R v J L E [2011] VSC 669

Supreme Court of Victoria|2011-12-22|Before: COGHLAN J

CRIMINAL LAW - Constructive murder - Attempted armed robbery - Plea of guilty - Youth offender - No prior convictions - Remorse - Prospects of rehabilitation.

1 JLE, on 20 April 2011, you pleaded guilty before me to the murder pursuant to s 3A of the Crimes Act 1958 and attempted armed robbery of Nitin Garg who died on 3 January 2010 at the Royal Melbourne Hospital. Your plea was conducted before me on 6 June 2011.

2 Your offending is a result of your actions from the preceding day. You and MRN whom you met at school and became good friends, met outside the local milk bar on the evening of 2 January 2010 in Robert Street, Yarraville. You went back to your home but soon after you walked to the Coles Supermarket in High Street, Yarraville. For reasons which have never been explained, you left the house with a folding knife in your pocket.

3 After buying a drink from Coles, you entered Cruickshank Park which was between your home and the supermarket near the Kingsville Primary School. Whilst in the park, you both spoke with a mutual friend, Aaron Foster, on a mobile phone and consumed your drinks. A short time later, Nitin Garg, who was talking on his mobile phone at that stage, walked past you and MRN.

4 MRN made the comment to you, "That bloke's phone was nice", referring to the victim's phone. Following this comment, you removed a long sleeved jumper that you were wearing and wrapped it around your head as a way of concealing your face. When questioned by MRN as to what you were doing, you indicated that you were going to "roll" the victim which is taken to mean that you were going to rob him.

5 You proceeded to pull out the knife that you had on you and ran towards the victim pulling out the blade from the handle. As you approached Mr Garg from behind with the knife held up, you demanded, "Give me your phone now". Mr Garg turned around to face you, grabbed you on the forearm and it is at this point that you stabbed Mr Garg in the abdomen. The actual mechanics of how he came to be stabbed are not possible to calculate.

6 Mr Garg ran away from you in the direction of his work, being the Hungry Jacks on the corner of Geelong Road and Somerville Road.

7 MRN ran up to you and you made the comment, "I don't know if I got him." In which I assume you meant you were not sure if you had stabbed him.

8 MRN saw that Mr Garg was trying to make a phone call and chased after him demanding him to drop his phone. Telephone records indicate that at 9.54pm a call was made to 000 from Mr Garg's phone however the call was not successful. The mobile phone was dropped and broke in the process. It was found at this location by the police some hours later. You then said to MRN, "Let's get out of here" and proceeded to return to your home with MRN.

9 Mr Garg managed to get to the Hungry Jacks store. He was seen staggering across the road and made it just inside the door before collapsing. His colleagues called 000 and rendered what assistance they could while waiting for the ambulance to arrive. Mr Garg was taken to the Royal Melbourne Hospital but had suffered extensive internal injuries and despite surgical intervention, died in the early hours of 3 January 2010.

10 Following the attack, you returned to your home still unsure whether you had stabbed Mr Garg. You placed the knife in the middle drawer of your cupboard and then watched part of a movie until MRN had to leave.

11 Both you and MRN discovered the following day that Mr Garg had died but you did not inform anyone about the events of the prior night.

12 MRN first became a suspect in this matter due to the regularity in which he would frequent the park and then you in turn became someone the police wanted to speak to. You were interviewed by the police on 26 January, 10 April and 15 April 2010 and it is on this last date when you formally made your statement. In that statement, you stated that yourself and MRN had been playing Playstation all day at your house and that at some time between 9.00 and 9.15pm, you both went to Coles and described the route you took to get there which involved going through Cruickshank Park. When going through Cruickshank Park, you stated that either you or MRN got a phone call from a friend and that there was no-one else in the park while you both were there. You returned home and did not leave again that night.

13 Over the period that you and MRN were interviewed by the police, you would discuss with each other on occasion what you had both said to the police.

14 However, on 21 May 2010, MRN confided to a friend's father that he had been present when Mr Garg had been attacked. As a result of this, MRN spoke to the police and then four days later attended at the Homicide Squad and made a statement implicating you in the murder and attempted armed robbery of Mr Garg which was signed at a later date on 14 June 2010.

15 You were arrested on 17 June 2010 and made a no comment interview. You were then charged with the murder of Mr Garg.

16 Mr Garg was an Indian national who was in Australia on a student visa. He graduated in October 2009 with a degree in a Bachelor of Accounting which he completed via correspondence from the University of Queensland. He was hopeful of commencing full time work in an accounting firm. At the time of the attack, Mr Garg was on his way to Hungry Jacks where he worked part time as a shift manager.

