LAL v R PN v R Non Publication Order

[2007] NSWSC 445

CITATION:	LAL v R PN v R NON PUBLICATION ORDER [2007] NSWSC 445
HEARING DATE(S):	20 April 2007 and 4 May 2007
JUDGMENT DATE :	4 May 2007
JURISDICTION:	Criminal
JUDGMENT OF:	McClellan CJatCL
EX TEMPORE JUDGMENT DATE:	4 May 2007
DECISION:	Both offenders; Total term of six years imprisonment with a non-parole period of three years and six months commencing on 2 February 2006 and expiring on 1 August 2009 with a further term of two years and six months expiring on 1 February 2012. I direct that each of the offenders serves her sentence prior to release to parole as a juvenile offender
CATCHWORDS:	CRIMINAL LAW - sentence - child offenders - aged 14 - manslaughter - attack on taxi driver - injuries inflicted triggered heart attack - offenders affected by alcohol and drugs - engaged in activities associated with adults - need for rehabilitation - need for punishment and deterrence.
LEGISLATION CITED:	Crimes Act 1900 Children (Criminal Proceedings) Act 1987
CASES CITED:	R v Forbes [2005] NSWCCA 337 R v Henry (1999) 46 NSWLR 346 R v MD, BM, NA, JT [2005] NSWCCA 342
PARTIES:	LAL (Offender) PN (Offender) The Crown
FILE NUMBER(S):	SC 2006/2386; 2006/2387
COUNSEL:	J Manuell (LAL) R Burgess (PN) C Maxwell QC (Crown)
SOLICITORS:	Legal Aid Commission of NSW (LAL; PN) Director of Public Prosecutions (Crown)

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

McCLELLAN CJ at CL

FRIDAY 4 MAY 2007

2006/2386 LAL v R
2006/2387 PN v R

SENTENCE

1 HIS HONOUR: On 9 February 2007 an indictment was presented against both LAL and PN for the murder of Mr Youbert Hormozi on 31 January 2006 with an alternative count of manslaughter. Both offenders pleaded not guilty to murder but guilty to manslaughter. These pleas were accepted by the Crown in full discharge of the indictment. The offenders must now be sentenced.

2 The crime of manslaughter carries a maximum sentence of 25 years imprisonment. There is no standard non-parole period.

3 I am also required and shall have regard when sentencing to two matters which have been included on a Form 1. Those matters are larceny of one CDMA mobile telephone being the property of Youbert Hormozi and larceny of a motor vehicle. Both of these matters arose from the circumstances of the manslaughter offences.

4 The Crown and the offenders have been able to agree to the facts which I should find when sentencing. Those agreed facts are as follows:

