Regina v T

IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION 70212/98 HOWIE J

FRIDAY 22 FEBRUARY 2002 REGINA v T SENTENCE 1 His Honour: The prisoner "T" was arraigned before a jury on a count of murdering David Laxale on 24 February 1997. He pleaded not guilty to that charge but on 9 November 2001 he was convicted and is now to be sentenced for that offence. 2 It is the second time that the prisoner has been convicted of this murder. After a trial by jury in 1999, Justice Hidden sentenced the prisoner on 25 June of that year to 15 years imprisonment comprising a minimum term of 11 years and an additional term of 4 years. That sentence commenced on 23 March 1997, the date upon which the prisoner had been arrested for the offence. However, on 28 May 2001 this sentence was set aside when the Court of Criminal Appeal allowed an appeal against the prisoner's conviction and ordered that there be a re-trial, see R v Tang [2001] NSWCCA 210. It was the retrial that was conducted before me. 3 There is a convention that, where a sentence is to be imposed upon a prisoner following a re-trial after a successful appeal, the sentence should not ordinarily be greater than that imposed by the original sentencing judge. The policy considerations underlying that convention and the principles operating in respect of it have been most recently considered by the Court of Criminal Appeal in R v Merritt [2000] NSWCCA 365. It is enough for the moment to note that the policy behind this practice is a concern that an accused should not find himself in a worse position as a consequence of a successful appeal. In the present case the Crown has submitted that, applying the principles set out in Merritt, I should impose a more severe sentence upon the prisoner than that imposed by Justice Hidden. I shall return to the arguments in support of that contention and the considerations they raise later in these remarks. 4 The facts in the matter can be stated briefly. There is, in light of the jury's verdict, little need or justification for me to find facts apart from one matter; that is the extent of the injuries inflicted by the prisoner upon the deceased. I do not believe that this matter is of crucial importance in the sentencing of the prisoner but it was a matter that was the subject of considerable debate between the parties during the sentencing hearing. 5 The jury's verdict meant that they were satisfied beyond reasonable doubt that the stab wounds inflicted by the prisoner at least substantially contributed to the death of the deceased. It does not seem to me in this particular case to be a significant matter whether some other person may have also inflicted a wound that might have led to the death of the deceased. The prisoner has been found by the jury to have been responsible for the death of Mr Laxale to the extent that he should be held to have murdered him. There is no doubt that the jury must have found that the prisoner inflicted more than one fatal wound and his criminal responsibility for the death of the deceased is substantial regardless of the acts of any other person which contributed to the death of the deceased. 6 However, I am satisfied on the basis of the evidence in the trial and the issues left to the jury by me in the summing up, that the verdict should be taken to mean that the jury was satisfied beyond reasonable doubt that the prisoner inflicted all of the deceased's wounds. In any event, for reasons, which I will give shortly, I am satisfied beyond reasonable doubt that the prisoner did inflict all fatal injuries suffered by the deceased. 7 The stabbing of the deceased arose in circumstances where the prisoner and three other young men, "JI", "AM" and "LS", were involved in the theft of mangoes from a tree growing in the yard of the deceased's property. The four young men were wandering aimlessly around the streets of Berala, a Sydney suburb, when they saw the mangoes. The prisoner entered the yard and commenced to pick fruit which he then threw to the others in the street. The deceased interrupted the activity and took hold of "AM". A struggle ensued and when the deceased appeared to be having the best of this altercation, the prisoner went to "AM's" assistance in order to secure his release. "AM" made good his escape but the prisoner and the deceased were then involved in a fight. I believe that it was at this time that the prisoner stabbed the deceased. The other three young men then joined in the attack upon the deceased repeatedly punching and kicking him. When a neighbour called out, the four ran away leaving the deceased mortally wounded. He died a short time later despite the attempts of ambulance officers to assist him. 8 The evidence, upon which the Crown chiefly relied to identify the prisoner as the person who stabbed the deceased, was that of "JI". It was his testimony, that shortly after the fight, when the four men were cleaning themselves at a tap, he saw the prisoner with a bloody knife and heard him admit to having stabbed the deceased three times. There were in fact seven wounds inflicted upon the deceased and the evidence was that there were four fatal wounds, that is four wounds any one of which could have caused the death of the deceased. The real issue at the trial was whether it was the prisoner who was responsible for any or all of those wounds. 