R v Aslett

[2012] NSWSC 711

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Aslett [2012] NSWSC 711
Hearing dates:	18 May 2012
Decision date:	29 June 2012
Jurisdiction:	Common Law - Criminal
Before:	Harrison J
Decision:	For the manslaughter of Slobodan Simic the offender is sentenced to imprisonment with a non-parole period of 4 years, which will be taken to have commenced on 2 August 2009 and which will expire on 1 August 2013, and a balance of term of 2 years and 3 months commencing on 2 August 2013 and expiring on 1 November 2015.
Catchwords:	CRIMINAL LAW - sentence - manslaughter - plea of guilty to manslaughter on the basis that the offender entered a joint criminal enterprise with the two co-accused to threaten or use unlawful violence against the deceased while each was armed with a weapon - gravity of offence - offence somewhere below the middle range of seriousness for the offence of manslaughter
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	R v Bollen (1998) 99 A Crim R 510 R v Previtera (1997) 94 A Crim R 76 R v Van Xuan Nguyen [2005] NSWSC 600
Category:	Sentence
Parties:	Crown Douglas Aslett (Offender)
Representation:	M M Cunneen SC (Crown) Dr R J Webb (Offender) S Kavanagh, Solicitor for Public Prosecutions (Crown) Voros Lawyers (Offender)
File Number(s):	2009/75085

REMARKS ON SENTENCE

1. HIS HONOUR: The offender Douglas Aslett was indicted for the murder of Slobodan Simic at Cabramatta West on 2 August 2009. The Crown subsequently accepted his plea of guilty to manslaughter, entered in the Parramatta Local Court on 6 September 2011, in complete discharge of that indictment.

The offence

1. The following findings of fact are drawn from an agreed statement of facts tendered by the Crown in the sentencing proceedings.

1. James Aslett and his cousins, the offender and WA, were each charged with one count of murder in relation to the death of the deceased. They were to be tried separately. The offender and WA are brothers. At the time of the offence the brothers resided with their mother Kathy Aslett, her boyfriend and their younger sister in Cabramatta West. James Aslett lived nearby in Claymore and frequently visited his cousins at their home.

1. Kathy Aslett's property backed onto a vacant block of land, which was itself situated adjacent to a T-intersection in Cabramatta West. The brothers used the vacant block as a shortcut to their home through a gap in the fence at the rear of their property.

1. The deceased was in a relationship with Debra Jones. She lived approximately 200 metres west of the brothers' house.

1. On the evening of Saturday 1 August 2009, someone set fire to a car that was parked upon the vacant block of land. WA owned that car. The brothers spoke to each other that evening about waiting until the following day and attacking the person who set fire to the car. The offender and James Aslett went to the vacant land the next day and spoke to a neighbour about who might have set fire to the car. During that conversation, the offender expressed his belief that the deceased or his associate had done so. While the offender and James Aslett were still standing on the land, the deceased rode up Sulman Road towards them on his bicycle.

1. The offender and James Aslett became engaged in a verbal argument with the deceased in the course of which they yelled out threats to the deceased. As he turned to run away, they threw pieces of brick or rocks at him. These struck the deceased who started bleeding. He returned to his property to wash the blood off his arm. The offender and James Aslett returned to Kathy Aslett's property where they armed themselves respectively with a large black saw-toothed machete and a baseball bat. WA was there as well and he armed himself with a handgun. The offender and James Aslett then ran about 100 metres up the street towards the deceased's property. WA followed them.

1. The deceased would appear to have heard yelling and emerged from his house onto the street. He took off his shirt and approached the offender and James Aslett. The deceased was unarmed. He encouraged the offender and the others to drop their weapons and fight him with their fists. The offender and James Aslett swung their weapons at the deceased repeatedly. The deceased was struck by the baseball bat. At some point a friend of the deceased armed himself with a machete and came to his aid. Neither the offender nor his companions was injured.

1. WA fired a number of rounds in the direction of the deceased as he turned away. Upon hearing the first gunshot, James Aslett turned and saw WA and ran back towards the Aslett home. The offender also ran back in that direction. One of the shots fired by WA struck the deceased in the back.

1. The offender and the others fled through the vacant block into Kathy Aslett's property. They discarded the baseball bat, the machete, a shirt worn by one of them, as well as the deceased's shirt and singlet, at the rear steps to the premises. They then left that property and sought refuge at a nearby property. WA disposed of the firearm in the garden of a nearby house. He fled from the area.

