R v AM

[2021] NSWDC 433

District Court

New South Wales

Medium Neutral Citation:

R v AM [2021] NSWDC 433

Hearing dates:

23/3/21, 26/3/21, 1/4/21

Date of orders:

1/4/21

Decision date:

01 April 2021

Jurisdiction:

Criminal

Before:

Bourke SC DCJ

Decision:

Convicted and sentenced to a term of imprisonment of 3 years 6 months with a NPP of 2 years (21/12/19-20/12/21).

I find special circumstances.

I order that the sentence be served as a juvenile offender.

Catchwords:

Crime – Sentence – Juvenile – Recklessly cause grievous bodily harm

Legislation Cited:

Children’s (Criminal Proceedings) Act 1987

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

BP v R [2010] NSWCCA 159

Category:

Sentence

Parties:

NSW DPP – Crown
AM – Offender

Representation:

Ms E Anderson-James for Crown
Ms S Goodwin for Offender

File Number(s):

2019/402219

Publication restriction:

Non-publication order in relation to the identity of the offender and any other individual under the age of 18 years.
Pseudonym order in relation to the offender and any other individual under the age of 18 years.

sentence

1. AM is for sentence today for an offence of recklessly causing grievous bodily harm in company. That is an offence which carries a maximum penalty of 14 years imprisonment, when dealt with according to law. It also has a standard non-parole of five years but I note that that does not apply, given that the offender was under 18 at the time of the offence. The maximum penalty, of course, is an important guide post to which I have had regard in the sentencing exercise.

2. He pleaded guilty at an early stage and he is entitled to a discount of 25 per cent, on account of the utilitarian value of that plea.

FACTS

3. The facts are agreed and, in essence, are as follows:

4. The victim of the offence was AA, who was 17 years and 11 months old at the time of the offence. The offence occurred on Saturday, 21 December 2019. And I note that CCTV footage captured this offender, together with MT and HT leaving the foyer of the Meriton Suites at 330 Church Street, Parramatta, at around about half past 7 at night. They were also with another associate whose name was Ritchie Sang-Yum.

5. The offender was wearing a black puffer jacket, black shorts and black sneakers. The facts also describe the clothing worn by other offenders but it is not necessary for me to recite those for the purpose of this sentencing exercise.

6. At around the same time that the offender and his associates were leaving the building, the victim and his two associates, whose names were Dib and Malas, arrived in a white car near the foyer of the Meriton Apartments. The facts go on to describe the clothing worn by those persons but it is unnecessary for me to describe those for the purposes of this sentencing exercise.

7. Suffice to say that the next relevant event was an altercation between one of the victim’s associates, namely Mr Dib, and Mr Sang-Yum who, as I have said, was an associate of this offender.

8. The facts record, as can be seen clearly on the CCTV material, that Mr Sang-Yum walked up towards Mr Dib and was immediately punched to the face by Dib and fell backwards unconscious onto the concrete ground. He remained unconscious there for quite some time, as was demonstrated by the CCTV material.

9. Around the same time, the victim AA walked towards Dib and Mr Malas, who were on the entry ramp into the Meriton foyer. The victim turned around and saw this offender as well as MT and HT running towards them on the ramp. This offender removed a 30 centimetre knife in a sheath from under his shirt and held it in his right hand while running towards the other three people. I note that the facts record that MT threw a can of drink towards the victim and his associates.

10. The victim and his two associates began to run away from the group of persons including the offender, running away up a ramp towards the river and, at some stage, this offender stabbed the victim once, causing a wound to his right upper back area, below the shoulder blade, near his ribs, which was approximately 7 to 10 centimetres in length.

11. HT grabbed the victim, who had already been stabbed, and pushed him to the ground. While on the ground, HT and MT repeatedly kicked the victim to the torso and HT stomped on the upper body of the victim. The victim responded by kicking him away. The victim’s associate, Mr Dib, turned back to assist the victim but he was prevented from doing so by MT, who stood in front of him with his hands at chest height.

12. While the victim was still on the ground, this offender lunged the blade of the knife towards him. The victim had his arms and legs up to defend himself. The offender stabbed the victim towards the left side of his body from above, causing a deep wound to the victim’s left forearm. The victim kicked the offender away, stood up and ran towards Parramatta River with MT chasing him and his associates.

13. As I have said, much of this incident was captured on CCTV cameras and it occurred in a public place, in daylight, with members of the public around. As a result, there were multiple calls to emergency services.

14. The offender, after these events, ran back towards Mr Sang-Yum, who was still unconscious on the entry ramp. The offender was still holding the knife, which was unsheathed and covered in blood, in his hand. He ran toward the main entrance of the Meriton Suites and into the foyer area, where he sheathed the knife and ran towards the lifts but was unable to get entry to the lifts. He then ran outside, down a footpath, towards the river.