9 "I" had admitted during the trial before Justice Hidden that he was in possession of a knife at the time of the stabbing and this led to a substantial attack upon his evidence in the trial before me principally on the basis that it was he and not the prisoner who had stabbed the deceased. However, the Crown submitted to the jury that they would find that the prisoner had inflicted at least two of the fatal wounds, those being two of the three wounds to the deceased's back. The Crown case was left to the jury on the basis that they would be satisfied beyond reasonable doubt that those wounds substantially contributed to the death of the deceased and that the prisoner was guilty of murder even if "JI" had inflicted the other fatal stab wounds. 10 The prisoner gave evidence that he saw "JI" stabbing the deceased during the fight and it was he, not the prisoner, who was in possession of a bloody knife at the tap. The prisoner denied ever having admitted stabbing the deceased or having a knife except when he took the bloody knife from "JI" and washed it. The prisoner acknowledged that he had attacked the deceased in order to assist "AM" but said that he was then himself struck over the head by the deceased which blow caused him to fall to the ground dazed. It was at this time that he saw the other three men fighting with the deceased and witnessed "JI" stabbing him. The prisoner then re-entered the affray punching and kicking the deceased with the others. 11 It is obvious that the jury concluded that the account given by the prisoner in the witness box could not possibly be true. In light of the fact that he did not give that version until after he had lodged an appeal against his conviction before Justice Hidden, it is not surprising that the jury concluded that it should be rejected. The version was not even totally consistent with an account the prisoner gave in an affidavit placed before the Court of Criminal Appeal. Consistently with the jury's verdict but on my own assessment of the evidence, I also conclude that the version was completely untrue and should be disregarded for any purpose in sentencing the prisoner. 12 There was a strong attack made upon the reliability of the evidence of "JI" during the course of the trial. Much of the criticism of his evidence was completely justified. Not only had he been involved in the attack upon the deceased, but he had also received a sentencing discount for the offence to which he pleaded guilty arising from that attack on the basis that he would give evidence against the prisoner. There were numerous and significant inconsistencies in his various accounts and his conduct after the stabbing was consistent with his having played a more serious role in the attack than he was willing to admit. Even the Crown was prepared to accept the possibility that "JI" was not telling the jury the complete truth when he denied that he was responsible for inflicting any of the stab wounds upon the deceased. 13 But at the end of the day I am satisfied that the jury must have accepted beyond reasonable doubt that the account given by "JI" was substantially true and that the prisoner was holding a knife covered in blood after the fight when he admitted to having stabbed the deceased. Mr Cook, who appeared for the prisoner at the trial, submitted to the jury that, if there was any possibility that "JI" may have inflicted stab wounds to the deceased, then they could not accept him as a witness of truth and as a result they should reject his evidence and acquit the prisoner. I instructed the jury in similar terms despite the Crown's opposition. It follows that by their verdict, the jury must have been satisfied beyond reasonable doubt that "JI" did not stab the deceased. I would, myself, independently come to the same conclusion. 14 "JI", for all his faults as an historian and the patent inconsistencies in his evidence, seemed to me to have been the only one of the four men involved in the fight who was attempting to be a truthful witness. I would come to this view even if I were to disregard the patently false evidence of the prisoner. The jury must have come to the same conclusion about "JI's" credibility. It is hard to identify what it was about his evidence that made it so convincing despite the criticisms made of it and I acknowledge that, if an assessment of his evidence were confined to what is contained in the transcript, one would be well justified in dismissing it as unreliable. 