R v M.F.

[2014] NSWDC 136

District Court of NSW|2014-07-24|Before: Mr P

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Court

District Court of NSW

Decision date

2014-07-24

Before

Mr P

Source

Original judgment source is linked above.

Judgment (14 paragraphs)

[1]

The use of pseudonyms 1This sentencing decision relates to a young man who was a child at the time of his offending. His name is not to be published: s15A Children (Criminal Proceedings) Act 1987. He will be referred to as "MF". 2I also refer to another man as "M". He is to be tried later this year. Care must be taken with any publication of these reasons to ensure he is not prejudiced in his forthcoming trial. I note however that the matters I set out will be revealed at the start of his trial. 3I have also used a pseudonym for the victim of this crime, "Ms K". I ask that, as I have attempted to do, her privacy be respected.

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Introduction 4On 22 March 2012, MF grabbed Ms K as she walked down a lane in Chippendale. She fell to the ground. MF then poured an accelerant over her and as she got up, lit it. She suffered burns to 45% of her body, including to much of her face. She suffered terribly. She will continue to suffer, physically and mentally for the rest of her life. 5If that were all we knew anyone in our community would expect the offender to receive a very severe penalty: the maximum penalty here is 25 years imprisonment. But we do know more. We know in detail how Ms K has responded to her ordeal. We know a lot more about how this crime came to be committed. We know a lot more about MF. We know what MF has done to reveal what occurred and why. And, we know what MF has done to bring the person who initiated the crime to justice. 6These remarks must of necessity focus on MF and the sentence he should receive. I want to start however by noting I have received and considered the Victim Impact Statement (VIS) of Ms K (exhibit A, tab 5). Ms K read it in court on 24 July 2014. I, along with everyone in court, including I believe the offender, was moved by what she said, by her tragedy and the apparent strength and determination she has shown in dealing with what was done to her and its continuing and lifelong consequences. 7A judge in sentencing an offender must attempt to synthesise competing features and attempt "to translate the complexity of the human condition and human behaviour to the mathematics of units of punishment usually expressed in time ...": Weininger v The Queen (2003) 212 CLR 629. A judge is not required to average out these considerations, sometimes one can be determinative: R v Hopkins [2004] NSWCCA 105 at [22]. 8A judge must give proper weight to the various purposes of punishment. Some purposes overlap. None can be considered in isolation. "They are guideposts to the appropriate sentence but sometimes they point in different directions": Veen v The Queen (No.2) (1988) 164 CLR 465 at [476]; R v Engert (1995) 84 ALR 67 at [68].

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Background 9In 2012 Ms K was 32 years old. She was in Australia on a student visa, undertaking an English language course. To support herself and her family overseas she was working as a prostitute at a brothel in Chippendale. 10M, the offender's cousin, regularly attended the brothel. He met Ms K there in late 2011. It appears M became infatuated with Ms K. He offered her a large sum of money to come and live with him. She soon came to realise he could not afford to do this. 11MF was the 17 year old cousin of M. 12At about 9.30 pm on Thursday 22 March 2012, Ms K caught a taxi to work. MF and M were nearby in a borrowed red Mazda. As Ms K walked down a lane at the rear of the brothel MF came up behind her. He was disguised in a hooded jacket given to him by M. He forced Ms K to the ground. He then poured an accelerant over her head from a one litre milk carton. Ms K, panic stricken, ran towards the door of the brothel. As she did this, MF moved up behind her, and using a cigarette lighter, set her alight; she was engulfed in flames. The attack was captured on CCTV. The stills (exhibit A - tab 10) show this graphically. 13Workers at the brothel attempted to put out the flames. MF fled, leaving the milk carton behind. He ran to the car where M was waiting for him a few streets away. 14As a result of the attack on Ms K she was hospitalised with severe burns over 45% of her body; burns to her upper body including include her entire face, chest, both arms and both legs. She spent 3 months in hospital, undergoing skin grafts and other surgical procedures. 15On 18 July 2012, MF voluntarily attended Redfern Police Station accompanied by his legal representative and sister. He participated in an electronically recorded interview where he made full and frank admissions outlining his involvement in the offence. During the interview, he provided compelling detail that corroborated many of the then known facts of the investigation; facts which could only be known to investigating Police or persons involved in the crime. 16Although initially charged with attempt murder, the Director of Public Prosecutions accepted MF's guilty plea to a charge of causing grievous bodily harm with intent to cause grievous bodily harm: s33(1)(b) Crimes Act 1900. The Director accepts that M coerced the young person MF to pour a flammable liquid over Ms K and set her on fire.

