Regina v M.A; Regina v DIAB

Supreme Court of NSW|2003-10-31|Before: Shaw J

CITATION : Regina v M.A; Regina v DIAB [2003] NSWSC 978 revised - 03/11/2003 HEARING DATE(S) : 14/07/03; 15/07/03; 16/07/03; 18/07/03; 24/07/03; 04/08/03; 26/08/03; 24/10/03 JUDGMENT DATE : 31 October 2003

JUDGMENT OF : Shaw J DECISION : M.A.sentenced to imprisonment for 13 years and 6 months to commence on 18 April 2002 and expire 17 October 2015 with a non parole period of 8 years and 6 months to expire on 17 October 2010. Order that the prisoner serve his sentence in a child detention facility until he turns 21 years of age; Diab sentenced to imprisonment for 9 years to commence on 24 April 2002 and expire on 23 April 2011 with a non parole period of 6 years to expire on 23 April 2008.

CATCHWORDS : Criminal Law - sentence - murder - young victim - young offender - strong prospects for rehabilitation - contrition - plea of guilty - head sentence as punishment imposed - special circumstances - naming of offender - discretion as to where the sentence should be served - - Manslaughter - young victim - young offender - good prospects for rehabilitation - contrition - plea of guilty - objective seriousness - mitigation - special circumstances - Children (Criminal Procedings) Act 1986 s 3, 19 LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 ss 3A, 22, 21A(3)(c), 30A, 33, 44, Victims Legislation Amendment Act 2003; AEM (Snr); KEM and MM [2002] NSWCCA 58; Blackman and Waters [2001] NSWCCA 121; Cameron v The Queen (2002) 209 CLR 339; Olbrich v The Queen (1999) 199 CLR 270; R v AO [2003] NSWCCA 43; R v Bollen (1998) 99 A Crim R 510; R v Bryant [1999] NSWCCA 181; R v Jenkins [1999] NSWCCA 110; CASES CITED : R v Lattout (Unreported, NSWCCA, 12/12/96); R v Privitera (1997) 94 A Crim R 76; R v Sharma (2002) 54 NSWLR 300; R v Simpson (2001) 53 NSWLR 704; R v Thomson (2000) 49 NSWLR 383; R v Voss [2003] NSWCCA 182; Ryan v The Queen (2001) 206 CLR 267; Veen v The Queen (No 2) (1988) 164 CLR 465; Yardley v Betts (1979) 22 SASR 108; PARTIES : Regina v M.A. Regina v Kadr Diab FILE NUMBER(S) : SC 70109/02; 70118/02 D Hobart - Crown COUNSEL : A Haesler - Defendant (M.A.) W Terracini, QC with J Trevallion and P Doyle - Defendant (Diab) SOLICITORS :

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

REMARKS ON SENTENCE 1 Shaw J: All murder cases are disturbing in that they involve the loss of a human life. But this case is particularly so given that it involves a young victim, young offenders, and no evidence of premeditation. Nevertheless, the acts were totally irrational, and the result can properly be described as tragic. 2 M.A. has admitted that he fired the shot that killed Jai Jago on 26 April 2001 at Hurlstone Park. He has pleaded guilty to murder. The co-offender, Kadr Diab, has pleaded that he is not guilty of murder but guilty of manslaughter by an unlawful and dangerous act and the Crown has accepted that plea in satisfaction of the indictment. 3 Diab also requests that the Court take into account an offence on the Form 1. This inexplicable act, it must be noted, has now led to the destruction of three young lives but the law requires that a penalty be imposed sufficient to deal with such seriously wrongful conduct.

