R v MD, NA, BM,JT [2005] NSWSC 344 | Case summary

JUDGMENT ON SENTENCE 1 GREG JAMES J: Each of the offenders are persons to whom section 11 of the Childrens (Criminal Proceedings) Act applies so I refer to them by initials. Each of the offenders has pleaded guilty to one charge of manslaughter committed on 31 December 2002 at Emu Plains. 2 The offender, BM has also pleaded guilty to one count of common assault, that being an assault on the companion of the person who died whose death resulted in the charges of manslaughter to which I have referred. The offender, JT has similarly pleaded guilty to one count of common assault on that companion. The offender, MD has pleaded guilty also to one count that he stole a mobile telephone from the person of the young man who died. It now falls to me to pass sentence on all of these young offenders for those crimes. 3 It should be clear, notwithstanding some assertions that were made in the evidence in the trial which aborted, late last year that being a trial of each of the accused for murder, that none of the offenders are convicted of the crime of robbery and it is not for me to deal with them on a factual basis that amounts to the commission of that crime. None of the offenders are convicted of murder and none of the offenders are convicted of occasioning any bodily harm to the deceased's companion and it is not for me to deal with them as though they had pleaded guilty to those crimes either. 4 Before me there is a victim's impact statement provided by that companion and a psychiatric report provided in respect of the harm occasioned to that companion. Whilst I have taken the contents of those documents into account and particularly into account in respect of the sentencing on the common assault count and, whilst I have had regard to the effect on the companion of the assault upon the deceased, since that set the context for the common assault count, I am bound by law not to sentence in respect of the attacks upon the companion on the basis of any aggravation such that a more serious crime, for example assault occasioning actual bodily harm or any crime of malicious injury, had been committed. 5 Similarly in relation to the crime of manslaughter, assertions were made in the trial which might have founded, had they been accepted and acceptable, a basis for alleging the crime of murder against each of the accused. That basis was, however, in each case very weak indeed. For the crime of murder to have been committed it was necessary for the Crown to prove an act causing the death charged, accompanied by the relevant mental state or an accessorial liability or that the parties in company embarked upon that class of crime described in s 18 of the Crimes Act 1900 which make persons accomplices, with those who do the act causing death, for them to be fixed with liability for murder. 6 None of those applied, on the basis upon which the Crown accepted the plea of guilty to manslaughter and, the basis, in each case, on which the plea of guilty to manslaughter was proffered by the offender. The basis upon which the plea of manslaughter in each case was proffered did not include that each of the offenders had combined together in a common design to rob and kill the deceased. That basis did not include that the offenders had combined together in some joint enterprise, reckless as to whether they killed or did not kill or reckless as to whether they might occasion even grievous bodily harm. Indeed that latter circumstance would not, in this State, have made the crime murder unless the common enterprise, or joint enterprise, included a crime of which s 18 of the Crimes Act speaks. 7 It therefore falls to me to deal with each of the offenders on their pleas, and on the basis on which the Crown accepted those pleas, in accordance with the principles of law applicable on sentencing and, particularly, because all of the offenders were children, as they are described in the legislation, at the time of the offence being committed, in accordance with the principles set out in the statutes dealing with children, notably the Childrens (Criminal Proceedings) Act 1987. 8 The pleas of guilty were entered, except in the case of JT, on 14 October 2004. JT's plea was entered somewhat later in November 2004. 9 There is no relevant criminal history on any for the offenders. 10 The events which gave rise to the charges occurred on 31 December 2002 in the vicinity of the highway at Emu Plains alongside the park. They occurred late at night at a time when many of the young persons who had convened at the park were affected at least by alcohol, if not by alcohol and other substances. The events occurred in circumstances of poor lighting with patches of shadow created by vegetation and some degree of intermittent lighting coming from the highway with a fixed light around the vicinity of a power pole. 11 The deceased, his male companion and some young girls, were proceeding from the station to a party about an entirely lawful occasion. They passed by the oval at which various young people were assembled some considerable distance away. That group included the various offenders. 12 Persons from that group, including the offenders, moved either individually or in small sub-groups over to the highway. There an altercation occurred. The detail of that altercation - bearing in mind the condition of certain of the witnesses, their inability after the lapse of some considerable time to be reliably precise in many cases, and bearing in mind the various witnesses to some extent contradicted each the other, and sometimes were internally contradictory - is most difficult to ascertain, but, as I have already said, I am precluded by law from concluding that any one of the offenders, much less the group, were embarked upon an offence of robbery. 