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MF's Account to Police 17From late November 2011, M was undertaking plastering work at MF's family home. In February 2012, M began to groom and recruit MF to be involved as a party in his plans to harm someone. M offered him up to $70,000 in cash. MF declined. M began to physically intimidate MF. He threatened harm to MF, and MF's mother or sister. M told him things that he'd done to people before. MF was aware of M's past history of violence toward women. In February 2012, M turned up at MF's home on about 10 occasions and continued this intimidation. 18At about 6:30pm on Thursday 22 March 2012, M came to MF's home saying "Come on, you are coming with me". He told MF to leave his mobile phone in the house. MF said he didn't want anything to do with it. M grabbed MF firmly around the shoulders and said to him angrily: "If you don't come with me, I've got a gun on me". 19M stopped the car at a garage. He instructed MF to go in and buy a one litre carton of milk. M drove to Chippendale near the rear lane entrance to Ms K's work. He told MF to empty the milk carton. M then poured an accelerant into the carton. M told MF to scare Ms K by throwing accelerant on her and lighting it. He gave MF clothing to wear and a cigarette lighter. 20MF told police M continued with his threats and "pulled a gun on me". M then pointed out Ms K who was entering the lane and instructed MF to carry out the attack. 21MF told police how he had poured the accelerant over Ms K's head and upper body and set her alight. He said he "just panic and scared and didn't know what I was doing...because I was threatened". 22During the police interview, MF was asked, and answered, the following questions: Q869: Did you ever think at that point when he indicated that that's the person he wanted you to set on fire, did you ever think you could have left the situation once you were out of that car? A869: I did think but, no not really like because he had the gun and like how far could I run, he's in that car and like he could drive, drive fast, he can, I can't run as fast as the car and yeah, I was just scared and I wasn't thinking, just pressured, the only thing I was worried about was my family. Q120: "When you got out of the car you didn't think you could run away somewhere else and not carry through with the offence?" A120" "But if I ran somewhere else, I'm on foot and he's in the car, he could quickly go to my, to where I live and hurt my family before anyone gets there". 23Over the next days and weeks M gave MF further instructions and discussed plans designed to throw the police off the investigation. Some of the plans were carried out; others he refused. MF said he was at all times forced by M. He said he was "like a puppet to him". 24On 1 August 2012 a DNA profile matching the profile of MF was found on the milk carton.

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Juvenile Justice Reports 28Before a court can sentence an offender, who was a child at the time of a crime's commission, to custody the court must receive a Juvenile Justice report. The report for MF (exhibit A tab 11) noted the extraordinary circumstances of this offence and how this offender came to commit it. It sets out MF's account and how he was apparently "overcome" with fear. It notes his expressed feeling of guilt, remorse and sympathy for Ms K and the physical and psychological impact of his crime on him and his family. 29The report contains a comprehensive review of his family history. It sets out how MF came to Australia from Lebanon when he was 6 months old and how, following his parents' separation, their mother raised him and his sister. He grew up effectively without a father, making him susceptible to his mother's cousin's pressure. 30His schooling was disrupted; his attendance was irregular, leading to learning difficulties. He has only worked sporadically but he has sound ambitions. There were no apparent drug and alcohol issues. He presented as a polite and quiet young man who, in the opinion of the report's authors, would benefit from ongoing psycho-therapeutic counselling and supervision by Community Corrections. 31MF is now 19. In order to help assess where he might serve his sentence I asked that a supplementary Juvenile Justice report be prepared to help me assess whether special circumstances existed which warranted him serving his sentence in juvenile detention. That report, exhibit E, notes that MF will have problems adjusting to an adult custodial setting and concludes: "Should MF be detained in a Juvenile Justice Centre, MF will remain in an environment with age appropriate peers, with similar cognitive functioning and maturity levels. MF will be able to participate and engage in age appropriate activities including cultural activities engaging with various community support services. MF will be able to attend a number of structured therapeutic programs and offence focused interventions run by the department, while furthering his education through in-house or external training or vocation pathways, supported through a centre based case plan and team who are trained to work with, and support, young adolescent offenders." 32These are all important factors on sentence but they do not establish that the only suitable vocational programmes available to MF are in juvenile detention nor do they enable the real risk to be quantified so that it could be established that there would be an unacceptable risk of physical or psychological harm to MF if sent to an adult gaol. It would be preferable if MF could serve his sentence in juvenile detention but that is not the test: see s 19(4) Children (Criminal Proceedings) Act 1987.

