R v AH
[2011] NSWSC 1535
•13 December 2011
Supreme Court
New South Wales
Medium Neutral Citation: R v AH [2011] NSWSC 1535 Hearing dates: 19 September 2011 Decision date: 13 December 2011 Before: Johnson J Decision: For the offence of manslaughter, and taking into account the Form 1 offence, the Offender is convicted and sentenced to imprisonment comprising a non-parole period of two years commencing on 2 December 2011 and expiring on 1 December 2013 with a balance of term of two years commencing on 2 December 2013 and expiring on 1 December 2015.
The earliest date upon which the Offender will be eligible for release on parole is 2 December 2013.
In accordance with s.19 Children (Criminal Proceedings) Act 1987 , an order is made directing that the whole of the term of imprisonment of the Offender is to be served as a juvenile offender.
Catchwords: CRIMINAL LAW - sentence - manslaughter - plea of guilty - participation in affray involving two groups of young men - deceased stabbed by another person in Offender's group - relevance of youth - other factors relevant to sentence Legislation Cited: Law Enforcement (Powers and Responsibilities) Act 2002
Children (Criminal Proceedings) Act 1987
Crimes (Sentencing Procedure) Act 1999Cases Cited: R v Barghachoun [2011] NSWSC 1534
AI v R [2011] NSWCCA 95
BP v R [2010] NSWCCA 159; 201 A Crim R 379
R v La Rosa [2011] NSWSC 1394Texts Cited: --- Category: Sentence Parties: Regina (Crown)
AH (Offender)Representation: Mr AJ McCarthy (Crown)
Mr IH McClintock SC; Ms K Stares (Offender)
Solicitor for Public Prosecutions (Crown)
Veronica Love (Offender)
File Number(s): 2009/59632 Publication restriction: ---
REMARKS ON SENTENCE
JOHNSON J : The Offender, AH, appears for sentence for the crime of manslaughter. The maximum penalty for this offence is imprisonment for 25 years.
On 22 July 2011, the Offender was arraigned before Latham J upon an indictment alleging that, on 25 April 2009, at Busby in the State of New South Wales, he did murder David Wayne Boyce. The Offender pleaded not guilty to murder, but guilty to manslaughter. The Crown accepted that plea in full satisfaction of the indictment.
In passing sentence for the offence of manslaughter, the Offender asks the Court to take into account on sentence an offence of hindering the execution of a search warrant contrary to s.52 Law Enforcement (Powers and Responsibilities) Act 2002 , for which the maximum penalty is imprisonment for two years.
At the outset, I observe that the Offender is not to be sentenced for directly causing the death of Mr Boyce. It is not alleged that the Offender wielded the knife which caused the fatal injury to Mr Boyce. Rather, the Offender's crime arises from his participation in events in the early hours of 25 April 2009 which saw two groups of young men coming into conflict, involving the use of violence, and with a person on the Offender's side of the conflict stabbing Mr Boyce to death. I will return to the nature of the Offender's crime, and its seriousness, later in these remarks on sentence.
A sentencing hearing took place before me on 19 September 2011.
Facts of Offence
A number of persons (including the Offender) are referred to by initials and not by their full names in these remarks on sentence. The tragic events surrounding the death of Mr Boyce involved persons who were under 18 years of age and who should not be identified: s.15A Children (Criminal Proceedings) Act 1987 . Where adult members of the family of young persons are mentioned, they will also be referred to by way of initials so as to avoid indirect identification of the young persons.
An Agreed Statement of Facts was tendered at the sentencing hearing. The Offender did not give evidence at the sentencing hearing. The Agreed Statement of Facts revealed the following.
Two Gatherings of Persons at Wentworthville and Busby
On the evening of Friday 24 April 2009, Mr Boyce (aged 23) was visiting a number of friends at a gathering at Wentworthville. The group were drinking alcohol and some were also consuming small amounts of methylamphetamine.
At the same time, another gathering of friends was taking place at a house at Trevanna Street, Busby. The premises were leased by the "T" family - Mrs T (56 years' old), her de facto husband (55 years' old) and their son JT (17 years' old).
JT had a number of friends (including JP) visiting him and they were drinking alcohol and socialising in the backyard.
A Dispute Between Two Young Men, the Offender and JT
At around 12.30 am on Saturday 25 April 2009, a telephone call was made. RM (JP's girlfriend) was on the telephone and JT asked if she was talking to the Offender (then 16 years and eight months of age). There had been ill feeling between JT and the Offender over their respective relationships with a young woman, CH. JT and the Offender had an argument over the phone before the call ended.
