REGINA v CW

REGINA v CW - [2009] NSWSC 1155 - NSWSC 2009 case summary — Zoe

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(1) Factual matters 7 The evidence called in the Crown case established that the offence occurred shortly after 11.00 pm on 24 November 2007. 8 The Crown case in relation to the alternative count was brought upon the basis that the offender was guilty of the offence of manslaughter by an unlawful and dangerous act. The Crown alleged that he was a party to a joint criminal enterprise. 9 It was made clear in the opening address for the Crown that the Crown case was that the offender participated in a joint criminal enterprise which was said to have been spontaneous, in that there was no evidence that there had been any pre-planning. 10 The Crown called evidence from a number of persons who were present at Woolooware Oval on the evening in question. 11 The offender, CW, was the driver of a vehicle. He and others, including his co-offenders, drove to Woolooware Oval. When he arrived there, his two co-offenders ran ahead onto the oval. One of their friends, Mr Taylor Martin, and the offender, CW, soon after got out of the car. CW then walked across the oval. 12 The Crown called a number of witnesses to establish the events concerning the particular circumstances of the assaults that took place. One witness, Ms Emileen Anderson, recalled seeing Mr Leicester lying on the ground. She jumped onto the co-offender, DGP, in an apparent attempt to stop him from continuing the attack. They both fell to the ground. She said she did it because she thought that DGP was going to attack Mr Leicester. She said she saw DGP kick Mr Leicester once on the ground. Her evidence was that she knew the offender, CW, before the evening of 24 November 2007. She said she recalled when Mr Leicester was on the ground and the offenders were walking away, the offender, CW, said, "Stay on the ground, it's where you belong", or something along those lines. 13 Ms Sarah Allen was called by the Crown. She said that, as she walked closer to where Mr Leicester was lying the ground, she saw:- "… five boys, silhouettes of boys, men, standing over him. They were kicking around his hip and up around his neck as well, or up around his shoulder blade. Because he was rolling over trying to get away from them. And then after that, as I started walking a bit closer, I saw a man a young man came in and kick him in the neck, around the neck and head area." 14 She then gave a description of the person she saw kick Mr Leicester. She said that she witnessed three kicks delivered by that person. On the last kick she said "I heard a loud crack". 15 When asked what happened to Mr Leicester, she said:- "I run over and when I got there, first of all there was a girl leaning over him, trying to push all the guys away. And when I knelt down to, you know, see if his heart was beating, and I knelt down and then the guy with, like the same clothing, the guy that kicked him, came up behind me over my shoulder and started yelling at him." 16 Ms Allen said that she could not recall what he had said. 17 The offender's account in evidence was to the effect that, not only did he not kick or assault Mr Leicester, but that he, in fact, grabbed his co-offender, DGP, and pulled him back and away from Mr Leicester. He said in evidence that he did not touch, punch or kick Mr Leicester. 18 Mr Andrew Lord, who was also called by the Crown, said that he heard screaming and he looked over and saw Mr Leicester fall. He was then about 20 metres away from him. He saw Mr Leicester on the ground and shaking. His evidence was that he saw three persons involved in assaulting him. He provided descriptions of the assailants in his evidence. The Crown put to the jury that the three persons he saw were, in fact, the offender, CW, and his two co-offenders. The Crown put to the jury that they would reject the offender's account that he was, in effect, acting as "peace-maker", that they would not accept CW's account and that they may consider that the only persons who were trying to stop the fight were the two young women including, in particular, Ms Anderson. 19 It is clear from the jury's verdict that they rejected CW's evidence and accepted that given by the Crown witnesses, in particular, the two woman I have referred to. I will return to the significance of the jury's verdict shortly.

