R v Botrus - [2021] NSWSC 199 - NSWSC 2021 case summary — Zoe

R v Botrus - [2021] NSWSC 199 - NSWSC 2021 case summary — Zoe

[3]

In GG v R [2018] NSWCCA 280, Schmidt J (with whom Fagan J agreed) made the following remarks regarding the assessment of the objective seriousness of the offence (at [60]): [60] As discussed in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [27], the objective seriousness of an offence has to be assessed without reference to matters personal to the offender or a particular class of offenders and "wholly by reference to the nature of the offending". Objective seriousness must also be determined "without regard to the range of factors, both aggravating and mitigating, that bear relevantly on sentencing in an individual case": at [31].
In BM v R [2019] NSWCCA 223, the Court (Payne JA, Fullerton and Bellew JJ) stated (at [15]): [15] In Tepania v R [2018] NSWCCA 247 at [112], Johnson J (with whom Payne JA and Simpson AJA agreed) explained that, in determining the objective seriousness of an offence, regard may be had to factors personal to the offender that are causally connected with, or materially contributed to, the commission of the offences, including (if it be the case) a mental disorder or mental impairment.
The state of mind in which a murder is committed is directly relevant to the assessment of the objective seriousness of the crime: Charbaji at [180] (per Beazley P, Price and Wilson JJ); Apps v R [2006] NSWCCA 290 ("Apps") at [5] (per Hunt J) and [49] (per Simpson J).
I accept the submissions of the Crown that, the attack on the deceased was "targeted" in the sense that the deceased was known to the offender. At 12.41pm, after the offence, a message was sent from the offender's phone through the application Wickr. Consistent with the jury's verdict, the plainly available inference is that it was the offender who sent the message. The message read, "Khonco [brother] it was only the guy who started with my name". The inescapable inference is that the offender was referring to Mr Alfredo Isho personally.
However, the offender is correct to submit that the status of the evidence precludes the Court from making any finding about the context to the offending behaviour, including motive. This was not called in aid by the offender as mitigation; nor the mid-range.
On the evidence, it must be found that the deceased had no warning of the attack by the offender and was not in a position to defend himself, being seated in a hairdresser's chair with a hairdresser's cape around him. The attack occurred in daylight hours in a busy hairdressing salon in a busy shopping centre.
Those facts do permit, therefore, an acceptance of the Crown submission that the offence included a brazen, senseless and cowardly attack on an unsuspecting victim. There were aspects of boasting in the Wickr messages: the offender stated at 12.41pm that he shanked the deceased and at 12.43pm said, "near eknayy [neck] hahaha sk".
However, the attack was limited in its duration comprising of a single blow. Further, it was not an attack that involved an intention to kill and the objective seriousness of the offence is somewhat reduced by that consideration accordingly.
The offence plainly involved planning and premeditation as demonstrated by the steps taken by the offender. It was not a spontaneous act. There were elements of planning and premeditation demonstrated by the Wickr messages and his attempt to affect a disguise. However, there is also merit in the submissions made by Mr Pararajasingham, that the planning was relatively limited and the premeditation not long. I accept that the earliest occasion in which the Court may find the existence of planning or premeditation is at 11.25am (about 1 hour before the offence) when the accused sent a message (in translated form): that there is a bitch at the hairdresser's shop. There is no evidence of conduct before that time or of animosity between the offender and the victim (although, I have found, he knew of the victim).
The offender used transport that was available to him and wore items of clothing that were in his possession such as, a long sleeved jumper (turned inside out), pants, a face mask and a helmet. There were also elements of irrationality in the behaviour.
In all the circumstances, I consider the murder to be objectively serious. Whilst it is unnecessary to place the objective seriousness of the offence in a range: McDowall v R [2019] NSWCCA 29 at [35]-[37] (per Adamson J, with Hoeben CJ at CL and Schmidt J agreeing), I consider that the offence lies slightly below the middle range of seriousness.