15. He then returned, still carrying the knife, a short time later, to where his associates, MT and HT and some other people, were assisting Mr Sang-Yum. After this, the offender ran towards a nearby carpark, where there was a wood chipper truck and he then placed the knife, together with its sheath, into the woodchips in the rear of the chipper and then ran back towards where his associates were assisting Mr Sang-Yum.

16. The offender then returned to the foyer of the Meriton Suites and, by this stage, he had removed his puffer jacket, which was placed over his hands, probably, I conclude, to cover blood that was on his hands at that time which was shown in a photograph displayed in the facts.

17. He was, not long afterwards, apprehended by police after a number of people identified him.

18. Following his arrest, the offender had a conversation with police in which he made various admissions, including to stabbing a guy with a knife and said, “I had it on me. My mate started it. He was talking shit. He got jumped and I stabbed the guy in the back.”

19. Police observed blood on his hands, which had previously been covered by the puffer jacket. The offender told police where the knife was located and it was recovered and found to be a Wiltshire brand stay-sharp kitchen knife with a silver blade and a black handle.

20. He was taken to Parramatta Police Station, where, after being informed of his rights, he declined to participate in an interview. He did, however, take part in a forensic procedure, including photographs.

21. MT and HT returned to the unit that they had been in at the Meriton Suites and at about 9.20pm HT walked into the lobby, where he was arrested by police. He was taken to Parramatta Police Station, where he was subjected to a forensic procedure and declined to be interviewed.

22. MT was also arrested in the lobby of the Meriton Suites that night and he also was taken back to Parramatta Police Station.

23. Following the assault, the victim and his associates ran away around the corner, towards the restaurants facing Parramatta River. The victim began to feel like he could not breath and that he was dying. The victim was assisted by members of the public, who put pressure on his wounds. He was barely responsive by the time police and ambulance officers arrived. When the ambulance officers did arrive, they identified what was described as a catastrophic haemorrhage with significant lung involvement. The victim was in a critical condition, having sustained a life threatening stab wound to his chest area and a deep wound to his wrist. He was taken to Westmead Hospital where he arrived at about 7.50pm, but I note that en route to the hospital the paramedics had to stop and decompress the victim’s chest by way of needle thoracostomy, due to his rapid deterioration.

24. Medical examination revealed that the victim had a 5 centimetre right paraspinal laceration about 10 centimetres in width, which was actively bleeding. He also had a left wrist laceration which was of considerable seriousness and which was observed by paramedics to be very deep.

25. It is an agreed fact that the injuries sustained breached the epidermis and the dermis of the skin and were of a really serious kind.

26. The victim was further investigated for injuries, with the use of a CT scan, which revealed a grade 4 liver laceration and he was taken for angio-embolisation, which is a form of surgery, of the right hepatic artery. The CT scan also demonstrated bilateral pneumothoraces, a small frontal scalp haematoma and a possible right diaphragm crura injury.

27. He received the following treatment as a result of his injuries: Firstly, bilateral chest drains were inserted with blood draining from the right side. Secondly, he was further treated with tranexamic acid, ketamine, intravenous antibiotics, intramuscular tetanus booster and blood products via massive transfusion protocol activation. Thirdly he underwent a plastic surgery operation after stabilisation in angio-embolisation for deep laceration involving multiple tendons and transection of ulnar nerve and artery as a result of the forearm injury.

28. During his admission to hospital, he suffered a bile leak from the liver laceration. This was, however, treated with a radiologically inserted drain. The victim also developed recurrent pneumothoraces which settled following re-insertion of a large-bore intercostal catheter. He was ultimately discharged from the hospital on 9 January 2020. In other words, about 19 days later.

OBJECTIVE SERIOUSNESS   

29. The objective seriousness of the offence before the court is marked, firstly, by the significant maximum penalty that applies. The offence of recklessly causing grievous bodily harm in company, which occurred when the offender stabbed the victim on two separate occasions, the second of which occurred when the victim was helpless on the ground, was, without doubt, an extremely serious offence.

30. The injuries were also a serious example of grievous bodily harm, involving nerve damage and a severed artery and were life threatening, particularly the stab wound that involved the liver.

31. While the offence was committed in company with others, that is an element of the offence and not a matter that aggravates it. It is, however, an offence that involved the intentional use of a weapon.

32. It was submitted by the Crown that there was a level of planning of the offence because the offender had armed himself with a knife. However, while I accept that the offender had pre-armed himself, the evidence does not support a conclusion that he did so by way of planning to commit the actual offence before the court. Rather, it seems to me, the offence occurred in a spontaneous situation which arose from the altercation between Mr Dib and Mr Sang-Yum, which escalated when the offender immediately took advantage of a knife he was carrying. It also, in my opinion, would involve a level of double counting to treat being armed with a knife as involving planning, while also taking into account, as I have, that the grievous bodily harm involved the use of a weapon.