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(c) The offender's personal and family background 22 The offender's family background and history is recorded in detail in the report from the New South Wales Department of Juvenile Justice dated 9 September 2009 (Exhibit H). 23 He is one of five children and the family migrated to Australia in 1998 when the offender was approximately six years of age. He is recorded as describing a strong relationship with both of his parents and all his siblings. His mother is recorded as reporting that the family had never experienced any problems in relation to his behaviour and that during his childhood and adolescence both the offender and his mother reported that it was unremarkable with no exposure to violence. 24 He is described as a talented sportsperson and commenced his secondary schooling in 2004 and remained enrolled until the date of his admission to custody on 25 November 2007. 25 The first three years of his schooling were said to be without incident and he was well behaved. However, in 2007, CW was noted as presenting with some behavioural concerns. In that year, he received a 20 day suspension for his involvement in a violent altercation with a student from another school, although the offender stated that the altercation resulted from a conflict between one of his peers and another young male and that he, the offender, was one of eight young people involved in the incident and was not the main protagonist. 26 In October 2007, the offender's parents received a letter from the school which stated that he was being considered for expulsion due to his failure to apply himself to his school studies and meet mandatory course requirements. The expulsion did not eventuate as he was admitted into custody soon after the letter was issued. 27 In relation to alcohol and other drugs, the report records the offender stating that he first experimented with alcohol at the age of 15 and that this was within the family home but says that alcohol is not consumed within the home excessively. In addition, he was recorded as drinking alcohol socially with his peers and maintained that he would drink with his peers "approximately once per fortnight". 28 The report records the offender's mother's statements to the effect that she had never experienced any significant concerns in relation to her son's use of alcohol or other illicit substances. 29 According to the report, the focus of the intervention in relation to the offender's self referral to an Alcohol and Other Drug counsellor was around his historical use of alcohol, harm minimisation strategies and the relationship between what is said to be his "alcohol use and his behaviour and relapse prevention strategies" (p.5). 30 The report from the Department of Juvenile Justice records that the offender maintained that, at the time of the offence, he was not under the influence of alcohol or any other illicit substances. I note that his evidence at trial was that he had not consumed alcohol on the night of the offence.

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(3) Submissions on behalf of the offender 35 Mr J Spencer of counsel submitted that there was no premeditation or planning by his client in relation to the offence. In this respect, he referred to the basis upon which the Crown had stated that the joint criminal enterprise was a spontaneous one and that there was no intent to kill or inflict grievous bodily harm. Mr Spencer stated that this was borne out by the facts associated with the events that led up to the attack on Mr Leicester. 36 Mr Spencer also submitted that there was no basis for finding that the offender, CW, was the instigator or "the dominant figure in these events". He submitted that, consistent with the jury's verdict, he joined the joint enterprise after the initial attack. 37 Mr Spencer relied upon both the fact that his client had no prior convictions and, additionally, that he was a person of good character. 38 In addition, Mr Spencer noted that there was no weapon used in the attack. 39 Emphasis in the submissions was placed upon CW's age as at the date of the offence (16 years and two months) and that this, of itself, indicated that he must have been "somewhat immature". Whilst not suggesting that it was immaturity that caused his client to be involved, his age, Mr Spencer submitted, was nonetheless something to be taken into account in determining the appropriate sentence to be imposed. 40 Mr Spencer relied, in particular, on the report from the Department of Juvenile Justice (Exhibit H) to which I have already referred. He stated that it was evidence of a constructive approach made by his client whilst in custody and that he had expressed remorse and acknowledged the impact of his behaviour on his own family. Mr Spencer observed that, bearing in mind his plea of not guilty, he was not able to further develop the question of remorse. 41 Reliance was also placed upon what was said to be the strong support from his family who were a well-respected family. 42 The offender himself, he observed, did not suffer from any psychological or psychiatric impairment and had been a talented sportsperson, involving himself in rugby league football. 43 Mr Spencer also emphasised the offender's good behaviour whilst in custody. 44 Mr Spencer submitted that the evidence supported the fact that his client had excellent prospects of rehabilitation and that he was taking every opportunity to maximise those prospects. 45 It was submitted that, in determining sentence, there was no evidence that the offender required "a specific deterrent" (transcript, p.51). 46 In relation to the offence and to CW's participation in it, Mr Spencer submitted that, whilst Ms Allen stated that she saw Mr Leicester being kicked three times, it would have been open to the jury and equally consistent for the jury to have found that he did kick Mr Leicester but not necessarily three times.