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Evidence for the Offender 33MF gave evidence. MF presented as a reserved and quiet young man. He was obviously not a thinker but he appeared genuine in his expressions of remorse and willingness to do what he can in recompense, including pleading guilty and giving evidence against M. 34Also tendered was MF's police statement (exhibit 7). This evidence, which I accept, provides a sound basis for the fear of retribution noted in the other reports tendered. 35Dr Nielssen, a forensic psychiatrist, prepared a report (22 July 2014, exhibit 1). In his opinion MF now suffers from an adjustment disorder with symptoms of anxiety and depression. This, he said, results from the "ghastly nature" of the crime he committed, the threats made by M, and "a realistic fear of retaliation for co-operating with police". Dr Nielssen could not confirm a diagnosis of attention deficit/hyperactivity disorder (ADHD). In his opinion, MF's other conditions should resolve over time and counselling and medication might help. 36The report of Dr Ahmed, consultant psychiatrist (18/3/14, exhibit 2), also notes MF's fear of retribution from M, and his "tremendous remorse and guilt". In Dr Ahmed's opinion, MF's prior history of untreated ADHD as a child and an absent and violent father made him more impulsive and hampered his judgment. It made him more vulnerable to an intimidating and threatening cousin from whom he also craved affection and approval. 37Mr Jones, a clinical psychologist, provides a clinical assessment (6/5/14, exhibit 3) following administration of intelligence and other tests. He put MF in the lower average range - making him "somewhat gullible, lacking in confidence and more susceptible to being led than a person of average intelligence". He said MF met the criteria for attention deficit/hyperactivity disorder (ADHD) and would benefit from cognitive behaviour therapy. 38These opinions are very relevant as they help me understand why MF was vulnerable to M's pressure, influence and exploitation. They are also relevant to the ultimate sentence in this matter in a number of ways. However, given the qualifications in Dr Nielssen's report I could not be satisfied on balance that the offender suffers from a mental illness or that such an illness contributed to the commission of the offence in a material way. 39Other defence exhibits set out the treatment MF has received for depression and anxiety, and an employment plan, which to date have not been implemented due to uncertainty regarding MF's future. I was told today, and accept, MF has commenced a building apprenticeship and began counselling.