17 On the plea I received victim impact statements from Parveen Garg, mother of Mr Garg, Hanish Garg, brother of Mr Garg, Divya Garg, sister of Mr Garg, Amanjeet Singh, family friend, Mandy Mazzucchelli, employer and friend, and Sandeep Sandeep, a friend. Their loss has been profound. For the family, this was compounded by the fact that Mr Garg was away from home in a foreign country doing no more than seeking to better himself.

18 While you did plead guilty to the offending, the possibility remains that had you assisted in resolving this case earlier, their grief may have been somewhat reduced, as I observed both on the plea and in sentencing MRN.

19 It is accepted that due to your plea to constructive murder that you did not intend to kill or really seriously injure Mr Garg during the attempted armed robbery. I am also satisfied that Mr Garg was a completely random victim and it was his presence at the time and in the place while talking on his phone, which made him a victim. Not his race. The provisions of s 3A of the Crimes Act 1958 replace the notion of "felony murder" at common law. That section provides:

(1) A person who unintentionally causes the death of another person by an act of violence done in the course or furtherance of a crime the necessary elements of which include violence for which a person upon first conviction may, under or by virtue of any enactment, be sentenced to level 1 imprisonment (life) or to imprisonment for a term of 10 years or more shall be liable to be convicted of murder as though he had killed that person intentionally.

(2) The rule of law known as the felony-murder rule (whereby a person who unintentionally causes the death of another by an act of violence done in the course or furtherance of a felony of violence is liable to be convicted of murder as though he had killed that person intentionally) is hereby abrogated.

20 You are now 17 years of age. On 2 January 2010, you were 15½ years of age. You are an only child and live with your parents but have had various foster brothers and sisters over the years. You are fortunate to have the significant support and love of your parents who have visited you regularly and who give you ongoing support whilst being in remand. I received on the plea six references from David Roberts, Danielle Patten, Graeme Light, Lourdes Andrews, Greg Pond and Geraldine Anderson. They all speak highly of you in various ways and you have their support. You have been a supported person in the community. That material supports the proposition that this behaviour was out of character.

21 The crime of violence to which you had committed yourself was that of armed robbery or, more specifically, attempted armed robbery, because you did not succeed in robbing Mr Garg of his phone. The crime of armed robbery which includes either the application of force or the threat of application of force whilst armed has been accepted as an offence of the kind referred to in the section almost since the time the section was included in the Act in 1981.

22 The importance of s 3A is that although it deals with the "unintentional causing of death", it does make a person such as you, who engages in such conduct, liable to be convicted of murder and that is the consequence of this case.

23 On the one hand, your conduct is less blameworthy because it is accepted that Mr Garg's death was an unintentional consequence of your actions, and that was conceded by the prosecution. But it cannot be avoided that your conduct is still serious because you had committed yourself to quite serious conduct - armed robbery - which carries a maximum term of imprisonment of 25 years in any event. Attempted armed robbery for which you fall to be sentenced carries a maximum sentence of 20 years.

24 It goes without saying that the community abhors the use of knives because of the consequences such as these. I accept that, had it not been for the principle of constructive murder, you might, in not very different circumstances, have been more likely to have been convicted of manslaughter. The events which bring you here and which are tragic and awful, probably took place in less than a minute.

25 You have no prior convictions and have not come to the attention of the authorities for your behaviour. It can be seen from the above material that you avoided coming forward about these events and it was only after your co-accused spoke to the police that the position changed. It was put to me on the plea that your age was of particular relevance to that matter and I accept in general that that is so but I will deal with the matter separately.

26 A very detailed and able plea was made on your behalf by Mr Marcus Dempsey of counsel. A detailed written outline was provided and it became Exhibit 3 on the plea.

27 The following matters emerged. As I have already mentioned you have loving parents and grew up in a household where your parents took on the foster care of young children between 2003 and 2008. You found that the time your mother needed to look after the foster children deprived you of time with your mother and the foster care was suspended for a year in 2008 and not continued in 2009. Your social circle and that of your family has been relatively narrow. Your father has been a hard worker who works long hours and on occasions shift work.

28 You received your primary education at Kingsville Primary School, which was largely unremarkable as really was your secondary education at Bayside Secondary College, although when you first started at that school you were the subject of minor bullying.

29 You had not resolved what your future would hold at the time of these events which, given your age, is not surprising. Although you thought you might have been interested in joining the armed forces which will now be out of the question.

30 Most other features of your background are equally unremarkable, and your physical and psychological health are good. You have been an occasional drinker of alcohol in a clandestine way. Not unremarkable given your age.

31 A number of cases were put to me on the plea to demonstrate the fact that when dealing with the very young, sentences for murder have been significantly moderated.