There are two s 21A aggravating factors of the offence. First, there was the use of a weapon, namely, a knife. This has been taken into account in considering the objective seriousness of the offence and I will, therefore, avoid any double counting of this factor. Secondly, it is an aggravating factor that the offence was committed whilst the offender was on conditional liberty, being subject to bail in the Children's Court.
The offender's father, Laith Botrus, gave evidence on sentencing. He gave evidence as to the circumstances of the offender's earlier life.
His wife and children had fled Iraq for Turkey in 2004 following the fall of the Saddam Hussein government in 2003. The family lived in Turkey between 2004 and 2007 and then migrated to Australia in 2007. The family were part of a Christian minority in Iraq and, after the Iraq war, they were attacked by various Islamist groups. It was a period of extreme persecution for Syrian Christians. During the period, the offender was kidnapped twice.
On the first occasion, the offender was three years of age. He was abducted by Al-Qaeda. He was placed in a plastic bag. Mr Bortrus' wife had her stomach slashed while pregnant. Their house was set on fire. The offender was later returned, with cuts in his face probably from being dragged.
The offender was again abducted by criminal syndicates when he was four years of age. The syndicate demanded money. When the money was paid, the offender was returned - he was dirty, hungry and scared.
Whilst the family were residing in Turkey, the offender, then six years old, had a serious fall from the fourth floor of a building. The offender was hospitalised, underwent surgery and took six months to walk again.
The offender was very close to his younger brother, Isho. The offender was very protective of his brother. On 1 June 2018, when the offender was 17 years of age, Isho committed suicide. He was found by his father hanging in the family garage. Apart from the understandably, extreme emotional reactions in the family, the offender, when learning of the circumstances became very angry, stayed in his room for two months and did not speak to anyone. He was in a drug rehabilitation program at the time of receiving the news of his brother and subsequently returned to drug use. He has not received treatment or counselling after the death of his brother.
Mr Botrus agreed that the offender had lived in Australia since he was around six and a half years of age; that the transition represented a fresh start for his family to a safe country commencing with residence with his brother. They ultimately became immersed into a "very strong and tight-knit" Assyrian or Middle Eastern community. The offender started school (at Holy Communion Catholic Primary School) as a friendly and respectful boy who helped others including, from 2011, his sister and brothers, caring for their mother after she suffered depression (Mr Botrus became her full time carer when she was released from hospital).
The offender remained a diligent student when he commenced Fairfield High School but later drifted to people of whom Mr Botrus did not approve (nor did the younger brother, Isho). He completed Year 10 in Juvenile Justice and Year 11 at Fairfield School before leaving school in Year 12 to be an offsider for a furniture deliverer and later a construction labourer.
I interpose to note that the offender's criminal record commenced in 2015, shortly before his 15th birthday. He received a bond without conviction for property offences. He was further subjected to control orders in late 2015 and early 2016 for offences of contravene a non-association and place restriction order, in that respect, and in February 2016 for larceny and goods in person suspected of being stolen.
Similarly, control orders were imposed in 2017 for various drug offences and a failure to stop (police pursuit). There was a call up of control orders in 2017 for the drug offences. Finally, he received a fine in 2018 for unlawfully bringing anything into a place of detention.
Dr Olav Nielssen issued a report on 21 January 2021. He opined that the offender had no features of psychotic illness. Nor was he "pervasively depressed". His intelligence was in the lower half of the normal range, or simply "low normal intelligence".
Dr Nielssen diagnosed a substance abuse disorder having regard to a history of abuse of cannabis and alprazolam which was in long term remission. Dr Nielssen opined the drugs produced psychological complications such as impaired cognitive performance and social complications such as "loss of inhibitions and impaired judgment and forethought resulting in serious criminal charges". These effects exacerbated, he opined, "greater risk taking behaviour and impaired capacity for consequential thinking" associated with adolescence.
Dr Nielssen opined the offender has a vulnerability to depression, over and above the effects of "early life trauma" and his current situation and that causes a greater risk of developing depression in adult life.
Dr Nielssen opined that "it is difficult to offer any kind of prognosis for a person who has committed a very serious offence at the age of eighteen and faces a long term of imprisonment". The offender would be "expected to acquire maturity and a capacity to participate in self improvement programs and reflect on his behaviour over time".