The Offender was then in the company of his friend, Joey Smith (then 18 years and three months of age), Ms Danielle Fox and her friend Natalie Ryan (18 years of age). Mr Smith drove that group to the Offender's home.
The Offender got out of the car for a short time and went into the house. He returned carrying some metal poles.
The Offender put the metal poles on the floor of the car.
The Offender Arrives at the Busby House and JT and the Offender Argue
The Offender telephoned RM, so she could notify JT that he was outside the Busby house. He asked JT to come outside. Both the Offender and Mr Smith were present.
The Offender and JT argued for a while. JP, a friend of JT, was carrying a metal pole hidden inside his pants. Mr Smith took the pole and said that he was going to throw it away, which he did. The metal pole was described as one metre in length. JP said it belonged to JT "in case someone jumps in" .
During this argument, JT's stepfather came outside and intervened. The Offender refused to leave unless JT apologised. JT's stepfather apologised on his stepson's behalf and shook hands with the Offender.
The Offender and Mr Smith Depart
Mr Smith and the Offender left the area on foot and returned to the car with Ms Fox and Ms Ryan. They drove away.
Meanwhile at the Busby house, JP questioned JT as to why he allowed his stepfather to intervene and apologise for him. JT became angry at his stepfather for sending the Offender and Mr Smith away.
JT attempted to contact the Offender so that he (the Offender) would return to the area. He was unable to reach the Offender. RM telephoned Ms Fox.
The Offender and JT Agree to Fight and Both Sides Call for Supporters
JT took the phone from RM and said " Get [AH] on the phone" . The Offender and JT agreed to meet again so that they could fight "one on one" . The Offender believed that JT was too drunk. The Offender originally suggested that they sort it out, by fighting one on one, the following day.
During a telephone call, JT said that he was told that Mr Smith was bringing "more boys" . JT called his friend, Mr Boyce, on several occasions, asking him to come to Trevanna Street. Mr Boyce agreed to come and he brought several friends with him.
The Offender, Mr Smith, Ms Fox and Ms Ryan travelled to AT's house.
Earlier that evening, Saad Jamie Barghachoun, AT and Luca Alviggi had been socialising and driving around together in a van.
AT received a phone call at some point, from either the Offender or Mr Smith, asking him and the people with him (Mr Alviggi and Mr Barghachoun) to meet Mr Smith, the Offender, Ms Fox and Ms Ryan at AT's house.
Meanwhile, Daniel Plesko (the cousin of AT), David Bosevski and Jason Hubbard arrived at AT's house in a separate car.
From AT's premises, a number of persons travelled in a large white van belonging to Mr Alviggi's father, towards the Busby house. They were AT, Ms Fox, Mr Smith, Mr Barghachoun, Jason Hubbard, Mr Plesko, Mr Alviggi, Mr Bosevski, Ms Ryan and the Offender. Prior to arriving at the Busby house, the group picked up Jesse Hubbard.
AT was driving the van, two other people were front-seat passengers and the rest were seated in the cargo section in the rear of the van.
Various metal poles were inside the van. There was discussion in the van between some of the males to the effect that they were going to the house for the purpose of a fight.
Several people heard the Offender say he was going to have a "one on one" fight with JT.
Mr Smith had possession of a knife in the van. The Crown made clear that it was no part of the Crown case that the Offender knew of the knife (T39.32, 19 September 2011).
Arrival of the Two Groups at the Busby House
AT stopped the van around the corner on Kaluga Street, Busby. He remained with the van whilst others got out and commenced walking towards the Trevanna Street house. As they were walking, a number of the males, including the Offender, were carrying metal poles. The Offender was aware that some others in the group were also armed with metal poles.
As Ms Fox, Ms Ryan, the Offender, Mr Smith and Mr Barghachoun (and the other males) approached the house, two males - JT and JP - were on the veranda of the Busby house. They saw the group approaching and retreated inside the house.
The Offender and JT Clash
The Offender was banging on the screen door of the Busby house with a pole yelling, "come out [JT] " .
He then turned away from the door and, as he did this, JT opened the door and approached the Offender from behind and hit him once to the back of the head with a wooden bat.
The impact caused the Offender to fall to the ground. He was still holding the metal pole at the time. JT retreated back into the house.