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Assistance 42A practical demonstration of MF's remorse was his formal undertaking to give evidence at the forthcoming trial of M. The Crown told me that without MF's evidence, the Crown case at trial, while strong, would be wholly circumstantial. MF's evidence will be "significant, if not critical". It is notable that although the police were building a case against M, he was not charged until the day after MF made his initial statement to police. 43A court can impose a lesser penalty on an offender because of their past assistance and any undertakings of future assistance. Here, both the past and future assistance is, (a)Significant, useful and extensive, (b)Apparently true and complete, and (c)Timely. 44While it could not be the subject of evidence it is likely that while the trial is underway, special security arrangements will need to be made for MF. It is also likely that his notoriety as an informer will require corrective services to require him to serve all or some of his sentence in protective custody. Gaols, even juvenile institutions, can be violent places. It is notorious that known informers, for the simple reason they are so known, are at risk of attack. It is possible other prisoners can make threats: R v KS [2005] NSWCCA 87. I heard evidence only last week of the type of taunts that are regularly made to protected prisoners from those in the "main". Sometimes there is evidence of prior threats: see York v The Queen (2005) 205 CLR 426. Sometimes it is not available as Corrective Services try to ensure that those in Special Management Area Protection are not deprived of work opportunities and programmes to aid in their rehabilitation: R v Sukkar [2006] NSWCCA 92. I have heard evidence in other matters that prisoners in Limited or Non-Association protection are however kept in their cells more often than others and cannot be given the same opportunities as those in other forms of protection. Things are worse for those in special confinement: R v Einfeld [2009] NSWSC 119; R v Standen [2011] NSWSC 1422. 45I do not have specific evidence about how MF will spend his time in an adult gaol. I could not have it; as MF has never been in custody. 46M, on the facts before me has taken extraordinary measures to avoid responsibility - he may do so again; the risk to MF appears real. It will remain a concern for MF throughout his sentence but I can only trust the authorities will do what they can to protect him. I can presume that Corrective Services will exercise their duty of care toward MF and will take into account his particular vulnerabilities and provide him with all programmes necessary for his rehabilitation. 47While there must be a reduction in sentence for past and future assistance (which I will split into equal portions) the reduced sentence must not be unreasonably disproportionate to the nature and circumstances of the offence.

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Duress 48It is not in dispute MF did what he did under duress. On balance I am prepared to accept that that duress included threats of significant violence to himself, his mother and his sister. On the day in question, immediately before he assaulted Ms K, he was threatened with a gun. As MF and his legal advisors properly reasoned, the duress here could provide no defence. That said, despite his youth and immaturity, he had opportunities to avoid the commission of this crime. He could have sought help from police in the period leading up to 22 March 2012. He could have: (i)Gone to someone when the threats began and persisted. (ii)Sought help in the service station. (iii)Run away in Chippendale. (iv)Not poured the accelerant and, importantly, (v)Not lit it, particularly after he knew it had gone over Ms K's head. 49He also had opportunities to make a moral choice. He could have risked retribution on himself and family rather than commit this crime; a crime, which carried, as a certainty, gross harm to his victim. 50I accept MF was young, immature, scared and his will had been overcome and overborne. It is a mitigating factor on sentence, reducing, to a degree, his subjective culpability. I note fear for oneself and others is not as serious a motivating factor as revenge, retribution or greed. Such matters, which bear on the positive side when assessing the true moral culpability of the offender, are also relevant when I assess his prospects for rehabilitation: See Tiknius v R [2011] NSWCCA 215; R v Z (2005) AC 467 at [22]; Kuti v R [2012] NSWCCA 43. 51The matters that made him vulnerable to duress and exploitation are also related to other factors that must be taken into account in mitigation of penalty. I must take care not to double count them. One such factor is the offender's youth and immaturity. He was not, because of his youth and immaturity, well equipped to respond to M's threats, nor was he able to fully appreciate, then as he now does, the enormity and consequences of his actions.

