R v CK [2004] NSWCCA 116 | Case summary

Facts 2 The applicant was sentenced upon the basis of a statement of facts, which was presented to the Court without challenge. Its sufficiency or accuracy, and his Honour's assessment of the applicant's objective criminality based upon it, have now, however, been questioned, at least in some respects. 3 That statement of facts was to the following effect: "On 14 April 2000 in the early evening, [CK] spoke to a friend of his [KB] at the Blacktown Railway Station. [CK] and [KB] had known each other at school when both attended [school] at Marayong. [CK] told [KB] that a number of boys were going to McDonalds at Woodcroft (a suburb near Blacktown) to celebrate the sixteenth birthday of [MS]. [KB], [CK] and another youth [AN] went by bus to McDonalds at Woodcroft, arriving there at about 6.30 pm. After being at McDonalds for about an hour, [KB] saw a person [SM] arrive at McDonalds. [KB] did not like [SM]. The animosity arose from their school days. [KB] considered [SM] to be a racist. [KB] told a number of the Asian youths at McDonalds about an earlier clash between him, [SM], [SM's] brother [J] and another youth [NM] (the latter youth being a close friend of the deceased). The evidence is not clear as to exactly which of the Asian youths with [KB] at McDonalds heard [KB's] account of the earlier clash. However, the story led to a confrontation in the car park near McDonalds between [AN], another youth named [DS] and [KB] on one side, and SM on the other. Words were exchanged and SM drove off. About fifteen minutes later [SM] returned to McDonalds with his brother [J] and two friends (one being [DB]). There was a further clash between the Asian and Australian youths, with one of the Australian youths making a racist comment. Five or six of the Asian youths confronted the Australian youths who ran to their car and left. [DS] hit the car with his hand as it left. There is no evidence that [CK] participated in any of these clashes involving the Asian and the Australian youths, although he was present at McDonalds when they occurred. The police arrived at McDonalds after the Australian youths had left and told the Asian youths to move on. By this stage, other Asian youths had arrived at McDonalds, and about thirty of them including [CK] walked down to the Woodcroft Community Centre at the nearby lake. Meanwhile a number of the Australian youths had arrived back at McDonalds looking for the Asians, who by then had left and gone to the lake. A group of the Australians comprising the deceased, [NM], [JM] and [DB] drove in the one car from McDonalds to the Woodcroft Community Centre near the lake in search of the Asians. They saw fifteen to twenty Asian youths in the car park at the Community Centre. [NM] recognised some of them as being from his old school at Marayong. There was a brief verbal clash between the Asians and Australians and the Australians returned by car to McDonalds. After the Australians left the lake area, [MS], who was with [CK], took two metal poles from a truck parked on a vacant block of land in Antique Street. This block is behind some tennis courts that are part of the lake complex. One of the metal bars was obtained by [MS] was hollow. The other metal bar was [solid]. [MS] kept the hollow metal bar and gave the solid metal bar to [CK]. (The solid metal pole later removed from the deceased's head was subsequently identified by the owner of the truck as one of the poles that had been taken from his truck.) Meanwhile the Australians arrived back at McDonalds. There they met two carloads of Islanders who had arrived to assist them. Four carloads of people, including the deceased and his friends then set out from McDonalds. Two of the cars (a green Ford Escort and a white Ford Escort) contained Islanders and two contained the Australians. Some of the Islanders were armed with sticks, pipes and broom and axe handles. The evidence varies greatly as to the number of Islanders who were armed with these types of weapons. The evidence also varies as to the number of Australians and Islanders who went from McDonalds to the lake at this time. On arriving at the lake, the Islanders brandishing their weapons charged towards [CK] and his friends. The Australians followed. There is no clear evidence of the exact number of Australians and Islanders involved in this charge. It appears to have involved somewhere between twenty and thirty of them. However, the perception of the Asian youths at that lake was that they were vastly outnumbered by the Australians and the Islanders. They scattered as soon as they saw the Australians and Islanders coming and ran away in all directions. One of the Asians was thrown in other lake, but was assisted to get out without being harmed. A group of Asian youths that included [CK] ran around the lake and hid in a partly built house in Guthega Close near the lake. This group included [MS], [IW], [AS], [JCB] and possibly one other person. [CK] and the group he was with eventually moved from the house out into the street. A number of the group picked up sticks and bricks from around the house. Meanwhile the Australians and Islanders had returned to their cars and driven in convoy up Woodcroft Drive and eventually into a street