Regina v M A

LOWER COURT Supreme Court JURISDICTION : LOWER COURT 70109/02 FILE NUMBER(S) : LOWER COURT Shaw J JUDICIAL OFFICER :

• 1 - IN THE COURT OF CRIMINAL APPEAL 60446/03

STUDDERT J JAMES J DUNFORD J

FRIDAY, 23 APRIL 2004 REGINA v M.A. Judgment 1 STUDDERT J: I agree. 2 JAMES J: I agree with the judgment of Dunford J. 3 DUNFORD J: This is an appeal by the Director of Public Prosecutions pursuant to s 5D of the Criminal Appeal Act 1912 against the sentence of 13 years and 6 months with a non-parole period of 8 years and 6 months imposed on the respondent by Shaw J following his plea of guilty to the murder of Jai Jago on 26 April 2001 at Hurlstone Park. The sentence was imposed on 31 October 2003, and the Notice of Appeal was signed on behalf of the Director and served on the applicant that same day. 4 His co-accused, Kadr Diab pleaded not guilty to murder but guilty of manslaughter, which plea was accepted in full satisfaction of the indictment against him and was sentenced to imprisonment for 9 years with a non-parole period of 6 years, taking into account other matters on a Form 1. 5 Late on the evening of Anzac Day 2001, the deceased Jai Jago, aged 18 years and his friend, Andrew Clayton also aged 18 years, left Grumpy's Hotel in New Canterbury Road intending to walk to the Jago home nearby. They had spent most of the day socialising at various locations and were both affected by alcohol. They entered the 7-11 Store in New Canterbury Road where the deceased was described as being "drunk and obnoxious". As they continued walking along the street, the deceased was waving his arms about and yelling at cars. They turned right into Old Canterbury Road and whilst walking past a chemist shop, the deceased kicked an unoccupied parked car causing some minor damage. 6 Shortly after this, a motor vehicle driven by Kadr Diab in which the respondent was a passenger, turned into Old Canterbury Road, travelling away from the city on the other side of the road. As it passed the deceased and his companion, it drew to a halt and reverse parked. The respondent and Diab got out of the car and approached the other two whereupon a heated discussion took place, particularly between the respondent and the deceased. 7 Ultimately, the deceased swung a punch at the respondent but apparently missed, although he may have struck Diab. The respondent then took a gun from his pocket, whereupon Clayton started to run away. The deceased also started to run then hesitated, and faced the respondent, whereupon the latter re-positioned himself and shot the deceased from a distance of about 2 metres. The deceased said words to the effect "What do you call that?" and then started to run away but soon collapsed, got up, took a couple of steps and then fell to the ground. The respondent and Diab then walked calmly back to the car and drove away. 8 A neighbour, who had witnessed the incident from his bedroom, rang 000 and the police and ambulance arrived on the scene within minutes. The deceased was unconscious and did not respond to treatment, he was taken to RPA Hospital and pronounced dead at 12:58am, the cause of death being a gunshot wound to the chest. His post-mortem blood alcohol reading was 0.171. The gun cartridge was found at the scene but the weapon was not located. It belonged to Diab but the respondent had been present when it had been purchased.