1. Police were in attendance at the scene within minutes of the shooting. An ambulance also attended and took the deceased to hospital where he died shortly afterwards. The offender and James Aslett were arrested a few hours later. The offender exercised his right to silence. He was later charged with the murder of the deceased. He has remained in custody since that time.

Basis of plea of guilty to manslaughter

1. The agreed statement of facts disclosed the following matters. The offender's plea of guilty to the manslaughter of the deceased was accepted by the Crown on the basis that the offender entered into a joint criminal enterprise with James Aslett and WA to threaten or use unlawful violence against the deceased while each was armed with a weapon. The offender contemplated the possibility that one of the others James Aslett or WA might do an unlawful and dangerous act toward the deceased carrying with it an appreciable risk of serious injury. Notwithstanding his contemplation, the offender maintained his participation in the joint criminal enterprise to threaten or use unlawful violence against the deceased. During the joint criminal enterprise WA shot and killed the deceased, constituting at least an unlawful and dangerous act.

Sentencing for manslaughter

1. In R v Van Xuan Nguyen [2005] NSWSC 600 at [21] - [24], Johnson J set out the relevant sentencing principles in the case of the crime of manslaughter. In setting out the paragraphs referred to, I respectfully adopt his Honour's summary:

"[21] The maximum penalty prescribed for the offence of manslaughter is imprisonment for 25 years: s 24 Crimes Act 1900. The offence of manslaughter involves the unlawful taking of a human life, and as such it has long been recognised as one of the most dreadful crimes in the criminal calendar: R v Hill (1981) 3 A Crim R 397 at 402. In R v MacDonald (Court of Criminal Appeal, 12 December 1995, BC9501664), the Court (Gleeson CJ, Kirby P and Hunt CJ at CL) said at page 8:

'Manslaughter involves the felonious taking of human life. This may involve a wide variety of circumstances, calling for a wide variety of penal consequences. Even so, unlawful homicide, whatever form it takes, has always been recognised by the law as a most serious crime. (See R v Hill (1981) 3 A Crim R 397 at 402.) The protection of human life and personal safety is a primary objective of the system of criminal justice. The value which the community places upon human life is reflected in its expectations of that system.'

[22] In R v Blacklidge (Court of Criminal Appeal, 12 December 1995, BC9501665), Gleeson CJ (Grove and Ireland JJ agreeing) said at page 4:

'It has long been recognised that the circumstances which may give rise to a conviction for manslaughter are so various, and the range of degrees of culpability is so wide, that it is not possible to point to any established sentencing tariff which can be applied to such cases. Of all crimes, manslaughter throws up the greatest variety of circumstances affecting culpability.'

[23] The importance of denunciation in sentencing for manslaughter has been stressed: R v MacDonald, above, at page 9. Little assistance is to be gained by reference to sentencing statistics which encompass all forms of manslaughter, save so far as they disclose a broad range within which sentences have been passed since their compilation began: R v Mohamad Ali [2005] NSWSC 334 at paragraph 61.

[24] A sentence for manslaughter must reflect the seriousness of unlawfully taking the life of another human being and it is not of great moment whether the killing is characterised as coming within any particular head of manslaughter. Rather, it is a question of what sentence is required to reflect the objective facts by way of retribution and denunciation, the subjective circumstances and, if necessary, deterrence: R v Walsh (2004) 142 A Crim R 140 at 149 (paragraph 40); R v Mohamad Ali, above, at paragraph 56."

Subjective features

1. The offender was born in Sydney in April 1990 and is now aged 22 years. His father is Turkish. His parents separated before his birth. His mother is from an indigenous background and she principally raised the offender in the context of the extended family. He lived his early years in Dubbo before moving to Homebush, Busby and Bonnyrigg. For the ten years prior to the commission of the offence, the offender resided with his mother in her home at Cabramatta West.

1. The offender has two half siblings from different fathers. His younger brother WA is currently serving a sentence of detention in relation to the same incident. His younger half sister is aged about 12 or 13 and lives at home with her parents. The offender's stepfather has lived with his mother for the past 13 or 14 years. The offender has a good relationship with his stepfather and has recently resumed contact with his natural father who commenced visiting him in gaol after his arrest. The offender had only seen his father sporadically during his childhood. The offender is on good terms with his father's wife and his father has offered the offender accommodation as well as assistance in obtaining employment following his release.

1. The offender has a partner who is aged 22 years. They have been together since the age of 18. They have a son who is nearly three years old. Prior to his incarceration, the offender lived with his partner, either in his grandmother's home or with his mother. His partner remains supportive and continues to visit the offender in gaol with their son.