called Bricketwood Drive. They were searching for the Asians. The deceased was driving his own motor vehicle, a gold Commodore sedan. In that vehicle with him were [NM], [NC], [DB] and [AR]. At a roundabout at the corner of Bricketwood Drive and Eucumbene Drive, the deceased turned right. The other cars in the convoy kept travelling along Bricketwood Drive. The deceased drove down Eucumbene Drive and then turned left into Guthega Close. Guthega Close winds around to Waterside Drive near the lake. The deceased and his passengers were unfamiliar with the area in which they found themselves. They drove along Guthega Close but stopped suddenly when they saw a group of Asians standing in the street armed with wooden stakes and poles. A number of the Asians began throwing rocks at the deceased's car. [NM] got out of the front passenger seat and there was an exchange of abuse between him and the Asian group. Two or three of the Asian group then ran at the deceased's car. The deceased reversed the car rapidly down Waterside Crescent, stopped, did a U-turn and drove back around Guthega Close the same way he had driven in. There is no evidence that [CK] played any, or any significant part in this clash, although he was present in the area at this time. [CK] along with a number of the other Asian youths then walked up Eucumbene Drive towards the roundabout at the corner of Bricketwood Drive and Eucumbene Drive. Meanwhile in order to leave the area, it was necessary for the deceased and his friends to drive along Eucumbene Drive in the same direction as the Asian youths were walking. The deceased drove up Eucumbene Drive away from the lake. When his vehicle approached the roundabout at the corner with Bricketwood Drive, one of the deceased's passengers, [NC], saw about five Asian youths carrying what he described as bats, standing on the footpath on the left side of the roundabout. To turn left into Bricketwood Drive at the roundabout the deceased would have had to drive in close proximity to this group. Instead, he continued driving up Eucumbene Drive away from the lake. As the deceased's car passed the group on the left hand corner of the roundabout, one of them [MS] threw a brick at the car. It missed the car. The deceased drove his car through the roundabout. The car continued up Eucumbene Drive on the correct side of the road. Three Asian youths had proceeded along Eucumbene Drive past the roundabout and were near a tree on the right hand side of Eucumbene Drive as the deceased drove through the roundabout. They were on the other side of the roundabout from [MS], but not far from the roundabout. This group comprised [CK], [IW] and [JLB]. After he threw the brick at the deceased's car, MS called out to them that the deceased's car was coming. [CK] and [IW] stepped out onto the road (Eucumbene Drive). [CK] had the solid metal pole he was given earlier in the evening. [CK] threw the pole at the deceased's car as it passed. [IW] also threw a stick at the car. The stick thrown by [IW] missed the car. It hit a 'For Sale' sign on the other side of the road. [IW] saw [CK] spin around immediately after [CK] had thrown the metal pole. Inside the deceased's vehicle, [NM] was in the front passenger's seat, [NC] was siting in the back on the right behind the deceased, [DB] was sitting in the back on the left hand side and [AR] was in the middle of the back seat. [AR] saw an Asian youth throw the metal pole at the car. He saw it shatter the driver's window. [DB] heard the glass smash and saw the deceased's hands come off the steering wheel. The car ventured left up onto the gutter and came to a rest on a dirt embankment. The deceased slumped over the steering wheel. It was only after the vehicle stopped that the passengers saw that the metal pole had penetrated the deceased's skull near his right ear and was embedded in his head. None of the occupants of the deceased's vehicle had been carrying any weapons that evening. No weapons were located in their vehicle. [CK] told [IW] while they were standing in Eucumbene Drive between the tree and the roundabout that he had thrown the pole and shattered the window of the car. [CK], [IW] and [JCB] then met up with [MS] and others who had been in the area a the time. They went down to Bricketwood Drive and hid around the back of a vacant partly built house in that street. At the house [CK] again said that had thrown the metal pole at the car. He repeated this in a telephone conversation with his friend [RA] while he was hiding in the house. At this time he told [RA] that the car had crashed. [CK] telephoned his friend [NM] from the house where he and his friends were hiding and arranged for [NM's] mother to come and collect them. [NM] lived close to the scene of the crash. [CK] spent that night at [NM's] house. At about 10.45 pm that evening [RA] telephoned [CK] and had a conversation with him. At that time [CK] told him that he thought someone had died in the crash because there were police and ambulances at the crash scene. In both conversations with [RA] that night [CK] asked him not to say anything about what had happened and to ask his friends to do the same. 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 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]."