13 I have used the term "the group". It is not at all clear to me that the various offenders acted as a group, and I cannot find that I am satisfied that they did. It is clear to me that some of the persons who came from the other side of the oval arrived at the scene. Some seemed to act individually and some in aid of one or more of the others. Certainly there was a call, which at least was transmitted back to the oval, suggestive that some companion, or a person well known to those assembled, had got himself somehow or other into a fight of which he was getting the worst. That call was completely mistaken. 14 What had happened instead was that the offender, MD, somehow, in confrontation with the deceased, resorted to physical violence, and at least punched the deceased and at least, in some fashion, frightened, propelled, pushed, chased or herded the deceased, head-on into the pole. He sustained severe cerebral injuries and fell to the ground. It is not at all clear how the deceased came to collide with the pole, whether he was forced or frightened into the collision. The evidence would support the proposition that he was propelled into the pole by his own motion possibly to some extent assisted by an attempt to push him or herd him. 15 The evidence does not allow me to find that after that event the offender, MD, kicked or punched the deceased in the head while the deceased was lying recumbent on the ground. 16 The admission that is made by the plea by MD and by that of each of the offenders, though I will have some more to say about this in the case of BM, is that the offender's acts in each case amounted to an unlawful and dangerous assault. Although in the case of MD it appears that assault, constituted by the initial punching and causing the victim to collide with the pole was of a greater degree of severity, it was an assault which, combination with the other assaults, contributed substantially to the death of the deceased. It was an assault which it appears on the evidence to me is established as having a greater contributing potential than the cumulative effects of the assaults of the co-accused. The deceased died from the combination of the acts done to him, although it is not established that any of the offenders intended any serious harm to him. 17 MD has, as have all of the offenders, expressed their contrition for what they did that night. In the case of MD it was the Crown case that either MD actually propelled the deceased into the power pole, or that the contact with the power pole occurred when the deceased was trying to escape from assault and the threat of further assaults. The plea proceeded on that basis. 18 The offender NA denied being party to any concert to assault but did accept that he pushed the deceased and punched him about four or five times when the deceased was on the ground incapable of defending himself and was vulnerable. It is conceded by his plea that, in so punching the deceased, these unlawful and dangerous acts contributed substantially to the deceased's death. 19 The offender, JT, also denies being party to any concert to assault the deceased, but accepts that he kicked the deceased to the head at a time following the assaults on the deceased by MD and NA. The preponderance of evidence does establish in my view that he said at that time - "wake up." 20 The submission has been put that I should accept that the kick was more in the nature of a nudge intended to rouse. I do not accept that it was of that little significance. I do accept that it was of sufficient violence to contribute substantially to the death of the deceased. It may be, although this is a matter for speculation, that JT thought that the deceased was shamming having been seriously affected by the earlier assaults, and treated him in this way with a view to trying to bring him to his feet, but that has not been given in evidence. Nor indeed have any of the offenders given evidence themselves on their pleas. 21 I am not satisfied that the offender, JT, stomped on the head of the deceased. There is no evidence to that effect, nor any admission, to that effect. I accept however that the kick was intentional. I accept that it caused the harm to which I have referred. 22 I can only accept, consistent with the pleas in the cases of all of the three offenders to whom I have referred, that there was an intention unlawfully to assault with the acceptance that would cause some physical harm but that it was not within the contemplation of any of the offenders that grievous bodily harm would be caused by the acts they did notwithstanding those acts contributed to the death of the deceased. 23 In the case of BM the Crown concedes that although there was some evidence of BM punching and kicking the deceased, the credibility and reliability of that evidence is questionable. Consequently I do not accept that he did those things. 24 His plea was not entered on the basis that BM himself did a discrete act of an unlawful and dangerous kind to the deceased substantially contributing to the death. The basis of the pleas was that what he did was to assault the companion in order to prevent the companion going to the aid of the deceased when the deceased was being assaulted by one or more of the other three. In that sense he gave active approval and encouragement and aided and abetted what was occurring. His offence is one of complicity rather than taking a primary violent role in the attack on the deceased. It is in that respect that I referred earlier to my saying more concerning the element of concert in his case. 25 It is not established that any one of these offenders concerted with any other or others to aid that other or others in what was being done. BM's assistance did not seem sought by the others. Further the sequence of these events remains, after hearing the mass of evidence that was before me in the Crown case at that trial, still suspect. 