Agreed facts 4 The Crown and defence have filed agreed facts. These facts provide a background to the events that occurred in relation to the offender M.A. I recognise that I must be satisfied beyond reasonable doubt of any fact adverse to the offender before taking it into account in the sentencing process: Olbrich v The Queen (1999) 199 CLR 270. 5 The agreed facts in the case of Diab state: On the evening of 25 April 2001 (Anzac Day) the deceased, Jai Graham Jago and his friend Andrew Clayton were at Grumpy's hotel on New Canterbury Road, Hurlstone Park. Shortly before midnight the deceased and the victim left 'Grumpy's' and walked along New Canterbury Road at Hurlstone Park. Whilst crossing Old Canterbury Road the deceased became involved in a verbal exchange with the offender, Kadr Diab, and the young person, M.A. At the time the accused was driving a 1983 Toyota Corona, registration number VPX386. This car is owned by the offender Diab's sister. The offender and the young person stopped their vehicle and confronted the deceased and the victim near the intersection of Old Canterbury Road and Hanks Street. A further verbal exchange between the deceased, offender and young person took place. The deceased became involved in a physical exchange with either the offender or the young person. The young person then shot the deceased, once in the chest, fatally injuring the deceased. The offender was aware of the presence of the firearm, the offender paid $1000.00 for the firearm and the young person was present when it was purchased. The offender was also aware that the gun was loaded. The offender was not aware that the young person would use the firearm other than to threaten. After the deceased was shot he ran a short distance into Hanks Street, where he collapsed. The offender and young person returned to the vehicle and the offender drove away along Old Canterbury Road. … On the 4th of May, 2001 the offender and the young person left Australia and travelled to Lebanon. The young person remained with the offender's family, residing with him until they both returned to Australia on the 17th of June, 2001.

6 The pre-sentence report indicates that the offender was aware of the presence of the gun in the car on the night of 25 April. He told the author of that report, Mr Brookes, that he tried to persuade M.A. to leave the gun behind. The report indicates that the offender did not see M.A. reach for the gun, which was under the seat of the car, before M.A. alighted from the car to confront the deceased and first saw the gun when it was too late.

7 The offender Diab also requests a number of matters be taken into account on the Form 1. The facts of those matters are as follows: About 1.05am on 23 April 2003 [sic - 2001] the offender drove a red Nissan 200SX coupe into the Caltex Service Station, 750 Pittwater Road, Brookvale. The offender [Diab] became involved in an argument with a male. As a result the offender went to his motor car and produced a pistol in his right hand. The offender stood up, pointed the pistol at the male and said, ' I'm going to shoot you '. At the time there was about fifteen other persons standing in close proximity to the offender and the male. These persons took cover behind parked cars and petrol bowsers. The offender cocked the pistol… The male retreated. The offender moving the pistol in the direction of the other people present, said ' Anyone want to come forward and take it '. The offender got into his car and drove quickly from the service station. The pistol produced by the offender was in working order, which [sic] was purchased illegally. 8 The matters to be taken into account on that Form 1 include what would be: (a) a charge of possession of a loaded firearm in a public place; (b) possession of an unauthorised firearm; and (c) affray. 9 I propose to take these matters into account in accordance with the judgment of the Chief Justice in Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518 by taking a graver view of the objective seriousness of the manslaughter of Mr Jago than would ordinarily be the case having regard to the incident mentioned in the Form 1.

Additional facts in the case of M.A. 10 There is little controversy about the facts to be taken into account in the case of M.A. given the pleas of the offenders and the admissions made by M.A. 11 M.A. relies on a witness statement of Jane Elizabeth McKenzie, taken by police on 27 April 2001, that the deceased was very drunk on the night he was shot. Ms McKenzie deposes that the deceased was 'loud' and 'swearing a lot'. M.A. also relies on Ms McKenzie's observation that the deceased attempted to punch him immediately prior to him presenting the pistol and shooting the victim. If these matters go to mitigation of the sentence, they need only be proved by the offender on the balance of probabilities (Olbrich) but whether they are matters of mitigation will be addressed later in these remarks. 12 These events indicate the severe repercussions of carrying firearms or knives, which tend to elevate what might have been an otherwise modest altercation, perhaps leading to relatively modest penalties in the Local Court, into the most serious criminal charges of murder and manslaughter, which carry maximum sentences of life and 25 years imprisonment respectively. The courts must take a stand against the carrying of firearms or other weapons which have the potential to lead to fatal results. 13 It is obvious, and accepted by both counsel for the offenders, that the incidents in question require a substantial term of imprisonment be imposed. 14 It may be true that, as asserted by counsel for M.A., Mr Jago was noisy, obnoxious and abusive on the morning of 26 April 2001, but nothing could justify the destruction of his life. In fairness to the submissions of counsel for the offender, nothing was sought to be put in justification of the shooting and resultant death of Mr Jago. This is understandable, because nothing could be put.