The Two Groups Confront Each Other and Mr Boyce is Stabbed
At about the same time, Mr Boyce (and others) arrived in a 4WD vehicle. Before the driver had stopped the vehicle (directly in front of the house), Mr Boyce jumped out of the passenger seat, armed with a baseball bat, and approached several people in the group that had arrived in the van. Three other males (Emery Newton, Greg Phoenix and Josh Tyrell) and two females (Casey Tyrell and Renee Hosking) were also in the 4WD.
Soon after Mr Boyce had emerged from the 4WD, he became involved in an affray with persons who had come from the van. Mr Boyce was stabbed once to the chest by Mr Smith. The wound penetrated his heart causing death. Blood from Mr Boyce was later analysed. Alcohol was detected as 0.065g/100 mL of blood. Methylamphetamine was also detected as being less than 0.02 mg/L.
Mr Boyce was found lying apparently unconscious in the front yard of the Busby house. The person who called "000" was apparently not aware, when the call was made, that Mr Boyce had been stabbed.
Josh Tyrell, who had emerged from the 4WD, was struck to the head and the shins as he was trying to get inside the house. At one point during the affray, Mr Barghachoun struck Mr Tyrell in the shins with a baseball bat. Mr Tyrell was later treated at hospital for a cut to the side of his head, broken fingers on his right hand and stitches to his right shin.
Greg Phoenix, who also emerged from the 4WD, was struck to the head by one of the males who had emerged from the van.
Before leaving the area, Mr Smith smashed the front window of the Busby house. Mr Smith then used a pole to strike and damage a vehicle that was parked in the driveway of the house.
The Offender and Others Flee the Scene
The Offender, Mr Smith, Mr Barghachoun and the other persons from the van quickly left the area and returned to the van. AT drove away from the area.
As the van was driving away, males inside the van were saying "we showed them" . The Offender said "We wasted our time, [JT] didn't even come out" . Mr Barghachoun said "Which one was [JT] , everyone was hitting everyone, I was hitting people but who the hell was [JT] " . Someone said that a person had been "knocked out" .
Mr Smith was heard to say "I think I stabbed him ... fuck fuck fuck" . Another person from the van said "I can't believe you stabbed him" . Mr Smith was asked by someone in the van "Where did you stab him?" . Mr Smith replied "In the ribs, I had to protect my mate" . Ms Ryan saw Mr Smith with the knife in the van.
The evidence is not clear regarding who was sitting where in the van in the journey to and from the Busby house. There were several conversations going on simultaneously, and there was music playing in the van. It is not clear exactly who said what, or what was heard by whom. Mr Smith is reported to have said about the knife that "It has blood on it" . He passed the knife to someone who wiped it clean with a tissue.
Police and Ambulance Arrive at the Busby House
Police arrived at the Busby house shortly after the Offender and others had left.
Ambulance officers attended soon after (at about 3.18 am) and observed that Mr Boyce had sustained a stab wound to his chest. He was conveyed to Liverpool Hospital, where he was found to be in cardiac arrest and efforts to resuscitate him failed. He was pronounced dead at 4.03 am.
Disposal of the Knife
The van eventually arrived back at AT's house where AT was handed the knife by Mr Smith. AT secreted it in a drain near his house. He has been sentenced in the Local Court for his role in getting rid of the knife.
Ms Fox and Ms Ryan walked out on to the street and waited by Mr Smith's car. When the Offender and Mr Smith came out, they all got in the car and drove to an industrial area nearby. They then drove to Mr Smith's house.
The Offender lay down in Mr Smith's house and fell asleep. Ms Fox received a call and was informed that someone had been stabbed and that the person was dead. Ms Fox told the Offender this news and he told Mr Smith.
Mr Smith began to create a false alibi. He said to Ms Fox "We weren't there, we were at home watching movies. If you have to give a statement use that as an alibi" . Ms Fox said "Yeah lets stick with that story" .
Later in the morning, Mr Smith drove Ms Ryan home. When she was dropped off, Ms Fox said "Don't say anything" . Mr Smith then drove Ms Fox home.
Police Search the Offender's House and Arrest the Offender and Mr Smith
At around 7.40 pm on 25 April 2009, a number of police officers attended the Offender's home at Hoxton Park, armed with a lawful warrant to search the premises. Detective Grimes spoke to the Offender and his mother about the warrant. As his mother was reading the occupier's notice, the Offender said "Fuck em, they're a bunch of dogs - they don't call them pigs for no reason" . The search was video recorded.
