R v SG

Supreme Court of NSW|2007-05-04|Before: Johnson J

CITATION : R v SG [2007] NSWSC 511

DECISION : Good behaviour bond for three years under s.9 Crimes (Sentencing Procedure) Act 1999

CATCHWORDS : SENTENCING - accessory after fact to assault occasioning actual bodily harm - plea of guilty - youthful offender

LEGISLATION CITED : Children (Criminal Proceedings) Act 1987 Crimes (Sentencing Procedure) Act 1999

R v KT [2007] NSWSC 83 R v WKR (1993) 32 NSWLR 447 CASES CITED : R v MSS [2005] NSWCCA 227 Weininger v The Queen [2003] 212 CLR 629 R v Thomson and Houlton (2000) 49 NSWLR 383

PARTIES : Regina (Crown) SG (Offender)

COUNSEL : Mr TR Hoyle SC (Crown) Mr M Coroneos (Offender)

SOLICITORS : SC Kavanagh - Solicitor for Public Prosecutions (Crown)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST

SENTENCE 1 JOHNSON J: The Offender, SG, appears for sentence with respect to an offence of being an accessory after the fact to assault occasioning actual bodily harm. The charge, to which the Offender has pleaded guilty, arises out of a tragic incident on 31 January 2006 in which another offender, KT, assaulted Kuol Agang. The Offender was present at the time of the assault by KT upon Mr Agang and he assisted KT to leave the scene by driving him away. 2 Mr Agang died as a result of head injuries sustained when falling to the ground after being struck heavily to the face by KT. KT pleaded guilty to the manslaughter of Mr Agang and has been sentenced to a term of imprisonment: R v KT [2007] NSWSC 83. 3 At the outset, it is important to stress that the present Offender has pleaded guilty to the offence of being an accessory after the fact to assault occasioning actual bodily harm. The maximum penalty for this offence is imprisonment for five years. The Offender is not to be sentenced for a homicide offence. In passing sentence upon SG, the Court must disregard the fact that Mr Agang died as a result of the injuries sustained by him.

