R v WA

Supreme Court of NSW|2012-10-12|Before: Button J

Introduction 1On 8 August 2012, WA (to whom I shall usually refer in these remarks as "the offender") was arraigned on a count of murder before a jury panel. The indictment alleged that, on 2 August 2009 at Cabramatta West, the offender murdered Slobodan Simic (to whom I shall usually refer as "the deceased"). The offender pleaded not guilty to murder, and offered no plea with regard to the implicit alternative count of manslaughter. A jury was immediately empanelled, and the trial commenced before me. 2On the 12th day of the trial, and well into the Crown case, the offender was re-arraigned on the same count. On that occasion, he maintained his plea of not guilty to murder, but pleaded guilty to manslaughter. The Crown accepted that plea in full satisfaction of the indictment. Pursuant to s 157 of the Criminal Procedure Act 1986, I found the offender guilty of the offence of manslaughter, and the jury was of course discharged without delivering a verdict. 3As a result of those events, the offender comes before Court to be sentenced for the offence of manslaughter today.

Events of 2 August 2009 7On the day of the offence, the offender was aged 16 years 10 months. He lived with his mother, his mother's boyfriend, his younger sister and his elder brother, aged 19 years, at an address in Cabramatta West. The male cousin of the offender, aged 18 years, lived in the suburb of Claymore, and often visited the home at Cabramatta West. 8That home backed on to a vacant block, which itself looked out onto the intersection of Sulman Road and another street. A gap in the fence at the rear of the home of the offender permitted an easy shortcut, by way of the vacant block, to that intersection. 9On the evening of Saturday 1 August 2009, a car registered in the name of the offender was parked on that vacant block. At some stage during the evening, it was deliberately set on fire by an unknown person, and destroyed. 10The following morning, Sunday 2 August 2009, the cousin of the offender and the brother of the offender went to the vacant block and had a conversation with a neighbour about who may have set the fire. The brother of the offender expressed his belief that either the deceased, or an associate of his, was responsible. 11The deceased, then 37 years of age, was in a relationship with Ms Debra Jones, who lived at an address in Sulman Road. That address was about 200 metres from the home of the offender, as the crow flies. 12At the time when the cousin and the brother of the offender were in the vicinity of the vacant block, the deceased rode towards them on his pushbike. The brother and the cousin loudly threatened to kill the deceased. As he turned to run away, they threw pieces of brick or rock at him. Those missiles hit the deceased in the head and arm, and drew blood. The deceased returned to the home of Ms Jones and commenced to wash the blood off himself. 13The cousin and the brother returned to the home of the offender. There they armed themselves with a baseball bat and a large machete. The offender, who I am satisfied was aware that some sort of violent confrontation was going to occur, but was not sure precisely what, armed himself with a firearm. I am not satisfied that that act on the part of the offender was part of any prearranged plan between the offender, his brother, and his cousin. 14The firearm was a loaded semiautomatic .22 calibre rifle that had been shortened with a degree of skill. It had also been fitted with a silencer which, although not professionally manufactured, was nevertheless very well made. In short, the offender left the house with what was effectively a semiautomatic pistol with a functioning silencer and a magazine that contained at least four cartridges. I am not satisfied that the offender loaded the gun himself. However, I am satisfied to the requisite degree that, when he grabbed it, he was aware that it was loaded. 15The cousin and the brother ran about 100 metres up Sulman Rd towards the home of Ms Jones, where the deceased had remained. The offender remained close to the intersection of Sulman Road and the other street. 16Hearing the yelling of the brother and the cousin, the deceased left the house. He came out on to the street and approached the brother and the cousin. He took off his shirt in order to prepare for a fight. He was unarmed, and yelled at the brother and the cousin that they should drop their weapons and engage in a fist fight. 17Instead, the brother and the cousin swung the baseball bat and the machete repeatedly at the deceased. The machete did not connect with his body. However, the deceased was struck at least once by the baseball bat. At some point a friend of the deceased entered the scene, himself armed with a machete, in order to help the deceased. He swung the machete and it connected with the baseball bat. 18The brother and the cousin suffered no injuries as a result of this confrontation. They turned and ran back towards the intersection that I have described. 19At some imprecise stage of the proceedings (an aspect to which I will return in a moment) the offender, who was still standing many metres away near the intersection, fired four rounds from the firearm. All those rounds were fired in a westerly direction, that is, towards the deceased. Bullets were heard by witnesses to be literally whizzing down the street. One of them lodged in a mailbox many metres from where the offender was standing, and narrowly missed a neighbour who was close to it. At the time the shots were fired, a substantial number of people were at the windows of their homes, on their front porches, in their front gardens, or on the footpath, having been attracted by the sounds of the confrontation. 20I am satisfied that none of the bullets were fired into the air, but rather that all of them were fired parallel to the ground. I am also satisfied that they were fired in rapid succession. 21At the time of the discharge of those bullets, the deceased had turned away. One of the projectiles struck him in the back and penetrated his heart. He collapsed in the street outside the home of Ms Jones. Tragically, he died in hospital shortly afterwards as a direct result of the gunshot wound to his back. 22The agreed facts are a little unclear as to precisely at what stage of the confrontation the offender fired the shots. As for my own findings, it is inconceivable that the offender would have fired when his brother and cousin were standing right next to the deceased. It is also noteworthy that the deceased was shot in the back, which is suggestive that the confrontation had come to an end. On the other hand, I do not find that the spraying of the bullets was undertaken by the offender well after the confrontation had concluded. Although the deceased had turned away at the time he was shot, and although I am satisfied that the brother and the cousin were not in the immediate vicinity of the deceased at that time, I find that the shots were fired either very much towards the end of the confrontation or perhaps just after it had ended. I shall explore the motivation of the offender in doing so later. 23After the shooting, the offender, his brother and his cousin fled through the vacant lot back to the family home, where they discarded various items. The brother and the cousin ended up in a siege in a home nearby, surrounded by police. They were eventually arrested on the same day. By that time, the offender had escaped the area. 24On 23 November 2009, the offender was arrested and exercised his right to silence. He has been in custody ever since.