12 His Honour took into account the fact that the applicant's imprisonment would occasion some hardship to him, in "his perception of a failure to fulfil his obligations to continue to provide for the household". In this context he expressly noted that his father, who was on a disability pension, faced the prospect of losing his left leg because of a tumour. His Honour did not, however, agree that the loss to the family of the applicant, as a potential source of income, during the period of his imprisonment, met the criteria of "highly exceptional hardship" of which the Court spoke in Regina v Edwards (1996) 90 A Crim R 510. 13 In sentencing the applicant his Honour appropriately instructed himself as to the care which was needed in sentencing the applicant, as a young offender, (Regina v Howard (1992) 29 NSWLR 242), as to the paramountcy in such a case of the consideration of rehabilitation (R v GDP (1991) 53 A Crim R 112), and as to the lesser significance of considerations of deterrence. In this context, his Honour expressly noted that he regarded the applicant as having "only that degree of maturity that was to be found in a 16 year old youth", and accepted that it was a sentence justifying greater weight being given to rehabilitation and lesser weight being given to general deterrence, in the terms in which Spigelman CJ spoke in Regina v Kama (2000) 110 A Crim R 47. 14 Consistently with the qualification referred to in authorities such as Regina v Pham (1991) 55 A Crim R 128, and Regina v Tran [1999] NSWCCA 109, his Honour noted that this case was one involving a good deal of objective gravity, and was therefore not one in which the considerations of retribution, denunciation and deterrence could be ignored. In this regard his Honour appropriately noted that there was a need to impose a sentence that would assist in deterring other youths who might be tempted to commit acts of violence, whether as a member of a group or individually. 15 In summary, this is a case where his Honour did not overlook or misapply any relevant sentencing principle. On the contrary, the applicant's case was thoroughly and sympathetically addressed by an experienced sentencing judge, who took into account everything which could be said in his favour. 16 Upon the agreed facts, there could, in my view, be no possible quarrel with the sentence that was passed. 17 This brings me to the principal ground upon which the sentence is challenged, namely the submission that his Honour's finding that, at the time when the applicant threw the iron bar, the deceased, and the occupants of the car, presented no threat to him or to his friends, had an air of unreality about it; and that his Honour failed to make sufficient allowance for the provocation which had been offered, or for the circumstances which had confronted the applicant before committing the offence. 18 In summary, it was submitted that properly understood, the agreed set of facts, as supplemented by the statements which were tendered as part of the prosecution brief, showed that at the time when the applicant threw the bar, he did so out of fear that the earlier confrontation, in which he had not participated, would continue, and that his act was motivated out of fear. 19 In support of this submission reference was made to various statements from the other youths who had been involved in the various incidents this day, to the effect that the group which was loosely referred to as the "Australian and Islander group" had been driving around the streets of Woodcroft in order to "get" the boys with whom the applicant was associated; that the speed at which the vehicle was travelling while it passed up Eucumbene Drive had frightened at least some of the members of the last mentioned group; that some insults were shouted by those who were travelling as passengers in it; and that the applicant had explained to another boy that he had taken the bar because "if they came back, he's going to fight back." 20 It was submitted that his Honour also overlooked the sentence in the background report which recorded the applicant as having stated that "he threw the metal rod at the vehicle because he feared attack by the young people in the car, and felt that his action of throwing the metal rod at the vehicle may warn off the young people in the vehicle and prevent an attack on them." 21 The problem with this submission, and with an allied submission that there was a background to the events, arising out of the various observations as to the existence of some unspecified racial tension at the applicant's school, is that the applicant did not give evidence before the sentencing judge, or otherwise provide any direct account of his own feelings. 22 The simple fact is that he and another boy stood their ground on the road when the vehicle approached, and threw objects at it, in the applicant's case, in a way that was both violent and dangerous. In that sense they took the attack up to the other group, and did not follow the more prudent course of getting away from the vehicle, or its occupants. Moreover the evidence does suggest that by this stage those in the vehicle had tired of the incident and were endeavouring to leave the scene. 