Regina v LR [2010] NSWSC 22 (3 February 2010)

Last Updated: 17 March 2010

NEW SOUTH WALES SUPREME COURT

CITATION:
Regina v LR [2010] NSWSC 22
This decision has been amended. Please see the end of the judgment for a list of the amendments.

JURISDICTION:


FILE NUMBER(S):
2009/9622

HEARING DATE(S):
11/12/2009

JUDGMENT DATE:
3 February 2010

PARTIES:
Regina v LR

JUDGMENT OF:
Howie J

LOWER COURT JURISDICTION:
Not Applicable

LOWER COURT FILE NUMBER(S):
Not Applicable

LOWER COURT JUDICIAL OFFICER:
Not Applicable



COUNSEL:
G Tabuteau - Crown
B Rigg - Offender

SOLICITORS:
S Kavanagh - Crown
S O'Connor - Offender


CATCHWORDS:
Criminal Law - Sentences for killing in the course of robbery and associated robbery after pleas of guilty.

LEGISLATION CITED:
Crimes Act 1900 - s 97(1)
Children (Criminal proceedings) Act 1987 - Div 4 of Part 3, ss 6, 10(1)

CATEGORY:
Sentence

CASES CITED:
Thorn v R [2009] NSWCCA 294
R v JRD [2007] NSWCCA 55
R v MB [2006] NSWSC 1164
R v McAuliffe (1993) 70 A Crim R 303
R v JB and RJH [1999] NSWCCA 93

TEXTS CITED:


DECISION:
The offender is sentenced for murder to a term of imprisonment made up of a non-parole period of 10 years 6 months to date from 30 July 2008 and to expire on 29 January 2019 the date upon which the offender is eligible to be released to parole. There is to be a balance of term of 3 years 9 months from 30 January 2019. The offender is sentenced for the assault with intent to rob and in company to imprisonment for 6 months dated from 30 July 2008 and that expired on 29 January 2009.



JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

CRIMINAL LIST

HOWIE J

WEDNESDAY 3 FEBRUARY 2010

2009/9622 REGINA v LR

REMARKS ON SENTENCE

1 HIS HONOUR: The offender, who is a juvenile, pleaded guilty on arraignment to two charges: the first is that, on or about 14 June 2008, he murdered Daniel Owen; the second is that, on or about the same date, being in company he assaulted Richard Young with intent to rob him. The two offences are connected in that they occurred within a very short period of time, at about the same location and they both arose from the offender’s suggestion to his companion, also a juvenile, that they rob someone to obtain money.

2 The offence of murder carries a maximum penalty of life imprisonment. Because the offender is a juvenile, there is no standard non-parole period applicable. The robbery offence is contrary to s 97(1) of the Crimes Act and carries a maximum penalty of imprisonment for 20 years.

3 The offender is to be dealt with according to law for the murder offence. Written submissions on behalf of the offender, received after the matter was reserved, argued that the Court should not sentence the offender at law for the robbery offence. I accept that I do have power to deal with him under Division 4 of Part 3 of the Children (Criminal Proceedings) Act for that offence. It was pointed out in the submissions that offenders sentenced by the Children’s Court rarely receive control orders for offences of this kind. I have no doubt that, notwithstanding the seriousness of the conduct, the offender would be unlikely to receive any sentence more severe than probation had he been dealt with in that jurisdiction for that offence alone.

4 But it is not appropriate to sentence the offender as if the robbery offence stood alone; Thorn v R [2009] NSWCCA 294. Different considerations would apply had that been the only matter for sentence, and clearly rehabilitation would take precedence over the other purposes of punishment. But it is not proper sentencing procedure to consider each offence in isolation, see R v JRD [2007] NSWCCA 55. The offender is not to be sentenced more harshly because of the presence of another offence but matters of mitigation that might have applied have little or no relevance because the offender is to be sentenced for the offence of murder. Sentencing options that might otherwise have been applied are no longer relevant in light of the fact that the offender must receive a substantial term of imprisonment for the murder. The only issue is whether the robbery offence warrants an increase in the penalty otherwise appropriate for the murder. As a matter of practicality, if there should be some increase in the period of custody, there would be no difference between a control order and a term of imprisonment.

