REGINA v SF

LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 Children (Criminal Proceedings) Act 1987

KT v Regina [2008] NSWCCA 51 Nydam v The Queen (1977) VR 430 Regina v Dang [1999] NSWCCA 42 Regina v Do [2001] NSWCCA 19 Regina v Dodd (1991) 57 A Crim R 349 CASES CITED : Regina v GDP (1991) 53 A Crim R 112 Regina v Lavender (2005) 222 CLR 67 Regina v Luong [2000] NSWSC 505 Regina v MacDonald (NSWCCA, unreported 12 December 1995) Regina v Pilley (1991) 56 A Crim R 202 Regina v Previtera (1997) 94 A Crim R 76

COUNSEL : C: M Cunneen SC O: J Stratton SC

SOLICITORS : C: S Kavanagh O: Andrew Harris & Associates

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

1 HIS HONOUR: The offender was charged on indictment that on 11 February 2008 at Yennora he did feloniously slay Chris Emmerson. 2 The trial commenced on 15 June 2009. On 24 June 2009, the jury returned a verdict of guilty in respect of the offence charged. 3 On 25 September 2009 at the sentence hearing, the offender gave evidence. I will refer a little later to his evidence and to the other evidence tendered at the hearing, which included a Probation and Parole Report dated 21 September 2009 (Exhibit A) and a report of W John Taylor, clinical forensic psychologist, dated 30 August 2009 (Exhibit 1). 4 The offender was born on 9 September 1991. He was therefore 16 years of age at the date of the offence and is presently 18 years of age. 5 The offence occurred at about 11.00 pm on 11 February 2008 in residential premises in Blaxland Street, Yennora. Immediately before the shooting, there were a number of young men present. They were friends and there was no dispute between them. 6 One of their number introduced a gun into the room. It was passed from one to another and, in due course, it was passed to the offender. There was a considerable amount of evidence as to precisely what happened and what the offender did with the gun. There was evidence from a number of witnesses to the effect that no-one knew that the gun was loaded and that the shooting was an accident. 7 I will refer briefly to some evidence given at the trial by a Mr Mapapalangi, who I consider was a credible witness concerning certain of the events. He had only met Chris Emmerson the evening of the shooting. He said that everyone in the room was getting on well, there were no fights or disagreements. He said he saw a person he referred to as "David" put a bullet into the gun and take it out. He said no-one in the room had said that the gun was loaded. Mr Mapapalangi held it himself at one point before passing it to the offender, who he said was in a chair facing the television with his back to Chris Emmerson. Mr Emmerson, at the time, was sitting on a bed talking and was about a metre away from the offender. The offender was facing Mr Mapapalangi who was a metre or so away from him. At the time the gun went off, he said he was talking to the offender. After the shooting, some weeks later, he said that the offender said the shooting was an accident. 8 Mr Mapapalangi said that he could not recall if the gun was cocked when it was passed to him. He also said he did not see the offender break open the gun. There was other evidence at trial on these two matters which, as I will shortly discuss, the jury plainly accepted. 9 After he passed it to the offender, he saw the gun on the offender's shoulder. The offender held it with one hand near his right ear. The gun, he said, was pointing towards Chris Emmerson. 10 In cross-examination, it was put to him that the gun would have been pointing up into the air. Whilst Mr Mapapalangi accepted that if he held the gun as he had demonstrated in court, it would have gone off straight up into the air, he said it was not pointing up into the air at the time. He said, however, that when the gun went off it was facing "to the back" but could not say where the top of the gun actually was.