Objective seriousness 15 The high level of objective seriousness of this crime is not denied by the offenders. The death of a young man, aged 18, apparently affected by alcohol and perhaps behaving obnoxiously, is nonetheless an appalling consequence.

16 One disturbing feature of the evidence is the admissions that were made by M.A. to an undercover police operative, known by the assumed name of 'Jennifer'. Though there was to be some agitation of the issue of the admissibility of this evidence (both at trial and, following the plea of guilty, at the sentencing submissions of M.A.) this was obviated by admissions made by the offender to an examining psychologist, Dr Chistopher Jennings. 17 The conversation between the offender, M.A., and 'Jennifer' was secretly recorded. The offender did not know that he was speaking to a police officer or that the conversation was being recorded. Mr Haesler for the offender has submitted that the admissions made must be viewed in that context. He submits that the offender was a young man trying to impress with bravado. I accept that submission. 18 However, the offender admits to shooting the deceased and to disposing of the pistol by throwing it into the Georges River. At one point in the conversation he states: And then after a while he just, he hit head first on the ground; he just dropped. And I thought he won't be dead, you know. Just, they're gonna come and pick him up. 19 Other admissions made by the offender are troubling because they indicate a more serious frame of mind than that stated in the extract above. However, these admissions were elicited from the accused by leading questioning by the undercover operative 'Jennifer' and I cannot be satisfied of their veracity given that the offender may have been speaking out of bravado, or fear, or any other number of reasons. I can not be satisfied about the offender's state of mind beyond reasonable doubt based upon these conversations. 20 There is an issue between the parties as to whether the offender intended to kill the victim, or whether he was recklessly indifferent to human life. In light of the statement of the offender I have extracted above I am not satisfied beyond reasonable doubt that M.A. consciously intended to kill the deceased. I am satisfied, and the defence accepts the proposition, that a pistol fired into the chest of the victim, at close range, cannot amount to anything less than a reckless indifference to human life and this indifference is of such seriousness that the sentencing discretion cannot be much affected by this finding.

Deterrence 21 Consideration must be had to the principles of deterrence. A serious crime must be the subject of a substantial penalty, reflecting the understandable community abhorrence of conduct of this kind. I have already noted that general deterrence is a significant factor in these kinds of offences so that the Court may sound a warning that the carrying of potentially lethal weaponry will always be met with condign punishment.

Subjective circumstances in the case of M.A. 22 The Court has received the opinion of Dr Christopher Lennings in a report dated 29 July 2003. In that report, the offender has conceded that 'the offence occurred for no particular reason'. The offender told Dr Lennings that he had 'stuffed up and must pay the consequences' and Dr Lennings noted that the offender 'could offer no excuse for his behaviour'. M.A. told Dr Lennings that, at the time of the incident, he was 'scared' of the deceased and he had secreted the pistol 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 he had been assaulted'. M.A. did not appear, to Dr Lennings, to 'want to find any excuse for his behaviour', though he appeared 'genuinely mortified that he had killed someone'. Dr Lennings reports that the offender told him he thought about the victim's family and 'the suffering they must feel'. 23 The Court has also received character references for the offender M.A. Mr M Durmush, the President of the Northern Cyprus Turkish Association of NSW, has written to the Court as to the offender's background. He deposes that M.A.'s parents are Turkish Cypriots and that his mother and father separated when he was 11 years of age. He deposes that arguments developed between M.A.'s parents after his mother decided to pursue further studies. Mr Durmush also notes that the offender wanted to become a carpenter. 24 The Court has also received a letter from a Mr Ziya Dogramaci, a carpenter to whom the offender was apprenticed for three days before being arrested for this offence. He deposes that the offender was a 'very industrious obedient and trustworthy young man'. 25 Pastor Martin Parish, the Departmental Chaplain of Juvenile Justice in the Baptist Churches of NSW, has written that the offender's behaviour was affected by 'the stress of this matter before the Court, and the pressure of his family, not wanting to disgrace them in any way'.

Crown application to name the offender 26 The Crown requests that the Court exercise a discretion to publicise the name of the offender, M.A. I do not think that this is appropriate. One purpose of refusing publication of the names of young offenders could be a recognition that it might cause them some harm in their ability to reintegrate into the community. Since the offender shows promise in terms of his rehabilitation I would be disinclined to name him on the basis that no useful purpose would be served by doing so.

