R v JB [2010] NSWSC 543 | Case summary

SENTENCE 1 HER HONOUR : The offender was convicted after trial of the murder of Edward Spowart in the early hours of 21 April 2008. The offence carries a maximum penalty of life imprisonment. The standard non parole period fixed by the legislature does not apply in the circumstances of this case, the offender being a juvenile (aged 15) at the time of the offence. The principles established by the Children (Criminal Proceedings) Act 1987 guide the sentencing exercise. 2 The offence arose out of a confrontation between members of Mr Spowart's group and the offender and his associates, late in the evening of 20 April, which escalated into a brawl in the streets of Granville. It appears that various men and youths armed themselves with sticks, bricks and street signs. However, Mr Spowart played no active part in that confrontation or in the later hostilities. In every sense of the term, he was an innocent bystander who had retreated to the relative safety of a grass verge and was carrying nothing more than a plastic shopping bag, when the offender ran towards him with a knife and viciously assaulted him. The death of Mr Spowart resulted from the infliction of knife wounds to the chest, abdomen and leg by the offender. The latter incision severed the femoral artery, leading to Mr Spowart's death within a short time, despite the attendance of ambulance personnel at the scene. 3 This was an offence of the most disturbing and senseless kind. It demonstrates yet again the havoc that is wreaked all too often when a knife is carried in public by intoxicated males, who resort to violence to vindicate themselves over some relatively petty slight. The offender's background as a Sudanese refugee is called in aid to explain certain aspects of his behaviour, including a certain habituation to violent conflict. His subjective circumstances must, of course, be factored into the sentencing exercise, but they cannot provide the offender with an excuse for the offence, nor do they, in my view, impact upon the objective gravity of the offence. Aside from the offender's youth, there is no basis for a finding that his moral culpability for the offence is in some way reduced. 4 In fact, it was the offender who initiated the violence. At about midnight on Sunday 20 April 2008, Mr Spowart was in the company of a number of his friends, all of whom had been drinking alcohol throughout the afternoon. They were at Granville station where one of their number was on a public telephone to his sister. As they waited for the telephone conversation to finish, the offender approached them and asked for a cigarette. The offender was rebuffed and told to go home. Apparently reacting out of a wounded sense of pride, the offender threw a punch. Mr Spowart's group retaliated by pushing and then chasing the offender's group from the station concourse, down onto the street. Mr Spowart can be seen on CCTV at this point leaving the station concourse by an alternative route. At no time did he engage in any contact with the offender or his friends. 5 The evidence at trial also suggested that some of Mr Spowart's friends continued to chase the offender and at least one other young male a short distance through the streets near Granville station. At some point, they gave up the chase and returned to other members of their group, including Mr Spowart. They all decided to make their way on foot to the home of one of them. Shortly thereafter, they encountered the offender in a group of young males, some of whom were armed with sticks or poles, which they were brandishing. The offender was at the forefront of this rabble, armed with a knife which he had retrieved from a nearby location, no doubt in anticipation of a fight, the sole purpose of which seems to have been to exact revenge for the earlier humiliating defeat. The two groups squared off in the middle of the road before coming to blows. 6 Whether the offender roused the group to violence, or whether the group spontaneously took that course is of less significance than the fact that the offender was the principal aggressor in what followed. He threatened one of Mr Spowart's friends with the knife, lunging towards him a number of times so that retreat was the only option. That incident was the subject of an attempt murder charge upon which the offender was acquitted. I accept unreservedly the evidence supporting that charge, although in my view the jury were correct in failing to be satisfied beyond reasonable doubt that the offender's purpose in using the knife in that way was only consistent with an intention to kill. An equally available inference is that the offender intended to ward off an assault upon himself. 