R v Mamae

THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

THURSDAY 4 OCTOBER 2001 070029/01 - REGINA v JUNIOR VAA MAMAE SENTENCE

1 HIS HONOUR: On 3 September 2001 the offender was arraigned at this Court on a charge of murder and, in the alternative, aggravated assault with intent to rob. The offences alleged occurred at St Mary's on 15 July 2000 when Mr Pieter Hage was attacked whilst walking home in the early hours of the morning. 2 The offender put himself at the scene of the crime, but denied any involvement. He attributed the attack to his companion, Jason Young. That offender was sentenced by me on 3 September last in circumstances that are detailed later in these remarks. 3 The jury in Junior Mamae's trial was instructed that the crime of murder is committed when the act of an accused which caused the death of the deceased was done by him during or immediately after the commission by that accused or by some accomplice with him to the crime of aggravated assault with intent to rob with wounding. Before returning a verdict of guilty to murder, it was essential that the Crown prove that there was a joint criminal enterprise between the offender and Jason Young to attack Mr Hage. The jury was also instructed that an alternative verdict of manslaughter should be returned if, taken with other elements that are not relevant at the moment, they were satisfied beyond reasonable doubt that Jason Young and the accused jointly attacked Mr Hage at St Mary's on 15 July 2000 and that the assault upon Mr Hage was unlawful and dangerous. 4 During the trial it became clear that there was no issue that the death of the victim resulted from the attack upon him. As any verdict of guilty for the felony of murder necessarily involves consideration of the second count, it would have been too confusing for the jury to be left with the count of aggravated assault with intent to rob with wounding. Accordingly, during the course of the trial, the Court granted leave to the Crown to withdraw the second count on the indictment. 5 The trial concluded on 14 September when the jury returned a verdict of not guilty to murder, but guilty of manslaughter. The jury's verdict meant that the jury was not satisfied beyond reasonable doubt that a joint attack with the intention to rob occurred, but it was satisfied to the required standard that the offender joined in the assault upon the victim. The offender was convicted and remanded in custody pending sentence. 6 Bearing in mind the jury's verdict and material that was not in issue, the Court is satisfied beyond reasonable doubt as to the following facts and circumstances of and surrounding Mr Hage's death. 7 On Friday 14 July last year, Mr Pieter Isak Hage, who lived in Edgar Street, St Mary's, went to work. After work he went with a friend to an hotel and consumed some alcohol. He then went to his home. After that he went to the St Mary's Band Club. There Mr Hage had a fair bit to drink. At about some time around 11.30 on Friday evening he left the Band Club. He went to a pizza shop on the northern side of the Great Western Highway a little before midnight and bought a pizza and ate it there. He went to sleep for part of the time whilst sitting in the pizza shop. He then woke up and left about 12.10 am. 8 He then walked towards his home in Edgar Street and arrived at the north-western corner of Edgar Street in Mamre Road. It was there he was assaulted by the two young men, Jason Young and the offender. Jason Young punched Mr Hage several times to the head and, when Mr Hage fell to the ground, Jason Young then kicked Mr Hage several times to the lower body. The offender kicked Mr Hage several times to the upper area of his body. During the attack Mr Hage was wounded, in that he received lacerations to the eye. Mr Hage also received flap lacerations. 9 The Crown led evidence in support of its case that the purpose of the attack was to rob Mr Hage. The jury was not satisfied that such a joint criminal enterprise occurred and that aspect of the Crown case plays no part in the sentence. 10 After Mr Hage was assaulted, the offender and Jason Young then continued to walk in a northerly direction up Mamre Road and then to the Band Club and also to a disco by the name of Colours. 11 At about 12.20 am a resident of Edgar Street saw Mr Hage's body on the footpath and telephoned the local police who responded, as did the ambulance officers who were called. Mr Hage was found to be deceased. A later post-mortem revealed that he had died from the stress of the attack upon him, and particularly his diseased heart. Mr Hage did not die directly from the injuries received, but from the distress brought about by the physical attack upon him. 12 The injuries the victim received did not amount to grievous bodily harm. They, by themselves, did not result in serious injury. So much is clear from Dr Little's findings. The victim was an unhealthy man who was intoxicated at the time he was assaulted by the offender and Mr Young. The blows to him from the offender and Mr Young resulted in his death. 13 The offence of manslaughter is a serious crime since it involves the taking of human life, the protection of which is the primary objective of the criminal justice system: Regina v Veech (2001) NSWSC 68. In Blacklidge NSW CCA 12 December 1995 Gleeson CJ said at page 4: "It has long been recognised that the circumstances which may give rise to a conviction for manslaughter are so various, and the range of degrees of culpability is so wide, that it is not possible to point to any established sentencing tariff which can be applied to such cases. Of all crimes, common manslaughter throws up the greatest variety of circumstances affecting culpability. At the same time, the Courts have repeatedly stressed that what is involved in every case of manslaughter is the felonious taking of human life. That is the starting point for a consideration of the appropriate penalty, and a key element is the assessment of the gravity of the objective circumstances of the case."