5 There was an agreed statement of facts tendered but it was augmented by evidence given from the offender who adopted an account he gave to a psychiatrist, Dr Westmore, of the circumstances of the killing. He was not cross-examined on this aspect of his evidence.

6 The facts can be summarised as follows. On the night of 13 June 2008 the offender and his co-accused were at a party at a club in Tempe. Friends picked them up from the party after 11 pm in a motor vehicle and the offender was noticeably intoxicated. In the vehicle the offender suggested to his co-accused that they rob someone. He said, “ Let’s pop a roll.” His companion agreed. They were let out of the vehicle in Illawarra Road, Marrickville for the purpose of finding someone to rob.

7 Shortly after 12.05 am on 14 June the deceased was found in the driveway of 476 Illawarra Road, lying face down in a large pool of blood. He was aged 31 and resided in a unit at that address. When ambulance officers arrived a short time later, he was pronounced dead. The deceased’s wallet was found in the driveway and was empty of cash. DNA was found in the wallet that matched that of the co-accused. The deceased’s keys were found a short distance away but his mobile telephone was missing. An autopsy revealed that he had died from “blunt force head injuries”. It was clear that the assailant or assailants had stomped on his head and face numerous times. Shoe patterns were located on his skull, face and neck. There were also rib fractures.

8 The deceased’s mobile phone records showed that it had been used 9 times after it had been taken from him at the time of the killing. One of the calls was to a female. Communications made on the mobile phone were lawfully intercepted and included a conversation between the offender and the female that included admissions by him to his involvement in the robbery of the deceased. Two days after the murder the offender spoke to a person on the phone and said “I hit one cunt and got his phone. I got it stashed.......It’s a mad one”. He also said, “I hit one and put him to sleep”.

9 On 28 July police spoke with the co-accused and received a pair of shoes from him. The tread on these matched the patterns observed upon the deceased’s head. Later that day a telephone call was intercepted between the offender and another male. The offender was informed of the account given to police by the co-accused and that it had omitted any reference to being in Illawarra Road. The offender was advised to give the same account.

10 Subsequent investigations showed that the patterns on the sole of the shoes obtained from the offender did not match those upon the deceased.

11 The Crown case against the offender is that he participated in the infliction of injuries upon the deceased with the intention of inflicting grievous bodily harm upon him and is, therefore, guilty of murder.

12 The robbery offence arises from an attack upon a 20 year old man who was riding his bike on Illawarra Road just before midnight on 13 June. He was knocked off his bike and suffered injuries to his face and head. Some of his property including an Ipod and a key were found in Illawarra Road.

13 The offender was arrested on 30 July. He declined to be interviewed by police about the events.

14 He was born on 10 November 1991 and is of Aboriginal descent. He has no criminal record. He is the eldest of three children from the relationship of his parents who separated when the offender was aged 12. Shortly after the separation the offender went to live with his father but continued a positive relationship with his mother. The offender is very close to his father because of their common interest in Rugby League.

15 He completed his School Certificate but his results were poor. He was in receipt of Centrelink benefits up until his arrest. He enrolled in a TAFE course in an Aboriginal Electrician Apprenticeship but participated for only a week before he was taken into custody for the present offences. He has been continuing studies for Year 11 subjects while in custody. He has been reporting for his classes and proceeding well. He has been considered as a role model for other inmates. He won a prize for Aboriginal art.

16 There was a psychiatric report in evidence. The offender gave an account that was not challenged in cross-examination. He stated that the co-accused hit the victim of the robbery off his bike and knocked him out. The victim’s pockets were searched but little of value was found. They walked toward near-by flats when a taxi stopped and the deceased alighted. The offender claimed he was urinating at the time. According to him the co-accused almost immediately attacked the deceased and started kicking him. The offender ran up and kicked the deceased once to the face. He thought that “things were getting out of hand” and tried to stop the attack by the co-accused but he was unsuccessful. When the violence eventually ceased the offender searched the deceased’s pockets. He gave the co-accused the wallet and keys he found but kept the mobile phone.