1. The offender attended numerous primary schools as his family moved around a lot during his childhood. He reads well and has basic skills in arithmetic and mathematics. He was, however, frequently suspended from school for fighting in grades 5 and 6. Sometimes he was provoked to fight but not always. The offender was expelled from Miller High School in Year 7 after only a few months at the school. He then went to Hoxton Park High School and was shortly thereafter expelled having been accused of selling drugs. He denies that accusation. He was thereafter transferred to Campbell House at Glenfield for children with behavioural problems. He completed Year 9 at that school. He continued to exhibit behavioural problems, including fighting. He completed Year 10 through TAFE but appears never to have been awarded his School Certificate.

1. The following year the offender was referred to an Aboriginal training programme through the CFMEU at Lidcombe TAFE. It was a full time course involving carpentry, bricklaying, tiling, painting, decorating and scaffolding. He completed that course but was unable to secure employment. He has never been in paid employment at any time. He has applied to Centrelink but has had difficulty complying with the programmes. He spent time with his cousins and friends smoking cannabis and "hanging around". When his partner became pregnant he spent more time with her. He is looking forward to being a parent although he was arrested only shortly before his son's birth.

1. Despite his behavioural problems, the offender was never referred for counselling until the Youth Drug Court sent him in 2007 to an anger management programme. He was out on bail at the time. He did not complete the course and was ultimately given 80 hours of community service.

1. The offender acknowledges having had anger management issues since childhood. He describes himself as having had a hot temper and a short fuse. If people looked at him "the wrong way" he would interpret that as sinister and respond accordingly. He has always been in the company of "a tough crowd". He said his first assault charge was a result of someone staring at him, "making him edgy". He has calmed down somewhat in gaol and keeps to himself as much as possible. He has not been given psychological assistance in gaol and does not feel that he requires any specific counselling.

1. The offender has smoked cannabis since the age of about 11 or 12 "whenever he could find it". Cannabis was effective in reducing his levels of stress. He began to drink alcohol at the age of 15 and drank in occasional binges with his friends. Alcohol was never problematic for him. He experimented with amphetamines and ecstasy when he was 18 as well as drinking occasionally. With the exception of cannabis, he gave up all drug use when his partner fell pregnant. He has refused cannabis in gaol and has submitted uniformly clean urine tests. He has been abstinent from all drugs in gaol without assistance.

1. The offender has strong bonds of affection with his mother and her extended family. He had spent periods staying with his maternal grandmother when his mother "could not handle him". He was 7 or 8 the first time and about 13 or 14 the second time. He has had a stormy relationship with his brother WA, one of his co-accused.

Psychologist's pre-sentence report

1. The offender was referred to Anita Duffy, a psychologist who interviewed him at Long Bay MSPC on 20 February 2012. The offender told Ms Duffy "the whole affair should not have happened". He regarded it as a fight that got out of control. He said that he had offered to settle the dispute with the deceased in a fistfight, but the deceased's friends were also armed with knives and machetes.

1. The offender reported being under considerable stress in the two years following his arrest when he faced a murder charge. He has felt depressed in gaol, but has managed to deal with his anxiety and stress without resort to drugs. The offender is hopeful of being reclassified and sent to Windsor or Oberon where he can participate in work related activities.

1. Ms Duffy reported that the offender did not specifically express remorse or contrition over the offence to her, but did say frequently that he "wished the whole thing had never happened". The offender had no personal grudge against the deceased because he did not know him previously. He reacted angrily to the suspicion that the deceased or one of his friends had burnt his brother's car.

1. Ms Duffy's conclusions included the following opinions:

"Douglas Aslett's presentation at our session together, the history he gave me and the results of objective personality assessment reveal a young man who has developed an acute sensitivity to ridicule, humiliation or other forms of criticism. He perceives the world as a dangerous place where he must be vigilant to threat or harm. He describes for example feeling "edgy" if someone looks at him in a way which he perceives as threatening. From a young age he has retaliated against such provocation through fighting, which led to expulsion, suspension and referral to a special school for children with behavioural difficulties.

Douglas was brought up in a family where at times there was chaos and instability. There were occasions when he and his siblings resided with extended family members such as his grandmother and his maternal aunt. There were other problems with the Aslett family such as that on at least one occasion one of his uncles held the children hostage and threatened their lives...