The objective gravity of the offence 25The maximum penalty of the offence of manslaughter is imprisonment for 25 years. There is no standard non-parole period. 26The offender is to be sentenced on the basis that he committed an unlawful and dangerous act that caused the death of the deceased. In light of the plea that the Crown accepted, he is, of course, to be sentenced on the basis that, at the time of the commission of that act, he did not possess one of the three mental elements of murder. 27In assessing the objective seriousness of this manslaughter by way of unlawful and dangerous act, I bear in mind that, because of the varied factual and legal bases upon which the offence of manslaughter may be committed, it is not easy to create a hierarchical structure of seriousness. 28Having said that, the undoubted fact is that, on a quiet suburban street at about midday on a Sunday, a number of projectiles were deliberately discharged with the result that a member of the community lost his life. At the time, the lives of other persons were seriously in danger as a result of the actions of the offender. Although I shall speak in more detail about the motivation for the actions of the offender, it can be seen from the facts that I have recounted that the firing of the shots from some distance away was a completely unjustifiable overreaction to the confrontation, itself quite unjustifiable, that took place between the deceased and the brother and the cousin of the offender. 29A sharp contrast can be drawn with the regrettably not infrequent case of manslaughter in which two young men have a confrontation outside a hotel after closing time, and one of them punches the other once to the head, who falls, hits his head on the footpath, and dies. The objective seriousness of this offence is much greater. 30Turning to the two bases upon which this manslaughter is made out, it can be seen that the actions of the offender were a grossly unlawful attack on the right of the persons present on Sulman Road that day, including the deceased, to live their lives in peace and safety. Furthermore, firing four bullets that had the self-evident capacity to travel hundreds of metres down a suburban street that was occupied in the ways that I have described was an exceptionally dangerous thing to do. Indeed, the fatal result of the acts of the offender demonstrates precisely that. 31In short, the objective seriousness of this manslaughter cannot be characterised as anything other than extremely grave.