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Youth and immaturity 52Section 6 of the Children (Criminal Proceedings) Act 1987 sets out general principles that courts must take into account when sentencing those who committed crimes when a child. There is also a well established general principle that when sentencing a child or young person, considerations of punishment and general deterrence may be given less weight in favour of individual treatment aimed at rehabilitation: R v GDP (1991) 53 A Crim R 112 and more recently KT v R [2008] NSWCCA 51. 53As the Court of Criminal Appeal pointed out in R v Hearne (2001) 124 A Crim R 451, the principle underpinning the practice of imposing lesser sentences on youthful offenders than those imposed on adults who commit similar crimes lies in the recognition of the immaturity of youth, and the need for individualised treatment of the offender, directed to his rehabilitation. However the relevance of the principles, including those stated in s6, to each individual case depends to a very large extent on the age of the particular offender and the nature of the particular offence committed: Bus and S (unreported CCA NSW 3/11/1995). 54In recent years the focus has shifted from doing what is in the best interests of the child, to imposing on children adult penalties for what the courts regard as adult crimes. Two themes have emerged; one recognises the strong community interest in the rehabilitation of an immature young man whose criminal behaviour is not well formed; the other stresses the protective function of the court, particularly where the offending is objectively very serious. Justice Simpson recently discussed these themes in JM v R [2012] NSWCCA 83. 55The tension is particularly apparent when it comes to that purposes of sentencing relating to general deterrence. As the Court of Criminal Appeal noted in R v Pham & Ly (1991) 55 A Crim R 128: "... A court must refrain from sending young persons to prison, unless that course is necessary, but the gravity of the crime ... must be kept ... in mind otherwise the protective aspect of the criminal court's function will cease to operate. In short, deterrence and retribution do not cease to be significant merely because persons in their late teens are the persons committing grave crimes..." 56Nevertheless, for crimes even for those objectively in the very serious category, it is recognised that harsh dealing with children under the guise of community protection will often have a greater adverse impact on the community than an initial focus on the rehabilitation of child offenders. The reasons for this were summarised in a psychologist's report accepted by the New Zealand Court of Appeal in Slade v The Queen [2005] NZ CA 19, and referred to in Regina v Elliot and Blessington [2006] NSW CCA 305 at [127]: It is widely accepted that adolescents do not possess either the same developmental level of cognitive or psychological maturity as adults (Steinberg & Scott, 2003). Adolescents have difficulty regulating their moods, impulses and behaviours (Spear 2001). Immediate and concrete rewards, along with the reward of peer approval, weigh more heavily in their decisions and hence they are less likely than adults to think through the consequences of their actions. Adolescents' decision-making capacities are immature and their autonomy constrained. Their ability to make good decisions is mitigated by stressful, unstructured settings and the influence of others. They are more vulnerable than adults to the influence of coercive circumstances such as provocation, duress and threat and are more likely to make riskier decisions when in groups. Adolescents' desire for peer approval, and fear of rejection, affects their choices even without clear coercion (Moffitt, 1993). Also, because adolescents are more impulsive than adults, it may take less of a threat to provoke an aggressive response from an adolescent. 57The United States Supreme Court expressed similar sentiments when ruling the death penalty was not allowed for children: Roper v Simmons (2005) 125 S Ct 1183 58It is important also to remember and refer to the remarks of Allen J in R v Webster, unreported CCA NSW 15 July 1991, (the murder by a young man of a teenage girl): "The protection of the community does not involve simply the infliction of punishment appropriate to the objective gravity of the crime. There are other considerations as well - principally although by no means only, the deterrence of others...and the rehabilitation of the offender. The community have a real interest in rehabilitation. The interest to no small extent relates to its own protection ...The community interest in respect to its own protection is greater where the offender is young and the chances of rehabilitation for almost all of the offender's adult life, unless he is crushed by the severity in sentence, is high." 59Similar remarks were made in Blackman & Walters [2001] NSWCCA 121 and Yardley v Betts (1979) 22 SASR 108 at 112-113. They are supported by the conclusion of empirical research detailed recently in Does Imprisonment Deter? A Review of the evidence. D Ritchie, for the Sentencing Advisory Council Victoria, April 2011. 60It must thus be asked: (1)Did the child offender's youth impact on his offending? (2)Did it play any role in diminishing his criminality? (3)Have the Crown put forward any evidence to suggest that rehabilitation should not be the paramount consideration of the sentencing process? 61Briefly, for the reasons set out here, the answers to those questions are: (1)"yes" (2)"yes", and (3)"yes, the objective seriousness of the crime and its consequences".