26 It is the Crown case the attack on the deceased was brutal and cowardly. One can only agree. There seems no basis on which one could conclude that the attack was in any way provoked by any behaviour on the part of the deceased or his companions who were merely proceeding about their lawful occasion heading to a lawful party for the purpose of having a happy and peaceful night out. 27 The community will not tolerate gang violence, nor will it tolerate individual assaults by those minded to commit brutal and cowardly acts upon persons who are merely innocuously passing by. I will have to have regard to that when coming to sentence each of the offenders in relation to the matters to which I have referred as affecting the objective seriousness of their offences. 28 In the case of MD he was also observed to take from the recumbent body of the deceased, at a time when the deceased was disabled, the mobile phone. I have already mentioned how BM assaulted the companion, and JT also punched the companion. 29 Whatever it was that motivated all of this and the various confrontations is simply not at all clear. I cannot find beyond reasonable doubt what it was that caused the matter to escalate from what was no doubt some exchange of words between the deceased or his companion, and the boys who had run up to them out of the dark from the oval, that produced this explosion of violence in which it seems the various offenders acted more or less triggered by some sort of instant stimulus to mindless brutality. They have had, however, in each case a considerable time to consider their position and have now pleaded guilty. The pleas will, in each case, be accepted as some evidence of contrition. 30 I will turn, first, with thanks to his counsel for the detailed and exhaustive written submissions, to the circumstances of MD. In his case a plea to manslaughter was apparently offered on the first day of the trial. I have already referred to the date upon which, in due course, the plea was entered. That offer of a plea to manslaughter was not initially accepted by the Crown. It was an offer which had some substantial utilitarian effect, notwithstanding that the evidence, in my view, left it appropriate, bearing in mind the difficulties with many of the witnesses, for the Crown to proceed on the charge of murder until it became apparent that there were such difficulties that the Crown elected to take the benefit of the pleas to manslaughter. 31 I have therefore reached the view that there should be a ten per cent allowance made for the utilitarian value of the plea in his case. He has been in custody since 9 January 2003 and in continued custody. 32 The principles I must apply to the sentencing for a serious children's indictable offence are set out in the Children (Criminal Proceedings) Act. The offender is to be dealt with according to law which means he is to be sentenced in accordance with the provisions of the Crimes (Sentencing Procedure) Act I must have regard, therefore, to the matters referred to in Div 4 of Pt 3 of the Children (Criminal Proceedings) Act which applies to serious indictable offences. Section 18 1A) requires: "In determining whether a person is to be dealt with according to law or in accordance with Division 4 of Part 3, a court must have regard to the following matters: (a) the seriousness of the indictable offence concerned (b) the nature of the indictable offence concerned, (c) the age and maturity of the person at the time of the offence and at the time of sentencing, (d) the seriousness, nature and number of any prior offences committed by the person, (e) such other matters as the court considers relevant." 33 MD was born on 16 December 1985 and, as I have already said, the fact is that in his case there is no relevant prior serious criminality. 34 Section 6 of the Children (Criminal Proceedings) Act requires all courts to have regard to the principles stated in s 6. Those principles include that children who commit offences bear responsibility for their actions but, because of their state of dependency and immaturity require guidance and assistance and that the penalty to be imposed upon a child should reflect that, wherever possible, the education of the child should proceed without interruption. 35 It has been accepted by the courts that any court exercising criminal jurisdiction even in a case of this kind should give particular emphasis to the prospects of rehabilitation and the offender's prospects for the future such that, as the offender approaches more closely to adulthood, that principle would fall to be regarded as of less significance and the offender more likely to be treated more like an adult, but it is in the public interest that young persons who have committed a serious crime - and there is no more serious crime than taking the life of another member of the community - should be rehabilitated and assisted in progression to become a worthy member of society. 36 In this regard the Act requires that I take into account and in each case I do, the background reports that have been furnished by the New South Wales Department of Juvenile Justice. 37 In each case, except that of JT, I will, in addition, take into account the evidence the Programs Unit Assessment provided with that report. 38 I accept that considerations of general deterrence, generally in the case of young persons, would receive less emphasis, having regard to issues of rehabilitation, than they would with adults. It is only because of the background reports and the absence of significant prior relevant criminality that I am minded to consider at their age - approaching as it did, adulthood - that the principle of general deterrence should receive less weight than would be afforded to it in the case of adults who had done the same as these boys did. 39 I do not regard the presence of alcohol and its effects, or the effects of other substances, as in any way mitigatory or as in any way suggesting that the principle of general deterrence should not have received substantial regard in sentencing. 