R v Baker
[2008] VSC 390
•2 October 2008
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1545 of 2006
| THE QUEEN |
| v |
| KHALID BAKER |
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JUDGE: | WHELAN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26-27, 31 March, 1-2, 7-11, 14-15, 17-18, 21-24, 28-30 April, 1-2, 5-9, 12-16, 19-24, 26 May, 29 August 2008 | |
DATE OF SENTENCE: | 2 October 2008 | |
CASE MAY BE CITED AS: | R v Baker | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 390 | |
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CRIMINAL LAW – Sentence – Murder – Violent attack at a party – Victim fell through a window – Youthful offender – No intention to kill - Reasonable prospects for rehabilitation – Prison especially onerous - Sentenced to 17 years’ imprisonment with a non-parole period of 12 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P. Rose SC with Mr A. Lewis | Office of Public Prosecutions |
| For the Accused | Mr J. Desmond | Doogue & O’Brien |
HIS HONOUR:
Khalid Baker, on 8 April 2008 you and a co-accused, who was a minor and I will call AB, were each arraigned on one count of murder. You both pleaded not guilty. On 23 May 2008 the jury hearing the charges found AB not guilty of murder and its alternatives, defensive homicide and manslaughter. On 26 May 2008 the jury found you guilty of murder, and on 29 August 2008 I heard a plea in mitigation on your behalf.
The maximum penalty for murder is life imprisonment.
The circumstances of the offence are as follows.
On Sunday 27 November 2005 you were at a party on the first floor of a converted warehouse in Brunswick. You had arrived at approximately midnight with four associates, including AB and one Ali Faulkner.
At approximately 3 am you and others in your group assaulted various partygoers in the party area, injuring a number of them. Although you are not being sentenced today for this conduct, it is relevant because it gives context to the murder which ensued. Following the assaults in the party area, you and Ali Faulkner went out onto a landing in the stairwell of the warehouse.
Seven people who were on the landing or on the staircase gave evidence in your trial of the events which occurred there. Five other witnesses gave evidence of portions of what occurred there. What occurred on the landing was described differently by the various witnesses.
It is important to emphasise that I am bound to sentence you on a factual basis which is consistent with the jury’s verdict. Otherwise, in relation to matters adverse to you, I must be satisfied of those matters beyond reasonable doubt, but I may take into account matters in your favour which are established on the balance of probabilities.[1]
[1] R v Storey [1998] 1 VR 395 at 369; R v Olbrich (1999) 1999 CLR 270; R v Cheung (2001) 209 CLR 1; and R v Ramage [2004] VSC 508 at [25],
I am satisfied beyond reasonable doubt that after the assaults in the party area, you and Ali Faulkner went through the door and out onto the landing. You and Ali Faulkner and others descended the stairs to the middle level.
I am satisfied on the balance of probabilities that at this point someone on the landing said something which enraged you. I cannot say what that was. There is no evidence that what was said contained any racial abuse. In response to what was said you ran back up the stairs. Ali Faulkner also ran back up the stairs. Ali Faulkner was physically restrained at the top of the stairs.
I am satisfied beyond reasonable doubt that when you reached the landing you were engaged in violent and aggressive fighting. At one stage you picked up a chair to use as a weapon, but it was taken from you by a bystander. I am also satisfied that your violent and aggressive fighting on the landing was a substantial cause of Albert Snowball’s death.
Albert Snowball went through a window on the landing and fell 5.4 metres to the footpath. He sustained injuries which resulted in his death on 29 November 2005.
The prosecution did not allege that you intended to kill Mr Snowball or that you intended for him to go through the window. The jury’s verdict requires the conclusion that you did intend to cause really serious injury to Mr Snowball, and I proceed on that basis.
On your plea I was told that you were born on 10 July 1987 in Saudi Arabia. You are now 21 years of age. At the time of these offences you were 18 years of age. Your parents are Ethiopian. Your family migrated to Australia from Somalia via Egypt in 1992, when you were five years old. Your family initially settled in Sydney, but soon moved to Melbourne. You are the fourth of six children, with the youngest two having been born in Australia.
According to a Department of Human Services confidential court report dated 15 February 2000, which was tendered by your counsel on the plea, your relationship with your family was difficult during your adolescence. When you were 12 years old you alleged that your parents and siblings had been physically and emotionally abusing you for several years. You subsequently spent two years living in protective care. You returned to live with your parents when you were aged 14.