23 While it might be accepted that the incident as a whole was one that was disturbing, unsavoury and an occasion for genuine concern, since it does not reflect credit upon any of the participants, I am not persuaded that his Honour should have regarded the agreed statement of facts as qualified, in any material respect, by the balance of the materials, or that the findings which he made were not reasonably open to him. This Court is not a court of factual review, and absent appellable error in the fact-finding exercise, it has no entitlement to intervene. 24 But for the amendment to the Children (Criminal Proceedings) Act 2001 his Honour made it clear that he would have directed that the entire sentence be served in a detention centre, by reason of the applicant's physical and emotional vulnerability, and by reason of the greater potential for rehabilitation that would have been provided in such a centre. 25 This amendment has, in my respectful view, regrettable consequences for young offenders who possess the personal characteristics and the rehabilitation potential which are displayed by the applicant. Transfer to an adult correctional centre is more likely to have a negative impact than a positive impact for that kind of offender. 26 It would, in my considered view, have been far preferable to retain the discretion which previously existed. The existence of a limitation upon the period in which young offenders can be detained within the juvenile justice system would be far better served by empowering sentencing Judges to decline the opportunity of extended juvenile detention for those offenders who are judged to be serious recidivists, or to be given to violence; and also by permitting the transfer, at any stage, to adult correctional Centres, of those offenders who do not respond to that opportunity. 27 However, this concern provides no reason of itself to reduce a sentence that is otherwise appropriate, and the unfortunate consequences for the applicant can be mitigated by acceptance of the recommendation made by his Honour, which I would endorse, that, subject to continued good behaviour and suitable progress, the applicant should be immediately reclassified, upon obtaining his 21st birthday, so that he can finish his sentence in a low security centre, or in a centre which is appropriate for young minimum risk prisoners. 28 I am not persuaded in the circumstances outlined, that some sentence, other than that passed, was warranted in law and should have been imposed. 29 I would grant leave to appeal, but I would dismiss the appeal. 30 SPERLING J: I have read Wood CJ at CL's judgment in draft. 31 Concerning the objective circumstances of the offence, I confine my consideration to the statement of facts quoted in full by Studdert J and by Wood CJ at CL. At the sentencing hearing, the whole of the Crown brief was tendered, which included, among other things, witness statements in greater detail than the statement of facts in some respects. Studdert J said he intended to confine himself to the statement of facts so far as concerned the objective features of the case. The applicant was represented by senior counsel of considerable experience. There was no objection to the course proposed by his Honour. That was then the basis on which the sentencing hearing was conducted. 32 It is to be assumed that, in the judgment of the applicant's counsel, this was not against the interests of the applicant. It is easy to envisage tactical considerations which may have influenced concurrence in the approach. It would be quite wrong now, in my view, to allow the applicant to enlarge the ambit of fact on which the sentencing process has proceeded. 33 In order to convey my understanding of the statement of facts and its implications, I will quote the whole of the document to the point at which the fatal injury occurred, interpolating my own observations. 34 The initials "CK" designate the applicant. The initials "SM" designate the deceased. On 14 April 2000 in the early evening, [CK] spoke to a friend of his [KB] at the Blacktown Railway Station. [CK] and [KB] had known each other at school when both attended [school] at Marayong. [CK] told [KB] that a number of boys were going to McDonalds at Woodcroft (a suburb near Blacktown) to celebrate the sixteenth birthday of [MS]. [KB], [CK] and another youth [AN] went by bus to McDonalds at Woodcroft, arriving there at about 6.30 pm. After being at McDonalds for about an hour, [KB] saw a person [SM] arrive at McDonalds. [KB] did not like [SM]. The animosity arose from their school days. [KB] considered [SM] to be a racist. [KB] told a number of the Asian youths at McDonalds about an earlier clash between him, [SM], [SM's] brother [J] and another youth [NM] (the latter youth being a close friend of the deceased). The evidence is not clear as to exactly which of the Asian youths with [KB] at McDonalds heard [KB's] account of the earlier clash. However, the story led to a confrontation in the car park near McDonalds between [AN], another youth named [DS] and [KB] on one side, and SM on the other. Words were exchanged and SM drove off. About fifteen minutes later [SM] returned to McDonalds with his brother [J] and two friends (one being [DB]). There was a further clash between the Asian and Australian youths, with one of the Australian youths making a racist comment. Five or six of the Asian youths confronted the Australian youths who ran to their car and left. [DS] hit the car with his hand as it left. There is no evidence that [CK] participated in any of these clashes involving the Asian and the Australian youths, although he was present at McDonalds when they occurred. 