33. It was argued by the offender that his criminality is reduced because there was provocation, by reason of the initial assault by Mr Dib on the offender’s associate, Mr Sang-Yum. I have considered this argument but I do not accept it.

34. The victim of the stabbing was AA, who played no part in the altercation between Dib and Sang-Yum. In my opinion the initial altercation between Dib and Sang-Yum provides some explanation as to why the offender attacked AA with the knife, but this cannot be regarded as having been provoked, given that neither the offender nor AA were involved in that earlier altercation.

35. The offender’s actions are more accurately described, in my view, as a form of retaliation by him, as part of a group against the other group, made up of Dib, AA and Malas.

36. Having regard to all the circumstances, in my view the offence is around the mid-range of objective seriousness.

37. The offender’s criminal history is such that it denies him an entitlement to leniency that might have applied if this had been his first offence, or if his criminal history had been more limited than it is. While the offender reported having been affected by drugs at the time of the offence, this does not mitigate its seriousness, although I accept that it provides some explanation and context.

38. The seriousness of the offending is aggravated by reason that the offender was subject to conditional liberty at the time of this offence. In particular, he was subject to good behaviour bonds for offences of robbery in company and offences of carrying a knife in public and was also subject to a suspended control order in the Children’s Court for another offence of carrying a knife in public.

SUBJECTIVE MATTERS

39. The offender was born in New Zealand and moved to Australia in 2015 with his family, when he was about 15 years old. However, his mother passed away not long after, and his father and siblings returned to New Zealand, with the offender choosing to remain in Australia with his aunt. He was expelled from high school in Year 11 and he has no real history of employment.

40. He has a history of some substance abuse, including cannabis, ecstasy, cocaine and alcohol and reported that just prior to the offence he had been using some of these drugs.

41. He told the psychologist, Ms El-Hassan, that he has very little memory of the offence but claimed to her that it had been committed when he was trying to protect his friends.

42. According to his self-report to the psychologist, he expressed remorse for his offending, saying, “I’m sorry for what I did. I know someone could have died.” On the other hand, the Youth Justice report of 30 October 2020 concludes that the offender showed little remorse and tended to justify his actions. A similar view is expressed in the Youth Justice report of 11 March 2021, which notes that the offender declined to write a letter of apology to the victim and had difficulty showing empathy.

43. The psychologist, Ms El-Hassan, concluded that the central event in the offender’s life to date has been the loss of his mother during his early adolescence. The psychologist suggests that the offender’s history and presentation may indicate that he has cognitive difficulties, although there is no evidence of any intellectual disability. Although forming the view that he may have an Attention Deficit Hyperactivity Disorder, there is no actual diagnosis of such a condition and the psychologist states that it is unlikely that at the time of the offence, or currently, that the offender is suffering a mental illness or mental condition of the kind referred to in s 32 of the Mental Health (Forensic Provisions) Act.

44. I also have a report from neuropsychologist, Dr Werner, who assessed the offender in February 2021. In contrast to the conclusion reached by Ms El-Hassan, Dr Werner concluded that the offender had an “intact memory” of his behaviour at the time of the offence and that he and his friends had become involved in a fight and that he was under the effects of drugs at the time.

45. After applying a number of psychological tests, Dr Werner concluded that the offender’s overall functioning is in the low-average range. Ultimately, Dr Werner concluded that the offender is functioning within normal limits, which he explained as being low to average range in most areas and that he does not have an intellectual disability, although he does have some difficulties across a range of social skills.

46. Dr Werner reached a differential diagnosis of Autism Spectrum Disorder and Social Communication Disorder, although noting that further assessment is required to refine this diagnosis. Dr Werner nonetheless concluded that what he refers to as the offender’s impairments shaped his judgment at the time of the offence.

47. I accept this conclusion to a degree but it has to be balanced against the fact that this is not the offender’s first offence and his criminal history indicates that he was in the habit of carrying knives, which is a serious concern when considering the safety of the community.

48. The offender’s childhood background involved significant disruption and instability. As I have already noted, his mother died when he was a teenager and he had six sets of parents over a period of about 16 years and experienced three deaths of carers within that period. I consider that this background does reduce his moral culpability, to some degree. It does, as the Crown conceded, warrant some mitigation on sentence, while balancing this against the need to recognise the harm caused by the offence and the need for protection of the community.

49. Ultimately, I have come to the view that there is some, but minimal evidence of remorse. The weight I can give to remorse is limited however, as the offender was reluctant to talk about the offending when spoken to by various professionals and did not give evidence on sentence.