“On 31st January 2006 Mr Youbert Hormozi (the deceased) was a taxi driver. He suffered from significant coronary artery disease. The medical material shows that he suffered from a myocardial infarction in 2003, a stroke in 2004 and a further non ST elevation myocardial infarction in 2005. As a result of the stroke the deceased had a paralysed left arm and the taxi he drove was specially modified for his disability. The taxi was owned by Mahmood Yousaf.
At about 1.42 am (according to the taxi records) on 31 January 2006 the deceased collected a fare from a taxi rank in Cabramatta. Video security footage of Cabramatta CBD shows LAL and PN in the area at that time. The last time either girl is seen on the footage is at 1.41 am when LAL is seen riding a bicycle in the direction of the taxi rank. While it cannot be seen on the footage it is clear that the two girls got into the deceased’s taxi at this time.
At 1.47 am Paul Board, who lived at 19 Parklea Parade, Canley Heights, was awoken by noises outside. Mr Board heard dogs barking and people’s voices. Mr Board got out of bed and looked out through his blinds – he could see the front lights of a car at the other side of the road in front of his house. The engine of the car was running.
Mr Board heard a noise ‘that sounded as though a kids toy or scooter was being dragged along the ground for a very short period.’ He also saw a plump figure standing close by and he saw this figure walk into a nearby reserve away from the location of the car. At this time Mr Board heard a female voice say, "Did he hit you?" The figure walked into the reserve and about 10 seconds later walked back out again and approached the car.
Mr Board then saw the silhouette of someone walk from the driver's side of the car, around the front of the car to the passenger's side, before returning to the driver's side. This silhouette stopped near the front driver's side wheel of the car and appeared to put something on the ground before disappearing out of Mr Board's sight. The car drove off a few seconds later and it was at this time Mr Board saw that it was a taxi and the interior light was on.
Mr Board could see an object on the road which he thought was a bag. He got a torch and his mobile phone and went outside to investigate. When he shone the torch on the object he realised that it was a person. This person appeared to be unconscious and Mr Board could see facial injuries to him — he called ‘000' using his mobile phone. During this ‘000' call Mr Board said, "I saw what I thought was a lady and a kid on a scooter going up the park, then they came back from the park there's a car with its lights on. They dragged something around the front of the car, it was obviously this man, they dropped him and they've driven off, it was a taxi and they still had the interior lights on as they drove off ... And I think the female might have been of Polynesian appearance. I can't swear that. It was sort of a set sort of person thick set sort of person."
A short time later police and ambulance arrived and found the deceased lying on his left side. At approximately 2 am the deceased arrived at Liverpool Hospital. On examination the patient's heart rhythm was asystole and there were no signs of life. The deceased was pronounced dead at 2.37am.
At about 2 am a number of people who lived on or near Humphries Road, St Johns Park heard the sound of a crash. The deceased's taxi had been driven into a parked car. A witness saw someone get out of one of the passenger side doors of the taxi. Another witness saw two people running away from the taxi. At one point one of these people stopped and a female voice with an islander accent was heard shouting, "Just keep running." Another witness, who had been driving along Humphries Road at about 2 am, saw the taxi stopped at the side of the road. This witness saw one girl walking on the footpath of Humphries Road and a second girl running across Humphries Road.
A bicycle was found in the back seat of the taxi — this was later identified by PN's father as belonging to his son.
The telephone calls — admissions
Tasipale Perelini was a youth leader with the "Tree for Life Worship Centre" which was attended by LAL and PN. At about 2 am on 31 January 2006 Mr Perelini got a call to his mobile phone from a private number and he recognised PN's voice. PN said, "The cops are after me and LAL because we done a runner on a taxi ... We are running away from the taxi." Phone records show this call was made from the deceased's phone. Phone records also show that up until about 3:42 am the deceased's phone made at least six unsuccessful attempts to call Mr Perelini.
At about 6:30 pm on 31 January Mr Perelini received a call from PN. When asked "was that you two who killed the taxi driver", PN said "Was it on the news?" Mr Perelini replied "Yeah it was on channel nine, seven and ten", PN said "What time did it come on?" Mr Perelini replied "I heard it on the radio this morning about the taxi driver in Canley Heights. What did you do to him?" PN said "we were drunk", Mr Perelini replied what do you mean drunk?" PN said "We got drunk and caught the taxi and never paid the fare". Mr Perelini went to the police with this information later that night.
When at the police station, at about 10:32 pm, he received a call from PN's mobile phone. When asked to explain how the deceased had died PN said, "When we got to the corner of LAL's house, I went out of the car and grabbed my brother’s bike we brought with us and LAL told the taxi driver we were not going to pay, so he grabbed LAL and we both kicked him and punched him, kicked him and punched him and then we drove the taxi to crash." When Mr Perelini told PN that they had killed an innocent man PN said, "It was an accident."
Kris Toilolo also attended the youth group and was a friend of LAL. At about 2:07 am on 31 January Mr Toilolo received a call from LAL. LAL said, "I just hit a taxi driver. My cousin and I hit him because he punched me. I just want to say goodbye." When asked if she was drunk LAL said, "Yeah, a bit." LAL then said, "I just want to say goodbye as I will be going to Juvi. I hit him with a rock." Phone records show this call was made from the deceased's phone.
TN is a half sister of PN and PN had lived with TN from around November 2005, but had moved out a few days before the offence. TN says that she knew that PN and LAL would catch taxis and run off without paying the fares. TN knew this because on occasions taxi drivers had come to her door asking if two young girls lived there as they'd just run off without paying.
Sometime early in the morning on 1 February 2006 TN received a call from PN. TN heard LAL call out in the background, "Just fucken tell her, we wasted a taxi driver." LAL then spoke on the phone and said, "Yeah we fucken killed him." The call ended shortly thereafter but PN called back a few minutes later and said, "The taxi driver tried to grab LAL so we dragged him out ... He wanted something from LAL he wanted to rape her ... I grabbed him from behind and LAL dragged him out of the car, we beat him up, we jumped into his car and reversed into a pole ... We took his mobile and some money from him."
Further admission
On 1 February 2006 PN and Noah (sic) borrowed a mobile phone from a passenger travelling on a city bound train at about 9pm. After borrowing the phone one of the girls said, "Do you watch the news, I've been on the news ... We killed the taxi driver."
The arrest
Later on 1 February 2006 RailCorp transit officers apprehended LAL and PN at about 9:20 pm in relation to other matters. While waiting for the police to arrive the girls made a number of comments to the transit officers. LAL said, "What would happen if I murdered someone?" and, "Will I go to juvie for murder?"
When police arrived PN said, "I killed someone and will kill again. I'm not afraid ... I'm a murderer, not a killer ... I killed someone." PN also said, "You are after us for the murder on the radio ... For the murder of the taxi driver. That was us, me and my cuz, we do everything together." LAL said, "I killed the fucken taxi driver ... You don't know who I am, I killed the taxi driver I will fucken kill you ... I fucken killed the taxi driver, don't you watch the news."
Fingerprints and DNA
A DNA profile matching PN's DNA was obtained from various swabs which were taken from the deceased's taxi. PN's fingerprints were also located on the taxi and LAL's fingerprints were located on a diet coke bottle which was found near the deceased's body.
Shoe imprint
A pair of ‘Converse' brand All Star track shoes, size 8 belonging to PN and a pair of `Nike' brand track shoes, size 8 belonging to LAL were examined and compared to a post mortem photograph of a contusion to the right side of the deceased's face. The pattern on the toe guard of the ‘Converse' shoes corresponds in size and design with contusion pattern on the right side of the deceased's face.
ERISPs
Both girls participated in interviews with police. At the beginning of her interview LAL said, "But do youse have any evidence that we killed him, ‘cause we didn't." She then refused to answer further questions. PN said she knew nothing about the incident with the taxi driver and then refused to answer further questions about it.
The medical evidence
The direct cause of death in the pathologist's report is "acute myocardial ischaemia". The antecedent cause is listed as "coronary atherosclerosis" and other conditions possibly contributing to the death are "hypertensive heart disease" and "recent blunt force head trauma"
There were several bruises and abrasions on the deceased's arms, legs and body but the most serious injuries were to the face and head.
A 13 x 6 cm bruise was seen above the left ear/forehead area. A "blotchy superficial" bruise of about 15 cm was seen on the right temple/right cheek area. Of note, a strip of bruised skin with a crisscross pattern was located on this bruise — this strip was approximately 7 mm wide and 5 cm long. The pattern has been compared to the soles of PN's shoes and found to be similar. Swelling and reddened bruising were also located on a fairly extensive area around the right half of both lips.
In the commentary to his report Dr Ellis says, "Death was due to acute heart failure. This was brought on by the effects of narrowing of the coronary arteries on heart muscle. Additionally the heart was enlarged, possibly as a result of high blood pressure and this would have increased the susceptibility of the heart to irregular rhythm brought on by the lack of sufficient coronary artery blood flow. There was evidence of blunt force trauma to the head. It is not possible to exclude this trauma from having contributed to death by precipitation acute heart failure and/or dysrhythmia in a diseased heart."
A statement has been provided by the deceased's own doctor, Dr Kritharides. Dr Kritharides briefly reviews the deceased's medical history and says that when he last saw the deceased, on 21 November 2005, the deceased's condition was stable, he was making good progress and was able to return to normal duties. Dr Kritharides also said, "Mr Hormozi had severe coronary disease. He was therefore at risk of cardiac arrest due to either cardiac arrhythmia or myocardial infarction, with or without external provocation. I am informed that the death occurred soon after his assault. There is medical literature indicating that the risk of cardiac arrest is increased by acute physical and or emotional stress. As Mr Hormozi's assault is likely to have caused such stress, it is my opinion that the assault is likely to have increased his acute risk of suffering a cardiac arrest."