7 Not content with repelling one man, very much larger and older than himself, the offender circled around the melee and ran at Mr Spowart, who was attempting to mind his own business, well removed from the fray. There was no violence offered by Mr Spowart, he posed no threat to the offender, he bore no responsibility for the conduct of his friends towards the offender. This was no pre-emptive strike, or an indiscriminate assault in the thick of a hostile crowd. The offender targeted Mr Spowart because he was exposed, unarmed and unprotected. It was a cowardly, vengeful act. 8 It is all the more disturbing that, despite compelling evidence that the offender made admissions to at least two other people in the hours and days after the murder, he denied at trial through his counsel that he had stabbed the victim and he continues to deny that he is responsible. He is not to be punished for exercising his right to trial, but the Court is deprived of evidence that might provide some insight into the offender's motivation that night. More importantly, the offender's prospects of rehabilitation are doubtful in the absence of any real remorse. 9 The starting point is the assessment of the objective gravity of the offence. Pivotal to that assessment is determining whether the offender intended to kill Mr Spowart or whether he intended to inflict really serious injury upon him. Were it not for the evidence of the offender's intoxication, I would have inclined to the view that the number and location of the wounds are eloquent of an intention to kill. The offender was not, even at the age of 15, unfamiliar with the consequences of mob violence, particularly when knives and other weapons were involved. It might be said that his exposure to violence in the Sudan and Kenya desensitised him to some extent to the use of violence in order to settle disputes. However, the offender is not without intelligence and, according to his step-mother, was a respectful, polite young man until his entry into high school in Australia in 2006. Despite his age, his life experience suggests that he was fully cognisant of the lethal nature of knife wounds inflicted to the chest and abdomen. 10 However, there was evidence at trial that the offender and his group had been consuming alcohol that day. The offender stated to the author of the Juvenile Justice Report (Ex 1) that he had been binge drinking in the afternoon of 20 April and had been smoking cannabis since 7pm that day. The offender and his group had in fact travelled to Granville by train for the purpose of buying more alcohol, before the confrontation took place. The offender told a psychologist (Ex 2) that he had consumed about a litre of wine and about 2 gms of cannabis before the fight and that he felt moderately intoxicated. This was consistent with a pattern of binge drinking that developed in late 2007. The offender acknowledged to both the Juvenile Justice officer and to the psychologist that he became more aggressive when intoxicated, and was more easily provoked. 11 I am unable to conclude beyond reasonable doubt that the offender intended to kill Mr Spowart. His capacity to make reasoned judgments with respect to the degree of force required to hurt Mr Spowart, as opposed to kill him, must have been compromised by his intoxication. In addition, it was unfortunate in the extreme that a relatively small blade was able to cut the femoral artery. I accept that the offender was unaware of the particular danger inherent in that wound. 12 That said, the objective gravity of this offence is nonetheless high, relative to instances of murder committed with the intention of causing very serious injury. The use of a knife, in company, in a public street late at night, with a degree of premeditation, justifies a sentence in the order of 25 years in my view, before account is taken of the offender's subjective circumstances. Such a sentence would necessarily give expression to the principle of general deterrence. The offender's youth should result in some amelioration of that penalty, given that the law recognizes that the emphasis lies on the rehabilitation of a juvenile offender, rather than on general deterrence. The extent of the departure from that sentence ought not result in a penalty which fails to reflect the objective gravity of the offence, having regard to the fact that the offender was not so young that he did not appreciate the consequences of his conduct. 13 More importantly, notwithstanding the offender's youth, general deterrence is still a significant factor in this case, given that the type of conduct engaged in by the offender is regrettably not an uncommon occurrence in suburban streets at night, where young males gather, fuelled by alcohol and intent upon proving their manhood. 14 The offender was born in Sudan where he was cared for by his biological parents and by his stepmother, who is his father's second concurrent wife. His mother, father and one of his sisters now live in Sudan and his second sister lives in Kenya. 