R v CK; R v TCS

[2007] NSWSC 1424

CITATION:	R v CK; R v TCS [2007] NSWSC 1424
HEARING DATE(S):	2 November 2007
JUDGMENT DATE :	7 December 2007
JUDGMENT OF:	Latham J
DECISION:	CK - On the offence of Manslaughter, you are convicted. You are sentenced to a non parole period of 4 years, to date from 2 January 2007, to expire 1 January 2011, with a balance of term of 2 years, expiring 1 January 2013. You are eligible to be released at the expiration of the non parole period. Pursuant to s 19 of the Children (Criminal Proceedings) Act, I direct that your sentence be served in a juvenile justice centre. I further direct that your supervision whilst on parole be undertaken by the Probation and Parole Service; TS - On the offence of Manslaughter, you are convicted. You are sentenced to a non parole period of 3 years and 6 months, to date from 2 January 2007, to expire 1 July 2010, with a balance of term of 2 years and 6 months, expiring 1 January 2013. You are eligible to be released at the expiration of the non parole period. Pursuant to s 19 of the Children (Criminal Proceedings) Act, I direct that your sentence be served in a juvenile justice centre. I further direct that your supervision whilst on parole be undertaken by the Probation and Parole Service
CATCHWORDS:	CRIMINAL LAW - Sentence - Manslaughter by Unlawful and Dangerous Act - Juvenile Offenders - Offence Committed in Company - Unprovoked Assault upon Young Male.
LEGISLATION CITED:	Children (Criminal Proceedings) Act 1987
CASES CITED:	R v Voss [2003] NSWCCA 182 R v O’Hare [2003] NSWSC 652 R v LAL & PN [2007] NSWSC 445 R v KT [2007] NSWSC 83
PARTIES:	Regina - Crown Offender (1) CK Offender (2) TCS
FILE NUMBER(S):	SC 2007/00002744; 2007/00001858
COUNSEL:	Regina - P Barnett SC CK - C Smith TCS - J Stratton SC
SOLICITORS:	Regina - S Kavanagh CK - SE O'Connor TCS - SE O'Connor

- 1 -

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

NON-PUBLICATION ORDER

LATHAM J

7 DECEMBER 2007

2007/00002744 REGINA v CK
2007/00001858 REGINA v TCS

SENTENCE

1 CK and TS pleaded guilty to the offence of Manslaughter by an Unlawful and Dangerous Act at the Griffith Children's Court on 13 July 2007 and 26 June 2007 respectively. When arraigned at the Supreme Court on 17 September 2007 they each adhered to that plea. The offence carries a maximum penalty of 25 years imprisonment.

2 The offenders are to be sentenced on the basis of a statement of facts which has become Exhibit C in these proceedings. On the evening of Sunday 31 December 2006, a New Year's Eve function was held at Lake Wyangan on the outskirts of Griffith. This was a community function which catered for both adults and those under 18. Patrons under 18 were required to wear a wrist band to show that they could not be served alcohol. Security officials and police were in attendance at this function. Buses had been organised to take patrons to the party and to bring them back to the main street of Griffith that night and in the early hours of the morning of Monday 1 January 2007.

3 The deceased, AF, was a 17-year-old youth who lived in a town outside Griffith and attended high school in Griffith. He had gone to the party with a group of friends of the same age. AF and some of his friends travelled back into Griffith by car after they had attended the party.

4 CK and TS also attended the party. They were both aged 15 years as at 1 January 2007. CK resided in Griffith and attended school there so he was well-known to a number of people. TS resided in Narrandera, a town 80 km to the east of Griffith, however he was friendly with people in Griffith and came to the town regularly.

5 TS and CK met with other young people at the home of a friend. They consumed alcohol at this house before they left to catch the bus to the party at Lake Wyangan. Some patrons at the party described CK as acting aggressively while at the party. Others described him at other times during the party acting as a peacemaker. After they had finished at the party, CK and TS caught the bus back into the main street of Griffith with other people in their group and were assembled near the taxi rank in Banna Avenue, the main street of Griffith.