Thus Douglas has been exposed to violence during formative years in his youth, and from this may have learned to develop undue sensitivity to provocation or other threats in his environment. He also expresses extreme loyalty towards his family, his cousins, his brothers and friends...

Douglas' history and personality profile suggests a strong need for participation in programmes that enable him to deal more effectively with stress and triggers of anger. Stress management and anger management programmes would be appropriate for his needs, as well as such courses as Think First which enable him to consider the consequences and develop alternate courses of action.

His rehabilitation needs also include education and vocational training programmes, and preferably employment in a working gaol. It is considered that he would also benefit from close supervision by the Probation and Parole Service following his release to facilitate his reintegration in the community to ensure that he has appropriate accommodation, employment. He could benefit from participation in community based programmes to prevent relapse into drugs and reinforce strategies of anger and stress management. It is thought that indigenous programmes in particular may have more relevance to Douglas' needs."

Findings concerning the offence

1. Having regard to the evidence before me I make the following findings of fact that bear upon the objective seriousness of the offence.

1. First, there was no long-standing enmity or grievance that existed between the offender and the deceased. Any feelings that developed in the mind of the offender toward the deceased would appear to be those that arose in the limited circumstance that the offender was told and apparently accepted that the deceased had been responsible for burning his brother's car the previous evening.

1. Secondly, and shortly afterwards, there developed a heated exchange between the offender, his brother and his cousin and the deceased in the course of which rocks and bricks were thrown at the deceased.

1. Thirdly, the offender, his brother and his cousin retreated to their home to obtain weapons that included a machete, a baseball bat and a handgun.

1. Fourthly, the offender was the person armed with the machete but he did not use it to strike the deceased.

1. Fifthly, I am satisfied beyond reasonable doubt that the offender knew that his brother WA was armed with a handgun and that the offender contemplated at least the possibility that WA might use it in the course of doing an unlawful and dangerous act towards the deceased. However, I cannot be satisfied beyond reasonable doubt that he knew it would be used in the course of the confrontation with the deceased.

1. Sixthly, I am satisfied beyond reasonable doubt that the offender and at least his brother or his cousin had agreed that an act, involving at least a minor assault, would be perpetrated upon the deceased in the street and that the offender participated by being present, thereby aiding his brother and his cousin or one of them to commit the agreed act.

1. Seventhly, there was a degree of planning on the part of the offender to the extent that following the initial confrontation with the deceased, the offender retreated to his house to arm himself with a machete before returning to confront the deceased again.

1. Eighthly, there was no opportunity for the offender to intervene in any way that could have prevented WA from using the handgun to shoot the deceased.

1. Finally, following the shooting the offender, his brother and his cousin fled the scene.

Conclusions concerning objective seriousness of the offence

1. There is no standard non-parole period for the offence of manslaughter. However, the objective seriousness of the offence continues to be a highly important consideration in the sentencing exercise. A close examination and a qualitative assessment of the level of objective seriousness of the offence should be encouraged. The objective seriousness of the offence is but one of the factors forming part of the sentencing exercise synthesis.

1. Such an approach appears to me to be critical in the present case. There was a plan to confront the deceased. It consisted of two stages. The first was ill-considered and ill-formed. It was largely, if not entirely, spontaneous, impulsive and sparked by the simple and unfortunate arrival of the deceased upon his bike at a time when the offender and his cousin had formed, or were in the course of forming, a frail conclusion about the deceased's responsibility for the destruction of the car. The second stage was less spontaneous and more considered. It involved a temporary cessation of active hostility to acquire weapons further and better to conduct the assault. It necessarily involved a decision to continue with an attack upon the deceased when the attack had for practical purposes and appearances come to an end.

1. The offender did not shoot the deceased. It is not suggested that any act on his part directly caused or contributed to his death. I consider that the offence lies somewhere just below the middle range of seriousness for the offence of manslaughter.

The plea of guilty

1. The offender was originally charged with murder. He pleaded guilty in the Local Court on the first available opportunity following the Crown's offer to accept his plea to the lesser charge in full discharge of the indictment. There was agreement about the likely length of any trial. There was also a significant prospect that any jury would ultimately have been confronted with a multiplicity of witness accounts of what occurred, which varied in several respects. There was therefore a considerable saving to the Court and to the community in terms of resources and time.

1. It is appropriate in these circumstances that the offender should be given a discount of 25 percent for his early plea.