17 I am prepared to accept this account although I believe that the offender is minimising his involvement in the assault. In any case on his account he witnessed what was happening to the unfortunate deceased and joined in the violence by kicking the defenceless man in the face.

18 The offender gave the psychiatrist a history of consuming alcohol from the age of 13 and drinking three or four times a week after leaving school. He maintained he was not aggressive after drinking alcohol. He has occasionally used different types of prohibited drugs. He has completed a drug and alcohol course while in custody. There is nothing otherwise of significance in the report.

19 A number of achievement awards received by the offender during his period in custody were tendered before me. They confirm the assessment of the offender’s progress contained in the Juvenile Justice report. There is in evidence a letter concerning the offender’s selection for enrolment in an Indigenous Pre-Apprenticeship Programme that will lead to an apprenticeship as an electrician or in some similar trade. The letter praises the offender’s level of commitment to the course.

20 Evidence was given by members of the public as to the standing of the offender in the community before his arrest, particularly in relation to his sporting prowess and sportsmanship. They are of the one mind that the offender’s conduct was out of character. One witness indicated in answer to a question by me that he had never seen the offender under the influence of alcohol.

21 The difficulty with these opinions is that they are inconsistent with the actions of the offender on the night in question. It was his decision that he and his co-accused would get out of the vehicle with the intention of robbing some person simply because they wanted some money to continue drinking alcohol. Even if I accept completely the offender’s account of his involvement in the death of the deceased, and I do not, he was prepared to participate in a violent attack upon the head of a defenceless and completely innocent person, the attack being completely unnecessary for the purpose of robbery. On his own account he kicked him to the face. And yet this is a young man who is praised for acting with such sportsmanship on the football field that he is a role model to others.

22 There are expressions of remorse by the offender found in the reports before me. He read a letter that I believe was largely composed by his father but was said to express his thoughts about his conduct. It conveys remorse, regret and sympathy for the deceased’s family. The difficulty with these expressions are that they are inconsistent with what he said to people about the incident shortly after it occurred, even when he knew that the deceased was very seriously injured if not dead. In evidence he sought to explain these statements in that he was “big-noting himself”. Again I have difficulty in reconciling what the offender said about the assault upon the deceased with the type of person that the witnesses described. There is no suggestion that he was under the influence of alcohol at the time of these conversations.

23 The offender pleaded guilty 11 months after the charges had been laid but while still in the Children’s Court. He should receive a discount of 20 per cent for the utilitarian value of his plea. I accept now that he is genuinely remorseful. After hearing the truly moving victim impact statement read by the very emotional father of the deceased, he would have to be a sociopath not to regret his actions and the death of an innocent young man returning to his home after finishing work.

24 As I attempted to make clear to the deceased’s family at the hearing, I cannot sentence the offender simply on the basis of retribution and by attempting to equate the loss of the life of the deceased with a period of custody for the offender. That would be an impossible task but in any event it is not how the criminal law operates. No punishment that could be imposed upon the offender could redress the dreadful effects upon the family of the deceased’s cruel and violent death. It had nothing to do with robbing him. He was not even given the chance of complying with a demand for money. It was a senseless act of gross brutality by young men under the influence of alcohol. As such it deserves a severe penalty but not one that can be influenced by the effects upon the family however traumatic they may be.

25 I must take into account established principles relating to the sentencing of juveniles and the sentence to be imposed is far less than one that would be imposed even had the offender been a young adult. It may seem curious that the courts draw such a distinction between persons under the age of 18 and those above that age, but such a distinction runs through other facets of everyday life in the community. It has statutory recognition in the laws relating to criminal proceedings involving persons under the age of 18 years. The sentences imposed by the Childrens Court bear little or no relationship to those imposed in the Local or District Court for the same crimes. The distinction is even greater now that the standard non-parole provisions do not apply to persons under the age of 18 when they commit the offence.

