R v D'Ambrosio

Supreme Court of NSW|2014-11-21|Before: Adamson J, Gleeson CJ, Callinan JJ

Introduction 1On 21 November 2014 the offender, James D'Ambrosio, was arraigned on an indictment dated 21 November 2014 charging him with unlawfully slaying Nikola Srbin at Redfern on 5 June 2013. He pleaded guilty to the offence. The basis for his liability is that he was party to a joint criminal enterprise which involved an unlawful and dangerous act which caused the death of the deceased. 2Prior to the presenting of the indictment referred to above, the trial by jury of the offender for the charge of murder had been set down to commence on 22 September 2014. He was arraigned on indictment on that day and pleaded guilty to manslaughter but, because of an error in the date of the offence on the indictment, I granted leave on 21 November 2014, which was not opposed, for the indictment to be amended to correct the date. The offender was re-arraigned as set out above.

The Facts 3The facts on the basis of which the offender is to be sentenced are derived substantially from the statement of agreed facts, which was signed by the offender and the Crown Prosecutor on 22 September 2014 (the Agreed Facts), from which the following narrative is taken. 4As sentencing judge, I may not take facts into account in a way that is adverse to the interests of the offender unless the facts have been agreed or established beyond reasonable doubt, but if there are circumstances which I propose to take into account in favour of the offender it is sufficient that they be proved on the balance of probabilities: R v Olbrich [1999] HCA 54; 199 CLR 270 at [27], per Gleeson CJ, Gaudron, Hayne and Callinan JJ.

Narrative based on agreed Facts 5In May 2013 the offender lived in Housing Commission property at unit 36/125 George Street, Redfern. He was a drug dealer of small stature. His main supplier was someone whom he referred to as 'the Boss'. 6The deceased, Nikola Srbin, was 18 years of age on the morning of 16 May 2013 when he, together with his father, Jonel Srbin, brother Tony Srbin and Adrian Moshref, confronted the offender at home in his unit and demanded that he repay a $400 drug debt. The Srbins, who were also drug dealers, used unit 69/125 George Street as a drug 'safe house'. Moshref was their 'muscle', being a large and violent man. 7The offender, who had no money, was beaten and kicked by the group. His DNA was later found on the shoes of the deceased. The deceased produced a knife and held it to the offender's face to reinforce the demand for repayment. A knife was found by police on the person of the deceased. The offender's house was ransacked. The group gave the offender until 6 pm that day to repay the debt. The offender sought help from the Boss. He met with him and a group of men in the Burwood area later that day. They travelled to Redfern by car. 8At about 6.50 pm the Boss and about 8 men arrived in Redfern. The offender met Moshref and the deceased who were with Danny Nykolyn in the courtyard of the apartment building where he lived. Moshref and the deceased repeated their demands. The latter placed his hand in a pocket in a manner intended to remind the offender of the knife. About 10 men including the Boss then stormed into the courtyard and set upon Moshref and the deceased. Moshref was threatened by someone with a handgun and told not to involve himself in the attack. During the fist fight, someone from the Boss' gang produced a rubber mallet and struck a blow to the deceased's head. The deceased fell down. As he was getting up, a member of the gang beat him over the head with a baseball bat. The assailants left the scene and the area. The offender and Nykolyn took refuge in Phillip Street, Redfern. 9The deceased staggered back to unit 69. His head was bleeding. He lost consciousness and was taken to Royal Prince Alfred Hospital where he remained unconscious and on life support. On 5 June 2013 he died as a result of the head injuries received during the melee. Post mortem examination of the deceased revealed that death was due to blunt force head injury and consequential epidural haematoma. 10Police interviewed the offender on 25 May 2013. He gave an account of being stood over by Moshref and the Srbins. He admitted being present near his home at the time of the reprisal, but alleged that a number of Aborigines rushed past him and towards Moshref and the deceased. He told police that he knew nothing of what followed. 11On 6 September 2013 the offender revealed more of what he knew about the evening to a police undercover operative. He was arrested on 9 October 2013 and interviewed a second time. He admitted lying in the first interview about the Aboriginal identity of the attackers, but continued to deny personal involvement in the melee. 12The offender admits knowing the identity of some of the gang who committed the reprisal attack at his behest. He admits knowing that the gang members took a rubber mallet and a baseball bat to the melee. However, he believed they were armed against the known possession of a knife by the deceased. Although he did not himself participate physically in the melee, he was present and had contemplated that some harm might be occasioned by the mallet or the baseball bat and not through the need for self-defence.