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59 Nevertheless, it is important to bear in mind the denunciatory role of sentencing for the offence of manslaughter: Regina v MacDonald (unreported, NSWCCA, 12 December 1995). The offence involves the felonious taking of human life, and whatever form it takes, it has always been recognised by the law as a most serious crime. The protection of human life is a primary objective of the system of criminal justice, which is reflected in the community's expectations of that system. (7) Manslaughter by unlawful and dangerous act 60 Manslaughter by unlawful and dangerous act, involving an appreciable risk of injury of serious injury, is a category of involuntary manslaughter. Involuntary manslaughter, unlike murder, does not require proof of intent to cause death or grievous bodily harm to the victim, nor the other mental elements necessary for murder: The Queen v Lavender (2005) 222 CLR 67 at 70. 61 The physical element is the unlawful and dangerous act which causes death. The mental element concerns that act, in that the act must be willed and not accidental: Wilson v The Queen (1991-92) 174 CLR 313 at 328. The only relevant intent is that required to do the act, and that the act inadvertently caused death: Lavender (supra) at 82-83. To be found guilty of manslaughter by unlawful and dangerous act, the circumstances must be such that a reasonable person in the position of the accused would have realised that he or she was exposing another or others to an appreciable risk of serious injury: Wilson (supra) at 332-4; Regina v KT [2007] NSWSC 83. 62 It has been said that there is no hierarchy of seriousness between voluntary and involuntary manslaughter. Spigelman CJ said as much in Regina v Hoerler [2004] NSWCCA 183 at [29]:- "Even a case where there is present an intention to kill or maim, which would constitute murder but which is reduced, by reason of provocation or diminished responsibility, to a charge of manslaughter, will not necessarily attract a higher sentence than other forms of manslaughter, including the relevant one here, ie, killing by an unlawful and dangerous act. As a five judge bench of this Court, including Gleeson CJ, Mason P, Hunt CJ at CL, Simpson and Hidden JJ, said in R v Issacs (1997) 90 A Crim R 587 at 595:- 'The argument for the appellant advanced on this appeal appeared to assume that a case of provocation manslaughter is necessarily, or at least ordinarily, worse that [sic] a case of manslaughter by unlawful and dangerous act. We do not accept that. Each case depends upon its own circumstances. The range of sentencing available in the case of manslaughter is notoriously wide. There have been cases where provocation manslaughter has resulted in non-custodial sentence." (8) The sentencing discretion

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63 In determining the sentence in the present case, I am required to consider the objective and subjective factors relevant to the offence and the aggravating and mitigating factors in accordance with the provisions of the Crimes (Sentencing Procedure) Act 1999 and relevant sentencing principles. I am required by law to take account of a number of matters in determining the objective gravity of the offence committed by the offender and the other matters to which I have referred. The sentence to be imposed is one that is appropriate to the particular crime, having regard to the gravity of the offence viewed objectively: Regina v Dodd (1991) 57 A Crim R 349 at 354. 64 It is important to note that the offence was committed in company and this is an aggravating factor within s.21A(2)(e) of the Crimes (Sentencing Procedure) Act. On the night in question, the offenders, DGP and PB, were passengers in a vehicle driven by CW. As the vehicle drove past Woolooware Oval, a man shouted something in the direction of the vehicle. CW stopped the vehicle next to the oval. DGP and PB exited the vehicle and ran onto the oval, followed by CW. Together, they approached the deceased and his friend, Parkes. The assault then occurred in the manner I have described earlier. Clearly, the deceased was confronted by the combined force or strength of two or more persons, and indeed, the forces of two or more people were deployed against him: Regina v Brougham (1986) 43 SASR 187 at 191; Regina v Leoni [1999] NSWCCA 14 at [16]; Regina v Villar and Zugecic [2004] NSWCCA 302 at [68]. (9) Victim Impact Statements 65 A sentencing judge's approach to victim impact statements (from the family of a deceased victim) can only be accepted within the confines laid down by Regina v Previtera (1997) 94 A Crim R 96; Regina v Bollen (1998) 99 A Crim R 510 at 529-530; Regina v Tzanis [2005] NSWCCA 274 at [15]-[18] and Whybrow v Regina [2008] NSWCCA 270 at [17]. 66 Victim impact statements are received and considered for the purposes of s.28 of the Crimes (Sentencing Procedure) Act. Section 28(3) provides that a Court must receive a victim impact statement given by a family member and acknowledge its receipt, and may make any comment on it that the Court considers appropriate. 67 It was observed by Johnson J in Regina v SBF (supra) at [88] "… There is no requirement for victim impact statements to be referred to in some shorthand way …". 68 In the present case, the impact statements made by Mr Leicester's mother, father and sister each recorded clearly and poignantly the devastating consequences that the death of their son and brother has had upon each of them as a result of the offence committed by the offenders. One of the purposes for which a Court may impose a sentence on an offender I note is "to recognise the harm done to the victim of the crime and the community": s.3A(g) of the Crimes (Sentencing Procedure) Act. 69 I am conscious of the limitations upon the use of the victim impact statements, in particular, those flowing from the Privitera principle governing the use of such material and in determining the appropriate sentence to be imposed I, of course, proceed in accordance with that principle. 70 The impact of crimes of homicide in cases such as the present as revealed by victim impact statements remind both judges who are dealing with such cases on a not infrequent basis and the community of the appalling and devastating loss and distress that results from violent crimes leading to death including, in particular, those senseless crimes of random violence involving innocent citizens.