15 The offender and his family left Sudan in 1996, due to civil unrest. They travelled to Kenya but were separated from the offender's father, whom they did not see again until 2002. In the intervening period, the offender, his mother and two sisters remained in a refugee camp in northwestern Kenya where living conditions were described as "terrible". There was little food and water, no employment or educational opportunities, disease was ever-present and murders were frequently the result of inter tribal conflict. When the family was reunited with the offender's father, the offender was taken to Uganda to live with his stepmother and her children, whilst his mother and sisters remained in the refugee camp. 16 The offender's father, who worked as a doctor within the World Health Organisation, was not seen or heard from again until 2004, at which time the family became aware of the father's imprisonment as a political prisoner. The offender has had little contact with his father since that time and claims to hardly know him. 17 Since 2002, the offender has enjoyed a relatively stable family life with his stepmother, four step brothers and two step sisters, aged between nine and 21 years. In 2005, the offender came to Australia with this family and completed an English language course which allowed him to attend high school in 2006 and 2007. It was at this time that the offender's behaviour changed for the worse. His stepmother reported that the offender stayed away from home for increasing periods of time and did not obey house rules or curfews. The offender reported feeling socially isolated at school and unable to cope with academic requirements. The offender also felt neglected by his extended family. 18 In late 2007/early 2008, the offender left the family home for a six-month period. This appears to have been the beginning of the offender's abuse of alcohol and cannabis. In April 2008, the offender was in receipt of Centrelink benefits totalling $350 a week. At that time, the offender was not paying board or rent, spending his money on "clothes, alcohol and smokes". This offence represents his first contact with the criminal law in Australia. The offender intends returning to live with his stepmother upon his release, indicating a strong sense of attachment to her. 19 The following comment appears within the Juvenile Justice report :- It appears that J's integration within the Australian mainstream education system has been a difficult transition for him. He only had six months of language related education prior to entering high school, and was then placed into classes which exceeded his actual age and capabilities. A possible reason for this elevation, may have been due to the discrepancy in his recorded age during immigration process, which reportedly recorded his age as being two years older than his actual age. 20 An erroneous date of birth in immigration records has since been confirmed by receipt of the offender's birth certificate from New Sudan (Exhibit 3), which reveals the offender's date of birth as 9 September 1992. However, there is some discrepancy between the statement in the Juvenile Justice Report that "J did not attend any formal education in Africa" and the report by the offender to the author of Ex 2 that "despite his transitory upbringing, J received a relatively continuous education". The offender told that psychologist that he attended 3 years of primary education in Kenya and a further 3 - 4 years of education in Uganda. The offender also claimed that he performed well in his class in high school in western Sydney. 21 The conflicting nature of this material makes it difficult to determine whether the offender was thrust into a social and educational environment with which he could not cope, or whether he simply chose to drift into an association with other dislocated Sudanese youths. It is also of some concern that the offender does not believe that his abuse of alcohol and cannabis is problematic and his behaviour in custody has been "less than satisfactory". On a more optimistic note, he completed an eight week anger management program on 16 May 2009 and is reportedly completing his Year 11 studies at Kariong Correctional Centre. 22 On the basis of the current information, the offender's prospects of rehabilitation appear doubtful. He is sufficiently insightful to recognize that when he consumes alcohol he becomes aggressive, but he shows no willingness to address his alcohol consumption or to re-evaluate his peer group. There is still time for the offender to develop these insights. Hopefully, with maturity, the offender's progress will improve. 23 While I am mindful of the importance of managing the offender's return to the community upon his release, and of the primacy of rehabilitation in the circumstances of this case, the non parole period cannot be reduced too far below the statutory proportion, lest it fails to reflect punishment and retribution for the loss of a life. The real dimensions of that loss were brought home to the Court by the victim impact statements, which spoke movingly of the impact of the victim's death on all the members of his family. 24 Taking all of these matters into account, I propose sentencing the offender as follows :- 25 JB, you are convicted of the murder of Edward Spowart. You are sentenced to a non parole period of 16 years, to date from 22 April 2008, expiring 21 April 2024, with a balance of term of 7 years, expiring 21 April 2031. You are eligible for release on 22 April 2024. I direct that the sentence is served in a Juvenile Justice Centre, to the extent that the law allows. **********

R v JB

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