Contrition and remorse

1. The offender did not give evidence at the sentencing proceedings. He has neither written a letter nor prepared, with or without assistance, any document in which he sets out his feelings following the death of the deceased. He has told Ms Duffy that the whole thing got out of hand and should never have happened, but this is far from an expression of contrition or remorse.

1. I indicated in the course of sentencing James Aslett, who gave evidence about his feelings following the death of the deceased, that an infelicity with language or difficulty speaking about sensitive emotional matters in a public setting such as a courtroom, should never be confused with a lack of remorse. The same cannot be said when an offender says nothing to me about the issue, so that I am left with only the second hand remarks of the offender passed on to a psychologist whose report is later tendered.

1. I cannot be satisfied in this case that the offender has demonstrated any contrition, or retains any feelings of remorse for what he has done. This is because there is no satisfactory material before me upon the basis of which I would be entitled to draw such an inference or to form any such conclusion.

Special circumstances

1. The offender's father and partner gave evidence before me. It seems probable that the offender will in the first instance live with his father upon his release and only gradually move to the point where he takes up a life with his partner and their child. I was impressed with her maturity to the extent that she recognised the inadvisability of immediately attempting to resume their relationship under the same roof before the offender has had some time to readjust to life in the community. The offender's historical difficulties with violence are unlikely to have been completely resolved before that occurs, and the availability of constant help to address this problem will in my view be necessary following his release. Despite the likelihood of assistance from his family, the offender will require a longer than usual period on parole for this purpose in my view. I find special circumstances for the purposes of s 44(2) of the Crimes (Sentencing Procedure) Act.

Determination of sentence

1. The circumstances that give rise to these proceedings are pathetic and unnecessary and were completely avoidable. The offender contributed significantly to the escalation of the terrible violence perpetrated against an innocent victim whose life was tragically and senselessly cut short. The whole incident was the result of a combination of ignorance and stupidity, fuelled by the combatants' inflated senses of self-importance and entitlement. The offender was no small contributor to that combination as well. There can never be any scope in a civilised society for the settling of scores, whether real or imagined, by dangerous and uncontrolled aggression. The consequences for all concerned have been uniformly painful and unsatisfactory.

1. It will be apparent that the roles of the offender and his cousin James Aslett were relevantly indistinguishable, apart from the fact that James Aslett struck the deceased with his baseball bat whereas the offender did not strike the deceased with his machete. I also note that James Aslett gave evidence of his contrition and remorse, which I accepted, whereas the offender did no do so. Finally, the offender pleaded guilty in circumstances attracting a 25 percent discount, whereas James Aslett did not plead guilty until the first day of his trial for murder, attracting a discount of only 15 percent. In accordance with the principles of parity, I have attempted as far as possible, therefore, to sentence the offender to a similar term of imprisonment to that imposed by me upon James Aslett in as much as the notional starting point for each sentence is almost exactly the same. The difference between the head sentences and the non-parole periods for each man is the result of the application of differing discounts for their respective guilty pleas.

1. I have read a victim impact statement written by the brother of the deceased. He spoke of his own reaction to the death, as well as that of the extended family. His mother in particular would appear to be labouring with the burden of grief in her senior years in a very disabling way. The death of the deceased is undoubtedly a terrible and unending fact of life for her and the rest of the family. Nothing that I have said in the course of delivering these remarks should be taken as in any way derogating from or diminishing the importance of the life of the deceased in the eyes of his family and friends who remember him. I am however mindful of the principles referred to in R v Previtera (1997) 94 A Crim R 76 and R v Bollen (1998) 99 A Crim R 510, and I must conform to them.

1. Taking into account all of the objective facts and all of the subjective circumstances, and other factors required to be taken into account under s 21A of the Crimes (Sentencing Procedure) Act, I consider that the appropriate sentence in this case is one of imprisonment for 6 years and 3 months with a non-parole period of 4 years. It is accepted that the commencement date for any sentence that I impose is 2 August 2009 and I propose to order that the sentence to be imposed will operate from that date. The sentence as proposed also has regard to my finding of special circumstances.

1. Douglas Aslett, for the manslaughter of Slobodan Simic to which you have pleaded guilty you are sentenced to imprisonment. I set a non-parole period of 4 years, which will be taken to have commenced on 2 August 2009 and which will expire on 1 August 2013, and a balance of term of 2 years and 3 months commencing on 2 August 2013 and expiring on 1 November 2015. The first day upon which you will be eligible for release on parole is 2 August 2013.

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Amendments

08 January 2013 - replaced name with initials

Amended paragraphs: 22

Decision last updated: 08 January 2013