A factual dispute

5 Although the circumstances of the offence were agreed there was an issue which remained unresolved prior to the sentencing hearing. The post mortem examination of the deceased indicated that he had a number of superficial injuries including:

· An area of bruising with abrasion on the left forehead and adjacent scalp.

· An area of patterned bruising on the right temple and cheek.

· Swelling and bruising of the lips.

· An area of bruising on the left buttock.

· An area of bleeding into the skin and fat of the back.

· A number of small grazes on the side of the left knee.

· A brush-type graze on the tip of the left elbow.

6 Internal examination did not reveal any injury to the deep structure of the face or skull and there was no traumatic brain injury.

7 The controversy at the hearing was as to the mechanism by which bruising to the head, lips and cut to the eye of the deceased were occasioned. The Crown’s position was that the patterned abrasion on the right forehead and adjoining facial region could have been caused by a shoe imprint because of the presence of linear parallel bruises on the forehead.

8 The offenders called Associate Professor Johan Duflou, a forensic pathologist. His opinion was that the pattern of injury on the forehead was not consistent with it being caused by the sole of the shoe although it could have been caused by a thick shoelace or similar item. However, in his opinion if it was assumed that the abrasion bruise on the forehead was due to a shoe imprint then the injury on the left side of the face was consistent with impact against a rough surface most likely the road pavement.

9 Dr Duflou believed that the injuries occasioned to the deceased were at most the result of a moderate amount of force although in his opinion the injuries were consistent with force which was considerably less than moderate. The deceased was taking medication which could be expected to increase bruising and the observable facial injuries may have been less in a person who had sustained the same amount of force without being on that medication. The deceased had no deep bruising and there was no fracturing of the bones of the skull, face or jaw. There was no laceration of the lips or other oral structures as a result of the impact between the lips and the teeth.

10 Although LAL had suggested to Mr Toilolo that she had hit the deceased with a rock Dr Duflou found no observable injury consistent with a rock being used.

11 Dr Duflou also gave evidence about the other injuries observed on the deceased’s face. He was of the opinion, although he could not be certain, that some of these injuries may have been caused by the attempts of ambulance officers to resuscitate the deceased.

12 I accept Dr Duflou’s evidence. I am satisfied that although the offenders joined in a violent attack on the deceased only a moderate degree of force was used. I cannot be certain that a shoe was applied with any force to the deceased’s head. The force with which the deceased was attacked was sufficient to traumatise him and trigger the heart attack from which he died. He was suffering a significant coronary condition and was vulnerable to the attack upon him by the offenders.

Manslaughter by unlawful and dangerous act

13 As I have indicated both girls have entered a plea of guilty to manslaughter. It was entered on the basis of the commission of an assault of Mr Hormozi, during which he was struck and fell to the ground and suffered a cardiac arrest which led to his death. This category of manslaughter involves an unlawful and dangerous act which carries with it an appreciable risk of serious injury. It is referred to by the law as involuntary manslaughter. It does not involve an intention on the part of the offender to cause death or grievous bodily harm to the victim which would constitute the offence of murder

14 The mental element in this class of manslaughter relates to the unlawful and dangerous act. It must be willed and not accidental. The relevant intention is to do the act that was unlawful and dangerous and which inadvertently causes death. Before the offence can be committed the circumstances must be such that a reasonable person in the position of the accused would have realised that he or she was exposing another to an appreciable risk of serious injury.

Sentencing for manslaughter

15 The maximum penalty prescribed for the offence of manslaughter is imprisonment for 25 years: s 24 Crimes Act 1900. No standard non-parole period is provided by the legislation. The criminal law has recognised that there are a wide variety of circumstances in which the offence of manslaughter may be committed. Although a most serious crime, the circumstances which may give rise to a conviction for manslaughter are so various and the range of degrees of culpability so wide that it is difficult to identify an established sentencing tariff which can be applied to these cases.

16 When, as happened in the present matters, the offence is committed by children a court is faced with a complex and difficult sentencing task.

17 In R v MD, BM, NA, JT [2005] NSWCCA 342 the Court of Criminal Appeal looked at the sentencing statistics of the Judicial Commission in relation to the sentencing of persons for manslaughter during the period January 1998 to December 2004. They revealed that not all persons convicted of manslaughter received custodial sentences. Of those that did the sentences imposed ranged from 18 months to more than 20 years. In relation to the non-parole periods or fixed terms, the range varied between 1 year and 16 years. The middle 80 percent of cases fell in the range of 2 years to 8 years. In respect of persons under 18 years of age there were few examples but the head sentence ranged between 5 years and 8 years and the non-parole periods between 30 months and 5 years.

18 In R v Forbes [2005] NSWCCA 377 the court again looked at the sentencing patterns in relation to manslaughter. In that case the Chief Justice said at [133]-[135]:

“As has frequently been stated, manslaughter is almost unique in its protean character as an offence. (See in particular the observations of Gleeson CJ in R v Blacklidge (unreported, Court of Criminal Appeal, 12 December 1995, esp pp2-3.) In its objective gravity it may vary, as has been pointed out, from a joke gone wrong to facts just short of murder ( R v Weinman (1987) 49 SASR 248 at 252; R v Hoerler (2004) 147 A Crim R 520 at [39]).

It is also relevant to recognise that, although manslaughters can be characterised in different ways, particularly in the various contexts which may reduce what would otherwise be a murder to manslaughter, the degree of variation within any such category is generally also over a wide range. Matters of fact and degree arise in all categories of manslaughter.

For example where diminished responsibility is relied upon, the extent to which culpability is ‘diminished’ can vary considerably from case to case. Similarly, although it is possible to characterise a number of cases as “child-killing by a parent or carer”, it may never be possible to identify a sentencing pattern or tariff from the whole body of such cases. (See Hoerler supra.) This is not only because the number of cases in a particular category may be too few to establish a pattern or tariff. It is also because, within any such category, the relevant circumstances can vary over a wide range. This is also true in the case of manslaughter by reason of excessive self-defence (see R v Trevenna (2003) 149 A Crim R 505).”