32 The case which was in one sense closest on the fact was DPP v MM.[1] That case was similar in that the death which occurred in that case arose from a robbery gone wrong. It was dealt with as a s 3A murder. MM and his co-accused, however, were not armed. The underlying offence was robbery and whether MM did the act which caused the death was problematical . MM also had cooperated at a very early stage and had been prepared to give evidence against another. He had a special discount available to him which is not available to you. The sentence for murder in that case was nine years.

33 The critically important feature of this case is how the question of your youth is to be dealt with.

34 I should, as a preliminary to that, say that I do regard you as remorseful and I regard your prospects of rehabilitation as at least good.

35 Your plea is important. A plea of guilty to murder, particularly somebody as young as you, is a very important thing. The plea was not early and there are some aspects of your post offending conduct which I will deal with later in this sentence, but the plea of guilty is an important aspect of the case in your favour.

36 In a shorthand way, it has often been said that the more serious the offending, the less weight which can be given to youthfulness. Expressed in that way, the principle is too broadly expressed.

37 After a very helpful review of the relevant authorities, Redlich JA recently observed:[2]

"The general propositions which flow from these authorities is that where the degree of criminality of the offences requires the sentencing objectives of deterrence, denunciation, just punishment and protection of the community to become more prominent in the sentencing calculus, the weight to be attached to youth is correspondingly reduced. As the level of seriousness of the criminality increases there will be a corresponding reduction in the mitigating effects of the offender's youth.[3] But only in the circumstances of the gravest criminal offending and where there is no realistic prospect of rehabilitation may the mitigatory consideration of youth be viewed as all but extinguished.[4]"

38 Your sentence is to be approached in that way. In your case, because of your very young age at the time of offending, the following features relating to your youth will be important. Your immaturity, your potential for rehabilitation, the effects of incarceration will all play their part. However, general and personal deterrence and just punishment and denunciation will their part. Although this is a very serious crime, it was committed spontaneously. It was accepted by the prosecution that you did not go to the park to commit the armed robbery. Somewhat unusually, you have no prior convictions or proved inclination to violence, and, as I have already mentioned, your prospects are at least good. So although in some cases youth will be barely relevant, in your case, it continues to be of importance.

39 It should be noted that you did choose to arm yourself and you did a great deal to avoid apprehension for your crimes. Some of the exchanges with your mother detected on a listening device show that level of determination. That is explained to a degree only, by the bravado of youth. To your advantage for present purposes, you have put that behind you.

40 After my request for a pre-sentence report, a report was prepared by Dr Lester Walton, a very experienced forensic psychiatrist, as part of the of pre-sentence process. That report is dated 30 June 2011.

41 In that report, Dr Walton added not much to what had been put previously.

42 He did observe that you were "somewhat immature" and that he thought you were yet to fully appreciate at an emotional level the enormity of this offence Those two propositions are linked but are a further consideration of the rapidity with which these events occurred.

43 You have now been in custody for about 18 months.

44 At the time of your arrest in June 2010 you were studying a group of Year 10 and 11 subjects at Bayside Secondary College and you have continued your education at Kangan TAFE by way of distance education whilst in custody and have progressed satisfactorily.

45 I received a very positive pre-sentence report about your detention in the youth justice system.

46 It is accepted that you would be suitable for transfer to the Youth Justice system pursuant to s 471(1)(a) of the Children, Youth & Family Act 2005 and a place is available for you.

47 I recommend to the Adult Parole Board that arrangements be made for you to serve your sentence, in so far as it is possible to do so, in a youth facility.

48 I am obliged to balance between the interest of the community on the one hand and your interests on the other. It is not a task which I have relished and I have found the task of sentencing you a very difficult one. It is yet another example of the proposition that in circumstances such as these there just are no winners. One able young man is dead and your life is dramatically affected forevermore as a result of the consequences.

49 On the count of murder you are sentenced to be imprisoned for 13 years.

50 On the count of attempted armed robbery you are sentenced to be imprisoned for two and a half years. I order that that sentence be served concurrently on the sentence of count 1 in accordance with the Crown concession.

51 Because of your youth and the challengers that you will face upon your release, I have fixed a lower than usual non-parole period because of the specific circumstances of this case. I fix a non-parole period of eight years.

52 I declare that you have served 553 days by way of pre-sentence detention.

53 I state pursuant to s 6AAA of the Sentencing Act 1991 that, but for your plea of guilty, I would have sentenced you to be imprisoned for 17 years with a non-parole period of 12 years.

54 I direct that the declaration as to pre-sentence detention and the statement pursuant to s 6AAA be entered in the records of the Court.

[2] R v Azzopardi & Ors [2011] VSCA 372.

[3] See also IE v The Queen [2008] NSWCCA 70; (2008) 183 A Crim R 150 [16] (Latham J; Spigelman CJ and Hulme J agreeing).

[4] Cf DPP v Terrick [2009] VSCA 220; (2009) 24 VR 457, 470-71.

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