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(10) Sentencing offenders involved in a joint criminal enterprise 71 A joint criminal enterprise exists when two or more persons reach an understanding or arrangement amounting to an agreement between them that they will commit a crime: McAuliffe v The Queen (1995) 183 CLR 108 at 114. The understanding or arrangement need not be express and may be inferred from all the circumstances. It need not have been reached at any time before the crime is committed. The circumstances may themselves establish an unspoken understanding or arrangement amounting to an agreement formed between them then and there to commit that crime: Regina v Tangye (1997) 92 A Crim R 545 at 556. 72 If one or other of the parties to the understanding or arrangement does, or they do between them, in accordance with the continuing understanding or arrangement, all those things which are necessary to constitute the crime, they are all equally guilty of the crime regardless of the part played by each in its commission. 73 A person participates in a joint criminal enterprise either by committing the agreed crime itself or simply by being present at the time when the crime is committed, and (with knowledge that the crime is to be or is being committed) by intentionally assisting or encouraging another participant in the joint criminal enterprise to commit that crime: Tangye (supra) at 557. The presence of that person at the time when the crime is committed and a readiness to give aid if required is sufficient to amount to an encouragement to the other participant in the joint criminal enterprise to commit the crime. 74 Despite each party to a joint criminal enterprise being equally liable, it will often not be appropriate to give each party the same sentence. As Gibbs CJ explained in Lowe v The Queen (1984) 154 CLR 606 at 609:- "It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence, have to be taken into account ." 75 To such end, the role each offender plays in an offence of manslaughter is crucial to assessing their respective culpability: Lowe (supra) at 609; Regina v Howard (1992) 29 NSWLR 242; Carruthers v Regina [2007] NSWCCA 276. The examination of the facts extends to the level of participation in the physical acts that caused death: Regina v Mamae [2001] NSWSC 936; Howard (supra); Regina v Tan [2007] NSWSC 684; Carruthers (supra). 76 The relevant evidence in this case is the evidence that was given at trial.