Subjective features 32It was agreed in the proceedings on sentence that the offender had offered to plead guilty to the offence of manslaughter even before he was committed to this Court, and that it was the Crown who declined to accept that offer until the 12th day of the trial. I was referred to the well-known authority of R v Oinonen [1999] NSWCCA 310. Although I queried defence counsel whether or not the offender is entitled to a full utilitarian discount, in light of the fact that he did not plead guilty to manslaughter at the start of the murder trial, on reflection I have decided that the sentence should be discounted to the extent of 25 per cent. In that regard, it is instructive that the offender in R v Oinonen did not enter a plea of guilty to manslaughter at the start of his trial. 33As for the question of remorse, it is noteworthy that I did not hear from the offender in the witness box. I have borne in mind the note of caution sounded in such decisions as R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369. I also consider that a letter such as the one written to me by the offender may often be of little value, because it is hard to know whether the expressions of remorse contained in such a letter truly derive from the offender. That is especially the case in the absence of cross-examination. It also worth bearing in mind that, for some weeks after the offence, the offender was on the run. When he was arrested, he by no means made a full confession of what he had done, but exercised his right to silence. Finally, in the Juvenile Justice report it is said that "whilst [the offender] expressed remorse at the consequences of his actions, he appeared to normalise the use of a firearm and level of violence in the current offence." 34On the other hand, it seems that the offender was prepared to plead guilty to the offence many months ago. His expressions of remorse are recorded both in the Juvenile Justice report and in the psychological report. The letter has some, albeit limited, probative value. Finally, his aunt gave oral evidence of the day upon which the offender confessed to her what he had done, and she described his remorse. In particular, she said that "he wishes upon wish that it didn't happen". 35In short, I am satisfied that the offender is remorseful with regard to the fact that he has criminally taken the life of a fellow human being. Whether his immaturity, a subject to which I shall return, permits him to understand the enormity of what he has done, I am not sure. 36The offender was born in September 1992. As I have said, that means that on the day of the offence he was aged 16 years and 10 months. He turned 20 last month, having been held in custody for almost 3 years. 37His mother is Aboriginal, and his father is of Lebanese background. His parents separated when the offender was about two years old, and the offender has rarely seen his father. The offender lived mainly with his mother and members of her family, and grew up in contact with her extended family to a large degree. He moved repeatedly, with attendant disruption to his studies. 38There is no need for me to detail all of the sorry facts that are described in the two reports. It is sufficient to say that, from a very early age, the offender has been exposed to many forms of abuse of alcohol, illicit drugs, and criminality. Indeed, so extensive was that exposure that, by the time of the offence, the offender regarded a life of crime and the abuse of illicit drugs as essentially normal. I am satisfied that his life has been almost completely bereft of appropriate role models. In particular, his mother has long struggled with a dependency on alcohol. 39In considering his background and the circumstances in which he had lived, and was living, on the date of the offence, the deplorable fact that a 16 year old boy had ready access to a loaded, shortened, silenced semiautomatic weapon speaks for itself. 40As one might expect, the offender had no success at school, academically or otherwise. He was suspended on a number of occasions as a result of his aggression, and ended up leaving school before he completed Year 10. Having done so, he attended TAFE for a day or two before giving up on that as well. He has never had gainful employment in his life. 41By the time of the offence, the offender had himself been abusing illicit drugs for some years. Indeed, on the evening before the offence he had ingested heroin, though I do not consider that he was in any way affected by drugs or alcohol at the time of the offence. 42As at that time, the offender already possessed a not insignificant criminal record. It is noteworthy that, in November 2006, when he was barely aged 14 years, he was charged with committing an aggravated break and enter and inflicting actual bodily harm. As a result of that offence, he was the subject of a control order for four months. His record contains a large number of property offences, including many offences of breaking, entering and stealing, dealt with in the Children's Court and the Youth Drug Court. Nor is his record entirely free of violence, featuring as it does resisting police, escaping police custody, and stalking or intimidation. The offender was on probation at the time of the commission of the offence of manslaughter with regard to at least one offence. 43Having said that, the criminal record of the offender, although lengthy, does not demonstrate that he has been repeatedly sentenced to detention with no effect. Nor are the convictions for offences suggestive of violence of great seriousness. 44Finally, with regard to his criminal record, although it shows that the offender has been the subject of one or two very short sentences that were imposed and served during the time whilst he has been in custody, I am prepared to provide him with a full backdate to 23 November 2009. 45Shortly after he went into custody, the offender became a father. Because he is not on good terms with the mother, he has never seen his first born child. One can seriously doubt whether the offender is remotely prepared for the responsibilities of fatherhood. In light of his current circumstances, he has not been able to fulfil them, and will not be able to for some time. Whether the birth of that child will truly be a positive event in the life of the offender, only time will tell. 46All in all, as at the date upon which the offender came into custody, one would have been entitled to assess his future prospects as very poor.

