After the crash, the deceased was taken by ambulance first to Blacktown Hospital and then to Westmead Hospital. At Westmead Hospital, he was operated on by a neurological surgeon, Dr Mark Dexter. Dr Dexter found that the metal pole had penetrated the deceased's skull at one of its thickest points, passed through his brain and fractured the skull in a separate position. He removed the metal pole and attempted to stop the massive bleeding which resulted from the injury. The deceased was given blood transfusions. However the deceased had suffered severe and irreversible brain damage as a direct result of the metal pole passing through his skull. He died on 16 April [2000]."
5 The metal bar became an exhibit (Exhibit K). It is made of solid metal. It is approximately 30-35 cm long and approximately 6 mm in diameter. There are photos of it in Exhibit C; it is shown in position in the trailer from which it was taken in photos 43 and 44 of that exhibit.
6 It is unnecessary here to record the content of the post mortem report prepared by Dr Ellis (part of Exhibit B). Sufficient has been recorded in the statement of facts set out above as to the nature of the head injury which caused the death of the deceased. Unquestionably that injury was caused by the solid metal bar which had been thrown by CK and which had penetrated the deceased's skull and his brain. Dr Dexter opined in a report in Exhibit C that the injuries to the deceased were consistent with the metal bar having been thrown with extreme force, and to my mind that conclusion is inescapable on the objective evidence. The bar broke the driver's window in the car of the deceased before penetrating the deceased's skull at one of its thickest points, and then it passed through the deceased's brain before causing yet a further fracture.
7 I am satisfied beyond reasonable doubt that CK caused the death of the deceased by an act that was both unlawful and dangerous. Whilst the consequence of the act was not intended, the act of throwing was deliberate and was an act which any reasonable person, including any reasonable sixteen year old boy, would have appreciated involved the risk of serious injury should any person be struck by it. Notwithstanding the earlier events, CK's act was committed at a time when the deceased and the occupants of the car presented no threat to CK - the car was at that stage merely passing by.
8 I will now consider the subjective features in this case and in doing so I draw upon the background report prepared by officers of the Department of Juvenile Justice (Exhibit 1), other documentary evidence and oral evidence given in the course of the hearing on sentence.
9 CK was born in Sydney on 4 January 1984. He was born to parents who came to Australia from South Korea. When CK was four years old his parents separated and, after being with his mother for two years, CK has spent the rest of his life living in his father's household. His grandmother has helped in his upbringing. His father eventually remarried and at the present time CK lives with his father, his stepmother and his stepbrother. His mother has also remarried and he has a stepsister as well. Following their separation, CK's mother settled in Perth and she has only seen her son twice since then, once six years ago and recently when CK's mother came to Sydney to afford her son support before this Court.
10 CK was educated through primary school and secondary school to year 11. However after the deceased met his death in the circumstances outlined, it was considered inadvisable for CK to return to the school where he was receiving his secondary education and he did not do so. He made some unsuccessful attempts to undertake TAFE courses but then found employment in a Kodak franchise. The opportunity for this employment came through his girlfriend whose father was conducting that business. CK is presently employed at a theatre at Darling Harbour. It is his hope eventually to complete his secondary education and ultimately to study architectural technology, a diploma course at TAFE.
11 The authors of the background report, Exhibit 1, expressed the following assessment:
"[CK] impresses as an intelligent, shy and quiet young man who caused the tragic death of another young person. He remains traumatised and overwhelmed by this unfortunate tragedy and this is evident from the daily flashbacks, sleep disturbance and nightmares that he proclaims he experiences. In the lead up to the conclusion of these Court matters [CK] has mentally avoided careful consideration of actively participating in securing character references, referrals for counselling, engagement with Juvenile Justice Intensive Programme Unit as well as maintaining regular contact with his legal team. This avoidance together with severe sleep disturbance, nightmares and flashbacks of the incident are intensifying his emotional stability to the extent that he has found it extremely difficult to assist himself by actively participating by absorbing himself in the tasks assigned to him. However, [CK] has actively participated and cooperated fully with this Officer of the Department of Juvenile Justice in compiling the background report. In addition to this, the young person is now beginning to overcome his avoidance issues and has begun to fully engage with all interested parties involved. [CK] recently accepted a counselling referral to High Street Youth Health Centre to assist him cope with the plethora of unresolved issues that he has since this tragedy occurred.
The young person states that he felt extremely bad, numb and weak ([CK's] own words) after learning that he was directly responsible for the death of another human being and maintains that he did not intend to cause injury or death to the victim when he threw the metal rod at the victim's vehicle. Additionally [CK] informed the author of this report that he deeply regrets the death of the victim and wishes that he had listened to his father that evening and stayed at home. As a result [CK] now feels angry about going to Woodcroft that evening and being involved in the death of another young person. He also expresses his profound remorse for the death of [SM].