As police officers continued to explain the warrant to his mother, the Offender received a telephone call on his mobile phone. He said to the person on the phone "I just had fucken eight coppers barge in the door" . The Offender's mother then said " [AH] language" . The Offender said "Fuck em - says I can't obstruct a search warrant, doesn't say I can't call them pigs and fucken dogs" . The Offender read out the items of interest listed on the warrant. He said to the person on the phone "They're lookin for this to do with the murder this morning, I fucken been asleep, I fucken woke up now and banged the door" .
Police commenced searching the Offender's bedroom. As they were searching, the Offender said to police "Youse are a bunch of fucken retards" . The Offender said "Who was I supposed to have murdered anyway?" .
Whilst police were searching the room, the Offender argued with police and swore at officers. The Offender demanded the return of a clear plastic bag that contained personal papers. The Offender said to the police "Give me my fucken stuff back - what the fuck do you think this is?" . The Offender's mother tried to calm him down. He replied "I don't care - fuck yas" . He then pushed past police and uttered further abuse as he pushed past Detective Grimes.
Detective Grimes took hold of the Offender's arm. His mother tried to calm him down once again. The Offender pulled away from police and said "Get the fuck off me cunt" . The Offender then walked past Detective Grimes and approached Detective Hatchwell, who was standing in a hallway and said "You move too" . Detective Grimes then placed the Offender under arrest. The Offender said "Let me get my fucken shoes" .
The Offender pulled away from Detective Grimes and tried to pushed past Detective Hatchwell. As he did this, Detective Hatchwell reminded him that he was under arrest and said "Don't do anything stupid" . The Offender replied "Get out of my fucken way, it's my house I can go wherever I fucken want to go" . The Offender then pushed Detective Hatchwell to the chest with both hands. Police then restrained the Offender on the floor.
As the Offender was being taken from the house, he yelled at police "Let me go you fucken dog" . The Offender continued to violently struggle with police and yell abuse at the officers.
The events recorded in [54]-[60] above are agreed facts for the purpose of the Form 1 offence to be taken into account on sentence.
Both the Offender and Mr Smith were arrested by police and each exercised his right to silence.
During the search of the Offender's house, police spoke with Mr Barghachoun. He asked officers why Mr Smith had been arrested. Police told him that Mr Smith was arrested in relation to a murder at Busby the previous evening. They asked Mr Barghachoun whether he knew anything about it. He replied "That's the first I've heard about it. I went out with my mate Luca for a while and then he dropped me off at my place .... Around midnight" . He said that earlier in the evening he saw Mr Smith "but he didn't want to do nothing so I called my mate Luca" . He told police that he would be prepared to make a statement to that effect.
On 26 April 2009, police spoke with AT. He showed police where he had secreted the knife. Police located a brown-handled knife in a leather sheath in a drain. It was later examined and DNA recovered from the side of the blade near the tip matched the profile of Mr Boyce.
Progress of Charges Against the Offender
In February 2010, a charge of murder, on the basis of extended joint criminal enterprise, was laid against both Mr Barghachoun and the Offender.
The Offender pleaded guilty to the affray charge in the Children's Court on 27 January 2011. That charge remained in the Children's Court and has been withdrawn. He was committed for trial for murder after committal proceedings.
As mentioned earlier, at arraignment in the Supreme Court of New South Wales on 22 July 2011 and prior to any trial being listed, the Offender entered a plea of guilty to manslaughter in lieu of the murder charge. The Crown accepted the plea in full satisfaction of the indictment.
It was agreed at the sentencing hearing that the Offender spent 11 days in custody on this matter. As a result, any sentence of imprisonment will date from 2 December 2011.
As mentioned a short time ago, the Offender pleaded guilty to a charge of affray in the Children's Court, that charge has been withdrawn. Accordingly, the only sentencing decision to be made by any Court with respect to the Offender's involvement in the events of 24 and 25 April 2009 is the imposition of sentence in this Court for the crime of manslaughter.
Seriousness of the Offence
The Offender has pleaded guilty to the crime of manslaughter. He is to be sentenced for his participation in an extended joint criminal enterprise, in that he took part in an unlawful and dangerous act, an affray, in circumstances which objectively carried with it an appreciable risk of serious injury being occasioned to a person.
To assist in an assessment of the seriousness of the offence, it is helpful to identify the Offender's course of conduct.
The origin of the dispute which culminated in the death of Mr Boyce related to tension between the Offender and JT over their respective relationships with a young woman. What commenced as a telephone argument between the two young men in the early hours of 25 April 2009 moved towards physical confrontation, with the Offender (and his companions) travelling to JT's house at Busby after the Offender had collected some metal poles from his house.