Counsel for the offender submitted the effect of the material before the Court, in particular the evidence of Mr Botrus, established, on the balance of probabilities, that the offender had experienced a life punctuated by disadvantage and dysfunction. From tumultuous early childhood years in war-torn Iraq to the attendant stresses and hardship of life as a refugee in Turkey and Australia, the offender's formative years have been marred by trauma. Further, counsel for the offender submitted that the nadir of these experiences must be the offender's exposure to the suicide by hanging of his 15-year-old brother.
It was further submitted that the offender's childhood disadvantage affected the sentencing discretion in the following ways: 1. The background of childhood disadvantage may permit the weight that would ordinarily be given to personal and general deterrence to be somewhat moderated in favour of other purposes of punishment, including rehabilitation: IS v R [2017] NSWCCA 116 at [71]. 2. The circumstances around the commencement of the offender's life and the hardships endured thereafter dictate that such a person will have fewer emotional resources to guide his behavioural decisions than an offender whose formative years have not been marred in that way: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 ("Bugmy") at [40]. In those circumstances, the impact of the dysfunctional childhood may bear on the Court's assessment of the offender's moral culpability.
The Crown submitted that: 1. There was no evidence the offender went "off the rails" after the death of his brother because that poor behaviour commenced before that happened. 2. The Court may take into account the offender's family background prior to Australia and his refugee status in Australia (with his family living on government support). However, this is not a situation of profound social disadvantage, akin to the social disadvantage taken into account in Bugmy, and it should not be taken into account so as to reduce moral culpability. His experience in Australia was of a close and loving family in a broader close-knit Assyrian community. 3. The offender did go into drug rehabilitation but resumed drug taking after the death of his brother.
As to the relevant principles to be applied in sentencing where an offender has pointed to materials tending to establish a background of deprivation, I accept the submissions advanced by counsel for the offender, which are in the following terms: 10. It is trite that disadvantage is relevant to the sentencing discretion. The rationale behind the principle was articulated by Wood CJ in Pitt v R [2001] NSWCCA 156 at [21] where his Honour observed: "Disadvantages which arise out of membership of a particular group, which is economically, socially or otherwise deprived to a significant and systemic extent, may help to explain or throw light upon the particular offence and upon the individual circumstances of the offender. In that way an understanding of them may assist in the framing of an appropriate sentencing order that serves each of the punitive, rehabilitative and deterrent objects of sentencing." 11. Further, it is clear that childhood disadvantage is not limited to Aboriginal members of the community: Kennedy v R [2008] NSWCCA 21 at [53], [57]. The principles apply to any persons who come from "particularly disadvantaged backgrounds": R v Morgan (2003) 57 NSWLR 533 at [21]; R v Millwood [2012] NSWCCA 2 at [69]; Miller v R [2015] NSWCCA 86 at [35].