Since the death of the victim [CK] reports to having flashbacks of the incident a number of times a day as well as suffering severe sleep disturbance. He finds it extremely difficult to get to sleep at night and watches television until the early hours of the morning, eventually falling to sleep. The young person's father, [JSK], understands his son's difficulty in sleeping as well as the reasons for using the television to assist in falling asleep but because of financial pressures he has unfortunately had to request [CK] to desist from this activity. When further enquiries were made about the sleep disturbance that [CK] experiences he stated that on many occasions he has thought about wanting to die but has not yet conceived a plan to carry this out."
12 CK had been assessed by Dr Clark, the consultant psychiatrist. His report became Exhibit 4. Dr Clark considers CK is suffering from "a severe grief reaction. This is technically part of a post traumatic stress disorder." Dr Clark said this:
"Remorse is not a usual psychiatric concept. However, it is a common enough moral concept, being the 'compunction of conscience for an evil act committed,' the sense of self-reproach or tortured sense of grief felt for one's action. It is different from regret, different from contrition. It is that self-approbation one feels when one has a guilty feeling.
At the extreme of remorse are those people who kill themselves. Their self-punishing guilt so consumes them, they cannot face going on. We have found (Clark and Glaser) that suicides in prison are associated with those individuals having committed killings.
In this case, first of all, [CK] expressed regret and continues to be preoccupied with his act. Secondly, he has had suicidal thoughts or wishing he could get away from it all. Thirdly, he has the characteristic symptoms pattern of a Post-traumatic Stress Disorder. That is, there is no reason to suppose his emotional reaction is not genuine. Indeed, he fulfils all the criteria for a remorse reaction from the clinical point of view.
He is most unlikely to be involved in further violence...
It is important that he is not further victimised since he is a suicide risk. This [presumably a reference to victimisation] is highly likely if he is imprisoned. The subculture in NSW prisons is racist in the extreme… Most recent murders in prison have been a result of interracial strife. His case fits the typical profile for a suicide in gaol."
13 The service of Dr Clark's report upon the Crown prompted the Crown to arrange a psychiatric assessment by Dr Skinner. Dr Skinner (whose report is Exhibit G) does not consider that CK is a suicide risk, and Dr Skinner said this in her report of 11 September 2002:
"Although he is experiencing symptoms of psychological stress with heightened anxiety, a sleep disturbance and lowered energy levels, I do not consider that [CK] is suffering from a psychiatric illness or emotional disorder. His anxiety in the situation is within the range that would be expected of any person in his circumstances.
[CK] is not suffering from a depressive illness. I do not consider that [CK] presents a suicide risk. I disagree with Dr Clark that [CK] has suicidal thoughts. He states that he wishes he could 'get away from it all'. I spent some time with [CK] discussing what he meant by this, and I understood him to mean that he wishes the incident had never happened and he wished he could get away from his present predicament. I disagree with Dr Clark that [CK] has 'the characteristic symptoms pattern of a post traumatic stress disorder'.
I note Dr Clark's comments on the relationship between suicide in prison and individuals who had committed killings. I agree that there are various risk factors taken into account on reception to a prison or juvenile detention centre. These include the association between violent acts and suicide, including the killing of another person and suicide. However, in the case of [CK] a number of factors suggest that he is not at risk of suicide. I understand that he has no previous history of aggression or violence. As mentioned above, he has a supportive family and good relationships with his girlfriend and others. He has no previous history of suicide attempts and he denies suicidal thoughts thus I do not think that he fits the typical profile for a suicide in jail. There is no indication for any psychiatric treatment.
With respect to the issue of remorse, I believe that [CK] is remorseful in the sense that he is genuinely sorry that his actions resulted in a loss of life. He does have feelings of self-concern, as he is worried about his present situation and his future. I do not know what Dr Clark means by 'fulfils all the criteria for a remorse reaction from the clinical point of view'. I do not think that [CK] is experiencing 'extreme remorse or self punishing guilt'. He told me that he left school and that the family moved, not because he was remorseful, but rather because others at the school and in the local area know the victim and he and his family were afraid that they might cause problems for him and his family. However, I do believe that he is genuinely sorry that the victim was killed and that his actions were responsible for the death."
