REGINA v R.A.F

5 SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

1 HIS HONOUR: Before the Court for sentence is a young girl who was born on 1 July 1982. The offence in respect of which she stands for sentence was committed on or about 12 March 1997. She was aged, therefore, 14 years and not quite 9 months at the time of the offence; and she is now aged a few days short of 17 years. She is, therefore, and was at all material times, a "child" as defined in the Children (Criminal Proceedings Act) 1987. The provisions of that Act are, therefore, applicable to the present proceedings. Having regard to the provisions of section 11 of that Act, I propose to refer to her either by her initials or as "the young person". I take note of, and draw attention to, the provisions of section 11(1) and (5) of the Act. 2 On 19 March 1999 the young person was arraigned before Barr J of this Court sitting at Lismore. There was presented against her an indictment charging that on or about 12th March 1997 she had been an accessory after the fact to a murder, on or about 9 March 1997 and at Casino, by one Adam John Bowhay of one Steven Lindsay Jarvis. The young person pleaded guilty upon such arraignment, and Barr J recorded, accordingly, judgment of conviction. His Honour remanded the young person for sentence to this Court on Thursday last 18 June instant. For administrative reasons the Court was not able to deal with the matter until Friday last 19 June instant, when the Court heard all necessary evidence and submissions in connection with sentence. 3 The young person was arrested on 20 March 1997. She was thereafter in custody until 21 April 1997 when she was admitted to bail by a Judge of this Court. Thereafter, and until today, the young person has been at liberty on conditional bail. The bail conditions as originally set are in evidence as Exhibit 2 in the proceedings on sentence. It is not necessary to refer to their fine detail, it being sufficient to understand that they were, in comparative terms, onerous conditions, and that the young person has complied strictly with them throughout the period of her liberty on bail. 4 The relevant objective facts can be stated shortly, and in terms drawn substantially from a lengthy recorded interview between the investigating police and the young person, which interview took place on 21 March 1997 at Wangaratta in Victoria. 5 It thus appears that in March 1997, and for a period of about 8 months previously, the young person had been in what is described these days conventionally, if somewhat euphemistically, as a "relationship" with the previously mentioned Adam Bowhay. He was then aged about 19 years, and she was then aged, as I have earlier noted, somewhat less than 15 years. They were both described in various of the submissions put to the Court on Friday last as having been, at the material times, "out of control". I think that is an entirely appropriate description of their then situation. 6 It seems that they had travelled together to Byron Bay where they had stolen a car in which they had driven through Beaudesert to Kyogle in order to visit a friend of R.A.F. Having spent a night at the home of the friend, they set off again, but the vehicle in which they were travelling broke down, and so they hitch-hiked to Casino. They had very little in the way of money or other possessions; they were not familiar with Casino; and the time at which they were dropped off in Casino was in the vicinity of 9.00 pm to 9.30 pm. They were sitting outside the Commonwealth Bank in Casino and contemplating, as I infer, what their next moves might be. It was then that the eventual victim, the late Mr. Jarvis, came upon the scene. Mr. Jarvis apparently lived alone in a room at the Commercial Hotel in Casino. When he came upon the young person and Adam Bowhay, he was apparently intoxicated. He invited R.A.F. and Bowhay to have a drink with him, and they agreed to do so. They went in company to the Oxford Hotel in Casino, where they had something to drink, and where they socialised for a time. It seems that Bowhay and R.A.F. told Mr. Jarvis that they were without accommodation, and that they were looking to sleep in a park. He asked whether they would like to come back to his room at the Commercial Hotel, and that is what happened. In Mr. Jarvis' room, the three of them appear to have had some desultory conversation for a time. According to the young person, and perhaps significantly in the light of what subsequently occurred, Mr. Jarvis: "…….. was talking about, saying, saying I'm his baby, I'm his baby, I'm his baby not Adam's baby, and that, saying me and Adam were clowns. Um - what else? Nothin' much else. Just about, you know, just saying, How long have youse been goin' out for and that." 7 Eventually, although it is not clear at whose particular instigation, it was agreed that the three of them would go for a walk to a nearby park. They did so, and at or in the near vicinity of the park a fight broke out between Mr. Jarvis and Adam Bowhay. What happened, put shortly, was that Adam Bowhay bashed and stabbed Mr. Jarvis to death in the most appallingly brutal fashion. According to R.A.F., she did not actually see the killing, she then being some five or so metres distant from the two men, and deliberately ignoring the progress of the fight between them. That there was in fact a fight going on between the two men was certainly known to her: first, because she heard Mr. Jarvis crying out to Bowhay not to hurt him; and secondly, because, at one point during the fight, she saw Mr. Jarvis "spinnin' around ……….. just like, um, like you look like when you get punched in the head………….. and spin around". 