You were expelled from school in 2002 when you were in year 8. You had difficulty learning to read and write. According to a report by the psychologist Grey Searle dated 16 April 2004, tendered by your counsel on the plea, many of your school memories relate to incidents of bullying, racial abuse, ridicule and embarrassment at not being able to read or write.
In 2003 when you were aged about 15 you took up the sport of boxing. You achieved considerable success as a boxer. You were the amateur junior lightweight champion of Australia.
When you were aged 16 you moved out of the family home for a time, but you returned home before this offence occurred in November 2005. You had intermittent labouring jobs between leaving school and committing the offence for which I am sentencing you today.
You have previously appeared in the Children’s Court in relation to criminal offending on five occasions, between 2001 and 2005. You have been found guilty of one charge of recklessly causing serious injury, one charge of recklessly causing injury, one charge of unlawful assault, one charge of resisting arrest, one charge of burglary, five charges of theft, one charge of unlicensed driving, one charge of dangerous driving, one charge of trespass, one charge of causing wilful damage and one charge of using indecent language in public. Although a finding of guilt was made in relation to all of these charges, you were each time sentenced without conviction. You have never been sentenced to a term of imprisonment.
The Crown tendered six victim impact statements at your plea hearing. They were from Jonathan Snowball, the father of the deceased; Agatha Snowball, the sister of the deceased; Edgar Snowball, the brother of the deceased; Betty Snowball, the paternal grandmother of the deceased; Ann Carolyn Shipton Rutter, the maternal grandmother of the deceased; and Tracey Snowball, an aunt of the deceased. It is apparent from these victim impact statements that Mr Snowball’s family have suffered profound emotional trauma as a result of his death.
I will read a portion of the victim impact statement of Jonathon Snowball, the deceased’s father:
“My sorrow is without end. Albert Snowball was my first born son. I sat him on my knee. I read stories to him. I carried him against my chest. He was a good and honourable human being. It is not an easy thing to watch your son die. We put him in a box and we burnt him. We saw his ashes disappear in the ocean. This is not the future I cherished for him.”
Your counsel tendered a psychological assessment by Ian Joblin dated 17 July 2008. It is apparent from this report, and also from the other reports tendered by your counsel, that you have experienced significant problems in your life. You attribute this to your difficulty learning to read and write and to prejudice you have experienced because of your colour and your religion. Mr Joblin notes in his report that you are extremely sensitive to abuse. Mr Joblin does not consider that you suffer from any diagnosable clinical psychological abnormality. He says you are not psychotic or clinically depressed, and that you do not exhibit symptoms of a personality disorder. He says your impulsivity and your perception of being seen as second-rate is a combination which can be potentially very difficult. He found you to be of good intellect and insight.[2]
[2]I do not consider that the principles stated in R v Verdins(2007) 16 VR 269 are applicable in this case.
Your counsel tendered a medical report by Dr Foti Blaher dated 19 August 2008, detailing a recent diagnosis that you suffer from type 1 diabetes.
Your counsel also tendered five character references on your behalf. These were by Vijay Kumar dated August 2008; Nella Cascone dated 30 July 2008; Isse Musse dated 25 August 2008; Peter and Lisa Whitney dated 22 July 2008; and Aliye Geleto Anota dated 12 August 2008. The references speak of a friendly, courteous and caring young man, and express shock at your conviction for murder. Mr Kumar gave sworn evidence at the plea hearing to a similar effect.
Your counsel, Mr Desmond, submitted that your sentence should be moderated to reflect a number of mitigating factors which he submitted apply in this case.
First, he submitted that you have good prospects for rehabilitation, as you are young and have strong family support.
You were 18 years old at the time of the offence, and are now aged 21. You are a youthful offender. In sentencing a youthful offender, rehabilitation is ordinarily far more important than general deterrence.[3] But with a serious offence such as this, youthfulness and rehabilitation, whilst not irrelevant, are of much less significance than they would have been with a less serious offence.[4] In such a case as this, youth and rehabilitation must be subjugated to considerations of specific deterrence, general deterrence and denunciation. Your youth is still a factor I take into consideration in your favour.
[3]R v Mills [1998] 4 VR 235.
[4] DPP v Lawrence (2004) 10 VR 125, 132.