9 On 4 May, the respondent and his co-offender went for a holiday in Lebanon but returned on 17 June. In a conversation between an undercover police officer codenamed "Jennifer" and the respondent on 17 January 2002, which was covertly recorded on an authorised listening device, the respondent told "Jennifer" that he was the driver and he asked Diab to bring the gun from the car when he got out to challenge someone who had stuck up a finger at him in an offensive gesture, whereupon Diab handed him the gun. He said that the deceased threw a punch at him but missed and hit his mate, and he then shot the deceased. He also said that he aimed at the deceased's head "…but you know it's truly hard to hold the gun and shoot because you pull back". 10 The respondent was arrested by police on 18 April and interviewed in the course of which he stated he was present but that his co-accused Diab had shot the deceased. He also said that he did not see the gun, was unaware that it was in the car and that when the deceased was shot, he was some distance away at the car. 11 A friend of the respondent, Zeynep Baykeyt and her brother, Yunus Baykeyt made statements to the police in relation to admissions made by the respondent. One admission was made after a television news broadcast about the incident, and on another occasion, he told Yunus Baykeyt that he had "shot a guy" at Hurlstone Park and then taken off and thrown the gun in the George's River. 12 The respondent was born on 30 January 1984 and was 17 years and 3 months at the time of the offence and 19 years old when sentenced. He had no prior criminal convictions. In a report by Dr Christopher Lennings, Psychologist, he conceded that "the offence occurred for no particular reason" and that he had "stuffed up and must pay the consequences". He told Dr Lennings that at the time of the incident, he was "scared" of the deceased and had purchased the pistol and secreted it under the passenger seat of the car, but was unable to explain why he had the pistol in the first place "other than he had purchased it to feel brave after being assaulted". 13 A character reference from the President of the Northern Cyprus Turkish Association of NSW described the respondent's background. He stated that the respondent's parents were Turkish Cypriots and his mother and father separated when he was 11 years of age following arguments between them after his mother decided to pursue further studies, but the respondent remained close to both parents. 14 The respondent told Dr Lennings that he had no difficulties notwithstanding his parents' separation until he went to High School where he had difficulty adjusting, began to truant and met a deviant peer group, although he denied criminality or significant substance abuse at that stage. 15 He left school after finishing Year 10 and obtaining his School Certificate. After leaving school, he worked for short periods as a butcher's apprentice, in making garden hose sprinklers and in landscaping, but then drifted into unemployment and began hanging around with a significantly more delinquent group than previously and began drinking, using marijuana and gambling. 16 He also told Dr Lennings that over a year previously he had found a job as an apprentice carpenter and was in his second year, but a reference from his employer indicated he had only commenced 3 days prior to his arrest. Dr Lennings expressed the view (in July 2003, after the plea had been entered) that the respondent was mildly depressed, and appeared to express genuine guilt and remorse for his behaviour and was interested in acquiring vocational skills. 17 His Honour commenced his Remarks on Sentence by correctly observing that whilst all murder cases are disturbing in that they involve the loss of human life, this case was particularly so given that it involved a young victim, young offenders with no evidence of pre-meditation and that the acts were totally irrational. After dealing with the facts, his Honour referred specifically to the need for the courts to take a stand against the carrying of firearms and other weapons which have the potential to lead to fatal results, the need for deterrence and the community's abhorrence of conduct of the kind involved in this offence, the respondent's concessions to Dr Lennings that the offence occurred for no particular reason, that he must "pay the consequences" for it and could offer no excuse for his behaviour, Dr Lennings' opinion that he appeared genuinely mortified that he had killed someone, and that he had thought about the victim's family and the "sufferings they must feel", but stressed the importance of rehabilitation particularly in the case of young offenders. 18 He found a number of mitigating factors including that the offence was not planned or organised, that the respondent had no prior criminal record and was otherwise of good character (somewhat remitted by the fact that he carried a loaded firearm in public), that he was unlikely to offend and had good prospects for rehabilitation, was not fully aware of the consequences of his actions because of his age and had pleaded guilty. He allowed 25 percent discount on account of all aspects of the plea of guilty including the admission of wrongdoing, willingness to facilitate the course of justice, contrition and the utilitarian value of the plea, and found "special circumstances" by reason of the fact that the respondent had no prior convictions, it was his first time in custody, his age, his prospects of rehabilitation and his need for supervision on release in order to adjust to life in the community. 19 The Crown relied on seven specific grounds of appeal and it is convenient to deal with them in order. GROUND 1: His Honour failed to give sufficient weight to deterrence, denunciation, punishment and community protection. 20 Under the heading "The principles applicable to the sentencing discretion", his Honour referred to s 3A of the Crimes (Sentencing Procedure) Act 1999, the need to provide "adequate" punishment through recognition of the balancing required, on the one hand, to protect the community and denounce the offence, and on the other hand, to promote the rehabilitation of the offender and take into account the subjective circumstances so as to result in a sentence reflecting justice to both the community and the accused, and referred to Veen v The Queen (No 2) (1988) 164 CLR 465.