Subjective features in the case of Diab 27 The Court has also received character references and a pre-sentence report in the matter of Diab. 28 In the case of Mr Diab, uncontested evidence before this Court is that the offender's father attests that the offender has been helpful in the mechanical business conducted by the family. 29 The director of a plumbing business, Mr Tarick Jaber, describes the offender as quiet, honest, respectful and of good character. 30 Mr Abbie Saliba, the manager of an electrical business, described him as reliable, trustworthy and considerate. Other statements tendered state surprise about his behaviour and describe him as loving and kind. 31 A report of a clinical psychologist, Mr Terry Smith, indicates that the offender shows some contrition and remorse. Mr Smith states: Mr Diab was asked about the victim. He said, "I feel very sorry for him and his family…[M.A.]'s doing was wrong; a really stupid thing…they were drunk and did something stupid to my sister's car so [M.A.] had nothing to do with it…I was prepared to let things be and I wish that happened because that man would be alive…his family has the right to enjoy him; he had the right to live and [M.A.] took that away…I am very, very sorry to his family. 32 Mr Smith also notes that the offender 'outside of this two day period' has a 'non-existent' history of offending. 33 In light of this evidence (though with some reservation that none of the statements indicated that the deponents were aware of the offence for which the offender has pleaded guilty, or the facts upon which that plea is based) I regard the deplorable conduct of the offender as aberrant. It must be significantly punished, but some element of mercy is called for.

The principles applicable to the sentencing discretion 34 The criteria applicable to the purposes of sentencing are specified in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) in the following terms: (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community. 35 As I see it, the task of this Court is to provide 'adequate' punishment through recognition of the balancing required to, on the one hand, protect the community and denounce the offence, and on the other hand, promote the rehabilitation of the offender, if that is reasonably open and to take into account those subjective circumstances that results in a sentence reflecting justice to both the community and the accused: Veen v The Queen (No 2) (1988) 164 CLR 465. It is damaging to the perception of justice to see the sentencing process as merely punitive: see Lattout (Unreported, NSWCCA, 12 December 1996 per Mahoney ACJ). 36 The concept of rehabilitation is therefore a significant consideration in the balancing process of structuring a sentence, particularly for young offenders: see AEM (Snr), KEM and MM [2002] NSWCCA 58 at [97]. It was noted in AEM (Snr) at [214]: The justice system must strive to strike an appropriate balance between these various factors…it is of little benefit to the community at the end of their sentences, having made little, if any, progress towards their rehabilitation so as to be able to live as peaceful, law abiding and productive persons within it.

See also Yardley v Betts (1979) 22 SASR 108 at 112-113, approved by the NSW Court of Criminal Appeal in Blackman and Waters [2001] NSWCCA 121: The protection of the community is also contributed to by the successful rehabilitation of offenders. This aspect of sentencing should never best lost sight of and it assumes particular importance in the case of first offenders and others who have not developed settled criminal habits. 37 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: Jenkins [1999] NSWCCA 110 per Simpson J at [38]. In A.O. [2003] NSWCCA 43 I said at [76] - [77]: The notional idea that the criminality of an offender can be classified as ' childish ' or somehow ' adult ' is, at times, a difficult concept. In some cases, there must be allowance for a consideration that the seriousness of the offence is, in some respects, a result of the offender's immaturity and, accordingly, lack of social identity and loyalty…it must be stated that seriousness of the offence cannot be the exclusive guiding factor in this respect, and there is nothing in the case law that would put that proposition as authoritative. Rather, it is generally regarded as acceptable that ' the younger the offender, the greater the weight to be afforded to the element of youth ': Hearne [2001] NSWCCA 37 at [27]... 38 I acknowledge that the strong prospects of successful rehabilitation for both offenders must be taken into account but balanced, to some extent, by the fact that they were familiar with firearms and seemed to carry them for protection or out of a perceived need for 'safety'. The Court must not countenance the unlawful carrying of weapons, whether firearms or knives, and any such conduct should be deplored and substantially punished by the courts where a crime of this magnitude has emerged from such conduct. The sentence imposed must reflect this difficult task of reflecting both the need for deterrence and an acknowledgement of the offenders' likely prospects for rehabilitation.