As to the first of the principles in that submission, reference may be made to the judgment of White JA in Perkins v R [2018] NSWCCA 62 ("Perkins") (with whom Fullerton J, relevantly, agreed) and the consideration of that judgment in R v Irwin [2019] NSWCCA 133 ("Irwin") at [116] as follows: [116] First, the sentencing judge accepted as a factual conclusion that the respondent had established a background of deprivation. The social deprivation and abuse suffered by the respondent was recognised by Mr Borkowski and Dr Furst and contributed to their diagnoses of the psychological conditions suffered by the respondent. It was unnecessary in those circumstances to require, as a necessary condition to permit mitigation of sentence, a causal link between that background and the offending. I accept, with respect, the observations of White JA in Perkins as to the significance of a background of social deprivation to sentencing. The relevant aspects of the judgment ([77], [80]-[83]) are extracted below: [77] In Bugmy the High Court neither endorsed Mr Bugmy's submission (at 581) that no causal connection between the offender's aboriginality and the commission of the offence was needed, nor the submission of the Crown (at 579) that for systemic factors establishing profound social deprivation to diminish the moral blameworthiness of a particular offence, they must be causally linked. The plurality (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ) said that if an offender seeks to rely on his or her background of deprivation in mitigation of sentence, he or she needs to point to material tending to establish that background (at [41]), but did not say that if such background of deprivation is established it will (as distinct from may) be a mitigating factor. Nor did the plurality say that if such a background of deprivation is established it will only be a mitigating factor if a causal link between the background of deprivation and the offence is established. Gageler J said (at [56]) that "The weight to be afforded to the effects of social deprivation in an offender's youth and background is in each case a matter for individual assessment." … [80] Establishing a connection between a background of social deprivation or profound social deprivation and the offending is likely to reduce the offender's moral culpability. In some cases that causal link may be inferred (R v Millwood [2012] NSWCCA 2 at [69]). [81] On the other hand if a causal link between the offending and the background of deprivation is established, as the High Court pointed out in Bugmy and as Gleeson CJ said in Engert, that may give additional weight to a conflicting purpose of punishment such as the need for protection of the community. [82] I agree with Hoeben CJ at CL that the applicant's exposure to the domestic violence committed on his mother and possibly on him [1] has been shown not to have been causally connected to his offending… [83] It does not follow that the applicant's exposure to the domestic violence suffered at least by his mother is irrelevant. But it does not lessen his moral culpability.
Further, as Simpson AJA stated in Irwin at [2] and [3]: [2] The "Bugmy principles" are derived from Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 and are concerned with the impact on sentencing of a history of disadvantage and deprivation. The plurality in the High Court (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ) accepted that such a history is relevant to the assessment of the moral culpability of an offender. The specific question in Bugmy was whether the effects of early social disadvantage and deprivation diminish over time such as to reduce the extent to which it may be taken into account on sentence. [3] Application of the Bugmy principles is not discretionary. Their Honours said: [44] Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving 'full weight' to an offender's deprived background in every sentencing decision.
In my view, the offender did suffer social disadvantage in his early childhood years which include his entry into Turkey and Australia as a refugee. The circumstances of experience were acute and described by Dr Nielssen as "traumatic" although they are not causally connected to the offending.
As mentioned, counsel for the offender correctly put that his brother's death in 2018 represented the nadir of these experiences.
Those are factors which go to reduce the offender's moral culpability and, to some extent, the weight that might be attached to general and specific deterrence. Nonetheless, the Crown is correct to submit that the early social disadvantage experienced by the offender must not be taken in isolation from the largely positive experiences and support the offender had in his foundational years in Australia, particularly with respect to his supportive and loving family and close-knit community. I have taken this consideration into account.
As mentioned, Dr Nielssen diagnosed the offender as having a substance abuse disorder. I will return to this topic in the context of considering the offender's youth. However, for present purposes, I note the Crown submitted that the significance of the offender's completion of a drug rehabilitation program (or substantial completion) was diminished by his return to drug use although this is centrally connected to his brother's suicide. This also reduced, although moderately, the significance attached to general deterrence (in the context of his disadvantaged upbringing). Nonetheless, this is a factor I have taken into account in favour of the offender.
An offender's youth and immaturity or lack of impulse control may be a factor in sentencing the accused, even if 18 years of age at the time of the offence, for a serious crime: BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 159 ("BP") at [5] (per Hodgson JA).
In Thammavongosa v R (2015) 251 A Crim R 342; [2015] NSWCCA 107 ("Thammavongosa") at [86], Bellew J (with whom R A Hulme J agreed) referenced with approval BP at [3], and concluded, in my respectful view, correctly, that, whilst it may be accepted the weight to be given to factors relevant to a person's youth diminished the closer the offender approached the age of maturity, consideration may nonetheless be given to the progressive development of the young person (or lack thereof), particularly in relation impulse control and emotional maturity.
