SC submitted, and the Crown accepted, that a finding of special circumstances should be made. The Court is not entitled to double count positive subjective factors in favour of the Offender in setting the sentence, and then determining the proportion of the sentence which the non-parole period should constitute. I am satisfied, however, in the circumstances of this case that a finding of special circumstances should be made. In this regard, I take into account the need for supervision in the community upon the Offender's release from his first term of imprisonment. 97Taking 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. In light of the finding of special circumstances, a non-parole period of two years and three months should be fixed. 98Saad Jamie Barghachoun, would you please stand. For the offence of manslaughter, you are convicted and sentenced to imprisonment comprising a non-parole period of two years and three months commencing on 27 October 2011 and expiring on 26 January 2014, with a balance of term of one year and nine months commencing on 27 January 2014 and expiring on 26 October 2015. 99The earliest date upon which you will be eligible for release on parole is 27 January 2014.

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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