15 However, his credibility was assisted by a piece of evidence that on its face seemed highly improbable but which ultimately was supported by objective facts. This was "JI's" account of the prisoner making a telephone call shortly after the fight and during that call making statements that could amount to an admission that he had stabbed the deceased. "JI" had never mentioned this phone call before giving evidence before me. But by the end of the trial there was uncontroverted evidence that within minutes of the stabbing a call was made on the prisoner's mobile phone to the home of a friend called Manunu. The prisoner was never able to satisfactorily explain why he made that call at that time. It was well open to the jury to find this piece of evidence strongly supportive of "JI's" account and damning of the prisoner. 16 But even without this evidence, I would have accepted "JI's" version of the fight and what occurred after it. I find the fact that at the first trial "JI" was prepared to volunteer that he had a knife in his possession to be highly significant in an assessment of the truthfulness of his evidence. If he had been giving false testimony against the prisoner, there was every reason why he should have simply denied that he had a knife when asked that question by the Crown Prosecutor. There was nothing that would have contradicted that denial. Before he made that admission, there had been no real suggestion that it was he, rather than any other of the four, who had stabbed the deceased. The prisoner had stated that he knew nothing about the stabbing and had never implicated "JI". If "JI" had stabbed the deceased and was lying about the events of the night to cover his own guilt, then I simply cannot understand why he would admit having a knife in his possession. 17 I am satisfied beyond reasonable doubt that the prisoner was responsible for each of the stab wounds inflicted upon the deceased. This was, I note, the basis upon which Justice Hidden sentenced the prisoner. The Crown submitted that if I made such a finding then it would follow that I must conclude that the prisoner inflicted the stab wounds with an intention to kill the deceased, such were the number and seriousness of the wounds. That was not the finding made by Justice Hidden who sentenced the prisoner on the basis of an intention to inflict grievous bodily harm. 18 Although the number and extent of the injuries are important aspects in determining the intention with which they were inflicted they are not decisive. The injuries have to be considered in the context of the whole of the circumstances surrounding their infliction. In the present case the prisoner was a 17-year-old youth who had no prior offences for violence and who, quite unexpectedly, became involved in a fight with a bigger and stronger man. There is nothing to suggest that, although the prisoner was carrying a knife at the time, he or the other young men were looking to become involved in an attack upon any member of the public on this particular night. The incident arose spontaneously without warning. The prisoner is a man of small and slight stature as was "AM". At the time of the stabbing the prisoner was engaged in fighting the deceased by himself and the deceased was intent on apprehending at least one of the persons whom he found stealing the mangoes. 19 None of these facts in anyway suggests that there was the slightest justification for the prisoner assaulting the deceased, let alone stabbing him. I am simply indicating that the number and nature of the stab wounds do not of themselves in all the circumstances of this matter compel a finding that the prisoner intended to kill the deceased. I am not prepared to find beyond reasonable doubt that the prisoner had that intention. 20 However, this finding does not mean that the offence was not a serious one. The use of a potentially lethal weapon against an unarmed person is unfortunately an all too frequent occurrence in our society and was so at the time of the offence. It is also notorious that young men go about the streets armed with lethal weapons without any warrant for doing so. If a person is armed with a weapon capable of inflicting serious injury or death then it can be presumed that the person intends to use it if the need arises. There is a real risk that the weapon will be used even though there is not the slightest possible justification for it being produced. That was what happened in the present case. 21 The prisoner gave evidence that the deceased grabbed him around the throat and struck him a blow to the head that caused him to fall to the ground stunned. I have been informed that he gave a somewhat similar account in an interview with police shortly after his arrest. That interview was in evidence at the first trial but not tendered before me. Justice Hidden referred to the fact that the deceased struck the prisoner in his sentencing remarks. However, I am not prepared to make that finding. I have already indicated that I am not prepared to act upon the account given by the prisoner in evidence before me. It is inconsistent with the evidence of the other young men, particularly "AM", as to what the prisoner was doing when he and the other two entered the attack upon the deceased. In any event, the fact that the deceased may have struck the prisoner during their altercation is in no way mitigating of