8 The young person and Bowhay subsequently left the scene of the killing and returned to Mr. Jarvis' room, from which they stole a travel bag and some $12.50 in money. They hitch-hiked thereafter from Casino to a small town called Whiporie; and from Whiporie to Wauchope, where they stole another motor vehicle and travelled down to the Central Coast. They there visited R.A.F's mother and uncle. The uncle showed R.A.F. a newspaper report of the death of Mr. Jarvis. According to R.A.F., this was the first knowledge she had that Mr. Jarvis had not only been bashed, but had been killed, by Adam Bowhay. R.A.F's uncle gave her some money which she in turn passed on to Bowhay to use in order to buy petrol for the car that he and she were then using, and cigarettes. 9 R.A.F. and Bowhay thereafter travelled to Victoria where, eventually, they were arrested and extradited to this State. 10 As I have earlier stated, but the fact will bear repeating, the killing of Mr. Jarvis was a callous and brutal crime. Adam Bowhay was brought to trial in December 1998 upon a charge of having murdered Mr. Jarvis. He pleaded not guilty, and appears to have based his defence, essentially, upon diminished responsibility in the sense recognised by section 23A of the Crimes Act 1900. On 4 December 1998 the jury at trial returned a verdict finding him guilty as charged. He was sentenced by Dunford J on 17 December 1998 to penal servitude for 23 years, made up of a minimum term of 16 years and an additional term of 7 years. 11 It is, therefore, clear that the accessorial crime to which R.A.F. had pleaded guilty was ancillary to a principal crime of great objective criminality. If one accepts her own version of events, - as I am disposed to do, there being no evidence to the contrary, - she did not realise until some time after the event that Adam Bowhay had not only bashed Mr. Jarvis, but had in fact bashed and stabbed him to death. It is true that R.A.F's own actual assistance to him does not seem to have extended beyond obtaining some material assistance from her uncle; and thereafter assisting and encouraging Bowhay in the sense that she continued to give him the support and encouragement of a continuing "relationship". These were positive acts of assistance; they tended to assist Bowhay to avoid justice; it is clear, as the plea of guilty itself acknowledges, that such was R.A.F.'s intention, she then knowing that what Adam Bowhay had done to Mr. Jarvis extended beyond an assault to an actual killing. 12 I emphasise these matters because, as will appear presently, R.A.F's particular situation has about it subjective features of a very compelling kind; and they must be brought to proper account as the law requires. That makes it all the more important to ensure that nobody, and particularly not R.A.F. herself, runs away with the idea that what she herself did is not, in purely objective terms, particularly serious. An accessory after the fact to a crime of murder is liable, by reason of the provisions of section 349(1) of the Crimes Act 1900, to a maximum penalty of penal servitude for 25 years. That provision makes unmistakably clear the gravity with which Parliament, as representative of the community at large, regards the offence for which R.A.F. is now to be sentenced. 13 The statutory provisions to which I have just referred have a direct bearing upon the applicability in principle, and the application in fact, of the ameliorative provisions of the Children (Criminal Proceedings) Act 1987, in the case of a person convicted of having been an accessory after the fact to a murder. Such an accessorial offence is a "serious indictable offence" as defined in section 3 of the Children (Criminal Proceedings) Act. That being so, the offender is required, by section 17 of that Act, to be "dealt with according to law". Of course, that does not entail that the entirety of the ameliorative provisions of the Children (Criminal Proceedings) Act is withdrawn from an offender who has committed a "serious indictable offence"; and, in particular and importantly for present purposes, the general principles that are stated in section 6 of that Act continue to apply. It follows, therefore, that this Court is obliged, when exercising its present jurisdiction in R.A.F's case, to have regard to those section 6 principles, which are stated in the following terms: "(a) That children have rights and freedoms before the law equal to those enjoyed by adults and, in particular, a right to be heard, and a right to participate, in the processes that lead to decisions that affect them; (b) That children who commit offences bear responsibility for their actions but, because of their state of dependency and immaturity, require guidance and assistance; (c) That it is desirable, wherever possible, to allow the education or employment of a child to proceed without interruption; (d) That it is desirable, wherever possible, to allow a child to reside in his or her own home; (e) That the penalty imposed on a child for an offence should be no greater than that imposed on an adult who commits an offence of the same kind." 14 As I have previously said, the subjective features of the young person's case are compelling. In summarising them as follows, I rely in large part upon the pre-sentence report prepared by Mrs. Cheryl Latu, a Juvenile Justice Counsellor with the Central Coast office of Juvenile Justice Community Services. That report is in evidence as Exhibit 1 in the proceedings on sentence. The contents of the report were supplemented by oral evidence from Mrs. Latu. I found Mrs. Latu a convincing witness, and I accept her evidence. The whole of that material is supplemented further by some brief evidence that was given by R.A.F. herself. It was brief, and not particularly articulate, evidence; but I accept it in the terms in which it was given. 15 As previously noted, the young person is at present aged not quite 17 years. Her personal history to date has been a sadly troubled one. Her natural father was killed in a road accident when she was aged only 1 year. Thereafter, her widowed mother's own domestic situation was itself unstable and productive of real problems for the young person as she moved into adolescence. The sad, although not surprising, results of this personal and domestic instability were of a kind with which the Court is all too familiar: a general deterioration of personal behaviour; a virtually complete breakdown in personal discipline; a wilful rebellion against all forms of authority, whether in the home or at school; and a steady drift into the orbit of an unsavoury peer group. When R.A.F. was aged about 13 years, she experienced an incident of sexual abuse by a stranger; and this reinforced, not surprisingly, the other personal and societal problems to which I have referred. 