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… The emphasis given to rehabilitation rather than general deterrence and retribution when sentencing young offenders, may be moderated when the young person has conducted him or herself in the way an adult might conduct him or herself and has committed a crime of violence or considerable gravity … In determining whether a young offender has engaged in 'adult behaviour' … the court will look to various matters including the use of weapons, planning or pre-meditation, the existence of an extensive criminal history and the nature and circumstances of the offence … Where some or all of these factors are present the need for rehabilitation of the offender may be diminished by the need to protect society. 26. The weight to be given to considerations relevant to a person's youth diminishes the closer the offender approaches the age of maturity ... A 'child-offender' of almost eighteen years of age cannot expect to be treated substantially differently from an offender who is just over eighteen years of age ... However, the younger the offender, the greater the weight to be afforded to the element of youth…" (emphasis added) 81 Crimes of violence committed by young offenders have been the subject of particular attention by the Court of Criminal Appeal and single judges of this Court in recent years. 82 Whether or not there has been an acceleration in the incidents of unprovoked violent crimes by young male offenders (and there is some evidence to suggest that it has), young offenders who do engage in crimes of violence that culminate in the death of an innocent victim, may expect sentencing courts to impose substantial sentences that adequately reflect the need for general deterrence in the community. 83 In KT (supra), McClellan CJ at CL at [25] observed:- "The emphasis given to rehabilitation rather than general deterrence and retribution when sentencing young offenders, may be moderated when the young person has conducted him or herself in the way an adult might conduct him or herself and has committed a crime of violence or considerable gravity ... " 84 In KT (supra), the sentencing judge (Johnson J) (the appeal against sentence was dismissed by majority) dealt with an offender who was 16, almost 17 at the time of the offence, involving a very powerful blow by him to the victim. The single punch in that case resulted in the death of the victim, entirely innocent citizen who had simply been unfortunate enough to be walking along a public street when the unprovoked confrontation occurred. Johnson J observed (at 118):- "In my view, the factors of punishment and deterrence are significant factors on sentence on this case. General deterrence is an important factor in this case. Young persons must be made aware that vulnerability of human beings require restraint by others and a rejection of unprovoked violent assaults … This was an objectively serious offence committed by a young man living in an adult world. Although the provisions of s.6 Children (Criminal Proceedings) Act 1987 and sentencing principles with respect to young offenders remain relevant, it is appropriate in this case to reflect on the sentence the elements of punishment and deterrence which must not be subsidiary to the rehabilitation of the offender." 85 The present case is another instance of an innocent citizen being set upon, in entirely unprovoked circumstances, and subjected to a high level of explosive violence by young males, in some cases, acting together in a joint criminal enterprise. 86 In cases such as this, there is a need in sentencing for there to be a proper accounting for all relevant factors and a sentence that reflects them. General deterrence is one such factor. General deterrence, it has long been recognised in sentencing law, sends a message out to the community that those engaging in conduct of the kind involved in the present case being criminal conduct and produces fatal consequences, can expect such offending to be addressed by substantial terms of imprisonment. 87 In KT (supra), McClellan CJ at CL observed (at [41]):- "… there is considerable force in the view that, notwithstanding the youth of the offenders, the decisions of the courts for this type of offence have provided a range of penalty which fails to adequately reflect the need for general deterrence and retribution. The recent experience of this Court indicates that the range of penalties imposed on young offenders who commit random acts of violence resulting in death may not have been sufficient to deter others from similar irresponsible criminal behaviour. In my opinion although the circumstances of an individual offence and offender must always be considered, this Court should in future accept that more significant penalties may be required when sentencing offenders for this type of offence."

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(13) Children (Criminal Proceedings) Act 1987 91 In relation to CW, I have had regard to the provisions of s.19 of the Children (Criminal Proceedings) Act 1987. The Crown submitted that special circumstances do not exist for the purposes of those provisions. 92 I have had regard to both the Juvenile Justice report (Exhibit H) and to a more recent Juvenile Justice report dated 19 October 2009, which, by leave, was produced and made available as part of the sentencing materials after the sentencing hearing. I have marked that report as Exhibit O. 93 It is clear from the evidence that, in 2007, CW was having difficulty in his schooling having been under threat of expulsion. He was said to be somewhat "impressionable". The evidence indicates that CW has made progress whilst in the juvenile detention institutions and there is every reason to believe that, if he continues in that environment, rather than a prison for adult offenders, he will achieve a successful level of rehabilitation. 94 Although there are facilities available in adult prisons as indicated by Exhibit O, it is important that his progress that CW has made since his confinement in juvenile detention not be disrupted or quite possibly ended by influences he will encounter in an adult prison. It is to be borne in mind, as Exhibit H indicates, that the apparent negative peer influences that operated on him at the time of the offence appear to have played a role in his offending notwithstanding his strong relationship with his parents at that time. 95 I consider CW's vulnerability to negative influences and to his positive progress achieved whilst in custody and the need to best ensure his prospects of rehabilitation are special circumstances do exist within s.19(4) of the Act such as to justify the making of an order under that section for CW to serve his term of imprisonment as a juvenile offender and I so find. 96 Accordingly, I make an order pursuant to s.19 of the Children (Criminal Proceedings) Act that the offender CW serve the whole of his sentence of imprisonment as a juvenile offender. 97 I note that as the offender CW was convicted at trial, he does not have an entitlement of the Thomson & Houlton discount on sentence, which I have applied to his co-offenders, who entered guilty pleas.

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