Submissions 11 In the Crown submissions on sentence concerning the circumstances in which the gun discharged, it was submitted that there was no attempt by the deceased, Mr Emmerson, to take hold of the firearm and pull it towards himself while it was being held by the offender. 12 It was further submitted by the Crown that those of the eye witnesses who suggested that there was an attempt by the deceased to grab the gun were being untruthful. 13 The Crown, in its submissions of 1 October 2009, relied upon what it contended was a frank concession by the offender during the sentencing hearing on 25 September 2009 that he did not perceive any attempt by the deceased to take hold of the gun. The Crown contended that the offender was given every opportunity to explain the circumstances of the discharge of the firearm and said nothing about any physical intervention by the deceased. 14 Mr J Stratton SC, in his written submissions dated 28 September 2009, submitted that the differences in the accounts of the people who were in the room is to be explained by the fact that they were looking or not looking at the incident from different perspectives and from different points of view. 15 Mr Stratton submitted that the Court would be satisfied that, immediately before the gun went off, the offender in response to a request from the deceased, passed the gun to him, who took it from the offender. 16 Mr Stratton referred to the evidence of particular witnesses and, in addition, relied upon the forensic evidence, which he contended was completely consistent with the offender's account of what happened. He referred, in this respect, to the forensic evidence that the gun must have been approximately 50 to 90 centimetres away from the deceased when it fired, to the deceased's height and that he would have had no difficulty in grabbing the gun which was 50 centimetres away. 17 Reference was also made to the evidence which could explain why there was no evidence of gunshot injuries or burns on the deceased. It is unnecessary here to detail all of the evidence in that respect, although I have had regard to it. 18 Mr Stratton relied upon Mr Potgeiter's evidence as to the fact that the pressure required to fire the trigger of the particular gun in question was at the lower end of the normal range and that this could be related to a circumstance in which somebody reached out and grabbed the gun or pulled it, causing it to go off. 19 Accordingly, it was contended for the offender that the firing of the gun did not occur only with the passive involvement of the deceased. It was contended that he grabbed the gun and pulled it towards him. No matter where the gun started out pointing, the submission was that one would expect it to end up pointing towards him, most likely in the middle of his chest. 20 For the purposes of determining the sentence to be imposed, I am required to make relevant factual findings but such findings of fact are to be consistent with the jury's verdict: Regina v Pilley (1991) 56 A Crim R 202. 21 Before stating the relevant findings of fact, it is necessary to say something about both the issues and the evidence at trial. There were essentially two aspects constituting triable issues that fell for the jury's determination. The first related to what the offender did with the gun before it discharged. The second concerned the question as to whether the victim participated in the events that led to the gun being discharged by grabbing and pulling it. 22 As to the first aspect, there was evidence that the offender was "playing" with the gun. Precisely what he was seen to do with it depended upon the accounts given by certain of the lay witnesses who were present in the room, initially to police and later in their evidence at trial. 23 The evidence given by some lay witnesses who were in the room at the time the gun was discharged and who claimed that they had an almost total loss of memory of the events was quite unsatisfactory. Those particular witnesses, in claiming loss of memory, appeared to have been motivated by a desire to assist or to protect the offender. 24 There was, however, evidence at trial of various accounts given to police by witnesses as to the events in the room in which the offence occurred, and direct evidence as to what the offender was seen to do with the gun before it discharged. Those accounts and that evidence were obviously critical in the jury's determination of the facts. 25 The evidence at trial, in my opinion, established to the requisite standard the following matters:-

(1) That the offender opened the barrel of the gun.

(2) On doing so, it was possible for him to clearly see the bullet in the chamber of the gun.

(3) That, at one point, he "played" with the gun, removing the bullet and placing it back in the chamber.

(6) That he placed his right hand holding the gun on or above his right shoulder with the gun in the cocked position.

(7) That he pointed the cocked gun in Mr Emmerson's direction. 26 Those matters in themselves created a grave risk to Mr Emmerson and are to be taken into account in assessing the objective seriousness of the offence. 27 The verdict in this case, in my opinion, is to be explained upon the basis that the jury accepted the evidence on those seven matters and made findings accordingly. For the purpose of sentencing, I am of the opinion that the evidence at trial did, in fact, establish each of those matters to the required standard. 28 I turn to the second aspect to which I have referred, namely, the issue raised in the defence case that Mr Emmerson grabbed the gun and pulled it causing it to discharge. There was considerable attention given to this matter, it being a triable issue constituting a central part of the defence case. If the jury were to have found and concluded on the evidence that Mr Emmerson did grab and pull the gun causing it to discharge, then the ultimate conclusion was open that the gun discharged through accidental circumstances. The jury's verdict, however, can be taken as having rejected the defence case in that respect. 29 At the sentencing hearing, the issue as to whether Mr Emmerson grabbed and pulled the gun was revisited. 30 During his evidence, the offender was invited by learned senior counsel for the Crown to explain precisely what happened before the gun discharged. It was put to him directly by counsel for the Crown that Mr Emmerson did not grab the gun. The offender simply replied, "I didn't see him". He agreed his finger was on the trigger and that, when holding the gun, he was "just showing off". His account was that the boys in the room were playing with the firearm "… and then I grabbed on to it and I was holding on to it. We were just talking at the same time and then what I remember, just a loud bang". He agreed that he pulled the trigger and, at no point in his evidence, did he suggest that Mr Emmerson had, in fact, grabbed or pulled the gun based on his own observations. Had that occurred, I consider it is quite likely that the offender would have become aware of such action by Mr Emmerson. 31 The offender's evidence, in my opinion, in itself, and more particularly, against the background of the evidence at trial, establishes, on the probabilities, that the deceased did not grab or pull the gun, as has been submitted.