14 Neither psychiatrist was called to give evidence and on the material before the Court I see no reason to prefer Dr Clark's opinion to that of Dr Skinner. The author of the background report (Exhibit 1) has expressed his concurrence with Dr Clark's opinion as to the suicide risk, but it has not been suggested that the author is qualified to express such an opinion. On the state of the evidence, I am unable to find that CK is a suicide risk. There is, however, evidence before me in an affidavit from the solicitor with the conduct of this matter in the Office of the Director of Public Prosecutions (Exhibit H) concerning the steps that can be taken in the event of a perceived suicide risk attaching to a person being admitted to a juvenile prison. I shall return to this evidence presently.
15 I accept for present purposes, as Dr Skinner opined, that CK has feelings of self concern. It would be unnatural for this not to be so as he awaits sentence and faces the uncertainty of his future. It would be unnatural for him not, out of self interest alone, to deeply regret what he did. However, I accept that his regret extends beyond self interest. There is abundant evidence as to the contrition of CK, even though he gave no evidence before the Court. His father, an uncle and a cousin who came from Western Australia gave evidence of his expressions of contrition and, of course, expressions as to this are to be found in the psychiatrists' reports and in the report from the juvenile justice officers. In addition to that evidence, there is the evidence that CK met the mother of the deceased in June this year to express his sympathy on the death of her son. I consider this meeting is to be regarded as evidence of contrition and I observe in relation to the statement that the deceased's mother gave concerning this meeting that the deceased's mother was generous in her response at such meeting. CK has visited the grave of the deceased and I accept this to be further evidence of contrition. In this case I view the plea of guilty to the crime of manslaughter as further evidence of contrition.
16 The plea of guilty is also to be taken into account consistently with the principles expressed in R v Thomson (2000) 49 NSWLR 383. There were lengthy committal proceedings in this case before CK was committed for trial and when a trial date was set in December 2001 this court was informed that the estimate of the hearing was eight weeks. The trial date appointed when that estimate was given was 20 May 2002. When the matter came before me as trial judge on that date I was asked to adjourn the matter for two days, and then on 22 May 2002 CK pleaded guilty to manslaughter.
17 Mr Ramage submitted that there was good reason for the timing of the plea of guilty, since as late as 20 May 2002 there was no expert evidence to prove that the action of CK in throwing the bar could have caused the deceased to receive his fatal injuries. It was only at that time that an expert report containing an expression of such opinion became available. That may be so, but the evidence indicated no human intervention in the progress of the bar between the time CK threw it and the time it struck the deceased.
18 Nevertheless the entry of the plea was of very real utilitarian value. It avoided the necessity for a trial estimated to take eight weeks. It avoided the necessity to call many, many witnesses. Whilst there was ample evidence available to the Crown to establish the guilt of the accused, I accept that the number of witnesses it would have been necessary to call offered the opportunity for contradictory evidence, so that it could not be said that a conviction, although likely, would have been inevitable. Mr Ramage submitted that the utilitarian value of the plea considered in conjunction with CK's remorse and contrition called for a discount of up to thirty-five percent. The Crown submitted such a discount would be too much, and that a discount of half of that proposed by Mr Ramage would be more appropriate.
19 I have decided in all the circumstances of this case that an appropriate discount to take account of the utilitarian value of the plea of guilty and CK's contrition and remorse is a discount of twenty-five percent.
20 CK has no prior criminal record and I accept evidence that has been given to the effect that he is not a person who before or since has been known to act violently or in an aggressive manner. His father, his uncle and his cousin gave evidence to that effect, as did a teacher who taught CK in 1998 and who continued to have some association with CK thereafter. According to this teacher, CK was not part of any gang at school and he was not an aggressive person. Unhappily, however, it seems there was some racial tension in the school in this teacher's perception. In addition to the oral evidence, a large number of persons wrote favourably as to CK's character (Exhibit 3). I take into account in CK's favour his prior good character and that he is not an offender who in the past has demonstrated a propensity for violence. Further, I accept he has not come under any adverse notice of persons in authority before the commission of this crime. I assess the prospects of rehabilitation in this case as being favourable.
21 CK lives with his father, his stepmother and his stepbrother. CK's father faces the prospect of an operation to amputate his left leg because of a tumour and he is presently unable to work. This will remain the situation indefinitely. CK's stepbrother was born in 1990, so he is a school student. CK's stepmother is not working. At present the household is dependent upon the father's disability pension and CK's earnings. CK gives his father his wages, keeping only $50 per week for himself. The removal of CK as a financial provider for the household would undoubtedly involve very real hardship for the other members of it. Mr Ramage submitted that this circumstance should be taken into account, and I am concerned to give it proper consideration. I should add so far as CK's stepmother is concerned, that although she is not working she has no physical disability to prevent her from doing so. CK's stepmother arrived in Australia from Korea in 2000 and is still learning English. She has done some part time work in a Korean business here and, although this may not be easy for her, I consider she ought to be regarded as capable of doing some work in the future.