21 After noting that the sentencing process should not be seen as merely punitive: R v Lattouf (CCA 12 December 1996 per Mahoney ACJ), his Honour dealt with the concept of rehabilitation as particularly applicable in the case of young offenders and concluded that whilst the sentence imposed must serve as a warning to others, this consideration cannot be imperative when it risks overriding the offender's favourable subjective circumstances: at [37]. 22 Although his Honour made reference to the protection of the community, denunciation of the offence and deterrence, he also gave considerable prominence to the respondent's prospects of rehabilitation and the related subject of his youth. These latter factors were important relevant considerations but so were the other matters particularly those referred to in s 3A, including the need to ensure the offender is adequately punished for the offence, general and personal deterrence, the protection of the community, making the offender accountable for his actions, denunciation of the offender's conduct and recognition of the harm done to the victim of the crime and the community. 23 Section 3A is in substance a codification and elaboration of the purposes of criminal punishment described in Veen v The Queen (No 2) (1988) 164 CLR 465 at 476 where the High Court recognised the troublesome but unavoidable difficulty in giving weight to each of those purposes which overlap, and it was pointed out that none of them can be considered in isolation when determining the appropriate sentence in a particular case. 24 This was a very serious offence involving the taking of another human life with no objective mitigating circumstances, and was a result of a young person carrying a gun for no good reason and in a loaded state, and deliberately picking a confrontation with the deceased and his companion. 25 His Honour made reference to the danger posed by the carrying of guns, but such conduct called for a sentence which gave sufficient weight to the elements of general and personal deterrence, denunciation of the conduct and punishment as well as rehabilitation. 26 At para [37] of his Remarks on Sentence, his Honour observed that, whilst the sentence imposed must serve as a warning to others, this consideration cannot be imperative where it risks overriding the offender's favourable subjective circumstances, citing R v Jenkins [1999] NSWCCA 110 at [38]. If by that his Honour intended to convey that where there are favourable subjective circumstances such as youth and prospects of rehabilitation, those factors override or take precedence over deterrence, punishment and the protection of the community, his Honour was in error, and Jenkins is not, as I read it, authority for such a proposition. All the relevant objectives of punishment must be balanced against each other. In any event, his Honour went on in the next paragraph to observe that the subjective features were not all favourable in the light of the applicant's familiarity with, and possession of firearms. 27 Deterrence, retribution and protection of the community are not to take precedence to the exclusion of rehabilitation, but neither is rehabilitation to take precedence over deterrence, retribution and punishment. All must be balanced in the overall synthesising of the sentence.

28 It is true that in the case of young offenders, there is generally greater emphasis given to rehabilitation and less to deterrence than in the case of adult offenders, but that depends in part on the age of the young person and the circumstances of the offence; and there comes a point at which the seriousness of the crime committed by a young offender, particularly if a crime of violence, is so great that the special attention normally given to rehabilitation in the case of young offenders must give way, and greater emphasis given to punishment and deterrence. The relevant principle was summarised in the joint judgment of this Court in R v AEM Snr and Ors [2002] NSWCCA 58 at [97]-[98] as follows: "It is well accepted that in the case of youth, general deterrence and public denunciation usually play a subordinate role to the need to have regard to individual treatment aimed at rehabilitation…. However, important as that principle is, it cannot defeat the primary purpose of punishment nor, in circumstances where young offenders conduct themselves in a way which an adult does, can it stand in the way of the need to protect society."

and their Honours quoted what had been said by Lee AJ in R v Nichols (1991) 57 A Crim R 391 at 395 as follows: "However there is a point at which the seriousness of the crime committed by a man of 19, even though a young man, is of such a nature is so great, that the principle must, in the public interest, give way." 29 See also R v Pham (1991) 55 A Crim R 128 at 135, R v Tran [1999] NSWCCA 109 at [9]-[11], R v Gordon (1994) 71 A Crim R 459 at 469, R v Hearne [2001] NSWCCA 37, 124 A Crim R 451 at [24], 30 Moreover, although the Children (Criminal Proceedings) Act 1987 s 3 defines a "child" as any person under 18 years and accordingly the applicant stood to be sentenced in accordance with the provisions of that Act, he was 17 years and 3 months at the time of the offence and therefore hardly a "child" in the normal colloquial sense of the word. Growth from child to adult is a gradual process and for general sentencing purposes, there is no significant difference between a person shortly under 18 years and a person shortly over that age: R v Nguyen (CCA - 14 April 1994) per Blanch J. 31 Whilst appellate courts must be careful not to analyse a primary judge's reasons too finely with a view to detecting any possible error or looseness of language, on reading the whole of the Remarks on Sentence in their context, and having regard to the sentence ultimately imposed, I am satisfied that his Honour gave a disproportionate weight to the respondent's youth and his prospects of rehabilitation compared with deterrence, denunciation, punishment and protection of the community, and that ground 1 had been made good.