The Offence 4 On the evening of Tuesday 31 January 2006, SG (then aged 17 years and nine months) drove his green Ford Laser sedan to Auburn, where he collected KT (then aged 16 years and 11 months) and KT's younger brother, ZT. 5 After picking up KT and ZT, SG then drove to McDonalds at Parramatta. KT, SG and ZT then went to the cinema at Auburn. 6 Later in the evening, at about 11.30 pm, KT, SG and ZT commenced driving the streets of Auburn. 7 The driver of the vehicle was SG, with KT in the front passenger's seat and ZT in the rear seat. 8 At this time, KT, SG and ZT had in their possession 12 eggs which they had purchased at a store. Their intention in purchasing and having eggs in their possession was to seek out members of the public and to throw eggs at them from the moving vehicle whilst it was being driven by SG, a practice described as "egging". 9 After most of the eggs had been thrown at various members of the public, they came upon Mr Agang in Harrow Road, Auburn. Mr Agang was 28 years old. He was born in Sudan and had come to Australia on 8 September 2005 as a refugee with his wife and four children (then aged nine, seven, four and one) and Mr Agang's brothers (then aged 15, 14 and 13 years). Mr Agang's family had fled Sudan and had spent one year and nine months as refugees in Egypt before coming to Australia. 10 At this time, Mr Agang was walking home to Granville after visiting friends in Auburn with his wife. He had been assisting in the preparation of a meal for newly arrived refugees. His wife was still assisting this preparation when Mr Agang left to walk home as he was attending English classes early the following morning. 11 KT, SG and ZT came across Mr Agang walking north along the footpath in Harrow Road, Auburn. When the vehicle was near Mr Agang, KT threw an egg at him. The egg missed Mr Agang. Mr Agang retaliated by throwing either a can or a plastic bottle at the vehicle, striking the vehicle behind the back window. The evidence does not suggest that SG's vehicle was damaged by this act. A witness, Ngliep Tuan Lai, who was observing the incident from his home nearby in Harrow Road, observed Mr Agang to chase after the vehicle along Harrow Road. 12 SG continued driving down Harrow Road until he came to a roundabout. At the roundabout, SG turned his vehicle around and travelled back along Harrow Road. When the vehicle was opposite to Mr Agang, SG did a u-turn and stopped on the side of the road near the footpath where Mr Agang was. 13 The witness, Mr Lai, observed Mr Agang walking in the direction of the vehicle. Soon after, Mr Agang was standing near a fence outside the Omar Mosque. He was held back from approaching KT, SG and ZT by two persons. It is apparent that Mr Agang had, understandably, become somewhat agitated as a result of KT throwing the egg at him. 14 KT and SG then got out of the vehicle and ran towards Mr Agang. As KT and SG approached, the witness, Mr Lai, observed that the two persons who had been holding back Mr Agang let him go. 15 After KT and SG had reached Mr Agang, words were spoken and KT said to Mr Agang "let's fight". Mr Agang had limited knowledge and ability to speak the English language. 16 KT, who was much larger then Mr Agang, then punched Mr Agang to the jaw. Although both KT and Mr Agang were about 180 cm tall, KT was thick set in build whilst Mr Agang was slim and weighed only 60 kgs. 17 The force of the punch by KT caused Mr Agang to fall to the ground. When he did, he struck his head on the ground. 18 When this occurred there was a noise, like a loud crack. The witness, Mr Lai, observing from his home some distance away, heard "a large noise" which he described as being "like a loud crack". This was the sound of Mr Agang's head hitting the ground. 19 KT then warned Mr Agang, saying, "You want more? I'll be back". At this time, Mr Agang remained lying on the ground. The witness, Mr Lai, heard KT say these words. 20 KT and SG then ran back to SG's vehicle. SG got back into the driver's seat and KT into the passenger's seat. The vehicle then sped off down Harrow Road. 21 At this time, Mr Kahir Osman was driving his taxi in Harrow Road. He noted the registration number of SG's vehicle in his mobile phone. But for Mr Osman's quick thinking, SG and KT may have escaped completely. Mr Osman went to the aid of Mr Agang. He observed Mr Agang lying on the footpath with "a little bit of blood coming from his mouth". He saw that Mr Agang's eyes were nearly closed and that he had trouble breathing. Mr Osman spoke to Mr Agang, but there was no reply and he appeared to be unconscious. Mohamed Yussuf Mohamud was on the other side of Harrow Road and came to the assistance of Mr Agang as he lay on the ground. He placed Mr Agang into the recovery position and gave him first aid by trying to find a pulse and clearing his airway. He observed that Mr Agang was very stiff as he attempted to put him in the recovery position. Mr Agang remained unconscious until the ambulance arrived. 22 Meanwhile, SG drove KT and ZT to their home before driving to his own home in North Parramatta. 23 On reaching Mr Agang, Mr Osman rang the police and ambulance. They arrived shortly after, at about 11.48 pm. Mr Osman provided police with the registration number of SG's vehicle. 24 At that time, Mr Agang was lying on the footpath unconscious with his pupils fixed and non-responsive. He had a haematoma and mass to the back of the head with a small amount of blood. He was taken to Auburn Hospital and then transferred to Westmead Hospital where he was operated upon for a subdural haematoma on 1 February 2006. On 4 February 2006, a CT scan was performed which showed loss of grey white differentiation suggesting brain infarction. A subsequent nuclear medicine brain scan showed there was no blood flow to the brain, confirming the patient had died. 25 A post mortem examination was conducted upon Mr Agang by Doctor Little on 7 February 2006. She found, on examination, that the major external injuries to Mr Agang were:

(a) a fracture of the skull from the base to middle of the head, estimated to be 10 cm in length;