16 Since her arrest and subsequent admission to bail, R.A.F. has attempted, with a great deal of assistance from the Juvenile Justice authorities and with some success, to rehabilitate and to stabilise her personal situation. She has broken off her "relationship" with Adam Bowhay. She has established a home of her own with another young man, of whom the Court knows nothing except that they seem to have established a reasonably stable home; that they have a baby son born in December 1998 and to whom they are both, apparently, devoted; and that she has active and useful support from her mother and from her paternal grandparents and maternal grandmother. 17 R.A.F. has not had much in the way of stable employment in the past; but she has had some such employment, and she appears to have been well motivated and diligent in it. She is conscious of her lack of education, and is both willing and able to do what she can in order to improve that position. In that regard she has been counselled and supported by the Juvenile Justice authorities; and she appears both to have made some worthwhile progress in the past, and to have in a real sense future prospects of continuing that progress. 18 R.A.F pleaded guilty, as I accept, at the first available opportunity; and she is entitled, in accordance with well established principle, to proper consideration in that regard. She has criminal antecedents; but I do not regard them as having significant adverse weight in the present sentencing context. I am satisfied, - although I say it in a spirit of cautious optimism rather than of unqualified conviction, - that she is not likely to commit in the future serious breaches of the law. 19 I have not found it easy to bring into what I regard as a just and proper balance the objective and the subjective matters to which I have earlier herein referred. I do not regard R.A.F's offence as being at all an insubstantial offence in terms of its objective criminality. A person who gives comfort and encouragement to a known killer to the end of assisting that person to escape his just desserts, does something that has the potential to subvert the proper maintenance of the rule of law, the paramount objective of which must always be to maintain the sanctity of human life. 20 It is, however, the case that no Court can fail to be conscious of the extreme youth of R.A.F; and to be conscious, therefore, of the need to be properly concerned not to deal with her on the present occasion in a way so heavy-handed as to negate her prospects, which I think to be real and substantial prospects, of rehabilitation. Nor am I unmindful of the situation of R.A.F's baby. It is no easy thing to deal now with R.A.F in such a fashion as would entail of necessity that that little child would spend some of its most important formative years deprived of the nurture, in a stable domestic environment, of his own mother. 21 I have come to the conclusion that it would be proper, in the circumstances as I have previously outlined them of this particular case, to deal with R.A.F in the manner for which provision is made by section 558 of the Crimes Act 1900. Such course seems to me to have the following proper advantages: first, it respects the integrity of the conviction actually recorded by Barr J on 19 March last; secondly, it affords R.A.F every proper opportunity and encouragement to break with her past and to make something worthwhile of her future; and thirdly, it leaves open as a real, - and it is to be hoped, an effective, - sanction the imposition of a gaol sentence in the event that R.A.F throws away the opportunity thus given to her by the Court. 22 I order, therefore, and pursuant to section 558 of the Crimes Act 1900 (NSW), that the passing of sentence upon R.A.F be deferred, and that she be released upon her entering into a recognisance , without sureties, and in the amount of $500, to be of good behaviour for a period of 4 years from today's date, and to come up for sentence at any time within that period if so required by the Court. The recognisance to which the order refers is subject to the following conditions:

The young person is to accept throughout the entire period of the recognisance the supervision and counselling of the Juvenile Justice Community Services branch of the Department of Juvenile Justice.

The young person is to attend from time to time, as may be required by any Juvenile Justice Counsellor who is assigned to supervise her case, such counselling as may be required by such Counsellor.

The young person is to take part, participating in every reasonable way, in any group or other programme nominated by such Counsellor.

The young person is to reside at such place or places as may be either directed or approved from time to time,by such Counsellor.

The young person is to undertake with all reasonable diligence any educational, or vocational training, course nominated by such Counsellor.

The young person is to have such contacts as may be required by her Counsellor with any appropriate community worker or social worker in connection with the planning and the implementation of any community-based-plan designed for her.

The young person will work, in cooperation with and under the supervision of her Juvenile Justice Counsellor, with any District Officer from the Department of Community Services who shall be assigned to assist the young person in the proper parental care of her son.

8 The conditions of the recognisance are not to be altered, attenuated or suspended, except by the prior order of a Judge of this Court, or of a higher Court. **********

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