50. Notwithstanding this, there are some positive indications that the offender wishes to take steps towards controlling his impulsive nature and anger problems. This is noted in the Youth Justice report of March 2021, which records that his behaviour in custody has significantly improved in recent times and he has minimal issues in regard to impulsive behaviour.

51. He has also, in recent times, engaged in some counselling and is noted to have been making an effort towards making positive change. This is supported by a large number of certificates of achievement that have been awarded to the offender in recent times and which were admitted in evidence on sentence.

52. Having regard to all of the evidence, while there is some hope on the horizon, I consider the offender’s prospects of rehabilitation to be reasonable but guarded.

53. The offender is only 18 and he was only 16, nearly 17, at the time of the offence. There is a fundamental principle in sentencing that, when dealing with a young person, greater weight must be given to rehabilitation and less weight to deterrence. That is, in part, because children and adolescents do not have the cognitive and psychological maturity of adults and have more trouble regulating their moods and impulses. As a result, considerable flexibility is required in sentencing.

54. This is particularly the case in sentencing young males because there is a growing body of research which has been accepted by the courts, indicating that the brains of young males are not fully developed until perhaps their mid-twenties: BP v R [2010] NSWCCA 159.

55. The relevance of these observations is given direct support in this case by the report of the psychologist Ms El-Hassan, who comments on this very phenomena.

56. It has been held by the courts, however, that this principle does not apply in cases where a young offender conducts themselves as an adult and commits an offence of considerable gravity. This qualification of the mitigating aspect of youth is of some relevance in the sentencing of AM. There is no doubt, firstly, that the offence before the court is of considerable gravity.

57. And secondly, in my view, the actions of the offender in arming himself with a large knife, as was his practice, and in using it, without apparent hesitation, to inflict serious wounds on the victim, does have the hallmarks of a person acting as a violent adult might.

58. In my view, therefore, while it is appropriate to give considerable weight to the aspect of youth and the greater need for a focus on rehabilitation, rather than general deterrence and retribution, it is appropriate to moderate this factor, given the very serious nature of the offence and the offender’s criminal history, which includes several prior offences of carrying a knife in a public place.

39. As this offence before the court is not a “serious children’s indictable offence”, it is one that is capable of being dealt with either according to law or under the provisions of the Children’s (Criminal Proceedings) Act 1987. S 18(1A) of that Act sets out the matters I must consider in determining which of these alternatives to adopt and I have had regard to each of the matters in that section.

40. In my view, the most appropriate course is to deal with the offence according to law, due to the nature and seriousness of the offence; the offender’s age, that is, nearly 17 at the time of the offence; his current age, which is 18; and his criminal history. However, I have, nonetheless, as I must, had regard to the important principles set out in s 6(1) of the Children’s (Criminal Proceedings) Act 1987 in determining the sentence.

41. As I have already noted, I have applied a 25 per cent discount on account of the plea of guilty. I intend, in accordance with s 23 of the Crimes (Sentencing Procedure) Act 1999, to allow a further discount of 3 per cent on account of the assistance the offender immediately gave to police in telling them where he had discarded the knife.

PARITY

62. I need also to take into account parity considerations. In this regard, I note that the young offender ET was sentenced in the Children’s Court to good behaviour bonds for offences of affray and accessory after the fact to recklessly causing grievous bodily harm in company. However, that decision is of limited relevance for parity purposes, given that ET was being dealt with under a different jurisdiction.

63. More relevant is the fact that on 23 February 2021 I sentenced HT to an aggregate term of two years, 10 months, to be served by Intensive Correction Order, for the same offences for which ET was dealt with. However, HT faced different offences and his criminal history was less extensive than that of the current offender.

64. While I have had regard to the sentences of both of these co-offenders, they are of only limited guidance in the current sentencing exercise.

DETERMINATION

65. In determining the appropriate sentence, I have had regard to the principles set out in s 3A of the Crimes (Sentencing Procedure) Act 1999. I am satisfied, and no submission to the contrary was made, that the s 5 threshold is crossed and that no penalty other than one of fulltime imprisonment is appropriate.

66. I intend to order, pursuant to s 19 of the Children’s (Criminal Proceedings) Act 1987, that the term of imprisonment that I will impose be served as a juvenile offender.

67. I make a finding of special circumstances also for varying the ordinary ratio between head sentence and non-parole period, based on the offender’s youth and based on this being his first period in custody.

68. The head sentence I impose will comprise a non-parole period and an additional term, but I will express it in this way:

69. The head sentence I impose is one of three years, six months. The non-parole period is one of two years. Each of those will date from 21 December 2019. The head sentence, therefore, will expire on 20 June 2023 and the non-parole period will expire on 20 December 2021. I hope, AM, that you continue with the good steps you have been making in recent times.

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Decision last updated: 24 August 2021