40 However, in each case each offender has received the benefit of that Juvenile Justice report which in each case, and particularly in the case of NA, strongly suggests good prospects of rehabilitation and, in each case, supports that each offender is truly contrite - not just for having got themselves into this difficulty, but for having caused the harm that they did. It is in that context that I will apply the principle of general deterrence to a lesser extent than I would apply it to adults who had done what they had done. 41 I am particularly concerned, in having regard to that principle, because the objective gravity of their actions that night, even considered now in a courtroom with the benefit of analysis and some years of hindsight, and allowing them the benefit of the deficiencies in the evidence is nonetheless very high. 42 I have a function to protect the community by in sentencing applying both general and specific deterrence and, although in this case I accept the principle of deterrence should receive lesser weight, I nonetheless will have regard to the proper weight that should be accorded to it, to represent the community's denunciation of the conduct that occurred that night and to embrace the principle of community protection through deterrence and retribution. 43 In s 21A of the Crimes (Sentencing Procedure) Act 1999 there are set out various criteria to which I must have regard. The aggravating factors set out in s 21A(2) include that the offences involved the actual use of violence, was committed in company, that the injury was substantial, that it was committed without regard for public safety, and that the victim was vulnerable. The offences involved two victims and a series of criminal acts, but, having said that - and what I have just said concerning those elements is applicable to all of the offenders - I am not to give additional regard to those factors so far as they are elements of the very offences charged. 44 Section 21A(3) provides for mitigating factors. In each case the offender does not have any significant record of previous convictions. I will refer in the case of each offender to the material before me concerning the offender's character as put forward particularly by reference to, in the case of NA, by a letter written by him to me, which was tendered in evidence and became an exhibit in the case. 45 In each case there is the expression of opinion from the Department of Juvenile Justice of the prospects each offender might have for rehabilitation and the prospects concerning the offender re-offending. I have referred to each offender showing remorse and contrition. I have also referred to each offender not being fully aware of the consequences of his actions when I referred to the way in which these offences came to be committed and that in the atmosphere of the night, the escalation to violence and what might have caused it to have reached the peak that it did, did not seem to be appreciated by the individuals. 46 I have regard, in each case under s 22, to the guilty pleas. I have regard, in each case - and I will refer to it - to the period spent in custody by each offender. 47 I return to the submissions in relation to MD. I find, in his case, special circumstances when applying s 44 of the Crimes (Sentencing Procedure) Act. I am required under s 44 as it stood at the date of the offences to set the term of the sentence and then to fix a non-parole period. That non-parole period must not be less than three quarters of the term of the sentence, unless the court decides there are special circumstances for it being less, in which case the court must make a record of its reasons for that decision. 48 The special circumstances MD's case include, the age of the offender and his comparative immaturity. In the Juvenile Justice report it appears that he has acknowledged his circumstances and the consequences by way of sentencing which may apply to him, he has been compliant and reflective, he has evidenced a genuine remorse, and he has significant community-based support giving him a response to custody which shows a positive attitude which may well be on the way to producing in him a non-offending lifestyle when released into the community. I have here paraphrased the remarks of the Deputy Governor of the custodial institution in which he has been held. 49 A report from the principal of the Kariong School refers to his satisfactory level of involvement and his taking advantage of all offers whilst in custody in an effort to ensure positive options when he is released. 50 His life had centred around his family and at the time of these events he was deprived of a member of that family, that apparently having a considerable effect upon his ability fully to appreciate his circumstances in life. He has positively progressed within the classification system. 51 In those circumstances I have concluded that special circumstances exist in the matters to which I have referred and in the current assessment made by the Intensive Programs Unit which concludes that he is able to comprehend the impact of his offending behaviour. He showed an appropriate level of remorse, empathy and sincerity, and he is willing to embark upon such counselling and courses as the Department requires of him. I therefore conclude that there are special circumstances, not only for the purpose of applying s 44, but also when considering whether to apply s 19 of the Children (Criminal Proceedings) Act. 52 There is, in addition to the report of the two Juvenile Justice background reports, other evidence of his subjective circumstances. The offender had the benefit of a close and highly supportive relationship with his family. He has, as I have said, a strong prospect of rehabilitation. He had been in full time employment - and full time employment is available for him on release. He had cooperated by way of interview with the police. 53 He is now eighteen years of age and it is appropriate that he and, as will be seen the others, serve the sentences as juvenile offenders. In each case the warrant of commitment will need to reflect the order I will make pursuant to s 19 of this Act. 54 I was provided, helpfully by the Crown and by counsel for MD, with a summary of the various sentences passed in many cases on young offenders, juveniles or children, as they are defined by the Act for offences of manslaughter. 