the prisoner's attack upon him with a knife with an intention of causing him grievous bodily harm. 22 In my view this is a serious case of murder by reason of the circumstances in which the prisoner came to stab the deceased, the use of a knife on an unarmed member of the public who was simply protecting his property and the number and nature of the wounds. This is clearly a case where general deterrence should play a significant part in the sentence to be imposed to deter other young men from carrying and producing lethal weapons in public places. Since the commission of the offence the legislature has increased the number of offences and the penalties applicable to the carrying and use of knives in public. But I do not see that this consideration or any other matter subjective to the prisoner or arising from the facts would diminish the importance of the sentence to be imposed reflecting a significant degree of general deterrence. 23 The prisoner was at the time of the killing of Mr Laxale, and is still, a young man. When he was sentenced by Justice Hidden, it was erroneously believed that he was 18 years of age at the time of the killing. In fact he was 17 years and 4 months. This error was at the heart of the successful appeal against conviction because it had an impact upon the admissibility of statements made by the prisoner to investigating police. But the error has little or no impact on the assessment of the sentence that he should serve. The simple fact is that he was a young man at the time of the killing and I do not believe there is any significance in the fact that Justice Hidden sentenced him on the basis that he was an adult so far as the law was concerned. It was faintly argued by Mr Cook that the prisoner should receive some consideration by reason of the fact that, had his true age been known by the authorities, he would have served his remand period in a juvenile institution rather than an adult gaol. That fact might have had some significance if the question before me was whether the prisoner should be sentenced to prison for a relatively minor offence. But it can hardly be a relevant matter when consideration is being given to a sentence for a serious case of murder. 24 The prisoner was born in Cambodia in October 1979. He left his homeland in 1985 with his mother and older siblings in order to escape the Pol Pot regime. His father was apparently a victim of the atrocities committed by that administration. His mother found it difficult to adjust to life in this country but, as best she could, she provided a sound upbringing for the prisoner. Unfortunately, at the time of the killing the prisoner had been estranged from his mother for many years principally as a result of language and emotional difficulties. It appears that since his imprisonment he has re-established a close relationship with his mother and family members. 25 There are a number of testimonials before me attesting to the good character and stable background of the prisoner. That material and the reports from psychologists indicate that the offence committed was out of character. It is also said that the prisoner is deeply remorseful of his involvement in the incident although there is little weight to be placed upon that matter in light of his denials of guilt. He has been supported since his arrest by an organisation known as the Karuna Foundation and members of this group have visited him while he has been in custody. He also has the support of members of his family. 26 Not surprisingly the prisoner has not found it easy to adapt to prison life during the period of custody since he was sentenced by Hidden J. He has suffered periods of depression. There is information before me to suggest that the prisoner has been the victim of attacks by other prisoners. The prisoner appears to have fallen out with a group of aboriginal youths and one confrontation with them resulted in the prisoner suffering significant injuries himself. Unfortunately violence suffered by one prisoner at the hands of others is frequently part of the experience of life in gaol in this State. The prisoner did not give evidence before me about the circumstances in which he has been the subject of violence. However, there are reports from the gaol in evidence before me that suggest that violence involving the prisoner has not been all one way and that he has been part of a group engaged in attacks upon other prisoners. But I know little about the circumstances in which these incidents have occurred and I can place no weight upon them. However, the fact that the prisoner has been injured in prison and holds fears for his safety is not a matter to which I can attach significant weight when sentencing him for an offence as serious as that before me. 27 The prisoner's general health has also been affected during his period in custody and he has been greatly concerned and distressed by this fact. Unfortunately this is not an infrequent result of a period in gaol and, again, it is not a matter that can be given great weight when sentencing him for an offence of murder. 