Mitigating factors 39 In the case of M.A. there are some other mitigating factors. The submissions of the defence specify those factors. Those are: (a) The offence was not planned or organised; (b) The offender does not have any prior criminal record; (c) The offender is a person of otherwise good character (somewhat remitted by the fact that the offender was a person who carried a loaded firearm in public); (d) The offender is unlikely to re-offend; (e) The offender has good prospects for rehabilitation; (f) The offender was not fully aware of the consequences of his actions because of his age; (g) The offender has pleaded guilty. 40 It is reasonable on the part of the defence to urge that there was no planning or organised criminal activity on the part of either offender; an absence of prior convictions and criminal record in relation to M.A.; that there are strong prospects of rehabilitation given the youth of the offender and the absence of a criminal record. In relation to the offender Diab, his prospects for rehabilitation are mitigated slightly, and only slightly, by the fact that some penalties have been imposed upon him whilst in custody. 41 I am not satisfied that I should accept a submission that the offence resulted out of some 'provocation' by the deceased person. That the deceased person may have thrown a punch at either offender does not, in my opinion, amount to provocation of any real significance (even if, according to the submissions of the defence, this conduct need not mean legal provocation). The grossly disproportionate response of the offender M.A. was not the result of any act by the deceased. I make no finding of mitigation under s 21A(3)(c) of the Crimes (Sentencing Procedure) Act, though the other matters relied upon by the offenders will be taken into account. 42 In the case of Mr Diab a clinical psychologist's report of Terry Smith (dated 18 August 2003) indicates a positive prognosis in relation to the offender. This expert witness deposes that the offender: presents as having the necessary insights and motivation to live an appropriate lifestyle with a very remote prospect of re-offending. 43 In determining the appropriate sentence for the offender Diab, I have taken into account certain complaints about the offender's conduct whilst in gaol, including the illegal possession of a mobile phone and a sharpened weapon, the latter being a particular concern. However, I remain satisfied that the offender demonstrates positive prospects for rehabilitation.

Plea of guilty 44 The plea of guilty for M.A. was entered on the first day of the trial. On the second day, Diab pleaded guilty to manslaughter. On one view, these pleas have come late in the proceedings. Nonetheless, the pleas did precede the voir dire (which would have included argument on the admissibility of the admissions of the offender to 'Jennifer') and the empanelling of a jury, and therefore a discount must be given on each sentence for the fact that the offenders have admitted wrongful conduct at a relatively early stage of the proceedings -indicating a willingness to facilitate the course of justice as well as, I am satisfied, some aspects of contrition: Cameron v The Queen (2002) 209 CLR 339. The utilitarian value of the plea must also be taken into account: see s 22 of the Sentencing Procedure Act; R v Sharma (2002) 54 NSWLR 300. 45 In line with the decision of the Court of Criminal Appeal in R v Thomson (2000) 49 NSWLR 383 an overall discount of 25 per cent will be given to each offender in the exercise of discretion in forming the appropriate penalty 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. The severity of a sentence 46 The offences of murder or manslaughter are very serious, involving as they do the loss of a human life. This murder has led to the loss of a young and promising life. Accordingly, the penalty must exhibit an appropriate severity so as to deter others from committing similar acts and to reflect the abhorrence of the community in relation to such conduct. These factors are best represented in fixing an appropriate head sentence. So much was suggested by the Crown and the Court accepts that this is an appropriate approach to the construction of the sentence: R v Simpson (2001) 53 NSWLR 704. 47 It must be recognised it is the head sentence that is the punishment imposed by the Court. It is in fixing this term that considerations of protection, deterrence and rehabilitation are taken into account to determine the appropriate punishment to be imposed. 48 The non parole period is, by comparison, fixed by statutory direction at 75 per cent of the head sentence. The Court is invested with a jurisdiction to decrease that period where there are 'special circumstances'. This discretion involves separate consideration of the offender's subjective circumstances and the two processes overlap. The non parole period must represent the minimum time that the offender should spend in gaol but it is not the time that the offender will spend in gaol. The non parole period represents 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 expiry of that term at the discretion of the Parole Board. The question for them will depend upon the offenders' good conduct while in prison and evidence of contrition and rehabilitation. The Court has no power in relation to that issue. 49 The offence was irrational, stupid, immoral and without cause, and the offenders admit this fact. However, I will take appropriate account of the fact that M.A. had no prior criminal record and was therefore generally of good character: Ryan v The Queen (2001) 206 CLR 267. I also take account of the fact that M.A. was a child at the time of the offence, that is, he was of an age less than 18 years. 50 The offender was 17 years old at the time of the offence and therefore a child in accordance with s 3 of the Children (Criminal Proceedings) Act 1986 (NSW). This observation needs to be modified by referring to what was said by the NSW Court of Criminal Appeal in Voss [2003] NSWCCA 182. As the defence accepts, it is recognised that a young offender who conducts him or herself as an adult or engages in adult behaviour, best evidenced by some degree of planning or if the offence is of a serious and violent nature, the factor of youth and the prospects of rehabilitation becomes less prominent and more weight will be given to the objective seriousness of the offence: AEM (Snr) at [97]; MHH [2001] NSWCCA 161. 51 In the case of Mr Diab, the defence submits that cases of manslaughter by unlawful and dangerous act have a 'top of the range' at 10 years imprisonment: R v Bryant [1999] NSWCCA 181. I have difficulty in accepting that statement as a proper exegesis of what was said in Bryant. In that case the Chief Justice said of a sentence for manslaughter of six and a half years with an additional term of three and a half years: …the sentence on this occasion can be seen to be a high one and perhaps towards the top of the range…