55 Manslaughter, of all crimes, has been referred to as that which takes the most disparate forms. The acts or omissions which might cause death which are punishable within the crime of manslaughter range in their gravity from acts almost accidental to those verging on murder. The range of culpability in manslaughter is very wide but it is always an offence of great seriousness because a member of the community has had their life taken unlawfully. 56 The sentencing statistics provided by the Judicial Commission and the various cases in summary form referred to by Mr Zahra SC in his submissions are of limited utility in trying to attribute to the actions of MD that night, his particular actions, a specific degree of culpability which might be expressed, subject to the various subjective considerations and applying the principles of law, in a particular sentence. 57 Having regard to those subjective factors to which I have referred and to all the references and certificates, including the chaplain's report, Ex 5D to which I have particularly referred when considering the application of s 19, I have concluded that, in the case of MD, that he should have passed upon him, and I so pass, a sentence of six months fixed term for the crime of steal from the person, to date from the date he went into custody on 9 January 2003 and to expire on 8 July 2003 and for the crime of manslaughter, I impose a full term of five and a half years to date from 9 April 2003 to expire on 8 October 2008. 58 Having regard to the special circumstances to which I have referred, I impose a non-parole period of three and a half years to date from 9 April 2003 and expire on 8 October 2006. Having regard to the special circumstances to which I have referred, I direct the whole of the sentence is to be served as a juvenile offender. 59 I pass, then, to the case of NA. Much that I have already said concerning the other offenders applies in this case. Again there is a chaplain's report. Again I have reference to its contents particularly concerning the application of s 19 of the Children (Criminal Proceedings) Act. Again in this case the offender has shown genuine contrition and remorse. The materials with which I have been provided in his case also include the background report and the assessment. That background report refers to, again, a family orientation and that maintained somewhat surprisingly notwithstanding the split in the family. The dependence on the now deceased grandparent is notable. The later contact that had been resumed between the parents left the relationship still troubled, and there had been some conflict between NA and his stepmother. None of this, however, gives one much of a clue as to what the dynamics must have been that underlie the offence being committed by NA that night. 60 There is reference in the material to his involvement with unsuitable peers at school. The evidence does not establish whether those persons were among the number of people assembled that night at Emu Plains and I do not feel that all persons so assembled could properly be described as falling within that category. 61 The response to custody noted in the Departmental records included reference to there being an apprehension on his behalf concerning his safety. No basis has been put before me to suggest that any particular person should be regarded as responsible for that apprehension. 62 However, the circumstances of his detention were then, and may well be for the future, somewhat more onerous because of the matters to which that apprehension relates, than might be the case with the other offenders. 63 Certain it was that he was assaulted in October 2004 and has remained highly anxious and emotional. I have particular regard to that and the detail of those matters given in the background report. I have particular regard also to the fact that it was this offender who initially offered to plead guilty and it was he who at trial offered a plea of guilty at the outset to the jury, a plea of guilty to manslaughter, a plea that was rejected by the Crown. In effect he admitted publicly at the start of the trial his responsibility for an act causing death done as an unlawful and dangerous act. 64 He is now a person who has impressed the Juvenile Justice authorities as a personable, mature and insightful young man. However, that report continues that "He has unfortunately been involved in the tragic death of another person." To express it in that way is to understate what occurred. He was more than unfortunately involved, he substantially caused that death, and I must have regard to that when sentencing. 65 I have regard to all the materials provided - and there are a mass of them in the written materials that were handed to me in book form as well as the material provided in the Juvenile Justice reports - which make it clear these events that night and his involvement in them seem to have been entirely out of character for him, and that his reaction thereafter was to display contrition and guilt in a dramatic way. He has comprehensive support from his family such that the positive prospects for his rehabilitation are reinforced. 66 The Intensive Programs report recommends that certain issues which it is said might be manifested in him should be adequately addressed in counselling, and this particularly for the purpose of relapse prevention and management of negative mood issues. Certainly the application of such a program will tend to avoid inappropriate peer associations. 67 There has, in his case, been an episode of a dramatic kind in which he either attempted suicide or attempted to act it out. It is not at all clear how that relates to his manifestations of guilt but I take it into account as reflecting his attitude to the crime he had committed and to the life that he has been leading since. Amongst the recommendations of the assessment team are recommendations which are designed to ensure that he does not harm himself in the future. 