Further facts based on the offender's evidence 13The offender gave the following evidence which was not challenged in cross-examination. On the morning of 16 May 2013, the assailants visited him to recover the drug debt of $400. They remained in his residence for a period of about three hours. He was severely beaten. His house had been ransacked. His assailants had threatened to kidnap him and torture him if he did not come up with the money by the appointed time that evening. 14He said that he was required to live at the Redfern address as a condition of his parole for the drug offences. He said that he was not a violent man and did not want to be involved in the use of force. He was terrified of what the assailants might do to him when they returned at the appointed time. After they left, he tried unsuccessfully to obtain $400 to pay the debt. In desperation he went to Burwood to try to find people who would protect him when his assailants returned to Redfern that evening.

Other facts relevant to the sentence 15The offender has been in custody since his arrest on 9 October 2013. At the time of the melee on 16 May 2013 he was on parole for a sentence imposed for three offences of supply of drugs commonly known as ice, cocaine and ecstasy. The sentence, which commenced on 9 October 2008, was for a total term of five years with a non-parole period of three years. Leave to appeal against the sentence was granted but the appeal was dismissed: D'Ambrosio v R [2010] NSWCCA 120. The offender's parole was revoked as of 16 May 2013. He was therefore required to serve 4 months and 23 days (being the period from 16 May 2013 until 9 October 2013). Accordingly the sentence for the drug offences expired on 3 March 2014. The time in custody since 4 March 2014 has been referable to the present offence. 16Ms Davenport SC, who appeared on behalf of the offender, tendered material which had also been tendered in the sentencing hearing for the drug offences. This evidence comprised a report dated 8 November 2008 of Dr Katie Seidler, psychologist, and the following three character references: (1)Tobias Leago, a long-term friend, dated 18 December 2008; (2)Tim Hanrahan, a long-term friend, dated 17 December 2008; (3)Didi Lo, a close friend since 2000, dated 15 December 2008. 17In the report referred to above Dr Seidler documented the following history, which was adopted and added to by the offender in evidence before me and was not the subject of cross-examination. 18The offender was born in Scotland in November 1964. He has three older sisters. He is the younger of twin boys. His father was of Italian descent. The offender grew up in a small town outside Glasgow. He had a happy childhood and enjoyed close relationships with his parents and siblings. His parents ran a small mixed business together until his father died of cancer when the offender was 18. His mother has not formed another relationship. The offender was devastated by his father's death and moved first to Barcelona and afterwards to Toronto before migrating to Australia in 1991. He was happy in Australia although he would like to return to Scotland on his release to be closer to his family and the landscape of his childhood. 19The offender married and had a son who was born in about 1993. They separated when his son was five years old. Because his ex-wife did not want him to see his son after the separation he did not see his son for the next thirteen years. 20He was for some time a consistent worker and was apparently well-liked and trusted. He started a business with a partner; however, this was not successful. His work record after that time was patchy. 21Although the offender has no criminal history prior to the convictions for the drug offences, he reported to Dr Seidler that he used cannabis daily from about 1995. He also reported to Dr Seidler that he had used ecstasy and cocaine. In about 2005, he returned to Scotland after an absence of twenty years. While he was there an aunt and three friends died of cancer. He dealt with his grief by self-medicating with crystal methylamphetamines, otherwise known as ice, which is a highly addictive substance. He became depressed. 22In 2006 or 2007 the offender worked in a coffee shop for Trudi Malony and her husband. He served coffee and cleared tables. Ms Malony gave evidence at the sentence hearing that the offender was a good, reliable employee who was well liked by patrons. 23In 2008 the offender was taken into custody where he served the non-parole period of the sentences for his drug offences. While in custody he was medicated on Avanza, an anti-psychotic, anti-depressant drug which also had a sedative effect. In early 2011 Ms Malony assisted with the reconciliation between the offender, who was still in gaol, and his son. 24On his release to parole in October 2011, the offender was unable to obtain a prescription for Avanza as he did not have a Medicare card. He returned to live with friends in Redfern and was reunited with a former girlfriend who was a heavy drug user. He sought treatment from a psychologist in Edgecliff whom he attended for four or five months and who advised him to terminate the relationship. Nonetheless, the offender continued in the relationship. He sought treatment to assist him to overcome his drug addiction and was prescribed Suboxone, which contains a blocker known as Naltrexone, which suppresses the high from drugs and therefore removes the incentive to take them. The offender took Suboxone for five months but then stopped because of, as he explained it, "peer pressure". 25In June 2013, after the melee that led to the death of the deceased, the offender began a relationship with a woman by the name of Julianne. Julianne became pregnant and had a daughter called Delilah who was born in about June 2014. By 8 October 2013 the offender had already been interviewed by police in connection with the events that led to the death of the deceased and Julianne knew that she was pregnant. She wanted to stop taking drugs to protect their unborn child. On that day the offender went with Julianne to the Langton Centre where they were both put on the Suboxone programme. The following day he was arrested. 26From the time of the offender's arrest in October 2013 Ms Malony has kept in touch with him, brought Julianne and Delilah to gaol to visit him and contacted his family in Scotland on his behalf. Julianne attended the sentence hearing with Delilah.