Manslaughter 32 The sentencing process in this case is to be understood having regard to the nature of the particular offence committed by the offender found to have occurred on 11 February 2008. The law distinguishes between voluntary manslaughter and involuntary manslaughter. This is not a case of voluntary manslaughter. The Crown did not charge the offender with having acted intentionally to injure or cause death. Involuntary manslaughter, as in the present case, involves neither intent to cause death nor an intent to cause grievous bodily harm to the victim. This case is not one, as I have said, involving such intentional conduct but it is one of involuntary manslaughter by gross criminal negligence. The case, in other words, does not involve forethought and malice is not an element of involuntary manslaughter. 33 In order to establish manslaughter by criminal negligence, it is sufficient if the prosecution shows that the act which caused the death was done consciously and voluntarily but without any intention of causing death or grievous body harm in circumstances which involve such a great falling short of the standard of care which a reasonable man would have exercised and which involved such a high risk that death or grievous bodily harm would follow that the act merited criminal punishment: Nydam v The Queen (1977) VR 430, 444. 34 The High Court in Regina v Lavender (2005) 222 CLR 67 at 77 commented that it has long been observed that, of all serious offences, manslaughter attracts the widest range of possible sentences. The Court there observed:- "… the culpability of a person convicted of manslaughter may fall just short of that of a person guilty of murder or, as s.24 recognises, it may be such that a nominal penalty would suffice." 35 In relation to the offence of manslaughter, Gleeson CJ, Kirby P and Hunt CJ at CL in Regina v MacDonald (unreported, NSWCCA, 12 December 1995) observed as follows:- "In a case such as the present, it is important to bear in mind the denunciatory role of sentencing. Manslaughter involves the felonious taking of human life. This may involve a wide variety of circumstances calling for a wide variety of penal consequences. Even so, unlawful homicide whatever form it takes, has always been recognised by the law as a most serious crime. … The protection of human life and personal safety is a primary objective of the system of criminal justice. The value which the community places upon human life is reflected in its expectations of that system. In Regina v Hill (1981) 3 A Crim R 397 at 402, Street CJ said:- 'In a case such as the present, where there is material justifying a degree of understanding and of sympathy towards the appellant, the task of sentencing is particularly difficult. It is necessary to evaluate the demands of the criminal justice system, the expectations of the community at large, the subjective circumstances of the person coming forward for criminal judgment and the interest of society in protecting itself and its members from criminal activity amounting, as in the present case, to the taking of a life.'"

Personal circumstances of the offender 36 The offender was born in Australia and is of Tongan descent and was raised in Sydney. 37 The evidence indicates that he enjoyed a close and supportive relationship with his parents and siblings. There is no event or problem of any significance in his up-bringing or childhood. It is said that he attended primary school without incident. 38 According to the Background Report from the Probation & Parole Service, his behaviour was not considered problematic until the age of 14 years, when he was suspended for truancy on a number of occasions. He described to the author of the report, Ms Elizabeth Leafe, a short history of drug and alcohol use starting with the consumption of alcohol at the age of 13 years and that, by the age of 15, he was regularly binge drinking most weekends. He commenced using cannabis at the age of 15 years and it is said that this rapidly escalated to daily use, although he is reported as ceasing its use at the end of 2007. 39 At the age of 16 years it is reported that he began experimenting with the drug "ice" and, from a period of three months leading up to the offence, he was using that drug on most weekends. 40 The offender's criminal record consisted of one offence only, namely, the offence of having goods in his personal custody in February 2008. 41 In his report, Mr W John Taylor, clinical forensic psychologist, stated that the offender does not have a personality disorder. He stated that he had a borderline predisposition to engage in substance abuse. He considered that he did not have any anger pathology and that his responses on testing indicated that he had an average tolerance for aggression or violence. He considered, on the basis of the tests he identified, that he had a low-moderate risk of recidivism. 42 Mr Taylor noted that the offender has expressed considerable regret for having committed the offence and, since its occurrence, had symptoms of a post-traumatic stress disorder in terms of dreams of the offence, flash backs and intrusive thoughts. He was of the opinion that he had good prospects for rehabilitation. 43 The report of Mr Taylor is consistent with the assessment and recommendations set out in the Probation & Parole Service report dated 21 September 2009. Ms Leafe, Probation & Parole Officer, in that report recorded that the offender acknowledged the seriousness of the offence and the significant impact that it had had upon the victim's family and friends. 44 The offender has successfully completed a number of courses whilst in custody, including his School Certificate. It is said that he gained average results in his School Certificate. 45 A number of the certificates in relation to such courses were tendered in evidence (Exhibit 3). Ms Leafe in her Probation & Parole report stated that the offender was considered an enthusiastic and compliant student and had received awards for his attitude and application.