GROUND 2: His Honour erred in stating the principles relevant to the determination of the non-parole period. 32 His Honour referred to the objective seriousness of the crime, the need for deterrence and to reflect the abhorrence of the community in relation to such conduct as appropriate to fixing the head sentence which he described as the punishment imposed by the Court for the offence: paras [46]-[47] but went on to refer to the non-parole period as involving a separate consideration of the offender's subjective circumstances and as representing a date that the offender may work towards, so that if the promise of rehabilitation is shown to be well founded, he may be released at the expiration of that non-parole period: see [48]-[49]. 33 In this context, his Honour referred to R v Simpson (2001) NSWCCA 534, 53 NSWLR 704, but the Court in Simpson followed what had been said by the High Court in Power v The Queen (1973) 131 CLR 623 at 627-629 to the effect that the purpose of fixing the non-parole period is not to convert a punishment into an opportunity for rehabilitation, but that the non-parole period should be the minimum period that the offender must spend in gaol having regard to all the elements of punishment, including the objective seriousness of the crime, deterrence and the subjective circumstances. Considerations which the sentencing judge must take into account when fixing the non-parole period are the same as those applicable to fixing the head sentence, although the weight to be attached to such factors and the way in which they are relevant differ due to the different purposes behind each function. A serious offence warrants a greater non-parole period due to its deterrent effect upon others, but the nature of the offence does not assume the importance it has when the head sentence is determined: Bugmy v The Queen (1990) 169 CLR 525 at 531-2. Considerations of general deterrence are at least equally significant to both decisions which are, in any event, interrelated: Simpson at 64. 34 I am therefore satisfied that his Honour erred in not giving sufficient weight to the significance of punishment, denunciation, deterrence and protection of the community in fixing the non-parole period. Whilst it was open to his Honour to find that there were "special circumstances" because of the respondent's age, that this was his first conviction and the other matters referred to, nevertheless, I am satisfied that the non-parole period set by his Honour failed to reflect adequately the objective seriousness of the offence and the necessary punitive considerations. Ground 2 has been made good. GROUND 3: His Honour underestimated the objective gravity of the offence.