(c) abrasion to the rear of the skull. 26 The summary of the major internal injuries was "Massive injuries to brain. Brain was deformed and swollen, signs of significant trauma". 27 Using the information provided by Mr Osman, late in the evening on 31 January 2006, police obtained registration details in relation to SG's green Ford Laser sedan and a search warrant was obtained for SG's premises at North Parramatta. SG was spoken to by police and admitted driving the vehicle about the time of the incident. He was arrested and taken to Parramatta Police Station where an ERISP was conducted with him, commencing at 7.30 am on 1 February 2006. He admitted ownership of the vehicle, driving the vehicle and that eggs were thrown from his vehicle, including the egg thrown at Mr Agang. He provided police with the name of KT. He said that KT jumped out of the vehicle (Q.191) and said "let's fight" (Q.215) and straight away threw a punch at Mr Agang (Q.221). He said that it was a hard punch (Q.469-470) and, when Mr Agang was hit he fell straight to the ground (Q.239). SG heard a "boom" noise when Mr Agang fell down (Q.248,249). SG thought that Mr Agang was seriously hurt (Q.260-262). 28 Having obtained KT's name from SG, at 9.25 pm on 1 February 2006, police executed a search warrant at KT's home, but KT was not at home at the time. 29 AT 9.30 am on 3 February 2006, KT attended Auburn Police Station with his father and a solicitor and was placed under arrest. An ERISP was conducted with him during which KT made admissions. 30 On 1 February 2006, SG was charged with maliciously inflicting grievous bodily harm in company, maliciously inflicting grievous bodily harm and assault occasioning actual bodily harm. He was released on bail with a daily reporting condition. Following the death of Mr Agang on 4 February 2006, SG voluntarily attended the Auburn Police Station on 7 February 2006 and was charged with murder. He appeared before the Lidcombe Children's Court on 8 February 2006 and was granted conditional bail including a daily reporting condition and a curfew condition. He remained in custody for five days until 13 February 2006 whilst the prosecution considered an application to review the grant of bail. No such application was brought and SG was released on conditional bail on 13 February 2006. Thereafter, he remained on conditional bail subject to one occasion when there was a reporting by him to police on the wrong day, a matter which may be placed to one side for the purpose of sentence. 31 On 31 March 2006, SG voluntarily assisted the police further by participating in a walk-around interview which was video recorded.

The Offender's Subjective Circumstances 32 The Offender was born on 4 April 1988 and is now 19 years of age. He has two younger sisters aged 14 years and five years. His parents emigrated from Turkey and the Offender and his sisters were born in Australia. 33 Before the Court is a background report prepared by officers of the Department of Juvenile Justice, together with a report of Dr Samson Roberts, psychiatrist, concerning the Offender. In addition to these reports, a number of references were tendered at the sentencing hearing together with statements prepared by the Offender and his parents. 34 SG has no criminal history. He attended schools in Sydney and left high school in March 2005 shortly after commencing Year 11 studies. 35 The Offender's father suffers from leukaemia. The evidence before the Court reveals that, because of his medical condition, the Offender's father has sought to put in place arrangements for the ongoing care and provision of his family. To this end, the Offender's father, his brother-in-law and SG have set up a caryard in which SG is involved by way of full-time employment. It is the intention of SG to continue his work in this family business. The evidence before the Court suggests that he is totally committed to it and is working hard to this end. 36 The report of Dr Roberts does not suggest that the Offender suffers from any psychiatric illness or disorder. It is clear, however, from the reports, statements and references in evidence, that SG's involvement in the tragic events giving rise to the present charge has had a profound effect upon his family and himself.

Victim Impact Statement 37 I have mentioned earlier that the charge for which SG is to be sentenced does not permit me to take into account the fact that the assault by KT caused Mr Agang's death. SG's crime involves his assistance to KT to depart the scene of a serious assault. 38 The human tragedy of the events of this night, however, ought once again be recorded. A victim impact statement of Ms Nyanner Agouk, the widow of Mr Agang, is before the Court in this case. I referred to that statement in my remarks on sentence concerning KT at [58]-[61]. Ms Agouk is in Court today. It is appropriate, once again, to record the devastating consequences upon her and her family as a result of this tragic and senseless event. 39 Although SG does not stand to be sentenced for involvement in the homicide of Mr Agang, it is apparent from the evidence before me that the senseless death of Mr Agang, and the disastrous consequences of that event to Mr Agang's family, has shaken SG and his family.