26 However, this is another case of senseless and serious violence on public streets by young males under the influence of alcohol. General deterrence is appropriate despite the age of the offender. The matters set out in s 6 of the Children (Criminal Proceedings) Act have less relevance because of the seriousness of the offence of murder and in light of the inevitability of a sentence bearing some proportion to the seriousness of the particular killing. I accept that in the infliction of violence the offender played a lesser role than his co-accused, but he was a willing participant in the causing of serious injury upon the deceased simply for that purpose. He was the initiator of the criminal activity that resulted in the killing and the serious robbery offence. The Crown accepts that there was no intention to kill but I believe the intention of both the offender and his co-accused was to inflict grievous bodily harm to a very significant degree.

27 The murder requires a substantial sentence notwithstanding the subjective features of the offender. I take into account of course that the offender was 16 years of age at the time of the offending but there is nothing to show that the offence was a result of any immaturity or a lack of appreciation of the seriousness of his conduct. Yet it is rare to find a person as young as the offender charged with murder. There is nothing in his background that explains his behaviour. I accept that it was inconsistent with his normal character, but I do not believe that it is explained simply by the fact that he was under the influence of alcohol. I have noted the callousness in his attitude to the offences as disclosed in the telephone calls.

28 I have been referred to a number of other cases of sentences imposed on a juvenile for murder. One of the cases was a sentencing decision of mine in R v MB [2006] NSWSC 1164. Although the offender unsuccessfully appealed against his conviction there was no appeal against the sentence imposed. That was a case where the offender intended to inflict grievous bodily harm when he slashed the throat of the deceased with a broken bottle during a brawl between the deceased and his friend on one side and a group of drunken young men on the other. There a weapon was used but there was only one act of violence that brought about the death of the deceased. I doubt that it was a worse case than this but, if it was, not by any significant degree. That offender was sentenced to imprisonment for 22 years with a non-parole period of 15 years and 6 months. He was aged 16 years with good character and was being sentenced without any discount. However, it should be noted that, when that offender was sentenced, the standard non-parole period of 20 years applied to juvenile offenders.

29 In R v McAuliffe (1993) 70 A Crim R 303 two brothers aged 16 and 17 planned to rob someone and in the result killed one of their victims. They were both armed, one with a hammer and one with a stick. They were each sentenced for the murder to imprisonment for 20 years with a minimum term of 12 years. The Court of Criminal Appeal dismissed the appeal against sentence. During the course of his judgment Gleeson CJ stated:

Violent attacks of this kind, by young people, are disturbingly prevalent, and the need for general deterrence must be stressed. It is common experience that they can result in loss of life, even though there was no intention to kill.

I interject to say that those remarks were made in 1993.

30 This was a decision given before the concept of a standard non-parole period had evolved. There is little doubt that since the introduction of the standard non-parole period sentences for murder have increased. Care should be taken not to allow that increase to be reflected in cases of juveniles where the standard non-parole period now does not apply. The present is not as serious a case as McAuliffe because the offenders there were armed. However, at the time that those offenders were sentenced there was no concept of special circumstances limiting the fixing of minimum terms.

31 I was also directed to the decision in R v JB and RJH [1999] NSWCCA 93. In that case two juveniles attacked the deceased in order to rob him and he was hit repeatedly to the head with a large rock. They both pleaded guilty to murder. JB was aged 15 years and 11 months. He pleaded guilty and gave assistance to the authorities. He had an extensive criminal history but suffered from some mental deficiencies. He was sentenced to 16 years with a minimum term of 11 years. RJH was almost 18 years of age with a better subjective case than JB. He was sentenced to 18 years with a minimum of 12 years. The Court dismissed the appeals in both cases, although it recognised the sentences as being heavy. Again there was no limitation on the fixing of non-parole periods and discounts for pleas of guilty were less than they are now.