Relevant principles 27It is well recognised that of all offences, manslaughter produces the greatest variety of circumstances affecting culpability and consequently there is a substantial range in the sentences imposed for this offence: R v Lavender [2005] HCA 37; 222 CLR 67 (Gleeson CJ, McHugh, Gummow and Hayne JJ). The fundamental touchstone for sentencing in such cases is that there has been an unlawful taking of human life for which the offender is criminally liable and for which he must be sentenced to imprisonment.

Maximum penalty 28The maximum penalty is an indication of the relative seriousness of the offence (Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [31], per Gleeson CJ, Gummow, Hayne and Callinan JJ) and is therefore to be taken into account. The maximum term of imprisonment for manslaughter is 25 years: s 24 of the Crimes Act 1900 (NSW). There is no standard non-parole period.

The objective seriousness of the offence 29The deceased died because he was involved in recovering a modest drug debt from the offender. The offender is criminally responsible for his death because he arranged for supportive assailants to come to the place where his creditors were to return to recover the debt demanded earlier that day. The offender envisaged that force would be required to enforce, or resist, the demand and that weapons, a mallet, a knife, or a baseball bat might be used to attack as well as threaten members of the opposing side. 30The offender himself had been the victim of actual force and threats of force earlier that day. Ms Davenport submitted on his behalf that he did not know how many assailants would return to his residence at the appointed hour that evening to enforce the drug debt. So much may be accepted. However, while this may explain, it does not excuse, his response, which was to escalate the violence and increase the risk of physical harm. His desire for physical protection was understandable. However disputes are not to be resolved by the use of force or stand-over tactics. 31Ms Davenport referred me to two cases which she submitted were the most similar that she could find: R v Taiseni, Motuapuaka, Leota, Tuifua [2007] NSWSC 1090 and R v KP & PR [2008] NSWSC 970. I have read and considered those decisions but am mindful of the restrictions of placing too much weight on so-called comparable cases: Hili v The Queen; Jones v The Queen [2010] HCA 45 at [53] - [55]; Barbaro v R; Zirilli v R [2014] HCA 2; 88 ALJR 372 at [40]-[41]; RCW v R (No. 2) [2014] NSWCCA 190. 32The offender, although not the actual assailant, set in motion the train of events that led to the death of the deceased. He appreciated that there was a risk of violence and must have appreciated that he would be unlikely to be in a position to control the consequences of the conflict which he had orchestrated. His was not an impulsive act. Rather, he implemented a plan that had been conceived and arranged during the course of a day to set one group of men against another. Despite the offender's statement that he abhorred violence, he deliberately used other men as his weapons. 33The use of force to settle disputes, enforce debts or intimidate others is wholly inconsistent with the rule of law and the standards of civilised society. When force is resorted to in order to settle differences and serious consequences ensue, as they did in the present case, the instigator is guilty of serious offending. General and specific deterrence are important considerations in the exercise of the sentencing discretion in the present case. I regard the offender's moral culpability as high.