19 In Forbes the appellant was on bail at the time of the relevant offence. He had a significant record for offences including drug dealing, burglary, armed robbery and assault. In that case the offender was sentenced in relation to two killings. The appeal in relation to one was dismissed and the other was upheld. In relation to the appeal which was upheld the offender was sentenced for his involvement in a melee when the victim was killed with a knife. The offender was not the person who actually inflicted the wound. The offender was allowed a discount of 12½% for his plea of guilty.

20 On appeal, the Court of Criminal Appeal reduced the sentence imposed by the trial judge and resentenced the offender. The Chief Justice said:

“I accept that the permissible sentencing range for manslaughter must be regarded as particularly wide. Nevertheless, I have come to the conclusion that, in all of the circumstances, the sentence his Honour imposed on this occasion was manifestly excessive. The facts agreed before his Honour stated that the appellant knew that one of his friends ‘may have been armed with a knife’ and that he appreciated that there were ‘risks’ that one of his friends ‘might have used a knife while fighting with others.’ These agreed facts indicate a level of possibility, perhaps even a probability, with respect to both the possession of the knife and its use. There is nothing, however, to indicate precisely how probable was the appellant’s reason to expect either of these matters. In particular, it is not clear how certain he was that one of his friends had a knife at the time.”

21 The Chief Justice found that the appellant’s subjective case was so weak as to be virtually non-existent and determined that a head sentence of 9 years with a non-parole period of 6 years and 9 months was appropriate. His Honour said of this sentence:

“The sentence is still a heavy one and compared with the pattern of sentencing for manslaughter I give considerable weight to the need for general deterrence of persons with a proclivity to engage in brawls carrying knives. Personal deterrence is also entitled to significant weight. I agree with Hulme J that the prospects of rehabilitation are weak.”

22 The NSW Judicial Commission has collected some statistics in relation to manslaughter involving an unlawful and dangerous act being an assault by persons under 18 years of age. Eighteen cases have been collected. 12% of all offenders received a suspended sentence or periodic detention. The range for full terms of imprisonment was between 4 years and 8 years. Non-parole periods range between 2 years and 5 years.

23 As would be expected the statistics for all manslaughters show a significantly greater range with longer full term sentences and non-parole periods.

The relevance of alcohol

24 It is apparent that both offenders were greatly affected by alcohol and marijuana at the time of the offence. There can be no doubt that they had consumed quantities of both substances which would have significantly affected their behaviour and judgment.

25 The fact that an offender is affected by alcohol or drugs is generally not regarded as a circumstance mitigating the seriousness of the offence. “Alcohol and drugs are not a licence to commit crime.” In many cases the voluntary ingestion of alcohol by an offender will exacerbate the offending. In other cases it will be a neutral factor. However, where an offender commits an offence which is out of character and is at the time significantly influenced by alcohol, a court may conclude that the ingestion of alcohol has diminished the offender’s capacity to reason and make a judgment about the appropriateness of their actions.

26 In the present case neither offender had previously come to the attention of the authorities. Although the evidence indicates that they had each taken up drinking and the consumption of illicit drugs from an earlier time there is no doubt that their judgment on the night in question was seriously affected by the alcohol and drugs which they had consumed. The offence which they committed was devoid of any significant preplanning and was an opportunistic response to the circumstances in which they found themselves. I shall have regard to these matters when determining the appropriate sentence.

27 Each offender was exposed to the abuse of alcohol by members of their family from an early age. Both girls lacked appropriate parental supervision and guidance in the use of alcohol and drugs and it was almost inevitable that they would take up the consumption of both at a young age. In the sense referred to by Wood CJ at CL in R v Henry (1999) 46 NSWLR 346 at [273] their use of alcohol and drugs was not entirely a matter of personal choice.

The seriousness of the offence

28 I have already related the circumstances of the offences. The offenders combined in attacking the deceased and although applying a moderate degree of force this was sufficient to cause the heart attack which led to his death. The deceased was vulnerable being a taxi driver. Having assaulted the deceased the girls abandoned him on the roadway and left in his taxi.

29 The offences were committed when both girls were seriously affected by alcohol and drugs, as I have indicated, and were opportunistic rather than significantly planned criminal activities.

30 I have already referred to the fact that the crime of manslaughter covers an extraordinary broad range of offending. Although the attack on the deceased took advantage of his vulnerability and led to his death it could not be classified as the most serious case of manslaughter. However, in all the circumstances, in my opinion, the offences were objectively serious.

Sentencing children

31 The Legislature has made special provision for the sentencing of children. Under the Children (Criminal Proceedings) Act 1987 a child is defined as a person who is under the age of 18 years. Section 6 of the Act provides principles relating to the exercise of criminal jurisdiction with respect to children. The section is in the following terms:

“Principles relating to the exercise of criminal jurisdiction
A court, in exercising criminal jurisdiction with respect to children, shall have regard to the following principles:
(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.”

32 Section 17 provides that a serious children’s indictable offence must be dealt with according to law. Manslaughter is such an offence.

33 The law recognises that when sentencing young offenders considerations of punishment and general deterrence should generally be regarded as subordinate to the need to foster rehabilitation. However, this principle will have less weight where the offending behaviour is such that the young person has conducted themself in a way that an adult does. When extreme violence has been used or the crime otherwise exhibits activities normally associated with an adult the need to protect the community may mean that deterrence and retribution must be given greater weight than might otherwise be the case. Age will be less of a consideration as offenders approach the age of 18.

34 In my view both the need for punishment and personal deterrence must be given significant weight in the present matters. General deterrence is also an important matter. Every member of the community must be reminded of the vulnerability of other people to acts of violence. Some, as was tragically the case in relation to Mr Hormozi, will be more vulnerable than others with the consequence that even a moderate degree of force will have a profoundly tragic outcome. Although I remain mindful that both the offenders were children of a relatively young age the sentence imposed must appropriately reflect these matters.