35 His Honour referred to the fact that the offence involved the loss of a human life, possession by the respondent of a loaded firearm, the fact that the deceased was himself young, intoxicated and behaving obnoxiously, the lack of provocation and described it in as irrational, stupid and without reason; but he did not refer to the failure to stop and render assistance, that he and his co-offender calmly walked back to the car and drove away thus showing callousness and lack of concern for the plight of the deceased, that the killing took place in a public place, that there were other people present and the subsequent bragging about the shooting in the admissions he made to his friends. As to the objective criminality of the offence, there were absolutely no mitigating factors. 36 It may be that the deceased was intoxicated and acting obnoxiously, including making an offensive gesture to the applicant and his co-offender as they drove past, but the actions of the respondent and his co-offender in stopping the car and parking it, getting out with a loaded firearm, and approaching the other two youths, showed that the respondent and his companion were looking for trouble, they were looking for a confrontation and one can only conclude that the respondent took the gun with him to use if necessary in such confrontation, not necessarily to shoot, but at least to frighten the youth who had upset him. 37 Many murders arise out of domestic arguments or out of some related activity such as drug trafficking, armed robbery, intoxication, a defective personality, but this offence was virtually a random killing. 38 His Honour also referred to the fact that some of the admissions made in the recorded conversation with "Jennifer" were more troubling because they indicated a more serious frame of mind, but rejected them because the respondent MAY have been speaking out of bravado or fear or otherwise, and he was not satisfied of their veracity. There was no evidence to this effect, but only a submission from the Bar table and therefore no basis for rejecting that material. 39 Whilst I would be reluctant to infer that his Honour did not have all of these additional factors in mind simply because he did not specifically refer to them, the sentence imposed, even allowing for all the mitigating subjective features, satisfies me that either his Honour underestimated the objective gravity of the offence, or if he did assess it properly, he failed to give it sufficient weight in imposing the sentence, and this ground is established. GROUND 4: His Honour erred in finding that the respondent was not fully aware of the consequences of his actions because of his age. 40 This Court has held that where immaturity due to youth is a significant contributing factor to an offence, then it may fairly be said that the criminality involved is less than it would be in a case of an adult of more mature years: R v Hearne [2001] NSWCCA 37, 124 A Crim R 451 at [25]; and in such cases, the allowance for youth may be greater despite the fact that the offence involved is a relatively serious one. This principle can apply in cases where the conduct constituting the offence is impulsive or a reaction influenced by the immaturity of youth, but not where there is pre-meditated violence as was the case here, by confronting the victim and his companion with a loaded gun. 41 In this case, there was no basis for any finding of the respondent not being fully aware of the consequences of his actions because of his age. He was 17 years and 3 months and knew that if he fired a gun at another person almost at point blank range, he was likely to cause serious harm and probably death. In any event, the plea of guilty on the ground of reckless indifference to human life involved an acknowledgement that he realised the probability that death would result from his actions: Crabbe v The Queen 156 CLR 464. This ground has been made good. GROUND 5: That the finding that the offender was a person of good character was not supported by the evidence. 42 His Honour found at [39] and [49] that the respondent had no prior convictions and was generally of good character, somewhat remitted by the fact that he carried a loaded firearm in public, but the Crown submits that there were a number of other matters which should have been taken into account and further qualified the finding of generally good character. These matters included the disposal of the gun, the "flight" to Lebanon, the bragging to his friends about the killing, the inconsistent versions he had given about his involvement in the offence to police, Dr Lennings and the Juvenile Justice officer, and that he had been using illegal drugs. In my opinion, it was open to his Honour to find the applicant was generally of good character subject to the carrying of the loaded firearm in public. The only additional matter which I consider was relevant to his character was his use of illegal drugs. The other matters relied on, it seems to me, went either to the objective gravity of the offence or the timing and sincerity of his contrition and remorse. Ground 5 fails. GROUND 6: That the discount of the plea of guilty was excessive in the circumstances.