The future? 47I detect two rays of hope. The first is that I was impressed by the evidence of his aunt, who appears to be someone who has been able to divorce herself from the criminality that engulfs the rest of the extended family of the offender. On occasions throughout his childhood, he was in her care, and she spoke highly of his behaviour and personality during those periods. She also gave evidence that, when he is released, he will be able to live with her, and she will do everything she can to assist his rehabilitation. I think that she is someone who could have the ability to assist the offender to lead a law-abiding life in the future. 48The second favourable aspect is that, despite some difficulties settling and dealing with the structured environment of children's detention centres, the offender has progressed very well. He claims to be free of illicit drugs, and I am prepared to accept that on the balance of probabilities. More notably, he has completed Years 10 and 11 of High School and his ambition is to obtain his Higher School Certificate. In light of his previous lack of educational achievement, that is to be applauded. Not only that, he was described by teaching staff as a "highly motivated student" and a "pleasure to teach". I dare say that, throughout all of his primary and secondary schooling in the community, he was never so described. It is even more impressive in light of the fact that his overall cognitive functioning has been assessed as being in the borderline to low average range. The offender has hopes of training in the future in a trade, perhaps to do with motorcycles, and gaining employment for the first time in his life. 49In short, it is going to be challenging indeed for the offender to wrench himself away from his upbringing and the ways of living and thinking that are already entrenched in him. As a result of that, his prospects of rehabilitation must be quite guarded. Having said that, I have identified two grounds for careful optimism.

Aggravating and mitigating features 50I do not propose to recite the provisions of s 21A of the Crimes (Sentencing Procedure) Act 1999. I trust that my findings as to the objective and subjective features of the matter sufficiently demonstrate the aggravating and mitigating features that I have found to be established. In considering the matter, I have referred myself to the section, whilst taking care to avoid the danger of erroneous double-counting.

Comparable sentences 51I have considered a number of decisions of this Court, both in the Court of Criminal Appeal and at first instance, in which the offence of manslaughter has been committed by an offender who was under the age of 18 years at the time. As one would expect, there are few that involve the use of a firearm, not only because it is reasonably rare for a juvenile to use a firearm in our society, but also because many such uses will constitute the more serious form of homicide. I will not recount in these remarks on sentence the details of all of those cases. However, annexed to the formal written judgment will be an appendix which provides a very brief overview of them. 52I am quite aware that, in comparison to those other decisions, the sentence that I shall impose shortly is a substantial one. But that is the inevitable consequence of the objective seriousness of this offence.

Sentencing a juvenile offender 53Although the offender is being dealt with according to law as a result of his having committed a serious children's indictable offence, the special principles of sentencing contained in s 6 of the Children (Criminal Proceedings) Act 1987 continue to apply. I have borne those principles steadily in mind, and have taken the approach that they work an important alteration to the usual principles of sentencing that would apply if I were sentencing an adult. 54I have also considered the common law on the topic, including of course what was said in the decision of R v GDP (1991) 53 A Crim R 112, along with the judgments in the recent decision of the Court of Criminal Appeal in JT v R [2011] NSWCCA 128. 55I accept that the commission of the offence, constituting as it did a gross and spontaneous overreaction, was caused at least partly by the immaturity of this 16 year old, combined with the powerfully antisocial upbringing to which he was subjected through no choice or fault of his own. I also accept that the offence was motivated, at least to some degree, by a wrong-headed desire to protect his brother and his cousin. 56Having said that, the repeated firing of what was effectively a semiautomatic pistol down a suburban street could hardly be described as the crime of a child: see KT v R [2008] NSWCCA 51. Nor, of course, was the offender aged 13 or 14 years as at the date of the offence. He was almost 17, and had left school some time before. 57I accept that the rehabilitation of a juvenile offender is to be given great weight. But general deterrence, that is, seeking to dissuade others, whether young or old, from doing what the offender did on that day, must play a significant role in this sentence. Despite the remorse that I have found to exist, and the progress that has been made in custody, so must personal deterrence. 58The sentence reflects the age of the offender, his immaturity, the upbringing to which he was subjected as a child, the different statutory considerations that apply, and the applicable principles at common law. To be clear about it, had the offender not been a child at the time of the offence, the sentence would be substantially longer.