35 From this passage, it appears that there was a confrontation at McDonalds, Woodcroft, between some of the applicant's friends, on the one hand, and the deceased, on the other. The deceased drove off. He then returned to McDonalds with his brother and a friend. A further confrontation ensued between members of the applicant's group and the deceased's group. The deceased's group left. There was no evidence that the applicant was present at either of these clashes, although he was at McDonalds when they occurred. 36 Next: The police arrived at McDonalds after the Australian youths had left and told the Asian youths to move on. By this stage, other Asian youths had arrived at McDonalds, and about thirty of them including [CK] walked down to the Woodcroft Community Centre at the nearby lake. Meanwhile a number of the Australian youths had arrived back at McDonalds looking for the Asians, who by then had left and gone to the lake. A group of the Australians comprising the deceased, [NM], [JM] and [DB] drove in the one car from McDonalds to the Woodcroft Community Centre near the lake in search of the Asians. They saw fifteen to twenty Asian youths in the car park at the Community Centre. [NM] recognised some of them as being from his old school at Marayong. There was a brief verbal clash between the Asians and Australians and the Australians returned by car to McDonalds. 37 There were now about 30 Asian youths at the Woodcroft Community Centre near the lake. I infer that the applicant was among them. The deceased's brother and two others, not including the deceased, now came looking for the applicant's group. They drove in one car to the Community Centre in search of them. They encountered some of the Asian youths in the car park at the Community Centre. There was a brief verbal clash. The deceased's brother and his companions returned to McDonalds. 38 Next: After the Australians left the lake area, [MS], who was with [CK], took two metal poles from a truck parked on a vacant block of land in Antique Street. This block is behind some tennis courts that are part of the lake complex. One of the metal bars was obtained by [MS] was hollow. The other metal bar was [solid]. [MS] kept the hollow metal bar and gave the solid metal bar to [CK]. (The solid metal pole later removed from the deceased's head was subsequently identified by the owner of the truck as one of the poles that had been taken from his truck.) 39 The applicant and one of his companions were now armed with metal bars. There is nothing to suggest that the applicant's group intended to go in search of the deceased's group. The poles were apparently intended for defence in the event of a further confrontation being initiated by the other group. 40 Next: Meanwhile the Australians arrived back at McDonalds. There they met two carloads of Islanders who had arrived to assist them. Four carloads of people, including the deceased and his friends then set out from McDonalds. Two of the cars (a green Ford Escort and a white Ford Escort) contained Islanders and two contained the Australians. Some of the Islanders were armed with sticks, pipes and broom and axe handles. The evidence varies greatly as to the number of Islanders who were armed with these types of weapons. The evidence also varies as to the number of Australians and Islanders who went from McDonalds to the lake at this time. On arriving at the lake, the Islanders brandishing their weapons charged towards [CK] and his friends. The Australians followed. There is no clear evidence of the exact number of Australians and Islanders involved in this charge. It appears to have involved somewhere between twenty and thirty of them. However, the perception of the Asian youths at that lake was that they were vastly outnumbered by the Australians and the Islanders. They scattered as soon as they saw the Australians and Islanders coming and ran away in all directions. One of the Asians was thrown in other lake, but was assisted to get out without being harmed. 41 Having located the Asian youths at the Community Centre, the deceased's group was now joined by a number of Islanders who, it is said, had arrived to assist them. Presumably, that was to assist the deceased's group in seeking out the Asians and in whatever further confrontation was then envisaged. The Islanders were armed with sticks, pipes and broom and axe handles. There is no reason to suppose that these people knew that the applicant and one of his companions were now armed with metal bars or armed at all. 42 The deceased's group, now supplemented by the armed Islanders, sought the Asian youths out at the Community Centre. They arrived in four cars. There were in the order of 20 to 30 of them. The Islanders charged the Asian youths, brandishing their weapons and the others in the group followed. The Asian youths fled in all directions. 