Considerations relevant to LAL

35 LAL was born on 5 October 1991 and was 14 years and 4 months old at the time of the offence. She is now 15. The court has received considerable evidence in relation to her family circumstances and upbringing. Her parents are Samoan. Prior to the offence she was residing with her mother and siblings in the family home at Canley Heights.

36 LAL is the eldest of four children and has two sisters and a brother. Although born in Sydney her family has lived, at various times, in New Zealand. Her father is a violent man and has abused all of the family members particularly LAL’s mother. He displayed such violence that her mother would flee the family home from time to time and with her children spend time in women’s refuges. LAL’s father has consistently abused alcohol.

37 LAL’s mother and her children lived with her father in Wellington, New Zealand in 2004. However the relationship between the parents broke down (this was not the first occasion in which it had broken down) and the mother and children returned to Sydney. There has been no contact with LAL’s father since that time.

38 LAL’s education has been disrupted as a result of the violence at home and the frequent moves of the family. She attended a number of primary schools both in Australia and New Zealand. She was in Year 9 at the time she was taken into custody.

39 LAL’s mother reported to a psychologist that LAL’s behaviour had declined in the years after their return from New Zealand. She often stayed out at night without permission and stayed away from home more frequently in the school holidays. She was disrespectful to her mother and refused to accept a curfew.

40 Since being taken into custody LAL’s behaviour reportedly moderated and she has apparently responded well to the structure and boundaries that have been placed around her. When she was first incarcerated she would act impetuously and with little thought for the consequences of her actions. The psychologist who interviewed her believed this was due to her inadequate maturity. However, now that she has been provided with assistance, support and trust LAL has become more openly responsive and reportedly shows more empathy for others. She has been attending school where her behaviour has stabilised and her school reports note an improvement in her behaviour and learning. She is currently enrolled in Year 11 and plans to complete her Higher School Certificate and then explore a TAFE course in either hair dressing or fashion design.

41 LAL told the psychologist that she first began drinking alcohol when she was 13 and was drinking most weekends before her incarceration. She told the psychologist that she would consume approximately 1 case of “Woodstock”. “Woodstock” has a standard equivalent of 1.7 drinks per can. On the night of the offence she reportedly consumed a half case which is the equivalent of 20 standard drinks.

42 Because of her reportedly high use of alcohol the psychologist administered the alcohol use disorders identification test (AUDIT). A score of 8 to 10 on this test indicates problematic consumption of alcohol and a score of 19 and over indicates dependency. LAL scored 23 which is consistent with a high level of alcohol abuse prior to her admission into custody.

43 LAL began smoking cannabis in approximately 2005 at the age of 12. She told the psychologist that she would use cannabis on average twice per fortnight. She does not recall using any other illicit drug.

44 The psychologist discussed the circumstances of the offence with LAL. The psychologist reported that LAL has rather a confused memory of the events of that night. She expressed remorse about killing the taxi driver and told the psychologist that she had not wished to hurt him.

45 Various tests were administered by the psychologist who identified a low level of verbal skill in LAL. However, her non verbal skills were higher making it difficult to assess LAL’s general intelligence. The psychologist concluded that LAL has good non verbal reasoning skills and reduced verbal competence. As a consequence the psychologist believes that her development of self awareness and self control have been inhibited. The psychologist is of the opinion that “on tasks requiring social problem solving and communication, her skills will appear grossly reduced. LAL’s low verbal competence is likely to make her vulnerable to seemingly irrational and impulsive behaviour, which is consistent with her presentation during assessment and also her general history of escalating externalising problems.”

46 The immaturity displayed by LAL was apparently evident in her earlier appearances in court. The psychologist formed the view that she had displayed a degree of emotional disconnection and would laugh and behave in a manner inappropriate to the seriousness of the occasion. The psychologist believed this revealed an inability for mature self regulation and “highlights her poor emotional development” as a result of her experiences as a child and lack of appropriate nurturing.

47 The psychologist concluded her report in the following terms:

“LAL’s early history indicates consistent exposure to paternal violence, and failure on the part of her mother to meet her developmental needs for safety and stability, which led to significant disruption to LAL’s schooling and general stability. The constant relocations appear to have prevented community agencies or schools engaging with the family to reduce the harms her abusive family environment were engendering. As a consequence, LAL appears to have become used to violence or aggression as a communication strategy, its use being normalised and even rewarded within the family environment. Whilst she describes feelings of animosity towards her father, her respect for her mother following her parents’ separation in 2005 appears to have dissipated also. Such loss of respect is probably associated with the natural inclination towards independence and autonomy found in adolescence, but also with the realisation that her mother’s lack of protective behaviours had exacerbated the difficulties she found herself in. LAL’s behaviour is reported to have become increasingly disruptive and oppositional from that time, and she was staying away from home for days at a time around the time of the offence.
It is evident that there was inconsistent parenting modelled to LAL throughout her upbringing, and her mother specifically modelled erratic behavioural control. It is likely that LAL responded by simply doing what she wanted because her mother was being ineffective and perhaps self-absorbed, and there was no countervailing socially appropriate influence. As a result of the poor supervision and disruptive family environment, LAL reports an early initiation into substance use. Some use may have been for self-medication purposes but her account implies a person whose behaviour deteriorated as a result of the opportunity to do so. LAL was intoxicated at the time of the offence. Whilst she says that she did not plan to hurt the victim, her conduct shows an impulsive pattern to it that highlights her poor maturity level. Indeed, her maturity level is also affected by her poor emotional development and general detachment to her emotional state, as evidenced by her inappropriate display of affect at times for example.
Since being in custody and in a secure and stable environment, LAL’s behaviour has calmed considerably and she has been able to better engage with people around her, and she has also re-engaged with education. In terms of her clinical functioning, she presents as emotionally immature but this is something that has evidently improved since her admission into custody. There are no current features of mood disturbance or a psychiatric illness. LAL appears to be a young woman who has begun to externalise any distress she experiences, modelled to her by her abusive early experiences, however again, this has moderated in the last year. Whilst she is at risk for future problems to her psychological functioning, early and consistent intervention could improve her prognosis considerably.”