6 AF travelled back from the party into town by car with his group of friends. They parked in Banna Avenue and a short while later AF left with one of the young men, AK, to drive another friend home. AF and AK then returned to Banna Avenue shortly before 3 a.m., parked the car and were walking up towards the taxi rank to meet with others in their group who were standing and sitting in the area of a bench seat.

7 CK and TS were with a group of youths, both male and female near the chain fence dividing Banna Avenue from the park. Witnesses stated that CK was walking up and down in the area of the taxi rank. This was close to the area where AF’s friends had gathered. AF walked past this group with AK towards his friends. AK heard someone say "look at that cockhead". He turned and looked and saw that the person who made this comment had a distinctive hairstyle, short at the side and long in the middle with a “rats tail” at the back. AK knew this person by a nickname as they attended the same school in Griffith. The name and a description accords with the offender CK.

8 AF and AK walked past this group towards their friends. CK approached AF and said something to the effect of "what's your staring problem". AF replied that he did not have a problem. The offender CK then grabbed AF and head-butted him with some force to the forehead. There are witnesses who stated that CK then head-butted AF a second time, however other witnesses reported only one head-butt. AF then started to stumble backwards and was seen to have blood on his forehead.

9 As CK turned and went to walk away, another young male who was known to onlookers as TS punched AF to the head. There are witnesses who stated that TS punched AF a second time before following CK. A third male was in the vicinity and some onlookers stated that the third male also punched AF to the head. However, the available evidence is not sufficient to allow this person to be reliably identified.

10 AF took a few steps across the road and then collapsed. CK and TS had left the area and were walking away when a witness heard CK say words to the effect of "this is the way we roll, don’t fuck with me". Another witness heard him say "I’m CK, that's how we roll in this town".

11 Police and ambulance attended the scene in Banna Avenue. AF was unable to be revived and life was pronounced extinct at Griffith Base Hospital at 3:50 a.m. on 1 January 2007. A post mortem revealed that AF had died as the result of a subarachnoid haemorrhage.

12 CK and TS went to the home of a relative and later the next day, they attended Griffith police station voluntarily and were charged on 2 January 2007. Both have remained in custody since that date.

13 I pause to observe that, in terms of the objective gravity of this offence, it matters little that the offenders each inflicted violence upon the victim once or twice. The real gravamen of the offence lay in this entirely senseless, unprovoked, callous assault upon a young man, minding his own business in the company of his friends, in a public place. CK was, in my view, spoiling for a fight and TS joined in. The offenders’ physical size and strength belies their age. That they could deliberately inflict harm upon another young man, who like them, had family waiting at home to see him, a future to look forward to, a life full of promise, for absolutely no reason at all, beggars belief.

14 They will, at some stage, be returning to their families. They will have hopefully productive lives to lead, milestones to reach. The victim’s parents, his family and friends, are forever deprived of the enjoyment and pride that AF’s life would have undoubtedly provided. The victim impact statement provided by AF’s mother and father is eloquent of this loss. As they clearly recognize, “no punishment, no matter how draconian can assuage [that] sense of loss or allay [their] frustration” (Ex F). Some attempt must be made however, to mark the objective gravity of the offence, constituted by the unlawful taking of a human life, with a sentence that reflects the principles of punishment, retribution, deterrence, protection of the community, and the rehabilitation of the offenders.

15 Whilst the starting point in this sentencing exercise is the unlawful taking of a human life, the sentence to be imposed at law is constrained by the basis upon which the plea has been entered. The law demands that the offenders be sentenced for an offence that is, objectively speaking, at the lower end of the available range, the upper limit of which is the maximum penalty. That maximum penalty encompasses a very broad range of manslaughter offences, including manslaughter offences that would otherwise be characterised as murder, but for the presence of a mental illness in the offender, or provocation, or excessive self-defence.