22 I accept that there would be particular hardship to CK in his perception of a failure to fulfil his obligation to continue to provide for the household and I intend to take that into account. However, hardship to third parties should only be taken into account in determining an appropriate sentence where the circumstances are "highly exceptional": see The Queen v Edwards (1996) 90 A Crim R 510. The imposition of a sentence of imprisonment on a person with others dependent on his earnings is by no means a rare happening, and whilst I accept that the imprisonment of CK will result in financial hardship to his family, I do not consider I can properly regard the circumstances of this case as "highly exceptional". I propose nevertheless to take account of the added hardship to CK because of the distress he will experience in his perception of a failure to discharge his obligation to help to support his family.
23 I referred earlier to CK's age. He was sixteen years and three months of age when he committed this crime. (He is presently eighteen years and nine months old.) I should, and I do, have regard to the provisions of the Children (Criminal Proceedings) Act, and I recognise that the approach I should take must be influenced by the age of this offender. Indeed, CK's age is a very important consideration in my sentencing task. It is, as the Court of Criminal Appeal observed in R v Howard & Ors (1992) 29 NSWLR 242 at 258, "a matter calling for special care". Judgments in the courts have consistently recognised the importance of age in the case of a young offender. Consistent emphasis has been given to the importance of the consideration of rehabilitation and, for instance, in R v GDP (1991) 53 A Crim R 112 it was recognised that considerations of punishment and general deterrence have less significance in cases involving young offenders than in cases involving adult offenders and that individual treatment aimed at rehabilitation is of greater significance with such offenders than with adult offenders. In R v Kama (2000) 110 A Crim R 47 Spigelman CJ observed (at para 14) that the sentencing judge in that case had been entitled "to identify 'emotional immaturity' as a matter justifying greater weight being given to rehabilitation and less weight being given to general deterrence." CK is to be regarded as having only that degree of maturity to be found in a sixteen year old youth at the time the crime was committed, and I have regard to this subjective feature.
24 Mr Ramage has submitted that this is a case in which his client should be dealt with other than by way of a full time custodial sentence, and I have given this submission the most anxious consideration. However, I have decided that nothing less than a significant full time custodial sentence is appropriate in this case.
25 I must impose a sentence that affords appropriate recognition to the objective gravity of this offence. Plainly what CK did can only be regarded as a most dangerous act and it resulted in loss of life. Moreover, notwithstanding CK's age when he committed this crime, it does not follow that considerations of retribution, denunciation and deterrence should be ignored in determining what sentence should be imposed for the crime of manslaughter: see R v Pham (1991) 55 A Crim R 128, and in particular the judgment of Lee CJ at CL at 135, and R v Tran [1999] NSWCCA 109, and in particular the judgment of Wood CJ at CL at paras 10 and 11.
26 On the question of deterrence, I do not consider it likely that CK would again commit a crime of violence, but there is a need to deter other youths who might be tempted to commit acts of violence, whether as members of a group or otherwise. They must understand that crimes of violence will not be tolerated.
27 The crime of manslaughter can be committed in such a wide range of circumstances that it has to be recognised that little assistance is to be gained from looking at sentences passed for other crimes of manslaughter, and I have not been taken to any cases I find of particular assistance in deciding what sentence should be imposed in this case. However, it is important that the sentence recognises that a human life has been taken as well as the manner and the circumstances in which this happened. I refer to what was said by the Court of Criminal Appeal in its unanimous judgment in R v MacDonald (unreported, 12 December 1995):
"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 act. (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."
28 I have come to the conclusion that I should impose a sentence of imprisonment for seven years six months. I find that there are special circumstances for the purposes of s 44(2) of the Crimes (Sentencing Procedure) Act 1999 warranting the fixing of a non parole period which is less than three-quarters of the term of the sentence. In so finding I am acutely aware of the youth of CK and of his subjective circumstances as I have reviewed them. In the interests of his rehabilitation he is going to require a lengthy period under supervision when he is released into the community.
29 Mr Ramage submitted in the event that I should reach the conclusion which I have reached that the case is one requiring full time imprisonment it would be appropriate to order that the sentence of imprisonment be served in a detention centre within the meaning of the Children (Criminal Proceedings) Act, 1987.