48 The psychologist made the following recommendations:

“LAL is due to undergo assessment under the Department of Juvenile Justice Violent Offender Program (VOP), and she is likely to receive supervision by a counsellor in this program as part of any sentencing order received. Intervention related to her offending behaviour is required, in addition to assistance with regards to improving her maturity, anger control and impulsivity levels as noted earlier. LAL could achieve such skills acquisition under a cognitive-behavioural therapeutic framework. Additionally, drug and alcohol counselling should continue and LAL reports a good response to this so far. Indeed, it is my opinion that LAL will continue to respond well to consistent supervision and treatment once rapport has been established. It is noted that a lengthy custodial sentence will negatively affect LAL’s prognosis and her motivation levels to some extent. Moreover, she will probably experience further detachment from her family and specifically her mother, which will affect her eventual adjustment to the community upon her release.
Furthermore, LAL should remain in a juvenile facility for as long as is possible, so that she can maintain access to consistent supervision, therapy and also education. Supervision should continue upon her release into the community, in order to assist with her reintegration and longer-term adjustment.”

49 LAL has been interviewed on four occasions by a counsellor of the NSW Department of Juvenile Justice. LAL told the counsellor that on the night of the offence she had consumed a significant amount of alcohol and cannabis with the co–offender and a group of males in the hours preceding the offence. She told the counsellor that she had consumed “the equivalent of approximately 10 standard drinks followed by a significant amount of cannabis in the space of 1 hour.” LAL told the counsellor that it was she who initiated the physical assault on the taxi driver “and when he allegedly retaliated by assaulting her and her co-offender, they responded by assaulting the victim further.” Before fleeing the scene LAL believed the taxi driver was still alive as she could hear him moaning. She said that she did not call an ambulance as she was fearful of being caught, was not thinking clearly and her immediate impulse was to escape.

50 LAL told the Juvenile Justice counsellor that it was not until she spent her first night in custody that she realised the full implications of what she had done. She said that she “felt real bad, guilty, that I took someone else’s life.” The counsellor accepted that LAL demonstrated genuine remorse and empathy for her victim. LAL said that she “started praying full on” hoping that the victim would forgive her and that her mother would still love her after the shame she has caused her family. The counsellor is of the opinion that LAL has accepted responsibility for her involvement in the offence.

51 The counsellor has reported the history of LAL’s time since she was taken into custody. That report is in the following terms:

“LAL was admitted to Juniperina JJC on the 02.02.2006, where she has remained until the present time. Perusal of departmental file notes and consultation with LAL’s primary workers indicate that she experienced difficulty settling into the routine, which may have resulted from the stress of being incarcerated and being separated from her family. Departmental notes indicate that LAL’s behaviour fluctuated from being compliant with staff, to demonstrating oppositional and aggressive behaviour (refusing to follow staff directions, abusive language and intimidating behaviour towards staff and other detainees) for which she received minor misbehaviour reports and was placed on behavioural management plans. LAL also became involved in an altercation with another detainee and was charged with ‘Common Assault’, for which she received a 6 month Probation Order. Perusal of the Background Report dated 20.02.2007, prepared by Juvenile Justice Office for sentencing on this matter, indicates that LAL acknowledged the inappropriateness of her actions and demonstrated remorse for her involvement.
Departmental records indicate that staff have assisted LAL in addressing her inappropriate behaviour through case management, individual counselling and group programs. Reports from staff indicate that LAL’s behaviour has markedly improved over recent months, she has been interacting with staff in a more respectful manner and actively participates in group activities and unit programs. Staff reported that LAL’s behaviour appeared to deteriorate in the days leading up to her various court appearances. Through case management and counselling it was identified that LAL experienced significant anxiety and fear about attending court, which was reflected in her behaviour on the unit. LAL reported that her fear manifested in inappropriate behaviour during court proceedings, such as giggling and smiling, and thus she has sought assistance from her counsellor to develop strategies to manage her anxiety more appropriately.
LAL’s participation in individual counselling has also focussed on addressing anger-management issues, as staff observed that LAL would react impulsively and aggressively when challenged by other detainees. Over recent times it appears that LAL has made a significant improvement in managing her reaction to conflict and stressful situations.
Perusal of Departmental records indicate that LAL has also participated in the following group programs: Alcohol and Other Drug group, Managing Emotion Regulation group, Stress Management Group, and Ending Offending group. Departmental notes indicate that LAL generally participates well in programs, actively communicating and contributing to group discussion. LAL stated that overall she has found the group programs helpful, though she experienced difficulty with the Managing Emotion Regulation group, as she was not comfortable expressing her feelings or accustomed to sharing personal information. LAL stated that she has learnt to express her feelings in a more open manner and to manage the feelings that are evoked from this process, which has been confirmed by staff reports.
As previously mentioned, LAL is also pursuing her education and is currently undertaking Year 11 subjects with the goal of obtaining her Higher School Certificate. Departmental notes indicate that LAL is a bright and capable student who achieves high marks on her assessments and exams. As well as attending school on a daily basis, LAL participates in general unit activities, which involve developing appropriate life skills, such as cooking and cleaning.”

52 Notwithstanding the reported improvement in LAL’s behaviour since she was taken into custody the counsellor was of the opinion that LAL would benefit from counselling in relation to grief, loss and trauma, anger management, alcohol and other drugs, peer association and refusal skills and issues relating to family relationships. The counsellor was also of the opinion that she would benefit from continuing her education, pursuits and participating in age appropriate activities.

Considerations relevant to PN

53 PN was born in New Zealand on 21 January 1992 making her just 14 at the time of the offence. She lived in New Zealand until she was aged about 4 when she came to live in Australia with her parents and five older brothers. She has a younger sister.

54 When interviewed by a psychiatrist PN reported a very violent household, although she characterised it as a stable family life. Her father worked regularly. Her brothers apparently fought a lot and could be violent toward each other. Although her father would scream at the children her parents were not generally violent towards each other.

55 Although she reported attending different schools it was only in Year 5 that she began getting into trouble at school. She received many detentions for arguing with teachers or fighting with other children. She reported to the psychiatrist “we just grew up with violence. If there was trouble you smashed someone or you get a belting.” She apparently accepted that this behaviour was “normal” in Samoan families: “if you do something wrong you get smashed.”