Sentencing principles 46 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. 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. 47 I am required to consider the subjective circumstances of the offender. By reason of the fact that the offender was under the age of 18 years at the date of the offence, I am also required to apply the principles set out in s.6 of the Children (Criminal Proceedings) Act 1987 and I have had regard to the principles so far as they are relevant to the circumstances of this case. 48 In the Crown submissions, it was contended that the only aggravating factor under s.21A which was relevant was that referred to in s.21A(2)(i):- "The offence was committed without regard for public safety." 49 The Crown, in this respect, relied upon the fact that any one who plays or deals with a gun in the circumstances disclosed by the evidence in this case, was acting in that manner. The Crown relied upon the fact that there were present in a crowded room a number of people requiring an even greater level of care. I do not consider that s.21A(2)(i) has particular application in this case as it was part of the Crown case that the offender was criminally negligent in the circumstances, which included the presence of a number of persons present in the room when the gun discharged. 50 In relation to mitigating factors, the Crown acknowledged that this was not planned criminal activity and that it was relevant to sentencing that the offender did not have any significant criminal record. The Crown also conceded that, having regard to the evidence relied upon on behalf of the offender, it seemed that there were good prospects for his rehabilitation within s.21A(3)(h) and further that the offender had shown remorse.

Principles relevant to sentencing young offenders 51 The principles to be applied in the sentencing of children and young offenders were considered in Regina v GDP (1991) 53 A Crim R 112. In that case, it was held that generally, considerations of punishment and general deterrence may be given less weight in favour of individual treatment aimed at the rehabilitation of the offender. 52 In KT v Regina [2008] NSWCCA 51, McClellan CJ at CL set out the relevant principles in sentencing young offenders. In that case, his Honour referred to the principles enunciated in s.6 of the Children (Criminal Proceedings) Act. His Honour stated at [22]:- "22. The principles relevant to the sentencing of children have been discussed on many occasions. Both considerations of general deterrence and principles of retribution are, in most cases, of less significance than they would be when sentencing an adult for the same offence. In recognition of the capacity for young people to reform and mould their character to conform to society's norms, considerable emphasis is placed on the need to provide an opportunity for rehabilitation … 23. The law recognises the potential for the cognitive, emotional and/or psychological immaturity of a young person to contribute to their breach of the law. Accordingly, allowance will be made for an offender's youth and not just their biological age … The weight to be given to the fact of the offender's youth does not vary depending upon the seriousness of the offence … Where the immaturity of the offender is a significant factor in the commission of the offence, the criminality involved will be less than if the same offence was committed by an adult … 24. Although accepted to be of less significance than when sentencing adults, considerations of general deterrence and retribution cannot be completely ignored when sentencing young offenders. There remains a significant public interest in deterring anti-social conduct … 25. … 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." 53 In the present case, it is, accordingly, relevant to have regard to the following:-

(1) The fact that the offender was 16 years of age at the date of the offence.

(2) The fact that, in the nature of the charge of involuntary manslaughter by gross negligence, there is not involved, as earlier stated, any intentional conduct by the offender.

(3) The offender does not have a significant criminal history.