In my opinion, when Spigelman CJ referred to the sentence ' on this occasion ' his Honour was indicating that the sentence was high on the facts of that particular case. I do not accept the submission that the Chief Justice was indicating that a sentence of ten years for a conviction on manslaughter was, generally, at the top of the range. 52 However, as I understand the extent of the defence submission, I accept that it is possible to characterise the extent of Diab's criminality as less than that of his co-offender. I accept that the offender may not have known that M.A. had reached for the gun on alighting from the car, though he would have become aware of M.A.'s possession at its presentation. Accordingly, I accept that there was a lesser degree of forethought about the possibility of its use in relation to Diab.

Victim impact statements 53 A question arises as to what weight I should give to the victim impact statement, read to the Court by the mother of the deceased, Mrs Loraine Jago. The legislature has mandated that victim impact statements should be received by the court and, more recently, that the relative of the victim in a homicide case should be able to read such statements in open court: s 30A of the Sentencing Procedure Act. That requirement has been complied with in the present case. 54 I have taken the statements of Mrs Jago, and the father of the deceased, Mr Graham Jago, into account in line with the decisions of this Court and the Court of Criminal Appeal in R v Salvatore Previtera (1997) 94 A Crim R 76 per Hunt CJ at CL and R v Bollen (1998) 99 A Crim R 510. In my opinion, these decisions remain authoritative notwithstanding the alterations to the procedure brought about by the Victims Legislation Amendment Act 2003 (NSW). 55 Nonetheless, the Court has had regard to all of that material with compassion and extends it sympathies and respects to the family of the deceased whose distress is wholly understandable as a matter of humanity.

Appropriate sentences for murder involving young offenders 56 The guidance offered by the statistics collated by the Judicial Commission reveal a significant range of head sentences for murder. For cases involving young offenders the sentence does alter depending on the intention of the offender. Many of those cases involved offenders affected by drugs or alcohol. There is no evidence before the Court that the offenders were so affected. This is therefore neither a matter of mitigation nor aggravation. However, it does mean that the tariff for murder involving young offenders also tends to take account of offenders so affected.