56 PN apparently coped reasonably well with schoolwork during primary school but was less successful in high school. She found the work difficult and her behaviour deteriorated. She had numerous suspensions and was constantly in fights with other girls and was giving “a lot of mouth” to teachers. She began to truant and received suspensions for fighting.

57 PN reported that she began using alcohol and tobacco in the second half of Year 8. She would be absent from school and stay out with one of the boys and drink “until we got pissed.” She reported that she may drink a dozen cans of a bourbon and coke mix in one afternoon.

58 PN’s mother developed a mental illness when PN was in Year 6. PN reported that “she’d go out on the road and the cops would bring her home and she made up stories about dad cheating on her and saying he has another family and that the other woman is going to come and pick us up tomorrow and that we’d have a new house.” Her mother received treatment but has not always coped with her condition. She has spent periods in hospital and has been diagnosed with schizophrenia.

59 By the end of the school year in 2005 PN was spending considerable time away from her family home smoking marijuana and drinking. She spent that Christmas at a friend’s house and stayed out from Christmas until New Year drinking with friends. This behaviour continued throughout most of the following January.

60 The psychiatrist presented a picture of a chaotic household where there were a few organised meals and a lack of structure. There was a lot of violence and drinking.

61 The psychiatrist reported that PN has expressed sorrow for the death of the taxi driver and the pain caused to his family. She says that some nights she goes over and over the events which she pictures in her mind and cries.

62 PN’s parents have remained supportive of her although her mother is handicapped by her mental illness. During her time in custody PN has been cooperative, participates in programs and has not displayed aggression.

63 The psychiatrist is of the opinion that PN is suffering from a Major Depressive Disorder which is “manifest in severe irritability of mood more than depressed mood, which is characteristic of depression in adolescence.” She has “severe sleep disturbance, apathy, a poor concentration, lack of interest, and motivation and anhedonia.”

64 The psychiatrist also reports that PN “has post traumatic stress symptoms” as a result of chronic family violence. She said that “hyperarousal, impaired cognitive processes, poor affect and impulse regulation and disturbed interpersonal or attachment relationships that are typical of children raised in such traumatic environments.”

65 As a consequence of her experiences the psychiatrist believes that PN is “especially prone to serious disturbance.” She apparently suffered a severe beating from her father in the year prior to the offence which the psychiatrist believed had a significant impact upon her personality.

66 The psychiatrist was of the opinion that PN needed treatment with anti-depressant medication. She also requires counselling in relation to dealing with her feelings of frustration and violence. The psychiatrist believed that PN feels considerable remorse about her actions and “expresses remorse and concern for the family of the victim.” Because she has adjusted to detention the psychiatrist believes that PN is capable of “becoming socialised in an adequate way.”

67 PN was also been interviewed by a psychologist.

68 When interviewed she reported that she had commenced using alcohol at 13 years. She said that she was drinking alcohol every day mostly of an afternoon and evening and with the expressed purpose of becoming intoxicated. She also began smoking cannabis at the same age and reported smoking with friends on a daily basis if the drug was available. She reported smoking on average 5 “cones” a day.

69 The psychologist reported that PN was shocked when she heard that the taxi driver had died. The psychologist believed PN had displayed genuine empathy for her victim and expressed both regret and remorse for “the impact upon the man who died, but also for his family.”

70 When tested PN revealed verbal intelligence falling in the low average range and a non-verbal intelligence in the average range. She was assessed with overall intellectual capacity in the low average range. She was found to have above average skills in coping with time pressures and her profile was not consistent with attention deficit symptomatology.

71 The psychologist made the following recommendations in relation to PN:

“On the basis of this assessment, the most salient criminogenic issue for PN to address lies in her limited self-regulation and emotion management skills, in addition to undersocialisation and idealisation of criminality. These issues are best addressed with offence-specific psychological treatment, which is available within the Department of Juvenile Justice Detention Centres and, in particular, the Violent Offender Programme, which offers services to young people detained in custody and those in the community. Referral to this programme would allow for a continuum of care for PN as she transitions to the community.
PN has a history of substance abuse and, although this does not appear to be particularly entrenched in the sense of dependence, she would benefit from education around the consequences of drug and alcohol use, in addition to the provision of harm minimisation skills. This is further highlighted by the fact that her alcohol and drug abuse was significant and regular, within a relatively brief period of time, and also contributed to her offending behaviour. Such treatment is available through Juvenile Justice resources and it is important that PN accesses this service as substance abuse remains a risk for her.
PN is only young and, now in custody, she is being exposed to further delinquent and antisocial norms. It is important that she be well supported as she transitions to the community, as it will likely be very difficult for her to reintegrate into the community after a period of incarceration. In addition to supervision with the Department of Juvenile Justice, it may be appropriate to refer her to a mentoring support service for Pacific Islander youth.
In many ways, PN is a likeable young girl, who seems socially immature and relatively dysfunctional psychologically. It is regrettable that her early trajectory and psychosocial vulnerabilities culminated in the offences before the Court and it is important that she be offered appropriate treatment and support to allow her to make the best of her current incarceration so that she might engage in services and interventions that offer her a chance for a future after custody.”

Pleas of guilty

72 Both offenders were arrested on 1 February 2006. They have remained in custody ever since. Although when arrested they made admissions, they did not plead guilty until arraigned on 2 February 2007. Notwithstanding their earlier admissions when interviewed they denied killing Mr Hormozi. Before being arraigned each offender was committed following “a paper committal” when no witnesses were called. In December 2006 the offenders’ solicitors wrote asking whether consideration could be given to the Crown accepting a guilty plea to the charge of manslaughter.

73 In these circumstances the offenders each submit that their delay in entering a plea has not occasioned significant inconvenience to the Crown. It was submitted that given the age of each offender and the complex cause of death of the deceased the delay in offering to plead to the charge of manslaughter is understandable. It was submitted that it was a plea at the earliest opportunity to the appropriate charge.

74 I am satisfied that each offender is entitled to a discount for the utilitarian value of their pleas. However, that discount must be less than the maximum, the opportunity being available from an early time to offer a plea to a manslaughter charge. In my opinion an appropriate discount is of the order of 15%.