His Honour referred to Regina v Dodd (1991) 57 A Crim R 349; Regina v Hill (1981) 3 A Crim R 397 at 402.

14 The fact that the offence carries a maximum sentence of imprisonment for 25 years provides a powerful indicator as to the seriousness with which it is regarded and to ensure that the sentence is commensurate with the seriousness of the crime, in the sense that, having regard to all the proved circumstances of the case, it accords with the general moral sense of the community. 15 The attack on Mr Hage was callous and cowardly. He was in no position to defend himself or resist in any way. He was a harmless man, simply walking home after his recreation at his local club. 16 The offender was totally unconcerned about his victim left lying on the ground and continued to the club to drink and dance, before returning to his ex girlfriend's house.

SENTENCE OF CO-OFFENDER 17 Jason Young was sentenced to six years' imprisonment for his part in the attack. A non-parole period of four years was set. The Court was satisfied that Jason Young's assault upon the deceased was in the context of an intention to rob him, and I am satisfied that Jason Young was the instigator of the assault. 18 The present offender, to use a phrase utilised throughout the trial, 'joined in'. He played a significantly lesser role in the attack. The nature of the injuries, not amounting to grievous bodily harm, is a factor to be taken into account in assessing the objective seriousness of the offence. Jason Young's subjective factors differ from the offender's. He is younger. He received a discount on sentence because of the plea of guilty and co-operation with the authorities. The Court took into account that Jason Young's sentence would be served in protection in harsher conditions. 19 Balancing those factors in this matter produces a similar result. The Court has to give consideration to that aspect because the inconsistency in the sentencing of co-offenders can give rise to a justifiable sense of grievance.

THE OFFENDER'S SOCIAL CIRCUMSTANCES 20 The offender is now 23 years of age. He has a conviction for low range PCA and drive in a manner dangerous to the public. He has no criminal or social history of violence. He comes from a supportive home and had a happy childhood. He has a good relationship with his parents and siblings. He is suited to undertaking semi-skilled practical labouring work. He was regularly employed since leaving school. A psychological report points to a drinking problem that began to develop when the offender was seventeen. Ominously, the psychologist concluded, "Under the influence of alcohol he would be more disinhibited and likely to act more impulsively." 21 Alcohol played a large part in the offender's behaviour. He consumed a large quantity of alcohol and was affected by it at the time of the assault. He told the psychologist that he drank extremely heavily on Friday nights and then spent the rest of the weekend recovering. This pattern has now changed for him. He will need supervision on his release from prison to assist in his rehabilitation, in particular, not returning to the pattern of drinking heavily and acting impulsively. 22 I find that there are special circumstances in this case that require adjustment of the relationship between the non-parole period and the total term as governed by s 44 of the Crimes (Sentencing Procedure) Act. The Court considers that a relatively short reduction in the non-parole period is appropriate to rehabilitation. In imposing sentence, the Court has also taken into account the youthfulness of the offender, which is a recognised mitigating factor. Generally, the younger the offender, the greater the weight that should be given to the element of youth. In this case, the youth of the offender plays some part. His present age and the fact that he has not been to prison before also indicate a need to foster the rehabilitation of the offender.

PRE-SENTENCE CUSTODY 23 The offender was bail refused for a period of 54 days and he has been in custody since 14 September 2001. His sentence will be back-dated to 13 July 2001. 24 The prisoner is sentenced to imprisonment for six years. I set a non-parole period of four years to commence on 13 July 2001 and to conclude on 12 July 2005, when the prisoner is eligible to be considered for release to parole.

Last Modified: 10/25/2001 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.