30 In considering that submission I must, of course, heed the amendments to s 19 of the Act affected by the Children (Criminal Proceedings) Amendment (Adult Detainees) Act, 2001. This amendment applies to persons sentenced since 25 January 2002. The section is now in the following terms:
" (1) If a court sentences a person under 21 years of age to whom this Division applies to imprisonment in respect of an indictable offence, the court may, subject to this section, make an order directing that the whole or any part of the term of the sentence of imprisonment be served in a detention centre.
(2) A person is not eligible to serve a sentence of imprisonment in a detention centre after the person has attained the age of 21 years, unless:
(a) in the case of a sentence for which a non-parole period has been set---the non-parole period will end within 6 months after the person has attained that age, or
(b) in the case of a sentence for which a non-parole period has not been set---the term of the sentence of imprisonment will end within 6 months after the person has attained that age.
(3) A person who is sentenced to imprisonment in respect of a serious children's indictable offence is not eligible to serve a sentence of imprisonment in a detention centre after the person has attained the age of 18 years, unless:
(a) the sentencing court is satisfied that there are special circumstances justifying detention of the person in a detention centre after that age, or
(b) in the case of a sentence for which a non-parole period has been set---the non-parole period will end within 6 months after the person has attained that age, or
(c) in the case of a sentence for which a non-parole period has not been set---the term of the sentence of imprisonment will end within 6 months after the person has attained that age.
This subsection is subject to subsection (2).
(4) In determining whether there are special circumstances for the purposes of subsection (3), the court may have regard to the following matters:
(a) the degree of vulnerability of the person,
(b) the availability of appropriate services or programs at the place the person will serve the sentence of imprisonment,
(c) any other matter that the court thinks fit."
31 Before s 19 was amended, it was open to a court sentencing a person under the age of twenty-one years to make an order directing either that the whole or any part of that term be served in a detention centre. That position has now changed, as is apparent from the wording of the amended section set out above. I record that if s 19 still permitted me to do so, I would order that the whole of the sentence that I am about to impose be served in a detention centre. The section does not permit me to so order, as I now explain.
32 Because of CK's present age, it is necessary to address s 19(3). I do so, and I am satisfied that there are special circumstances justifying the detention of CK in a detention centre although he is over the age of eighteen years. I identify those circumstances by reference to s 19(4). I consider that there are special circumstances because of CK's physical and emotional vulnerability, as well as because of the better prospects of rehabilitation that, in my view, exist if he is now detained in a detention centre. Dr Skinner described CK as a slightly built young man and with his background he would at this stage be vulnerable to the sort of abuse that unhappily is well known to occur in adult institutions. Further, whilst I do not find that CK is a suicide risk, I am satisfied he is at least experiencing psychological stress with heightened anxiety, as Dr Skinner opined, and I regard it as desirable that CK should be carefully screened upon admission to his place of detention. I have regard to the affidavit of Antonino Cipri sworn on 12 September 2002 (Exhibit 8). It refers to available measures in a detention centre which, in my view, should be implemented. Indeed, I propose to make the recommendation referred in para 5 of that affidavit.
33 Under s 19(2) CK ceases to be eligible to continue to serve out his non parole period once he has attained the age of twenty-one years unless the non parole period would end within six months of his attaining that age. The effect of setting a non parole period here of more than two years and nine months, as I consider I must, means that s 19 permits me to make an order only that part of the term of the sentence be served in a detention centre.
34 I propose however to recommend, subject, of course, to favourable assessments as to his progress whilst in any detention centre where he is held, that when CK has to be transferred from the detention centre in which he is then in the process of serving his sentence, he be classified immediately to serve out the remainder of his sentence in a low risk security prison.
35 CK was detained at a detention centre for some hours after he was first charged before being granted bail, but has otherwise spent no time in custody for this crime.
36 I now pass sentence as follows: CK is sentenced to imprisonment for a term of seven years six months commencing 11 October 2002 and to expire on 10 April 2010. Having found special circumstances, I set a non parole period of four years commencing this day. I specify 10 October 2006 as the first day upon which CK will become eligible to be released on parole.
37 Pursuant to s 19 of the Children (Criminal Proceedings) Act, I make an order directing that the prisoner serve such part of his sentence as is required to be served to the age of twenty-one years in a detention centre within the meaning of that Act. I recommend that as soon as practicable following admission to the centre to which he is taken the prisoner be assessed by a psychiatrist and thereafter be given such care and treatment as may be advised by that specialist.
38 I recommend that when the time comes that the prisoner is required to leave the detention centre so as to serve the balance of the non parole period following his attainment of the age of twenty-one years, that he be classified immediately to a low risk security prison. I make this recommendation subject, of course, to favourable assessment as to his progress whilst in any detention centre from today.
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