Contrition

75 I am satisfied that each offender has expressed genuine remorse and regret for the death of the deceased. Although both suffer from significant psychological problems which have been manifested in inappropriate behaviour at various times when they have been present in court the psychological evidence is that both of them are genuinely contrite. LAL has written to the deceased’s family expressing her regret. I shall have regard to these matters when imposing the sentence.

Victim Impact Statement

76 Anna Hormozi, the daughter of the deceased, read a statement to the court on behalf of herself and her mother. Although the deceased and his former wife had divorced there remained a bond between them. Ms Hormozi has been greatly affected by the loss of her father.

77 The loss of Mr Hormozi is a tragedy for his family. The death of a loved family member is always difficult but when it occurs in violent circumstances it brings additional grief. On behalf of the court I express my sympathy to the family in their terrible loss.

78 The courts have on many occasions emphasised that the protection of human life and personal safety is a primary objective of the criminal justice system. An understanding of the personal qualities of a victim of an unlawful homicide will serve to focus attention upon this important aspect of sentencing law. “The qualities of a particular victim may serve as a useful reminder of the quality of human life itself, and of all that is involved in taking it away.”

79 The courts have said on other occasions that one of the purposes of reading the victim impact statement publicly in the sentencing proceedings is to bring home to the offender and others who might act in a similar way the appalling consequences of their actions. However, the law also makes clear that a greater sentence cannot be imposed because of the impact of the crime on the victim’s family.

Prospects of rehabilitation

80 The psychiatric evidence in relation to PN and the psychological evidence in relation to both girls confirms the deprivation in their personal circumstances. It also suggests that the intellectual functioning of both girls is below average. They both need considerable supervision and counselling if they are to recover from their disadvantages and become mature and responsible members of the community. It is obviously in their own interests and that of the general community that the opportunity for their rehabilitation be maximised. This Court said in MD, BM, NA, JT at para 74:

“However, as we have indicated, when imposing sentences, apart from considerations of punishment and deterrence a court must assess the offender’s capacity to reform and return to and make a contribution to the community. This must be of particular concern with young offenders where the opportunity to rebuild a life is more likely to be available. Unless the punishment recognises these possibilities and the circumstances of the incarceration made conducive to rehabilitation, some benefits to the community which may come from appropriate sentencing will be lost.”

81 In the case of both girls the evidence indicates that since they were arrested and taken into custody they have made progress towards rehabilitation. Although each girl required a period of adjustment to their altered circumstances they have both responded to the discipline and care which has been provided. There is every reason to believe that they will benefit from a further period of incarceration in circumstances where their schooling can continue and they can receive counselling and guidance in relation to the use of alcohol and drugs and acquire behavioural patterns which exclude violence as a response to stressful situations.

The appropriate sentences

82 The sentencing of any person for an offence involving the loss of another’s life is a difficult task. For many in the community when a person dies through no fault of their own but because of the actions of another a very lengthy prison term is required. That view is normally expressed out of a perception of the need to punish the offender and extract retribution for the harm which has been done. General deterrence is also a factor which weighs heavily in many people’s minds when considering the appropriate sentence for an offender who has been responsible for the death of another.

83 However, although these matters are of great significance, a court when sentencing must also balance a number of other matters. Regard must be had to the circumstances of the offence and the culpability of the offender. Consideration must also be given to the subjective features relevant to the offender, any prior criminal history, the extent to which personal deterrence is required and the prospects of the offender’s rehabilitation. Depending on the circumstances of the case, there may be other matters which require consideration.

84 The present offences were serious and a custodial sentence is inevitable. However, the sentences should reflect the fact that they were committed by young people whose judgment was impaired by alcohol and drugs. Although the injuries inflicted upon the deceased were sufficient to bring upon a heart attack they probably would not have led to the death of a person whose health was not already seriously compromised. The crime is more significant because the girls attacked a taxi driver who was driving them late at night and was vulnerable to attack. The courts are particularly concerned to deter others from committing similar crimes.

85 It may be that some members of the community will consider the sentences I am about to impose to be inadequate. Mr Hormozi’s family may feel that much greater punishment should be imposed on those responsible for his death.

86 The sentencing task is one of the most difficult obligations which a judge must discharge. The court is required to sentence in accordance with statutory and common law principles which have been developed to ensure that justice is fairly administered. This, as I have indicated, requires the balancing of the many factors to which I have referred in these remarks in order to arrive at a sentence which is appropriate for the offence and the circumstances of the offender.

87 The sentences which I propose may have the consequence that both offenders will be in custody beyond the age of 18 years. If this was to occur unless an order is made under s 19(3) Children (Criminal Proceedings) Act 1987 the balance of any sentence may have to be served in other than facilities for a juvenile offender. In my view in relation to both offenders this would not be appropriate and may seriously compromise both girls’ prospects of rehabilitation. The background report and other evidence in relation to both offenders indicates that they have already made real progress towards rehabilitation. To interrupt that progress towards the end of any period of incarceration and require them to complete their sentence in an adult prison would risk the progress which they may have already made. Accordingly, for the purposes of s 19(3) of the Act I find that there are special circumstances justifying the detention of both offenders in a juvenile detention centre.

88 I am also satisfied that each offender would benefit from a period of extended supervision upon being released on parole. However, the need to provide an appropriate non-parole period limits the extent to which an extended period on parole can be provided.

89 Having regard to all of these matters, including the matters on the Form 1, in my opinion each of the offenders should be sentenced to a total term of six years imprisonment with a non-parole period of three and a half years.

90 LAL I sentence you to a non-parole period of 3 years and six months commencing on 2 February 2006 and expiring on 1 August 2009 with a further term of two years and six months expiring on 1 February 2012.

91 PN I sentence you to a non-parole period of 3 years and six months commencing on 2 February 2006 and expiring on 1 August 2009 with a further term of two years and six months expiring on 1 February 2012.

92 I find that there are special circumstances under s 19(3) Children (Criminal Proceedings) Act 1987 and I direct that each of the offenders serves her sentence prior to release to parole as a juvenile offender.

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