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Resolution 66There are reasons here for a reduction in the sentence otherwise appropriate given what was done to Ms K. Gaol has significant adverse consequences to all especially the young and the wider community: Martin v R [2013] NSWCCA 24 at [44] and Blackman and Walters. The lived experience of prison should not be underestimated. Some of the possible consequences on MF of gaol, as opposed to juvenile detention, are set out in today's Juvenile Justice report (exhibit E). As numerous studies have established, gaol undermines pro-social ties in the community and can paradoxically have a crime producing effect by encouraging associations which are anti-social: see for example Does Imprisonment Deter? A Review of the Evidence. 67This is particularly so for vulnerable young men such as MF. MF is particularly vulnerable given his youth, background, his assistance to authorities and his current anxiety and depression stemming from the consequences to him of the horrific nature of his crime. Many other matters discussed above, most particularly duress and that he was a child, also require a significant reduction in sentence. 68That said, this sentence must still recognise the extreme harm done to Ms K. Even when sentencing children some weight must also be given to the need for retribution. This does not involve giving effect to the irrational prejudices of ill informed public opinion but rather means there must be the recognition of the "community expectation that the offender will suffer punishment and that particular offences will merit severe punishment": Ryan v The Queen (2001) 206 CLR 267 at [46]; R v Windle [2012] NSWCCA 222 at [42]. A court must do what it can to vindicate the dignity of a victim of violence and by the sentence imposed attempt to dissuade others from acting as MF did. 69Such was the seriousness of his crime and its consequences, that no sentence other than full time imprisonment is available to me. That sentence must be served in an adult prison given M is now 19, nearly 20, the length of the non parole period to be imposed, which means even if an order was made he would have to go to an adult gaol eventually, and the absence of Children (Criminal Proceedings) Act 1987 "special circumstances". The sentence will be backdated to reflect the two days spent in custody before MF was given strict bail, which, I note, he has kept. 70While sentencing is not meant to be a strictly mathematical exercise there must be a significant reduction in sentence for the utilitarian aspects of his guilty plea and past and promised assistance. I have allowed for a total rather than make progressive deductions. This will be 45% of the otherwise appropriate sentence - which I break down as: 15% for guilty plea; 15% for past assistance and 15% for future assistance. I have equally apportioned past and future assistance as even if MF were 'unavailable' at M's trial for whatever reason his past statements and interviews could be admissible: R v Suteski (2002) 52 NSWLR 182. 71The factors relevant to fixing the term of the sentence are the same as the non-parole period but the weight given to each factor may differ as the different parts of the sentence can serve different purposes. The non-parole period should be the minimum period that the offender must spend in gaol having regard to all the elements of punishment but the nature of the offence does not assume the importance it has when the head sentence is determined. Generally, a serious offence warrants a greater non-parole period due to its deterrent effect upon others. Further, fixing a non-parole period is not meant to convert a punishment into an opportunity for rehabilitation. However, the principles relating to sentencing young offenders are particularly important here. They mean that emphasis must be given to MF's rehabilitation. The particular circumstances of this offence mean that general deterrence for the reasons outlined above is not so significant or determinative a factor as would generally be the case. Synthesis of all the relevant factors therefore requires a significant variation in the otherwise appropriate non-parole period: R v MA (2007) 145 A Crim R 434 at [33] and Bugmy v The Queen (1990) 169 CLR 525 at [20]. 72There must be a finding that the non-parole period be reduced because of special circumstances. Here those special circumstances also include: 1.MF's youth and susceptibility to negative influences in gaol. 2.The risks associated with his giving assistance. 3.His solid prospects for reform, if given long term support and assistance in the community. 73While many factors raised in mitigation overlap I have taken care not to double count them. Here also, many of the purposes of sentencing point in differing directions. While the need to promote MF's rehabilitation and recognise his youth, remorse and assistance are compelling, he must also be held accountable for his actions. What he did must be denounced and the harm, the terrible harm, done to Ms K properly recognised. 74But for your plea and assistance, I would have imposed a sentence of 11 years imprisonment. Taking into account a finding of special circumstances, you are convicted and sentenced to a non parole period of 3 years, to commence on 16 August 2014 and expire on 15 August 2017. You will be eligible for consideration for release to parole on 15 August 2017 to serve the balance of term of 3 years, to commence on 16 August 2017 and expire on 15 August 2020. Total sentence is a term of imprisonment of 6 years.