Should the Offender be Dealt with According to Law? 40 The offence for which SG is to be sentenced is not, as a matter of legal definition, a "serious children's indictable offence": s.3(1) Children (Criminal Proceedings) Act 1987. Accordingly, the Court has a discretion whether to sentence SG at law or to otherwise proceed under the provisions of the Children (Criminal Proceedings) Act 1987. In determining whether the Offender is to be dealt with according to law, a court must have regard to the seriousness of the indictable offence concerned, the nature of the indictable offence concerned, the age and maturity of the person at the time of the offence and at the time of sentencing, the seriousness, nature and number of any prior offences committed by the person and such other matters as the court considers relevant: s.18(1A) Children (Criminal Proceedings) Act 1987; R v WKR (1993) 32 NSWLR 447; R v MSS [2005] NSWCCA 227. 41 I have given consideration to submissions made concerning the exercise of this discretion. I am satisfied that the present Offender should be dealt with according to law. The offence was an objectively serious one. It was apparent to SG that Mr Agang had been injured, and seriously injured, as he lay on the ground following the assault by KT. Rather than render assistance to Mr Agang, SG chose to flee with KT and drive KT from the scene of the crime. In finding that SG was aware that Mr Agang had been seriously injured, I have regard to his answers in the record of interview with police and also the observations made by Mr Osman and Mr Mohamud very shortly after which, I am satisfied, reflect the apparent condition of Mr Agang at the time when SG and KT fled the scene. 42 But for the fortuitous fact that Mr Osman was on the scene to record SG's registration number, both may have escaped entirely and avoided legal responsibility for what had occurred. 43 I accept that SG's decision to flee and to assist KT was made within a short timeframe and, no doubt, without time for considered reflection. That said, however, having departed the scene, SG took no steps to contact police concerning the event. When the police came to him, however, he co-operated and made full admissions, including the important disclosure of the identity of KT. 44 The fact that SG was assisting KT and ZT earlier in the evening in their activities of throwing eggs at persons does not assist him. This conduct is part of the background to the offence for which he is to be sentenced. It is relevant also to the question of his prior good character: Weininger v The Queen [2003] 212 CLR 629 at 638-640. It was submitted that the Offender was a person of good character before this incident. His willingness to actively participate in conduct which led to the assault upon Mr Agang is relevant to that question. As with KT, SG's involvement in the throwing of eggs at persons in the street had an element of immaturity about it: R v KT at [117]. In R v KT at [90], I characterised the "egging" conduct of these young men as "hoodlum behaviour". That description remains appropriate to the present Offender. 45 I have regard to the fact that the Offender has no prior criminal history. 46 The Offender was aged 17 years and nine months at the time of the offence. He had left school and was in employment. In my view, his age and maturity at the time of the offence and at the time of sentencing, fortify my conclusion that it is appropriate that he be dealt with according to law.

47 Having considered factors relevant to the exercise of discretion, I am satisfied that the Offender ought be dealt with according to law for this offence.