Parity 59The brother of the offender pleaded guilty to manslaughter and was sentenced in this Court. The plea was entered on the basis of extended joint criminal enterprise, in that the brother contemplated the possibility that either the cousin or this offender might do an unlawful and dangerous act, but nevertheless remained involved in the confrontation. The brother was aged 19 years at the date of the offence. He pleaded guilty. His criminal record was also not insubstantial, and featured violence in the form of robbery in company. It appears that he had never been the subject of a control order. The brother was sentenced to a head sentence of imprisonment for 6 years 3 months, with a non-parole period of imprisonment for 4 years. 60The cousin of the offender also pleaded guilty to manslaughter and was also sentenced in this Court. He did so on the same basis, namely extended joint criminal enterprise with regard to the commission of an unlawful and dangerous act. The cousin was 18 years old as at the date of the offence. The remarks on sentence recount him as having had a lengthy history with Juvenile Justice, including the imposition of a number of control orders. He had been dealt with for various offences, although the remarks on sentence recount the only offence of violence as being common assault. The cousin was sentenced to a head sentence of imprisonment for 7 years, with a non-parole period of imprisonment for 4 years 6 months. 61Despite the submission of defence counsel in this matter, it seems to me that any non-parole period imposed on the offender that was shorter than the non-parole periods imposed upon his brother and his cousin would, bearing in mind the brief overview of the objective and subjective features of their matters that I have provided, demonstrate erroneous disparity. I say that whilst taking full account of the age of the offender. The fact is that the brother and the cousin were involved in a violent and unacceptable confrontation with a fellow citizen and foresaw the possibility of something worse happening; in stark contrast, the offender sprayed bullets down a suburban street and took the life of that citizen.

Special circumstances 62Defence counsel submitted that special circumstances are made out, and that it would be appropriate to reduce the length of the non-parole period to some degree. He drew attention to the pressing need that the offender will have for assistance if he is to escape his upbringing, and the aspects of his personality that have been the result. It is also clear that the offender, upon release, will still be a very young man, with his whole life ahead of him. Finally, it is clear that this sentence will constitute the first substantial deprivation of liberty that the offender will have suffered in his life. There will be a very significant process of readjustment when he is released. The Crown Prosecutor did not resist the submission about special circumstances. 63The submission of defence counsel has a great deal of force. As I have said, the offender has already shown potential whilst in custody, and it is to be hoped that that is the starting point of a new life that will be able to be built upon when he is released. It is also true that, by the time he is released, the offender will have been cut off from the community for a substantial period, and his readjustment will be difficult and challenging. 64However, the sentence that I shall impose in a moment will feature a time on parole that is not insignificant. Furthermore, I have come to the view that to reduce any further the non-parole period that I propose to impose would not adequately reflect the objective seriousness of the offence and the moral culpability of the offender, even taking into account all of the subjective aspects, including his age. In that regard, I have considered what was said by the Court of Criminal Appeal in such cases as Maglis v R [2010] NSWCCA 247 and R v West [2011] NSWCCA 91. Of course, I have no intention of achieving a variation of the usual statutory ratio by impermissibly increasing the head sentence that I otherwise consider appropriate. 65Having reflected on the matter, I do not propose to disturb the ratio between the head sentence and the non-parole period.