A face-to-face argument between JT and the Offender took place outside the Busby house. The intervention of JT's stepfather cooled the situation leading to the departure of the Offender and his companions.
Regrettably and tragically, JT's friend, JP, appears to have challenged JT as to why he had allowed his stepfather to intervene and apologise on his behalf. JT's response was to, once again, become angry and to seek to contact the Offender to resume the face-to-face confrontation.
When the Offender heard of this, the only sensible course to take was to decline any suggestion of further confrontation. Instead, the Offender took up the challenge for a further confrontation, although apparently suggesting at one point it should occur the next day. Instead, it became clear that JT and the Offender would again confront each other physically that night.
The Offender travelled in a van with his supporters to the Busby house. He was aware that these persons were accompanying him to support him and that there were metal poles in the van capable of being used in the expected fight.
The Crown does not contend that the Offender was aware that Mr Smith had a knife in his possession in the van.
Having arrived near the Busby house, the Offender emerged from the van, accompanied by his companions. The Offender and others were carrying metal poles.
The Offender spotted JT on the veranda of the Busby house, with JT and JP going back inside the house as the group approached. The Offender walked up to the house and banged on the screen door, calling for JT to come out. JT emerged and approached the Offender from behind and hit him to the back of the head with a wooden bat.
During the course of the melee which followed, Mr Smith stabbed Mr Boyce. Blows were struck by other persons in the Offender's group, including Mr Barghachoun, to persons in JT's group.
Soon after, the Offender fled the scene with Mr Smith, Mr Barghachoun and others.
The following observations can be made concerning these matters which concern the role of the Offender in the crime:
(a) it was the dispute between JT and the Offender which explained how the confrontation in the early hours of 25 April 2009 came to happen;
(b) following a telephone argument with JT, the Offender escalated the dispute by travelling with his companions to the Busby house, having collected some metal poles on the way - it was the Offender who came to JT's house for this purpose, clearly prepared to engage in a physical confrontation;
(c) the good sense and intervention of JT's stepfather defused the situation and the Offender left;
(d) although it was JT (apparently egged on by JP) who reignited the dispute thereafter, the Offender and his companions were once again prepared to travel to JT's house for the purpose of a physical confrontation;
(e) having arrived at JT's house a second time, the Offender was actively involved in approaching the premises and demanding that JT emerge, whilst the Offender was holding a metal pole which, was no doubt, he was prepared to use;
(f) as it happens, JT emerged and struck the Offender over the head, with the blow effectively bringing to an end the involvement of the Offender in the physical confrontation;
(g) by this time, however, the two groups of young men were engaged in a melee in the street and front yard, a process set in train by the dispute between the Offender and JT;
(h) Mr Smith and Mr Boyce were only present at that time and place because of the dispute between the Offender and JT and, in that tragic context, Mr Smith stabbed and killed Mr Boyce;
(i) although the Offender did not know that Mr Smith was armed with a knife, let alone that he would use it, it was objectively clear that there was an appreciable risk of serious injury being occasioned to a person as a result of the series of events set in train by the Offender that night.
I keep in mind that I am not sentencing the Offender for directly causing the death of Mr Boyce, nor am I sentencing him for his participation in a joint enterprise that had as its object the doing of an act with the intention of killing or inflicting grievous bodily harm.
In this case, the persons at risk of serious injury were the persons involved in the affray itself. These were the persons who emerged from the Busby house with reinforcements from the 4WD (on one side) and the persons who emerged from the van, including the Offender and Mr Smith (on the other side).
The Offender travelled with a group of men, expecting that he would fight with JT and that his companions were prepared to assist in violence if need be, using metal poles. The Offender knew at least that JT was not alone at the Busby house and that JP was present, together with JT's stepfather who was entirely innocent in the process, and had attempted to responsibly calm the situation earlier in the evening. Yet, the Offender led the charge on the Busby house seeking to attack JT although, as it happens, it was JT who struck the Offender, apparently removing him from the action as a result.
The Offender was an instigator of the dispute which occurred that night, leading to physical confrontation. He was no passive bystander. He said that he was prepared to fight and he acted accordingly.
There is no evidence that the Offender engaged in any confrontation with Mr Boyce. The stabbing of Mr Boyce by Mr Smith was a tragic by-product of the events which the Offender had set in train that night.