68 The matters referred to in that report, and to which I have already referred, plainly constitute, taking his age into account and the nature of the offence, special circumstances, when one comes to considering the relationship of the non-parole period to the full term of the sentence, and the application of s 19 of the Children (Criminal Proceedings) Act. 69 With the materials provided to me there was provided a psychologist's report. That psychologist's report refers to the anxiety about depression and to the suicidal ideation. It refers to the difficulties he has had in custody whereby he will suffer a more onerous regime, whether imposed by himself or external influences is not clear, and it is clear to the psychologist that he might be permitted back into the community with regular supervision. 70 Also provided as part of the materials were a great many references to which I have regard, including one from his father and one from his mother. 71 There was also provided the letter that he has written to me. I do not have any reason to doubt the truth of what he says in that letter. Although it was not evidence given in the witness box on oath its admissibility was not objected to by the Crown. Nor was its content challenged and it accords with the other material. 72 It refers to the four to five punches to the left side of the deceased's jaw and cheek. It refers to his attack on the deceased as being an unthinking one. It refers to his contrition for the harm that he has done in contributing to the taking of the life and the blame he has put on himself for it. It is a letter which speaks very highly for his prospects of rehabilitation. 73 The submissions on his behalf note that he has been in custody since 14 October 2004 and that he accepts, by his plea, his responsibility for his individual actions, his punching, his contributing to the death of the deceased. 74 In the submissions it is put that I would not accept that his punching occurred with knowledge that the deceased had been propelled, or had run into, the pole. The evidence does not allow me to conclude that he did see what MD had caused to happen but he was aware of the victim lying at the base of the pole, vulnerable. 75 Prior to his going into custody on 4 October 2004 he had been subject to stringent bail conditions. I have regard to that, in particular, when considering the commencement date of the sentences. I assess his offer of plea and its utilitarian value as fifteen per cent. I have concluded there are special circumstances such that the non-parole period to full term proportion should be varied, particularly with a view to his rehabilitation. 76 I have concluded there are special circumstances such that the order should be made under s 19 that he should serve the whole sentence as a juvenile offender. 77 NA, you are sentenced to a full term of four and a half years' imprisonment to commence on 1 September 2004 and to expire on 28 February 2009 with a two year non-parole period to date from 1 September 2004 and to expire on 31 August 2006. I backdate the sentence beyond the date you entered into custody to reflect the particular stringent bail conditions and the circumstances of the regime under which you have been held since. 78 I shall move now to the case of BM. Again, much of what I have said at the commencement of these remarks applies to BM. He was born on 21 March 1986. He went into custody on 14 October 2004. The plea he offered was offered in very much the same circumstances as MD. He will receive a ten per cent discount for the utilitarian value of it. 79 His offence, as I have already referred to, was not one of applying direct physical violence to the deceased, but he stands convicted of two offences. They include complicity in the manslaughter, committed by assaulting the companion with a view to preventing the companion going to the aid of the deceased, and the offence of assaulting the companion. It is important, in proper application of sentencing principle, to have regard to how the elements of these offences overlap. In this case they overlap considerably. So far do they overlap that, although in each case I have fixed a sentence appropriate for the particular offence, I have determined that the sentences should be concurrent but it must be remembered that there is an additional component in the assault on Sean Clifford relevant to the overall sentencing that the motivation for that assault was not simply to assault the companion, but also to deter assistance being given to the deceased which is reflected in the manslaughter sentence. 80 The plea was accepted by the Crown on the basis of liability as an accessory. It was accepted that the offender saw punches thrown by one or more of the other boys at the deceased, before the deceased ran and collided with the pole. It was at about that time that the companion apparently went to go to his aid and, at that time, the offender punched the companion twice. He was aware in doing so that he was helping those who were assaulting the deceased. He denies any further involvement after those two punches. That was what he had said at the time of his plea and that was what he said when he spoke to the police and that was what the Crown opened to the jury at the trial. 81 The evidence, whilst I have already referred to it as being somewhat inconsistent and somewhat confused, does not, in my view denigrate from the position as it was put by the Crown although, I have already referred to the Crown concession as to the reliability and credibility of certain of the witnesses. 82 He was sixteen years old at the time of the commission of the offences and I have already referred, in the case of MD, to the general principles of sentencing which I will apply in the case of each of the offenders. 