Determining the Appropriate Sentence 48 I have made findings concerning the objective seriousness of the offence in the context of a determination whether the Offender ought be dealt with according to law. 49 Mr Coroneos, counsel for the Offender, and the learned Crown Prosecutor addressed me by reference to the aggravating and mitigating factors contained in s.21A(2) and (3) Crimes (Sentencing Procedure) Act 1999. The Crown did not submit that any statutory aggravating factor contained in s.21A(2) ought be found in this case. I agree with this submission. 50 I accept the submissions of Mr Coroneos that several statutory mitigating factors are established, being the absence of any record of previous convictions (s.21A(3)(e)), the fact that the Offender was a person of good character (apart from his involvement in the "egging" conduct leading up to this incident) (s.21A(3)(f)), the fact that the Offender is unlikely to reoffend (s.21A(3)(g)), the fact that the Offender has good prospects of rehabilitation (s.21A(3)(h)), the fact that the Offender has shown remorse for the offence (s.21A(3)(i)), his plea of guilty (s.21A(3)(k) and s.22) and his assistance to law-enforcement authorities from the time that he was approached by police, including admissions of his involvement in the offence and disclosure of the identity of KT as the principal offender (s.21A(3)(m) and s.23). 51 With respect to the Offender's plea of guilty, the evidence reveals that counsel for the Offender wrote to the Solicitor for Public Prosecutions on 3 July 2006 offering to plead guilty to a charge of being an accessory after the fact to assault occasioning actual bodily harm, on the condition that other charges be withdrawn and that the matter be disposed of in the Children's Court. On 25 August 2006, the Solicitor for Public Prosecutions responded that the offer was not accepted and that the then current charges would proceed. Committal proceedings took place on 8 December 2006 at the Parramatta Children's Court and the Offender was committed for trial on the count of murder. 52 The Offender was arraigned before Whealy J on 9 February 2007 upon an indictment containing the single count of being an accessory after the fact to assault occasioning actual bodily harm, to which he pleaded guilty on that day. Thereafter, the sentencing proceedings took place before me. 53 Although the offer to plead guilty to the present charge was made on a conditional basis in July 2006, I have regard to the fact that such an offer was made and that, in the result, the Offender has pleaded guilty to that charge in this Court and the Crown has accepted that plea and determined not to proceed with any other charge. I am satisfied, in these circumstances, that a discount on sentence of 20% ought be allowed in accordance with the principles in R v Thomson and Houlton (2000) 49 NSWLR 383. 54 I have regard to the fact that the Offender was held in custody for five days in February 2006 and one night in April 2007 (following his reporting to police on the wrong day), but that otherwise, he has been subject to conditional liberty, including frequent reporting to police since his arrest. Between February and December 2006, he was required to report to police daily. From 8 December 2006, he was required to report to police on one day each week. Since February 2006, he has reported to police in excess of 320 times. This restriction on liberty, which serves as a constant reminder of his offence, is not irrelevant to the question of sentence. 55 Mr Coroneos submits that I should have regard to the principles set out in s.6 Children (Criminal Proceedings) Act 1987 in passing sentence upon the Offender given his age at the time of the offence. In appropriate cases, greater emphasis is given to rehabilitation of a young offender with less weight being placed on punishment and general deterrence. Mr Coroneos submits that a court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate: s.5(1) Crimes (Sentencing Procedure) Act 1999. He submitted that, if the Court determined to deal with the Offender according to law, that a sentence short of imprisonment would be appropriate in all the circumstances of the case. 56 The Crown submits that the critical question on sentence is whether, having regard to the objective seriousness of the offence, it is necessary to sentence the Offender to a period of imprisonment. The Crown submits that this case did not require a full-time custodial sentence. The question for the Court was whether it was a case that required a sentence to be suspended or a recognisance to be of good behaviour, conditional upon the matters contained in the report of the Department of Juvenile Justice. 57 I have given consideration to the submissions of counsel. The present offence is an objectively serious one for reasons given earlier in this judgment. It is necessary, however, to keep firmly in mind that the Offender is to be sentenced for the offence to which he has pleaded guilty and not a more serious offence which takes into account that the act of KT caused the death of Mr Agang. 58 The evidence before the Court demonstrates that the Offender comes from a good family and had no prior criminal history. Powerful lessons have been learned by him arising from his involvement in the events of this tragic night. He is in employment in a position of responsibility in the family business. He has strong subjective factors operating in his favour. The risk of him reoffending is low. 59 I do not propose to sentence the Offender to a period of imprisonment. I note that the Offender was assessed as suitable for inclusion in the community service order scheme. However, the report of the officers of the Department of Juvenile Justice indicates that this is not the preferred community-based option, given that the Offender is in full-time employment and the other issues and considerations contained in the report. In all the circumstances, I propose to deal with the matter under s.9 Crimes (Sentencing Procedure) Act 1999 by making an order directing the Offender to enter into a good-behaviour bond for three years upon the conditions proposed in the report of the Department of Juvenile Justice. 60 SG, for the crime to which you have pleaded guilty, you are convicted and, instead of imposing a sentence of imprisonment, I make an order under s.9 Crimes (Sentencing Procedure) Act 1999 directing you to enter into a good-behaviour bond for a period of three years upon the following conditions:

(a) that you appear before the Court if called on to do so at any time during the term of the bond;

(b) that you be of good behaviour during the term of the bond;

(d) that you participate in appropriate education, employment and/or an employment programme;

(e) that you participate in offence-specific counselling to explore and identify the influences and risk factors associated with particular peer groups, with a view to formulating and implementing a relapse prevention plan. **********

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Judgment (24 paragraphs)

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Cases Cited (4)