In the course of sentencing a co-offender, Mr Barghachoun, earlier today, I referred to sentencing cases where the Supreme Court was called upon to sentence for manslaughter arising from a melee between two groups of persons, where the criminality of the offenders arose from their participation in an affray, whether or not they engaged in physical fighting: R v Barghachoun [2011] NSWSC 1534 at [70]-[71]. As I observed in R v Barghachoun at [70], the assistance derived from these other cases is by way of illustrations of assessment of objective seriousness of offences of manslaughter, involving participation in an unlawful and dangerous act which objectively carries with it an appreciable risk of somebody suffering serious injury.
The starting point in assessing the gravity of an offence of manslaughter is to recognise that it involves the unlawful taking of a human life. As RA Hulme J observed in R v La Rosa [2011] NSWSC 1394 at [32], there are a wide variety of ways in which the crime of manslaughter can be committed and there are an equally wide variety of ways in which an offender may be culpable.
I am satisfied that he Offender's crime is one of considerable seriousness. He was responsible for setting in train the conflict which led to two groups of young men clashing outside the Busby house. There was an element of planning and organisation with the provision of assistance by his companions to accompany him to the fight.
The Offender had an opportunity to walk away from the dispute after the intervention of JT's stepfather, but he chose to resume the dispute and return to the Busby house. The Offender emerged from the van armed with a metal pole, indicating his willingness to use force, and sought to confront JT for that purpose. Although he did not, in the end, strike a blow to any person, it might be concluded that the only reason that he did not do so was because JT got in first, striking him to the head.
It was accepted in submissions for the Crown and the Offender that the Offender was not intoxicated at all by alcohol or any drugs on this night. The fact that he engaged in conduct of this type whilst sober is a further troubling feature of the case.
In light of the above, the Offender's offence was an objectively serious crime.
The Offender's Subjective Circumstances
The Offender was born on 5 August 1992. He was 16 years and eight months' old at the time of the offence and is presently 19 years' old.
The Offender did not give evidence at the sentencing hearing. A background report dated 12 September 2011 prepared by officers of the Department of Juvenile Justice was furnished to the Court. In addition, a helpful report dated 19 July 2011 from Dr Christopher Lennings, psychologist, was tendered. A number of references and reports were also tendered, including a letter from Lee Studdert, the senior co-ordinator of the Links to Learning Program (dated 4 August 2011), a reference from John Yiannake dated 25 August 2011, concerning the Offender's employment as a crane-fork driver in 2011, a letter from Darren Forbes concerning the Offender's employment between September 2010 and June 2011 and medical reports from Dr Qureshi concerning health problems affecting the Offender's mother.
The Offender has a criminal history. On 24 November 2008, he was placed on an 18-month good behaviour bond for driving in a manner dangerous to the public and was fined for unlicensed driving. The Offender was subject to this good behaviour bond at the time of the present offence.
In addition, on 26 March 2009, the Offender was charged with an offence of aggravated break and enter whilst in company. He was on bail for this offence at the time of the present offence. On 9 November 2009, he was placed on probation for 12 months, with a condition for supervision by the Department of Juvenile Justice, for the offence of aggravated break and enter whilst in company.
The Offender is the second youngest of five children. His mother and father separated when he was seven years' old. His father now lives in Adelaide. The Offender lives with his mother, who requires hip replacement surgery.
The Department of Juvenile Justice background report and the report of Dr Lennings provide considerable assistance concerning the Offender. Dr Lennings observed that he is a young man of quite good intelligence despite his having left education early, probably for behavioural reasons. Psychometric assessment of the Offender revealed an overall IQ which placed him in the above-average range or better than the bottom 87% of the population. However, the Offender's behavioural regulation ability, and his emotional ability or mental cognitive ability, fell within the average range, but towards the bottom end.
Dr Lennings observed that, despite the Offender's excellent cognitive ability, he does have immaturity in his make up and has demonstrated impulsivity. Although Dr Lennings did not think there was any impairment of his ability to reason or to exercise sound judgment, he observed that 16-year old youths still need to develop adult methods of reasoning and adult methods of being able to understand and foresee consequences. Dr Lennings considered that this was a significant issue in the context of the present offence.
The Offender completed Year 9 of high school and left school at the start of Year 10, in 2008, of his own accord, to start an apprenticeship. The evidence reveals that, in 2010 and 2011, he has been in responsible positions and has an excellent work history.