Section 19 of the Children (Criminal Proceedings) Act 66Both counsel helpfully took me to this important aspect of sentencing the offender, along with the recent decision of the New South Wales Court of Criminal Appeal in JM v R [2012] NSWCCA 83. In short, it was agreed by both parties that, if there were to be a non-parole period that could result in the offender not being transferred to an adult correctional centre at any stage, that non-parole period would need to be 4 years 3 months or less, once one considers the date upon which the offender would become 21 years 6 months of age. Defence counsel submitted that such a non-parole period would be open to my discretion, whilst not, of course, submitting that any sentence should be tailored to achieve that result. 67I respectfully reject the submission of defence counsel with regard to the possible length of the non-parole period. I do not consider that such a non-parole period would appropriately reflect the objective gravity of the crime of the offender, even taking into account his age at the time of the offence, his remorse, the utilitarian discount, and his background. I also consider that any such non-parole period would demonstrate erroneous disparity with regard to the sentences imposed upon his brother and his cousin. 68It seems to me that s 19(3) is engaged, because the offender is being sentenced to imprisonment with respect to a serious children's indictable offence, and therefore special circumstances would need to be identified for him to be able to serve his sentence as a juvenile offender up until the day he turns 21. 69Although the offender is well past the age of 18 years, it seems that he has been continuously held in children's detention centres since his arrest. As I understand it, he was not transferred to an adult gaol upon attaining the age of 18 years. In light of that circumstance, combined with the commendable progress that he has made and to which I have referred, I do find for the purpose of s 19(3)(a) that special circumstances are established that justify the detention of the offender as a juvenile offender up until the day he turns 21. I have made that finding on the basis of the need to avoid disruption to the progress that has already been made; the fact that he was not transferred to an adult gaol upon turning 18; the fact that he needs time to prepare himself for the transfer to an adult gaol when he turns 21; and the fact that I believe that it would be unduly harsh for him to be peremptorily transferred to an adult gaol on the same day that I impose sentence. 70In coming to the finding that there are special circumstances that would permit him to remain in a children's detention centre as a juvenile offender until he attains the age of 21, I have borne in mind the contents of ss 19(4) and 19(4A). In particular, I consider that there would be an unacceptable risk of the offender suffering psychological harm were he to be suddenly transferred to an adult gaol on the same day that he receives a substantial sentence for an offence of manslaughter committed by him when he was a child. 71To be completely clear, my intention is that he be able to remain in a children's detention centre as a juvenile offender until the day he turns 21, whereupon he is to be transferred to an adult gaol. 72I make an order, pursuant to ss 19(1) and 19(3), directing that the offender serve his non-parole period as a juvenile offender until the day upon which he attains the age of 21 years.

Victim impact statement 73A victim impact statement prepared by Mr Milan Simic, the brother of the deceased, was received by the Court. I acknowledge the receipt of that document, and thank Mr Simic for preparing it. That document amply demonstrates the grievous effect that the criminal loss of the life of Mr Slobodan Simic has had upon his extended family. In particular, it has destroyed the wellbeing and happiness of his elderly mother. The thought of a loved one in the prime of life being shot in the back without the slightest justification, and having his life ebb away in a suburban street, will be an exceptionally painful one to bear for those who loved the deceased. And they will bear it for the rest of their lives. On behalf of the Court, I extend my condolences to the family of the deceased for the loss that they have endured, and will continue to endure. Nothing that will occur today can make good that loss, although it may be that the end of these proceedings, more than three years after the events in question, will provide some closure to those who are suffering. I have dealt with the victim impact statement in accordance with well-established principles: R v Previtera (1997) 94 A Crim R 76.

Permit publication or broadcast? 74Finally, I have considered s 15C of the Children (Criminal Proceedings) Act. There has been no application by either party, or any other interested person, for the usual statutory prohibition on the publication or broadcast of the name of the offender to be lifted, on the event of his being convicted today of a serious children's indictable offence. 75Of my own motion, I have considered the factors contained in s 15C(3), but have decided that the section should not be engaged. As a result, it remains the case that it would be an offence for any person to publish or broadcast material that connects the name of the offender with these criminal proceedings.

Imposition of sentence 76WA, you are convicted of the offence of manslaughter. I sentence you to a non-parole period of imprisonment for 6 years to date from 23 November 2009 and expire on 22 November 2015. There will be a parole period of imprisonment for 2 years, to commence on 23 November 2015 and expire on 22 November 2017. 77Accordingly, the head sentence is imprisonment for 8 years with a non-parole period of imprisonment for 6 years. But for your plea of guilty, I indicate that the head sentence would have been imprisonment for 10 years 8 months.

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. Decision last updated: 29 October 2012

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