The materiality and weight given to that factor in reducing the moral culpability of the offender will depend upon the contribution of those factors to the offending. In Thammavongosa, Bellew J stated (at [86]): [86] Senior counsel placed considerable emphasis on the judgment of Hodgson JA in BP v R [2010] NSWCCA 159; (2010) 201 A Crim R 379 in support of the applicant's position. In that case Hodgson JA (at [3]) expressly accepted the principles set out by McClellan CJ in KT (at [22]-[26]) before proceeding to say the following: "[3] … I wish to make three points concerning these principles. [4] First, statements that, in relation to young offenders, principles of retribution may be of less significance and considerations of rehabilitation may be of more significance, may tend to obscure the point that even in relation to retribution the youth of an offender may be a mitigating circumstance. In my understanding, considerations of retribution direct attention to what the offender deserves; and in my opinion, where emotional immaturity or a young person's less-than-fully-developed capacity to control impulsive behaviour contributes to the offending, this may be seen as mitigating culpability and thus as reducing what is suggested by considerations of retribution: see TM v R [2008] NSWCCA 158 at [33] - [36]. [5] Second, while I agree with the statements in KT at [26] that the weight to be given to considerations relevant to a person's youth diminishes the closer the offender approaches the age of maturity, and that a "child offender" of almost 18 years cannot expect to be treated substantially differently from an offender who is just over 18 years of age, it does not follow that the age of maturity is 18 (albeit that for certain purposes the law does draw a line there: Children (Criminal Proceedings) Act 1987. In my understanding, emotional maturity and impulse control develop progressively during adolescence and early adulthood, and may not be fully developed until the early to mid twenties: see R v Slade [2005] 2 NZLR 526 at [43], quoted by Kirby J in R v Elliott [2006] NSWCCA 305; (2006) 68 NSWLR 1 at 27 [127]. As shown by R v Hearne [2001] NSWCCA 37; (2001) 124 A Crim R 451, youth may be a material factor in sentencing even a 19 year old for a most serious crime. [6] Third, I do not think courts should be over-ready to discount the relevance of an offender's youth on the basis that the offender has engaged in adult behaviour or acted as an adult. In the present case, the offence is a very serious one; but it did not involve significant planning or reflection, or any other indicia of mature decision-making. The applicant was 16 years old, and in my opinion the circumstances of the offence suggest rather that emotional immaturity and less-than-fully-developed capacity to control impulses were likely to be contributing factors."
In R v PO [2017] NSWSC 757, the Court stated at [47] (per Fullerton J): [47] There was no dissent from the Crown at the sentencing hearing that it was open to me to find that the offender's emotional immaturity, as much a product of his youth as the privations he had suffered as a young child followed by exposure to violence throughout his adolescence, significantly contributed to his decision to draw the knife and use it as he did. In accordance with long established sentencing principle, where an offender's youth and immaturity have contributed in a discernible and material way to the commission of an offence, the impact of both factors on the evaluation of the offender's moral culpability can be considerable, even where serious offences of violence are committed (see R v YS [2014] NSWCCA 226). The authorities also recognise that youth and immaturity may also have the effect of moderating the weight to be given to general deterrence and retribution in the sentencing exercise.
The Crown submitted the offender's age at the time of the offence, the level of planning and premeditation involved (including the use of disguise) demonstrated adult behaviour, and hence there was no reduction in the moral culpability of the offender by virtue of his age. The Crown further submitted that nether the offender's use of a Thumpster motorcycle (which was the only means of transportation available because his father was away with the Toyota Kluger) nor the Wickr messages, which could have been sent by someone of advanced years, demonstrated immaturity or impulsiveness.
Counsel for the offender submitted the offender was "cognitively, emotionally and/or psychologically immature".