83 I accept - and I will refer to this in some further detail when I turn to the other materials provided as to his subjective circumstances - that he was of prior good character, that he remained out of trouble during the lengthy period he was on remand and he was subjected to stringent bail conditions. 84 I accept, and in particular from the report of the Juvenile Justice, that he shows genuine remorse and that he has evidenced that remorse not only to Juvenile Justice but to his parents, his aunt, and as recorded in the report of Joel Rombouts dated 10 March 2005. 85 I consider having regard to the material, and in particular the Juvenile Justice report, that there is not only genuine contrition but also good prospects of rehabilitation. I shall have regard to the stringent conditions imposed upon him on bail when passing sentence. 86 I find, in his case, again having regard to the matters in the Juvenile Justice report in particular, special circumstances which warrant the reduction of the non-parole period, particularly his age and immaturity at the time and his prospects of rehabilitation. I similarly find those special circumstances make it appropriate that I direct the whole of the sentence to be served as a juvenile offender and I so direct. 87 His counsel has submitted, and I accept, that it is necessary to reflect the abhorrence the community has for the taking of human life. I have expressed in each case that that is a matter to which the most important regard must be had when sentencing for manslaughter. His counsel has accepted the necessity for the imposition of a head sentence of some years. 88 In this case, and in the cases of all the offenders, it is necessary that there be passed a sentence such as to reflect the community's abhorrence not only of what each individual did, but also the consequence of that behaviour, but I particularly have regard here, as I have had with the other offenders, to the special function of a longer parole period in achieving the rehabilitation of young offenders sentenced according to law. 89 In BM's case, the notable feature is the lack of any direct violence applied to the deceased, and the overlap in the elements of the various offences leading to an appropriate concurrency. 90 The statements with which I have been provided include the statements of his parents which makes perfectly clear that the family is fully supportive of their son, notwithstanding their insight into what he has done, and their appreciation of what he might need for the future. 91 The other references make it clear that he had a prior good character involving conscientious work, even under difficult circumstances. 92 The chaplain's report has, in his case, referred to a character which is friendly, caring and one not afraid to learn. Again specific reference is made to the appropriateness of his staying within the Juvenile Justice system. 93 The clinical psychologist's report, with which I have been provided, refers to his having been influenced by his peer group. I am prepared to accept that conclusion on the material. I am prepared to accept that that influence included an influence towards drugs and alcohol. That report refers to his having received a serious "wake-up call" for his life, and his willingness to take full responsibility. That is the matter to which I have referred earlier when I made reference to his evidencing remorse. 94 The background report concludes that he possesses a number of protective factors that would serve to promote his overall rehabilitation and re-integration into the community. Those factors include relocation of his family. The author, whilst properly referring to the difficulty of assessing a risk of re-offending, referred to the level of remorse coupled with those factors as supporting his future prospects. The conclusion is that positive rehabilitation is likely. 95 The assessment report makes particular reference to the level of positive functional family relations and the stability and support within the family, and that those factors are such as to protect, or buffer, against the risk of re-offending in his case. The report does, as I think indeed all the offenders' reports do, recommend that there should be continued support and assistance upon release. 96 BM, for the offence of common assault you are sentenced to a six month fixed term to date from 14 September 2004. The backdate is to reflect the regime under which you were held on bail. That sentence will expire on 13 March 2005. 97 For manslaughter you are sentenced to a full term of four years' imprisonment to expire on 13 October 2008 with a non-parole period of two years to commence on 14 September 2004 and to expire on 13 September 2006. The concurrency is to reflect the overlap between the elements of the various offences. 98 I find special circumstances, as I have already referred to, as contained in the Juvenile Justice report such as warrant the difference in proportion between the non-parole period and the head sentence and as supporting the direction, which I give, that the whole of the sentence must be served as a juvenile offender. 99 I turn to the last of the offenders, JT. I have already referred to the actions of this offender. It does not appear that he had any prior involvement in the violence inflicted upon the deceased and it does not appear that the assault upon Mr Clifford was committed with some additional component of preventing Mr Clifford from aiding the deceased. 100 It is the Crown case, in relation to JT, that NA was in the process of punching the deceased when JT arrived on the scene. In effect he saw the deceased incapable and being punched in the head, and thereafter kicked the deceased. The kick was one I find of some considerable violence, though I am unable to be satisfied that it was a kick that was struck with full strength. It was intentionally done. Beyond that, the evidence really leaves one in some considerable difficulty and unable to make any finding of any further aggravating nature in the conduct. 