43 It would be extraordinary if the applicant did not find this a terrifying experience. His group had, in effect, been hunted down by what appeared to be a larger number of other persons who were armed with sticks and the like, capable of being used as clubs, and who were apparently intent on catching them and beating them up. 44 Next: A group of Asian youths that included [CK] ran around the lake and hid in a partly built house in Guthega Close near the lake. This group included [MS], [IW], [AS], [JCB] and possibly one other person. [CK] and the group he was with eventually moved from the house out into the street. A number of the group picked up sticks and bricks from around the house. 45 There was only one reason for hiding and for the others in the applicant's group arming themselves with sticks and bricks. They apprehended that the deceased's group, including the armed Islanders, would be looking for them to beat them up. They were trying to avoid a further confrontation, but they were preparing to defend themselves if that occurred. 46 Next: Meanwhile the Australians and Islanders had returned to their cars and driven in convoy up Woodcroft Drive and eventually into a street called Bricketwood Drive. They were searching for the Asians. The deceased was driving his own motor vehicle, a gold Commodore sedan. In that vehicle with him were [NM], [NC], [DB] and [AR]. At a roundabout at the corner of Bricketwood Drive and Eucumbene Drive, the deceased turned right. The other cars in the convoy kept travelling along Bricketwood Drive. The deceased drove down Eucumbene Drive and then turned left into Guthega Close. Guthega Close winds around to Waterside Drive near the lake. The deceased and his passengers were unfamiliar with the area in which they found themselves. 47 It is unnecessary to understand in detail the movements of those involved. It would be difficult to do so from this description. It is apparent, however, that, while the Asian group were hiding in the house in Guthega Close, the other group had returned to their cars and had driven around searching for them. The deceased was driving his car, accompanied by four others. 48 At a roundabout at the corner of Bricketwood Drive and Eucumbene Drive, the deceased turned into Eucumbene Drive. The other cars in the convoy went straight ahead along Bricketwood Drive. It is suggested that the deceased and those with him in his car had now abandoned the search for the Asian youths, rather than the competing possibility that they had broken away from the other cars in the convoy in order to extend the search. That is not, however, presently material. It is the applicant's perception of the other group's intentions which is of importance, insofar as that is ascertainable. 49 Next: They [the deceased and his companions] drove along Guthega Close but stopped suddenly when they saw a group of Asians standing in the street armed with wooden stakes and poles. A number of the Asians began throwing rocks at the deceased's car. [NM] got out of the front passenger seat and there was an exchange of abuse between him and the Asian group. Two or three of the Asian group then ran at the deceased's car. The deceased reversed the car rapidly down Waterside Crescent, stopped, did a U-turn and drove back around Guthega Close the same way he had driven in. There is no evidence that [CK] played any, or any significant part in this clash, although he was present in the area at this time. 50 This confrontation occurred in Guthega Close, and would have been a short distance from the building in which the applicant and his companions had hidden. It appears later from the statement of facts that there were at least eight or nine youths in the applicant's group at this stage. Confronted by this group, armed as they were and acting as they were, the deceased retreated. 51 It was reasonable for the applicant to assume that the deceased and his companions had been looking for the Asian youths but, finding themselves outnumbered, had withdrawn. But that was not to say that they would not be back, and that they would not be back in force. 52 Next: [CK] along with a number of the other Asian youths then walked up Eucumbene Drive towards the roundabout at the corner of Bricketwood Drive and Eucumbene Drive. Meanwhile in order to leave the area, it was necessary for the deceased and his friends to drive along Eucumbene Drive in the same direction as the Asian youths were walking. The deceased drove up Eucumbene Drive away from the lake. When his vehicle approached the roundabout at the corner with Bricketwood Drive, one of the deceased's passengers, [NC], saw about five Asian youths carrying what he described as bats, standing on the footpath on the left side of the roundabout. To turn left into Bricketwood Drive at the roundabout the deceased would have had to drive in close proximity to this group. Instead, he continued driving up Eucumbene Drive away from the lake. As the deceased's car passed the group on the left hand corner of the roundabout, one of them [MS] threw a brick at the car. It missed the car. The deceased drove his car through the roundabout. The car continued up Eucumbene Drive on the correct side of the road. 53 This passage in the statement of facts may imply that the deceased and his companions were now endeavouring to leave the area without further trouble. But, again, it is not a matter of their intentions. It is a matter of the applicant's perception of their intentions, so far as that is ascertainable. 