28 I have received in evidence a victim impact statement written by the deceased's wife as to the effect of the death of Mr Laxale on her and their children. That statement was not admitted for the purpose of increasing the sentence of the prisoner and has not been used by me in any way to aggravate the severity of his crime. But the reception of such evidence permits the family of the deceased to participate in the proceedings by expressing their grief and loss as a result of his death. It reminds the court, if it is necessary to do so, of the real human tragedy involved in matters that come before it. I understand that it is particularly difficult to come to grips with the death of a treasured family member when it occurs so pointlessly and unexpectedly as it did on this occasion. The court takes this opportunity to express its sympathy and understanding to Mr Laxale's family and friends. 29 Having regard to the material before me and to other sentences to which I have been referred by the Crown, I believe that a sentence in excess of that imposed by Justice Hidden would be necessary to meet the objective seriousness of the offence notwithstanding the prisoner's age and antecedents. Clearly, by reason of his youth and the time he must spend in custody as punishment for what he has done, the prisoner will need some assistance when released. However, there does not appear to be any significant matter that needs to be addressed of a psychological or psychiatric nature. I have difficulty seeing any factor that would amount to special circumstances justifying a reduction in the non-parole period notwithstanding the prisoner's age, his lack of relevant antecedents and taking into account that he is serving his first period in custody. 30 However, it is not the case that, simply because I would have imposed a more severe sentence on the prisoner than that imposed by Hidden J, I should consider myself free to impose that sentence. The convention or practice, to which I referred at the outset of these remarks, exists because a sentencing judge might not agree with the sentence originally imposed and yet policy dictates that the sentence should not be increased. In the present case there is nothing in the facts as found by me or the evidence before me which would itself justify my varying the sentence imposed by Justice Hidden. The only basis upon which I could increase that sentence was if I were justified in coming to the view that the sentence was manifestly inadequate so as to warrant intervention by the Court of Criminal Appeal; Merritt at [34]. 31 In the present case there was no Crown appeal lodged in respect of the sentence imposed by Hidden J. I accept that there may be discretionary reasons that would explain the failure of the Crown to appeal notwithstanding that it held the view that the sentence was manifestly inadequate. But the failure of the Crown to appeal a sentence which it now says is so lenient as to manifest error by the sentencing judge, is a matter which causes me to exercise considerable caution before determining that a sentence imposed by another justice of this Court is so inadequate that the Court of Criminal Appeal would have intervened had the Crown in fact appealed. 32 I have expressed the view that the sentence imposed by Hidden J is not the sentence I would have imposed had this been the first time that the prisoner had been convicted of this offence. But I am not satisfied that the sentence was so lenient as to be erroneous having regard to the prisoner's age and antecedents and the circumstances of the offence. It is trite to observe that, generally speaking, there is a range of sentences that would be appropriate for a particular offence committed by a particular offender. I believe that the sentence imposed by Hidden J is at the very bottom of that range but I am not satisfied that it falls outside it. The fact that the sentence I would have imposed would also fall within that range but nearer the top end of it does not justify my now imposing that sentence where there is no appreciable difference between the facts which were before Hidden J and those which are before me. 33 Further, I believe that there are considerations that militate against increasing the sentence even if it were otherwise appropriate to do so. These are chiefly the prisoner's age, the stress of having to stand trial twice for murder for reasons that were not of the prisoner's making, the effects of imprisonment upon him and the period of uncertainty for the prisoner which attended the two trials. However, in my view the prisoner can regard himself as fortunate indeed when consideration is given to sentences imposed by judges of this Court upon other young men for somewhat similar offences. 34 Therefore, the prisoner is sentenced to 15 years imprisonment commencing on 23 March 1997 with a non-parole period of 11 years dating from the same date and expiring on 22 March 2008 the date he is eligible to be considered for release to parole.

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