43 In R v Thomson [2000] NSWCCA 309, 49 NSWLR 383 at [160] the Court laid down a number of guidelines concerning the discount appropriate to be allowed for pleas of guilty including the following:- (a) Sentencing Judges are encouraged to quantify the effect of the plea on the sentence insofar as they believe it appropriate to do so. This effect can encompass any or all of the matters to which the plea may be relevant - contrition, witness vulnerability and utilitarian value but particular encouragement is given to the quantification of the last mentioned matter. (b) Where the other matters are regarded as appropriate to be quantified in a particular case, a single combined quantification will often be appropriate. (c) The utilitarian value of a plea should usually be assessed in the range of 10-25 percent discount on sentence. The primary consideration determining where in the range the particular case should fall is the timing of the plea. (d) The top of the range would be expected to be restricted to pleas at the earliest possible opportunity and should not be given, save in an exceptional case, after a matter has been set down for trial. (e) A discount towards the bottom of the range is appropriate for late pleas, for example, on the date fixed for trial unless there are particular benefits arising from the prospective length and complexity of the trial at [155]. 44 In the case of the respondent, his Honour allowed an overall discount of 25 percent having regard not only to the utilitarian value of the plea, but also to contrition and the fact that the grief of the family would not be exacerbated by a trial. 45 He also said that the plea was entered on the first day of the trial and preceded the voir dire (which would have included argument on the admissibility of the admission made to "Jennifer") and the empanelling of the jury, and that the respondent and his co-offender had admitted wrongful conduct at a "relatively early stage of proceedings" indicating a willingness to facilitate the course of justice as well as some aspects of contrition: at [44]. 46 In my opinion, the discount of 25 percent for all aspects of the plea of guilty was excessive in the circumstances. 47 The plea of guilty was not entered on the first day, 14 July 2003. At that stage, he was charged with murder and attempted murder (for attempting to fire at the deceased's friend, Andrew Clayton). He offered to plead guilty to murder on the first day on the basis that there be no further proceedings in respect of the attempted murder charge and on the factual basis that he had not fired the gun. The second day was taken up with a view. On the third day, the Crown accepted the offer to plead guilty to murder and agreed that there would be no further proceedings in relation to the attempted murder count, and it was then that the plea was entered but at that stage, it was anticipated there would still be a factual dispute on the issue of who fired the gun, and as to the admissibility of the recorded conversation with "Jennifer". The respondent's matter was then adjourned to 4 August so that reports could be obtained from Juvenile Justice and a psychologist, and it was on that day that the respondent through his counsel, formally admitted that he had fired the fatal shot and the Crown Case Statement in relation to him was admitted without objection as a statement of the facts in the case. 48 The entry of the plea certainly had significant utilitarian value but it could not fairly be classed as an "early" plea. The other aspects of the plea, namely contrition, and the fact that the grief of the family would not be exacerbated by a trial, were both also of reduced significance having regard to the facts of the case. 49 It would not have been necessary for any of the members of the deceased family to give evidence, so they were not vulnerable as witnesses, although the trial would undoubtedly have been painful for them. In relation to the element of contrition and admission of wrongdoing, this was late and then only grudgingly given. 50 Following the shooting, the respondent had at least twice bragged about it to his friends and later to "Jennifer". He and his co-accused had fled to Lebanon shortly after the shooting and although they had returned, the respondent had not come forward with any confession over a period of 12 months and when arrested, although admitting he was present, claimed that the co-offender, Diab had fired the fatal shot, also claiming that he did not see the gun and was unaware that it was in the car. Then after the formal entry of the plea of guilty on 16 July, although he told Dr Lennings on 29 July that it was he who shot the deceased, on the following day he told the Juvenile Justice officer that he did not pull the trigger and was simply in the wrong place at the wrong time. He also gave inconsistent versions as to how he came into possession of the gun, telling the Juvenile Justice officer that he had borrowed it from a friend for protection because he had been bashed, but telling Dr Lennings that he had purchased the gun to make him feel brave after he had been assaulted. The admission of the full extent of his involvement in the death of the deceased was therefore only made grudgingly, and after the plea of guilty had been entered. 51 He did express some contrition, but this also appears to have come only in his interviews with the Juvenile Justice officer and Dr Lennings after the plea had been entered. 52 Having regard to these circumstances, I consider that a discount of around 15 percent was appropriate to take into account all the relevant elements of the plea, and that a discount of 25 percent in the circumstances of this case was excessive. GROUND 7: The sentence was manifestly inadequate. 53 I have already identified what I consider to be a number of errors in his Honour's reasoning in determining the respondent's sentence and it is not necessary to repeat them. For the same reason, it is not necessary to again elaborate on the significant features relevant to the objective circumstances of the offence or the subjective circumstances of the respondent, but having regard to the various matters set out in s 21A of the Crimes (Sentencing Procedure) Act 1999, I am satisfied that the sentence imposed by his Honour was manifestly inadequate and that this Court should set it aside and re-sentence the applicant, bearing in mind the principles which apply in such circumstances: R v Allpass (1993) 72 A Crim R 561 at 562-3. 54 That means that in re-sentencing the respondent, the Court gives recognition to the element of double jeopardy involved (in twice standing for sentence) by imposing a sentence which is somewhat less than the sentence it considers should have been imposed at first instance. This has variously been described as "the least sentence which could properly have been imposed …at first instance": R v Rose (unreported - CCA - 23 May 1996), as "one which is at the bottom of the range": R v Giam (No 2) [1999] NSWCCA 378, (1999) 109 A Crim R 348 at [28], and one "towards the lower end of the range of available sentences": Dinsdale v The Queen [2000] HCA, 202 CLR 321 at [62]. See also R v Kalache [2000] NSWCCA, 111 A Crim R 152 at [101], [205]-[206]. 55 I therefore propose that the Crown appeal be allowed, that the sentence imposed on the respondent be quashed and in lieu thereof, that he be sentenced to imprisonment for 16 years, such sentence to be deemed to have commenced on 18 April 2002, and to expire on 17 April 2018. I would fix a non-parole period of 11 years to expire on 17 April 2013 on which date the respondent will be eligible to be released on parole. I would confirm his Honour's order that the respondent serve that sentence in a children's detention facility until he turns 21 years.

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