54 This confrontation referred to in this passage occurred at the corner of Bricketwood Drive and Eucumbene Drive, where there is a roundabout. The deceased approached the intersection along Eucumbene Drive. The applicant's group had now arrived at that area. As the deceased approached the roundabout, one of the applicant's group threw a brick at the car. The deceased drove through the roundabout and continued to drive straight ahead along Eucumbene Drive. 55 Next: Three Asian youths had proceeded along Eucumbene Drive past the roundabout and were near a tree on the right hand side of Eucumbene Drive as the deceased drove through the roundabout. They were on the other side of the roundabout from [MS], but not far from the roundabout. This group comprised [CK], [IW] and [JLB]. After he threw the brick at the deceased's car, MS called out to them that the deceased's car was coming. [CK] and [IW] stepped out onto the road (Eucumbene Drive). [CK] had the solid metal pole he was given earlier in the evening. [CK] threw the pole at the deceased's car as it passed. [IW] also threw a stick at the car. The stick thrown by [IW] missed the car. It hit a 'For Sale' sign on the other side of the road. [IW] saw [CK] spin around immediately after [CK] had thrown the metal pole. 56 The applicant and two of his companions were in Eucumbene Drive on the side of the roundabout where the deceased's vehicle was now proceeding. It is said that they were not far from the roundabout. From that I would infer that when one of the Asian youths at the roundabout called out to them that the deceased's car was coming, the applicant and his two companions would have heard. 57 Up to this point in time, the applicant had not committed any act of violence against the other group. Nor had he offered any threat of violence. Others in his group had done so, albeit in retaliation. He had not. 58 At this stage, however, the applicant still had the metal bar. It is deplorable, horrifying really, that a sixteen year old youth was abroad at night, armed in this way. But that was far from the whole picture. The applicant had been offered the bar by his friend when they were fleeing from their attackers. Of course, he could have refused to take it. But would any sixteen year old male have refused the offer of a defensive weapon in those circumstances? Or have discarded the bar by then? I do not think so. Such is the power of events. 59 There is no direct evidence of the applicant's state of mind when he threw the metal bar at the deceased's car. And, apart from the finding that the applicant's act was deliberate but was not intended to have the consequence which it had, Studdert J made no finding in that regard. 60 The immediate context was that there was no indication of an intention by the deceased to stop and confront the Asian youths at the time when the applicant threw the metal rod at the deceased's car. The occupants of the car posed no immediate threat. They were outnumbered. They had retreated at the confrontation in Guthega Close. They were still outnumbered. They showed no sign of stopping this time, and there was everything to suggest that they intended to keep going. But that was not to say that the deceased and his companions had given up. The larger group had broken up, but they could have separated to spread the search. They now knew where the Asian youths were. They could regroup and attack again. The danger had not passed. 61 It is, of course, impossible to infer with any precision from these circumstances what was going through the applicant's mind at the time. I doubt that the applicant himself would know. The act may have been intended to show the Asian group's mettle and so warn off the deceased and his companions. But, most likely to my mind, the applicant, by now, had the sense of war between the two groups, however that had come about, and this was a blow struck against the enemy with little, if any, thought at all. 62 In this context, there are two features of the case which most impress me. First, the applicant was caught up in a situation for which he was not responsible. He and his companions had been attacked in a truly terrifying manner. They had fled and hidden for a time. They were now endeavouring to make their way out of the area. The applicant had a metal bar for use in his defence if that became necessary. A carload of their attackers had come upon them, had retreated and had now reappeared. There was the prospect, now that they had been located, that their attackers would regroup and attack them again in force. 63 Up to that point, the applicant was not an aggressor in any of this. He was one of the hunted and here were some of the hunters, vulnerable to retaliatory action. He seized the opportunity and lashed out. 64 It is impossible, in these circumstances, to attribute a high degree of culpability to the applicant's conduct. 