I do not accept the Crown's submission, in this respect, for three reasons: 1. Dr Nielssen assessed the offender as being of low normal intelligence having regard to, amongst other things, his reasoning ability. He estimated the offender would acquire maturity over time. 2. There was an irrational quality to the offending behaviour which bespeaks of immaturity as well as a lack of impulse control. It is true, as the Crown contended, the offender disguised himself and there was a passage of time (albeit short) between the Wickr message and the act of stabbing. However, the offender chose to ride the Thumpster motorcycle which was well known in the neighbourhood to be ridden by him and which was known to attract attention because it made a substantial and annoying noise. The Thumpster motorcycle was frequently used by young males in a way consistent with adolescent behaviour. It may have facilitated a particular access through the end of the cul-de-sac and along a path, but it could be hardly "surreptitious", as submitted by the Crown, in that context. The motorcycle "may have been" simply the one that was available to him, as put by the Crown, but that approach is also suggestive of impulsivity. His driving past the hairdresser on a motorcycle on a number of occasions before parking at the rear of the hairdresser and approaching the deceased is, in the circumstances of the offending, are equally or more consistent with nervousness or anxiety than predatory behaviour and a further act of planning. I also agree with the submission put for the offender that the context, tone and tenor of the Wickr messages are not suggestive of adult type behaviour: a question is raised "is that bad?", the adoption of pig latin and the indifferent tones used. 3. The relative low level of planning and premeditation.
That finding is relevant to moral culpability and to a limited degree specific deterrence: R v Welling [2003] NSWCCA 318 at [34].
The offender's criminal history disentitles him to lenience. There is a continuing disobedience to the law, although of a non-violent kind, since 2015.
There is no evidence of remorse by the offender.
Counsel for the offender properly accepted that the Court could only make a guarded finding as to the prospects of rehabilitation.
As mentioned, Dr Nielssen stated that it was difficult to offer any kind of prognosis for a person who has committed "a very serious crime at the age of eighteen and faced a long term of imprisonment". He opined the offender will mature and be able to reflect on his behaviour over time as well as a capacity to undertake self improvement programs.
There appears to me that only a guarded view may be formed of prospects of rehabilitation with countervailing factors of the return to drug use (even though from the suicide of his brother), the offender's criminal history, the absence of remorse and infractions in his custodial history.
Given the seriousness of the offending general and specific deterrence are relevant but diminished as previously discussed in these reasons for sentence.
I am conscious of the need to avoid double counting with other factors in sentencing if finding special circumstances and varying the statutory ratio.
There are three factors warranting a finding of special circumstances. First, the offender is still young. Secondly, Dr Nielssen opined he will only develop maturity over time and has low normal intelligence. Thirdly, the offender has a substance abuse disorder. Those special circumstances warrant a modest lowering of the non-parole period or adjustment to the statutory ratio. (See: Casey v R [2015] NSWCCA 142 at [34]-[35] (per Hoeben CJ at CL, with whom Hidden and Adams JJ agreed). In making this adjustment I have had regard to the principle that the ultimate constraint upon the non-parole period is the criminality involved, and where relevant an offender's subjective circumstances, and must not be reduced to a level beyond that which is "necessary to punish the offender and provide specific deterrence": Goodbun v R [2020] NSWCCA 77 at [124] (per Fullerton J, with whom Bathurst CJ and Bellew J agreed).
In sentencing the offender I have been mindful of the two legislative guideposts of the maximum sentence and the standard non-parole period together with factors bearing upon the objective seriousness of the offence and subjective features.
I have also had regard to the cases relied upon by the parties as comparable cases: R v Wilson [2005] NSWCCA 112; R v Carr [2009] NSWSC 995; R v Wong [2010] NSWSC 171; MB v R [2013] NSWCCA 254; R v Hines (No 3) [2014] NSWSC 1273; R v Scott (No 6) [2015] NSWSC 678; R v Morris [2017] NSWSC 637; and R v PO [2017] NSWSC 757 (each was summarised in R v Brookes (No 5) [2017] NSWSC 824 ("Brooks") at [67]) and the judgment in Brooks itself.
The offender has been in custody since his arrest on 11 January 2019.
Pursuant to s 25C of the Crimes (High Risk Offenders) Act 2006 (NSW), I am required to advise you, Mr Botrus, of the existence of that Act and of its application to the offence with which you have been convicted.
For the reasons I have given, I now make the following orders: 1. I sentence you to imprisonment for a non-parole period of 14 years commencing on 11 January 2019 and expiring on 10 January 2033 and the balance of the term of 6 years commencing on 11 January 2033 and expiring on 10 January 2039. 2. Thus, you will be eligible for release on parole at the expiry of the non-parole period on 10 January 2033.