My assessment is that you have reasonable prospects for rehabilitation. You are still young and have never before been imprisoned. I accept Mr Joblin’s view that you are of a good intellect. You have improved your reading and writing skills since being incarcerated from late 2005, and these skills should assist in improving your self esteem. You have embraced your religion. Despite previous problems with your family relationships, it is apparent that you have the support of your family, some of whom attended much of the trial, and a number of whom attended the plea hearing. Family support is central to the rehabilitative process. Subject to what I have said, I also take your prospects of rehabilitation into account in your favour.
Secondly, Mr Desmond submitted that you are remorseful for your actions. In their character references, Mr Kumar and Ms Cascone both stated that they believe you to be remorseful, and Mr Kumar repeated that belief in sworn evidence given at your plea hearing. It is difficult for me to accept remorse as a mitigating factor when you maintain your total innocence. I accept that you feel regret about the events of that night and about your current situation. I am not able to find you are remorseful.
A third mitigating factor put forward by your counsel was that the murder case against you was such that your not guilty plea was ‘legitimate’. Your counsel referred to the nature of the Crown case and he told me that at one stage you gave instructions to accept a Crown proposal that you plead guilty to manslaughter, but that you changed your mind overnight.[5] While I understand the point Mr Desmond was endeavouring to make, a not guilty plea is not an aggravating factor, and there is no need for any explanation as to why your plea was entered. It is the right of every accused person to plead not guilty and to have the charges against him or her tried before a jury.
[5]Transcript, 2491-3.
Fourthly, your counsel submitted that prison life will be particularly onerous for you because you suffer from Type 1 diabetes. I accept that this is a mitigating factor. Mr Desmond also submitted that I should take into consideration the fact that you are currently serving your sentence in a management unit at Barwon Prison, and that imprisonment in such conditions is likely to continue indefinitely. Given your nature as revealed by the evidence at your trial, by Mr Joblin’s report, and by my own observations of you during the trial, particularly on the bail hearings, I think that Mr Desmond’s submission that you may serve your sentence in management units indefinitely is likely to be correct. I do take that factor into account as it does mean your imprisonment is likely to be more onerous than for mainstream prisoners.
Finally, Mr Desmond submitted that this offence is ‘at the lower end of the murders that come before the courts’, and that I should moderate your sentence to reflect this. In support of this submission, Mr Desmond emphasised that the prosecution case was that you intended to cause really serious injury to Mr Snowball, not to kill him. Similarly, Mr Desmond emphasised that the prosecution did not allege that you intended Mr Snowball to go through the window, or even that you were reckless as to this occurring. Mr Desmond also highlighted the lack of injuries caused directly by the fight on the landing and the fact that no weapon was used. Further, he argued that the attack was not pre-meditated, but frenzied and out-of-control.
Although you have committed a very grave crime indeed, I agree with the submission that it is not a murder at the apex of moral culpability. In finding you guilty of murder, the jury must have accepted the prosecution case that you intended to cause really serious injury to Mr Snowball. You did not intend to kill Mr Snowball. You did not intend for him to go through the window and you were not reckless as to him doing so. There was no pre-meditation involved. No weapon was used.
In R v AB (No 2)[6], the Court of Appeal agreed with the trial judge that the offence in that case was ‘a manslaughter of the gravest kind’ reaching to ‘the very confines of murder’.[7] Conversely, although the offence in this case is one of murder, in my view it is one where the moral culpability involved approaches the confines of manslaughter.
[6][2008] VSCA 39
[7] R v. AB (No 2) [2008] VSCA 39, 15-16.
Having said that, you have, by your violent acts, taken the life of an innocent young man who went to a party and became unwittingly involved in a violent confrontation which was not of his making. The tragedy of your personal situation must not obscure the tragedy of this young man’s life, brutally taken from him by you, and the awful sorrow and suffering visited upon his family by your violence.
Given your history, specific deterrence is a sentencing consideration I regard as significant. General deterrence is also important. Violence of this type amongst young men in social situations is disturbingly common. Denunciation and punishment are also important factors.
On the murder charge I sentence you to 17 years’ imprisonment. I fix a non-parole period of 12 years.
Pursuant to s.18(4) of the Sentencing Act I declare that the period to be reckoned as already served and to be noted in the records of the Court is the period of 856 days.
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