The Offender has indicated to the Department of Juvenile Justice officers that, if he is incarcerated, he would utilise his time in detention by completing his secondary education and other studies. Evidence before the Court indicates that there are substantial opportunities for such education within the juvenile detention system.
The Offender's conflict with the criminal law appears to have been concentrated in a period in 2008 and 2009 when he was 15-16 years' old. Since 2009, he has demonstrated a capacity for good employment and a responsible approach to assistance to his mother.
There are still aspects of immaturity affecting the Offender. The evidence suggests that assistance is appropriate to help him to avoid conflict. However, the problems in this regard seem to be associated with his youth.
I am conscious that the Offender has been subject to a rigorous bail regime since 2009. An assessment of his prospects of rehabilitation must take that into account. However, it seems to me on all the evidence that the Offender has good prospects of rehabilitation, involving further education to allow him to apply his intelligence in the workforce in a positive way.
Some Other Factors Relevant to Sentence
Mr McClintock SC, for the Offender, submitted that the Offender was entitled to a 25% discount for his plea of guilty. The Crown submitted that, although it was not a plea entered at the earliest opportunity, it should nevertheless be regarded as an early plea attracting a discount not exceeding 20%.
The Offender was committed for trial on a charge of murder. The offer to plead guilty to manslaughter was made prior to a trial date being fixed and the Crown agreed to accept the plea to manslaughter once it was offered. I consider that a discount of 20% should be allowed for the Offender's plea of guilty.
It was submitted for the Offender that he had demonstrated contrition and remorse for his offence. The conduct of the Offender on 25 April 2009 after he had learned of the death of Mr Boyce was not consistent with contrition or remorse. Nor was his conduct when police searched his house on the evening of 25 April 2009, when the Offender behaved in an extraordinary fashion, abusing the police and ignoring his mother's plea for co-operation. There is no suggestion that the Offender was affected by alcohol or a drug at the time when he behaved in this fashion during the police search.
The conduct of the Offender at that time points to a very angry young man who was acting in a manner which was entirely contrary to his own interests. His language and conduct was offensive, but suggests a significant measure of immaturity.
With the passage of time since April 2009, I accept that the Offender has developed a level of insight into his conduct which has given rise to contrition and remorse. I take this into account on sentence.
Mr McClintock SC submitted that the Offender's youth was a significant factor to be taken into account on sentence, with regard to be had to s.6 Children (Criminal Proceedings) Act 1987 and principles concerning the sentencing of young offenders. He submitted that less weight should be attached to general deterrence in sentencing the Offender.
I have regard to the principles as summarised by Hodgson JA (Adams and Hall JJ agreeing) in AI v R [2011] NSWCCA 95 at [67]-[68]. In sentencing an offender who commits a crime at the age of 16 years and eight months, principles of retribution and general deterrence may be of less significance than when sentencing an adult offender for the same offence. Recognition is to be given to the capacity of young persons to reform and mould their character to confirm to society's norms, with considerable emphasis to be placed on the need to provide an opportunity for rehabilitation. In considering the role of retribution on sentence, the Court will have regard to emotional immaturity or a young person's less-than-fully developed capacity to control impulsive behaviour: BP v R [2010] NSWCCA 159; 201 A Crim R 379 at 381 [4]. However, as Hodgson JA observed in AI v R at [69], in relation to crimes of violence committed in the streets by groups of young persons, considerations of general deterrence should be given substantial weight, notwithstanding the youth of the Offender.
In the circumstances of this case, the evidence of Dr Lennings points to the role of the Offender's immaturity in his involvement in the offence. The same can be said concerning his conduct giving rise to the Form 1 offence. I consider that the youth of the Offender is a significant factor on sentence in this case, given the prospect that he will continue to make a positive and responsible contribution to the community with further education and continued employment, with the likely prospect that he will avoid criminal activity.
Nevertheless, general deterrence remains a factor on sentence given the approach of the courts to violent conflicts between groups of young persons in public places.
Victim Impact Statements
A number of victim impact statements were read at the sentencing hearing by or on behalf of the mother and sisters of Mr Boyce and his younger siblings. As I observed in my remarks concerning Mr Barghachoun (at [84]), the tragic consequences for Mr Boyce's family resulting from his senseless death were explained eloquently and movingly by members of his family. Once again, on behalf of the community, the Court expresses its sympathy to the family of Mr Boyce for their tragic loss. I have regard to the victim impact statements, as part of the sentencing process, in the manner permitted by law.