101 Similarly there is little material that establishes with any clarity what he did to Mr Clifford. It is asserted he swung a punch which missed. 102 The plea in his case was much later than that of the others. . In due course, however, he did plead and he thus obviated the holding of a further trial, even if it had been limited to manslaughter which would have been of some considerable length and would have affected adversely no doubt many of the witnesses who had already given evidence. The plea was of some utilitarian value but only limited utilitarian value. I allow five per cent. 103 His action, as I have already said, was simply one kick, and I accept he is to be sentenced not for repetitive damaging behaviour but for that one kick and for the assault on Clifford. His kick, however, by his plea, he has admitted was at least to some substantial extent a contributing factor to the death of the deceased. 104 Thus it is that only one of the offenders did not directly, by violence, contribute to the death of the deceased, and that was BM. The deceased died as a result of the compound effect of the multiple blows. I cannot find that any one, much less JT, in inflicting those blows had a realisation of any real harm being likely to be caused. That, however, is not to understate the fact that the harm was caused and that the individual caused substantial contributing harm which produced the death of the deceased, but I have to sentence JT on the basis that, although he swung the kick, and although perhaps a kick of that kind may be more serious than one or two punches, it was one action as opposed to a number of actions. 105 There is no evidence which would establish that JT's involvement prior to the kicking was in any way in concert with any of the others, though it was clear that at the time he kicked the deceased the deceased was lying disabled and probably unconscious. 106 The assault on Clifford seems to be, as far as I can ascertain, such that I should not find it to be more culpable than swinging a punch at Clifford. I cannot hold that it caused any particular harm to Clifford. 107 I do not regard the fact that it is said JT was well affected by alcohol as mitigating. He was seventeen at the time of these offences, having been born on 3 April 1985, and he has been in custody since 3 January 2003. 108 It was accepted by his counsel, and it is plainly right, that a gaol penalty must be imposed. I do have to have regard to the fact his action does not seem to have been premeditated and calculated to cause harm. 109 Again in the background report there is material that shows that there has been considerable progress made by him although there have been some negative aspects of his long remand. He has moved from that to taking advantage of many of the educational opportunities offered to him and has completed various educational courses. His mother has remained very supportive of him, as has his sister and girlfriend. 110 The assessment included that he had suffered from having grown up without the benefit of a positive male model, and in circumstances in which he has become accustomed to some degree of violence around him. 111 His attitude that has evolved in those circumstances appeared to justify violence, this particularly because of the activities of those peers with whom he associated. His parent did not seem able to cope with that matter. 112 The author of the report concludes that his regret for the critical consequences and the harm that he caused is genuine, that his reaction which caused him to swing the kick was more or less instinctive in a way that was typical for him having been conditioned by the violent circumstances around him during his earlier life. 113 It is clear he would benefit from continued counselling specifically targeted to negate the effects of those circumstances and to reduce the possible risk of any further offending. 114 The report is of less assistance on his prospects for rehabilitation but, having regard to the time he has been in custody, his progress, he has made efforts to use the time constructively, has significant educational achievements and whilst on parole will be subject to supervision such that he might be directed to embark upon appropriate courses to ensure that such violent effects of his earlier life are negated. 115 I conclude that he has reasonable prospects of rehabilitation, particularly in the light of the further report from the Gerald Anderson Walpole School at Kariong which points out there is no discipline problem, that he was compliant, helpful, interested and motivated at all times. 116 The chaplain's report referred to some occasions on which he had warranted attention but particularly important, from the viewpoint of whether rehabilitation might be achieved, is the reference to his: "On those occasions climbing down and taking responsibility for his actions. He has assisted others who have been having difficulty within the system." 117 I have referred to the chaplain's conclusions that his remorse is genuine and that he has matured "in a big way since coming to Kariong." He apparently has the potential to make positive contributions to society in the future. I have regard to the chaplain's expression of view that he would benefit by being detained in custody as a juvenile offender. 118 In his case, as in the others, in the matters referred to in the Juvenile Justice's background report there are special circumstances as with the others relating to his age, state of maturity, prospects of rehabilitation and the nature of the crime. 119 It is appropriate, therefore, that I find - and I do - special circumstances in relation to the proportion the non-parole period is to bear to the whole sentence and in relation to s 19 of the Children (Criminal Proceedings) Act. 120 I will direct, in his case, the full sentence to be served as a juvenile offender.

R v MD, NA, BM,JT

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (16 paragraphs)

Parties

Cited By (1)