65 The second feature of the case which most impresses me is the applicant's age. He was a couple of months past his sixteenth birthday at the time of the offence. Studdert J was, of course, alert to the significance of this feature of the case. He said (R v CK [2002] NSWSC 942): [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. ……… [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. 66 I would add the following comment in this regard. It has been said that where young offenders conduct themselves like adults and commit serious crimes, they may attract less leniency in sentencing than their age might otherwise demand: Tran [1999] NSWCCA 109 at [10]. The act in the present case was quintessentially the kind of thoughtless, impulsive conduct typical of the young. 67 His Honour took into account that the applicant had no criminal record. There was no history of aggressive behaviour of any kind. Indeed, by all accounts, what occurred on this occasion was totally out of character. 68 The applicant had left high school early because of the financial situation of his family. He was contributing to the support of his pensioner father, his stepmother and his stepbrother. 69 His Honour found that the applicant's prospects for rehabilitation were favourable. 70 His Honour also took into account the applicant's remorse. It is apparent that the applicant was mortified to learn of the consequences of what he had done, and that he is profoundly contrite. 71 The applicant's plea of guilty was not as early as it might have been. His Honour allowed 25 per cent for the utilitarian value of the plea and for contrition. 72 His Honour saw no need for special deterrence but recognised the need to give appropriate weight to the need for general deterrence and for denunciation. 73 His Honour found special circumstances. 74 In the result, he imposed a sentence of imprisonment of seven years and six months with a non-parole period of four years. In view of the discount of 25 per cent for the utilitarian value of the plea of guilty and for contrition, his Honour's starting point was a head sentence of ten years, for which the corresponding non-parole period would be five years and four months. 75 The maximum penalty for the crime of manslaughter is imprisonment for 25 years. However, of all the offences on the statute books, there is perhaps the widest range of sentences imposed for this offence. That is because of the variety of circumstances which may constitute the crime. Some cases warrant a sentence similar to the sentences imposed in some cases of murder. Others warrant no more than a bond. Whilst this case is by no means in the least serious category, it is very far from being in the most serious. 76 I am reluctant to disagree with the opinion of a very experienced judge of this court in relation to a discretionary judgment, but I must do so in this instance. Having regard to the features of the case which I have mentioned, in particular the context in which the offence was committed and the youth of the applicant, I regard a head sentence of ten years imprisonment with a notional non-parole period of five years and four months as manifestly excessive. It follows that, in my view, the appeal should be allowed, the sentence should be quashed and the applicant should be re-sentenced by this court. 77 I now take into account the material tendered on the hearing of the appeal for consideration in the event of the applicant being re-sentenced by this court. 78 The applicant has made considerable further progress in fitting himself for a productive adult life. He is studying for the Higher School Certificate. He is also doing a TAFE painting and decorating course and a sign writing course. He intends to enrol shortly in a software application course. He has completed a variety of prison programmes. He hope to be reclassified shortly, so as to be eligible for participation in the Duke of Edinburgh Award programme and in local area team sports. 79 There are very complimentary reports by the applicant's classroom teacher and the Juvenile Justice Centre psychologist, concerning his academic work, commitment and behaviour. A report by the applicant's manager officer concludes as follows: Overall, [CK] is highly regarded by staff at Keelong Juvenile Justice Centre. Perusal of detainee centre file case notes and case conference minutes reveals a young person who whilst not happy to be in custody has taken full advantage of all options open to him in an effort to ensure a positive rehabilitation upon his eventual release from custody. 80 Other reports are in similar vein. 81 Adopting the sentencing judge's discount of 25 per cent for the utilitarian value of the plea and for contrition and his finding of special circumstances, I would substitute a sentence of five years with a non-parole period of two years and six months. 82 The following orders should be made:

R v CK

At a glance

Court

Decision date

Before

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Judgment (14 paragraphs)

Parties

Cases Cited (3)

Cited By (1)