Special circumstances 57 The next question is whether there are special circumstances pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act 1999 to find that I should reduce the non parole period beneath the ratio prescribed by Parliament. 58 The defence specifies five particular factors which, it is said, constitute special circumstances. These are: (1) It is M.A.'s first conviction; (2) It is M.A.'s first time in custody; (3) M.A. will require supervision and assistance on release in order to adjust to community life after a period in custody; (4) The age of M.A.; (5) The community interest in fostering the rehabilitation of M.A. 59 In all of these circumstances and in the absence of submissions by the Crown against this proposition, I am of the view that there are special circumstances and that a non parole period should be fixed below the ratio prescribed by the statute. 60 In the case of Mr Diab, despite the appalling nature of the crime and its undoubted moral turpitude, there are a number of mitigating factors which are relevant to the determination of the non-parole period and which I would characterise as 'special circumstances'. These include: (a) Age; (b) Less than average academic and reading ability; (c) the absence of any prior criminal history and, in particular, the absence of any earlier period in custody meaning that the offender will benefit from a longer period of supervision on his release; (d) strong family ties and a work ethic that includes career prospects as a mechanic which indicates tangible prospects for positive rehabilitation; (e) contrition evidenced by an early plea of guilty and remorse that has been expressed. 61 However, I repeat that it is the primary sentence that will reflect the community's view of the act that has been committed. The non parole period is set as a goal that the offender may work towards, however it should also reflect a minimal punitive element. There is no automatic right to release upon the expiry of the non parole period. This is a matter for the Parole Board at that time. Neither the public, nor the offender, should assume that the non parole period is the time the offender will spend in gaol. It may be that they will serve the full term of the sentence depending on whether the offender maintains the promise he presently shows in rehabilitating himself. 62 In the case of M.A., a further question, arises as to where his sentence is to be served. Section 19(3)(a) of the Children (Criminal Procedure) Act 1986 provides that where the sentence is according to law, it must, after the offender turns 18, be served in an adult gaol unless special circumstances are shown sufficient to keep the offender in a children's detention facility until he or she turns 21. 63 I am persuaded that there are special circumstances in the case of M.A. In particular I have in mind the specification of special circumstances in s 19(4) of the Act, in which the Court may have regard to the degree of vulnerability of the person and the availability of appropriate programs at the place the person will serve their sentence. In the case of Simpson at [59] the Court of Criminal Appeal discussed the interpretation of 'special circumstances' (in reference to s 44 of the Sentencing Procedure Act) and indicated that they are words of 'indeterminate reference' and will always take colour from their surroundings. This means that the Court has a broad discretion to find circumstances as 'special' and the discretion should be applied in accordance with general considerations of justice to the accused and in the public interest in his rehabilitation. 64 Further circumstances relied upon by the offender in this respect include: 1. M.A. may continue study and complete the High School Certificate and Violent Offender programs in the current facility while the overcrowding of adult prisons may prevent his access to such courses and programs; 2. M.A. has shown significant progress in his current custody and has been described as a ' model ' offender; 3. M.A. would be vulnerable to attack in adult gaols; 4. This is the first time in custody for M.A. and his first offence; 5. Dr Lennings supports the submission that M.A. remain in his current custody until he turns 21. 65 In my view, this submission should be accepted and the offender should serve his term in a juvenile detention centre until he turns 21. 66 The crime is grave, and as I have emphasised, tragic. There are some factors which call for some measure of leniency in all of the circumstances. This case illustrates the need for judicial discretion to balance these competing factors depending on the facts of an individual case and according to law. 67 As the defence properly puts, no sentence can undo the grevious harm visited upon the family of the deceased. I acknowledge entirely its impact upon the family and friends of Mr Jago.

Sentences 68 M.A. for the murder of Jai Jago I sentence you to imprisonment for 13 years and six months to commence on 18 April 2002 and expire on 17 October 2015. I make a finding of special circumstances and impose a non parole period of 8 years and 6 months to commence on 19 April 2002 and expire on 17 October 2010. You will therefore be eligible to be released on parole on that date. I make a finding of special circumstances in relation to your age and I order that you serve that sentence in a children's detention facility until you turn 21 at which time you will have to serve the remainder of your sentence in an adult facility. 69 Kadr Diab for the manslaughter of Jai Jago, and taking into account the three matters pursuant to s 33 of the Crimes (Sentencing Procedure) Act on the Form 1 I sentence you to imprisonment for 9 years to commence on 24 April 2002 and expire on 23 April 2011. I make a finding of special circumstances and impose a non parole period of 6 years to commence on 24 April 2002 and expire on 23 April 2008. You will therefore be eligible for parole on that date.

Last Modified: 11/06/2003 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.

Children (Criminal Proceedings) Act 1986(NSW)

Victims Legislation Amendment Act 2003(NSW)

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