Plea of guilty 34I am required to take into account the offender's plea of guilty which came shortly before the trial was due to begin. Although a four-week trial has been avoided, the utilitarian value of the plea is lower because of its timing. There will be a discount of 10% with some slight rounding down to achieve a practical result.

Pre-sentence custody 35Ms Davenport submitted that the sentence I impose ought be back-dated to commence on 9 October 2013 since the parole was revoked because of the manslaughter offence. The Crown accepted that a degree of concurrency was appropriate. I am persuaded that the sentence for the manslaughter offence ought be back-dated to 9 October 2013.

Criminal history 36As referred to above the offender has previous convictions for drug offences. However his criminal history is limited to a single period in 2006-2007, when he was already over forty years old. He has no history of violent offending. He is entitled to have taken into account his good character prior to that time.

Remorse 37The offender gave evidence that he has frequent nightmares about the death of the deceased and his responsibility for it. I accept that he is distressed by the consequences of his actions although I am not persuaded that his distress is necessarily for the deceased and his family as opposed to himself.

Prospects of rehabilitation 38The offender was 48 at the time of the offending and he is now 50 years old. Ms Davenport submitted that his prospects of rehabilitation were fair. She contended that, although his age was against him, the fact that he was a new father and was in a good, loving relationship would give him the incentive to overcome his drug addiction which was the root cause of his offending. The offender is unusual in that his criminal history began late in life and was the result of his resorting to drugs and his inability to overcome his addiction. I am not satisfied that the offender's prospects of rehabilitation are better than fair. One might have thought that his age and his recent reconciliation with his son would have been sufficient for him not to return to drugs and to find a better alternative to the situation with which he was confronted in May 2013 when he lacked the money to repay a drug debt. However this did not prove to be the case.

Offence committed while on parole 39It is a significant aggravating factor that the subject offending was committed while the offender was on parole.

Offence committed in company 40Ms Davenport accepted that it was an aggravating factor that the offence was committed in company. Notwithstanding this concession, I do not consider it to be appropriate to take this factor into account as a separate aggravating factor since it is incorporated in the basis of the plea to manslaughter. The offender was responsible for the death of the deceased because of his role in the joint enterprise, which by definition, involved others.

Special circumstances 41Ms Davenport submitted that, as the offender was on limited association in custody (by reason of the circumstances of his plea for the drug offences), I ought find special circumstances. The evidence does not establish the extent to which, if at all, those conditions are more onerous for the offender. I am not satisfied that there are special circumstances.

Victim impact statement 42Retribution is one of the many aspects of punishment and is particularly significant when a life has been taken. However, the loss suffered by the deceased and his family cannot be reflected in any sentence I impose, although it can be taken into account. In the course of the sentencing hearing the Crown tendered a Victim Impact Statement by the deceased's mother. I accept without qualification the loss of the deceased which is felt on a daily basis by those who loved him. I take this opportunity to extend my personal sympathies to family and friends of the late Nikola Srbin.

Sentence James D'Ambrosio: For the manslaughter of Nikola Srbin, I sentence you to a term of imprisonment of 9 years and 10 months commencing on 9 October 2013 with a non-parole period of 7 years and 5 months. The earliest date upon which you are eligible for release on parole is 9 March 2021.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 November 2014

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