The Sentencing of Mr Barghachoun
I have today passed sentence on Mr Barghachoun for manslaughter arising from his involvement in the tragic events leading to the death of Mr Boyce.
In considering the question of sentence of this Offender and Mr Barghachoun, I have kept in mind the concept of relativity as between the sentences to be passed. That said, the roles of the Offender and Mr Barghachoun were different and there are other sentencing principles to be applied in the case of this Offender given his age at the time of the offence.
Determining the Appropriate Sentence
Earlier in these remarks, I have addressed the question of the objective seriousness of the Offender's crime. Manslaughter may take many forms and it is necessary to determine penalty in the circumstances of the case. A constant factor is that persons who commits the crime of manslaughter are criminally involved in the taking of a human life.
For reasons expressed earlier, I am satisfied that the present offence is a serious example of the crime of manslaughter. It is necessary to punish the Offender for this crime. It is necessary that the sentence denounce the commission of the offence, with that feature measured to an extent by the Offender's youth in the manner which I have described. Again, it is necessary that the sentence reflects an element of general deterrence, once again measured because of the Offender's youth, given the approach of the criminal law towards offences involving violence between groups of young men committed in public places.
The Offender was subject to a good behaviour bond and a grant of conditional bail at the time when he committed this offence. These factors operate significantly against him on the question of sentence. In April 2009, at least, it does not seem that the brakes on criminal conduct which conditional liberty is meant to apply were operating in the Offender's case.
I accept that the approach of the Offender in 2008 and 2009, when he was 15-16 years' old, is markedly different to the approach which he demonstrates at the present time. This provides a positive foundation for the future, with good prospects of rehabilitation in conjunction with appropriate supervision and assistance.
Mr McClintock SC submitted that it would be open to the Court, in the circumstances of this case, to proceed by way of a non-custodial sentence. The Crown submitted that a sentence of full-time custody was the only appropriate sentence to be imposed upon the Offender in all the circumstances of the case.
I am satisfied that the objective seriousness of the crime is such that the only appropriate sentence that should be imposed is one of full-time custody. If this point was reached, Mr McClintock SC submitted that the Court should make an order under s.19(3) Children (Criminal Proceedings) Act 1987 that any sentence of imprisonment be served as a juvenile offender.
The Offender is to be sentenced in respect of a serious children's indictable offence so that he is not eligible to serve a sentence of imprisonment as a juvenile offender after he has attained the age of 18 years, unless the requirements of s.19(3) of the Act are satisfied.
I make a finding of special circumstances, for the purpose of s.19(3), upon the basis that the only available educational and vocational training, or therapeutic programs that are suitable to the Offender's needs are those available in detention centres and because, if the Offender is committed to a correctional centre, there would be an unacceptable risk of him suffering physical or psychological harm: s.19(4)(b) and (c). I have regard to s.19(4A) in reaching this conclusion. My reasons for these conclusions arise from an acceptance of the evidence of Dr Lennings and the opinions of the Department of Juvenile Justice officers, Jennifer Pink and Jono Wheaton, both of whom gave evidence at the sentencing hearing, in conjunction with the tender of the background report which they had written. In my view, the Offender is at a crucial point in his development and the range of educational, vocational and therapeutic resources in the juvenile justice system are essential to further his rehabilitation.
Taking into account all objective and subjective factors, I take as a starting point, before application of the 20% discount for the plea of guilty, a sentence of imprisonment for five years. After applying the 20% discount, a head sentence of four years' imprisonment will be imposed. I am satisfied that a finding of special circumstances should be made for the purpose of s.44 Crimes (Sentencing Procedure) Act 1999 so as to vary the relationship between the non-parole period to be fixed and the head sentence. In this regard, I am satisfied that the Offender will require an extended period of supervision and assistance in the community upon his release, and that it is in the public interest that he have an extended period for that purpose. In light of the finding of special circumstances, a non-parole period of two years should be fixed.
Will the Offender please stand. For the offence of manslaughter, and taking into account the Form 1 offence, you are convicted and sentenced to imprisonment comprising a non-parole period of two years commencing on 2 December 2011 and expiring on 1 December 2013 with a balance of term of two years commencing on 2 December 2013 and expiring on 1 December 2015.
The earliest date upon which you will be eligible for release on parole is 2 December 2013.
In accordance with s.19 Children (Criminal Proceedings) Act 1987 , I make an order directing that the whole of the term of imprisonment of the Offender is to be served as a juvenile offender.
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Decision last updated: 13 December 2011
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