(4) He has demonstrated remorse. 54 The shooting of Mr Emmerson was a tragedy for him, his family and for his girlfriend. The victim impact statements, each of which was read in Court, poignantly conveyed the impact that Mr Emmerson's death has had in those respects. Those statements are to be received upon the basis of the principles that are well recognised: Regina v Previtera (1997) 94 A Crim R 76; Regina v Dang [1999] NSWCCA 42. 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. 55 The offender's individual circumstances are to be considered. He being 16 years at the time of the offence, I am required as a matter of law to have regard to the offender's youth, immaturity and limited experience, in particular, that he was not shown to have had experience with guns. By reason of those matters, it would be clearly wrong to consider him as an offender who was in the same position as an adult offender. The offender is not, by reason of his age and immaturity, to be treated for sentencing purposes as one who has no respect for the law, as would be the case with an offender who has a substantial criminal record. He is, apart from a single instance, an offender without a relevant criminal history. All such matters must be taken into account in undertaking the balancing of relevant factors. 56 In determining sentence in this matter, I have regard, firstly, to the statutory maximum penalty for manslaughter which is imprisonment for 25 years and, secondly, that manslaughter is a crime the incidents of which vary so markedly from case to case such that the range of a sound sentencing discretion is in the nature of things very wide. 57 In relation to the category of manslaughter cases to which the present case belongs, manslaughter by criminal negligence, experienced senior counsel for the Crown drew my attention to the sentences imposed in two cases, namely, Regina v Luong [2000] NSWSC 505 and Regina v Do [2001] NSWCCA 19. Mr Stratton also referred to these cases but submitted that the circumstances of each were more serious than those of the present case. 58 In Do (supra), the appellant was sentenced to penal servitude for three years to be served by way of periodic detention with a minimum term of 18 months and an additional term of 18 months. 59 The appeal was against conviction and the Court of Criminal Appeal was not called upon to determine any matter in relation to sentence. The appellant discharged a shotgun and, as a consequence, a person who was in the house with him was fatally wounded. The case proceeded upon the basis that the appellant had been "mucking around" with the shotgun. He had told police that he believed that, before placing a bullet in the gun and pulling the trigger, he had put the safety slide or switch in the on position. The appellant was held to be clearly enough aware of the danger of pointing a loaded weapon at someone and, although he was not particularly familiar with the shotgun, knew of the operation of the safety slide or switch. He had loaded the shotgun and moved the safety switch to the off position as he tried to scare the victim and squeezed the trigger several times. The evidence indicated that there was a possibility of the safety catch moving. If the appellant did not take proper care to ensure that the shotgun did not discharge, the risk was extreme. 60 In Luong (supra), a juvenile offender was sentenced following a trial. He was a high school student at the end of Year 10 at the time of the offence. He had hosted a family party for a number of friends. He owned a sawn-off rifle and one round of live ammunition. The gun and the ammunition were normally concealed in his study desk. 61 In that case, the victim entered the room and asked whether it was a real weapon. The offender removed the magazine from the weapon, cocked it and pulled the trigger. In fact, there was then loaded a round of live ammunition. The weapon discharged and struck the deceased who was about a metre away, wounding her fatally. 62 The Court in that case considered all relevant matters, in particular, objective and subjective factors, and sentenced the offender to imprisonment for four years with a non-parole period of two years. 63 Senior counsel for the Crown drew attention to certain remarks made by Sully J in that case as being applicable to the circumstances of this case. It was submitted that the sentence imposed in that case would be of assistance in the present case. 64 Sentences imposed in other cases may operate as a general reference point in sentencing but they can be no more than that. Although those cases bear a similarity to the present case, there are, of course, differences. Nonetheless, I consider the sentence imposed in Luong (supra) to be of assistance. I have earlier referred to the evidence which, in my opinion, establishes beyond reasonable doubt and consistently with the jury's verdict, that the offender, upon receiving the gun, opened it and either removed and replaced the bullet in the gun or saw the cartridge in the gun and then closed it, cocked it and pointed it towards Mr Emmerson. Those actions clearly constituted an objectively serious level of culpability in terms of criminal negligence. 65 Before stating the sentence to be imposed, it is necessary to record my conclusion that this is a case in which a finding of special circumstances should be made in terms of s.44(2) of the Crimes (Sentencing Procedure) Act. I make such a finding having regard to his youth, his good prospects of rehabilitation together with the fact that the sentence to be imposed will be his first prison sentence. These circumstances separately and together justify, in my opinion, a variation of the statutory ratio between the non-parole period and the parole period. 66 I consider, in all the circumstances, that the appropriate sentence to be imposed in this case is a sentence of imprisonment for four years with a non-parole period of two years. 67 The offender has been in custody solely in relation to the present matter since the date of his arrest, 27 March 2008. Accordingly, the sentence to be imposed will be backdated to 27 March 2008. 68 The offender is, accordingly, sentenced to a non-parole period of two years to commence on 27 March 2008 and to expire on 26 March 2010 and to a parole period of two years to commence on 27 March 2010 and to expire on 26 March 2012. 69 Accordingly, the first date upon which the offender will be eligible for parole will be 26 March 2010. 70 I make an order pursuant to s.19(1) of the Children (Criminal Proceedings) Act 1987 directing that the whole of the term of sentence of imprisonment be served as a juvenile offender. **********

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