32 The offence committed by this offender was a serious case of murder because it was so senseless and vicious. Although unplanned, the offender and his co-accused planned to use violence to rob some person. There is some mitigation in the fact that the offender tried to stop his co-accused but only after he had himself joined in the brutal attack on a completely innocent and defenceless person. The offender can rely upon his young age, his good character and his conduct since being in custody. There are obviously good prospects of rehabilitation. It is difficult to determine whether he is likely to offend again because I do not understand why he offended as he did on this occasion. As I have already indicated, I accept that now he is genuinely remorseful.

33 In my opinion the sentence for the murder prior to discount should be 19 years. A reduction of 20 per cent results in a sentence of roughly 15 years. There should be a fixed term of 6 months for the robbery offence but that will be concurrent. It seems to me that the murder is so serious that there is no purpose in extending his period in custody for the robbery offence. There may be reasons for finding special circumstances, the most significant matters being his youth and his prospects for rehabilitation. But they are factors that have weighed heavily in reducing the overall sentence and by the decision not to impose any sentence for the robbery. The same can be said of the fact that it is his first time in custody, a matter that I do not believe gives rise to special circumstances in any event. However, in recognition of the effort he has made while in custody and to encourage him to continue with his studies, I will find special circumstances and reduce the non-parole period to the least possible period he must serve by way of punishment for his crimes. There should be a non-parole period of 10 years 6 months.

34 Had the offender been sentenced when the standard non-parole period provisions applied to juveniles the sentence would have been significantly greater. I understand it must be particularly galling to the deceased’s family that the offender will be released from custody at an age younger than was the deceased when he was killed.

35 The offender is sentenced for murder to a term of imprisonment made up of a non-parole period of 10 years 6 months to date from 30 July 2008 and to expire on 29 January 2019 the date upon which the offender is eligible to be released to parole. There is to be a balance of term of 3 years 9 months from 30 January 2019.

36 The offender is sentenced for the assault with intent to rob and in company to imprisonment for 6 months dated from 30 July 2008 and that expired on 29 January 2009. I have imposed a fixed term of imprisonment for that offence having regard to the sentence imposed for the murder.

37 It should be made clear that because the offender is eligible to be released on 29 January 2019 that date is not certain. The offender must prove by way of his conduct in custody during that period that he is a person who is fit and appropriate to be released into the community without further concern for offences of violence of this nature.

38 I also want to make it clear that I am, as I understand it, required to impose a sentence that will require the offender to be removed to an adult prison once he turns the age of 18. I raised with Ms Rigg, Public Defender, who appears for the offender, the relevant provision of the Children (Criminal Proceedings) Act in relation to orders that this Court can or cannot make in relation to where the offender is to spend his period in custody. I have drawn her attention to section 19(3) of that Act in relation to the requirement that this Court finds special circumstances before making an order that would enable the offender to remain in a juvenile institution after the age of 18.

39 It may well be the case that, having regard to the offender’s current attitudes to study, his remorse and the progress that he has made, particularly in relation to the apprenticeship programme that he has entered, that the better place for his rehabilitation might well be in a juvenile detention centre. However, there is no evidence before me at the present time that would enable me to find special circumstances to make an order under section 19(3) which would permit him to remain in a juvenile detention centre after the age of 18. The real concern, of course, is that in his current custody everybody in that detention centre is aimed with the rehabilitation of the offender at the utmost. Unfortunately, when he is removed into an adult prison system that will no longer be the case.

40 It seems to me that on the present evidence I am unable to make an order under section 19(3) which would permit the offender to remain in a juvenile detention centre, at least up until the age of 21, even if I thought that were the appropriate place.

41 I leave it open at the present time for the offender to come back before me with appropriate evidence in order to try to convince me that there are special reasons why I should make an order at least permitting him to remain in a juvenile centre until the age of 21. At the present stage, however, I make no order as to where the offender is to spend the period of custody.

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AMENDMENTS:


15/03/2010 - Edit error - Paragraph(s) 28


LAST UPDATED:
15 March 2010