16 It should also be understood that, as juveniles, the offenders are nevertheless to be sentenced according to law. The common law principles that are applicable to proceedings involving juvenile offenders have been the subject of comment by this Court on numerous occasions. They find their statutory expression in section 6 of the Children (Criminal Proceedings) Act 1987 :-

A court, in exercising criminal jurisdiction with respect to children, shall have regard to the following principles:
(a)
that children have rights and freedoms before the law equal to those enjoyed by adults and, in particular, a right to be heard, and a right to participate, in the processes that lead to decisions that affect them,
(b)
that children who commit offences bear responsibility for their actions but, because of their state of dependency and immaturity, require guidance and assistance,
(c)
that it is desirable, wherever possible, to allow the education or employment of a child to proceed without interruption,
(d)
that it is desirable, wherever possible, to allow a child to reside in his or her own home,
(e)
that the penalty imposed on a child for an offence should be no greater than that imposed on an adult who commits an offence of the same kind.

17 As was observed by the Court in R v Voss [2003] NSWCCA 182, these principles do not mandate a lesser sentence than that which would be imposed upon an adult for an offence of the same kind. They do however, justify a greater emphasis upon the rehabilitation of the offenders, than upon general deterrence, although the role that deterrence plays in the sentencing exercise is not to be completely discounted .

18 I turn to the subjective circumstances of each offender.

19 CK has a criminal history commencing in June 2006 with an Aggravated Break and Enter in Company, Larceny and two counts of Escape Police Custody. The offender received a bond (without conviction) for 12 months, conditional upon supervision from Juvenile Justice, including anger management and further education as directed. The offence for which he stands to be sentenced was therefore committed whilst on conditional liberty and manifests a failure on the part of the offender to address his anger management issues.

20 CK is the youngest of two children to parents who are now separated and have both been in further relationships. The offender has regular contact with his parents, although he has not resided with either of them on a full-time basis since he was about 5 years of age. He has at various times lived intermittently with his father and mother, but his principal caregiver has been his paternal grandmother, with whom he enjoys a close relationship. She continues to provide support to the offender and indicated in a letter to the Court that the offender appears to be making gains whilst in detention. The offender is furthering his education and participating in the sporting programs offered by the Baxter Juvenile Justice Centre. The offender has demonstrated a real talent in both football codes and has represented his school at State level. His sporting prowess is well known in the community.

21 The offender has expressed his remorse in relation to the offence in his conversations with his grandmother and with the Juvenile Justice officer responsible for preparing the report, which is before the Court as Exhibit D. He has admitted to drinking alcohol and using cannabis prior to the offence and accepts responsibility for it, although he claims he had never meant to hurt anybody. I take this to mean that he did not intend the consequences of his actions, rather than that he did not intend to cause some harm to the victim. He clearly requires ongoing drug and alcohol counselling and further attempts at anger management. He has undertaken counselling in these areas whilst in custody.

22 CK reports using cannabis a few times a week from the age of 13 years, growing to daily use by Year 9. He claims to have also tried amphetamines, crystal methamphetamine, cocaine and benzodiazepine, although he denies any regular use of these substances. He began consuming alcohol at the age of 14 and generally used alcohol on weekends with his peers. In the opinion of the psychologist responsible for the preparation of a report, being Exhibit 3, the offender has limited insight into his cannabis use, claiming that he can cease at any time. Relevantly, the psychologist expressed the following opinion in relation to the offender's prospects of rehabilitation :-

in terms of recidivism, [CK's] most significant risk factor is his impulsivity. Furthermore, his immaturity and adverse social circumstances render him susceptible to future substance abuse problems, peer influence and also a likely progression towards more antisocial behaviours. He requires consistent therapeutic intervention for the duration of any custodial term he receives, but also ongoing support to assist with his reintegration into the community. Without the focus of football and consistent support in the community, I believe [CK’s] trajectory will decline, and he will likely progress into the adult jail system.

23 TS has no criminal history. This offender is the product of a fleeting relationship between his mother and a man who now resides in Wagga who has never acknowledged his paternity. The offender's mother has since had five other children to different partners. TS considers these siblings as brothers and sisters and demonstrates a high level of support and care towards them. He professes no desire to have any contact with his father.

24 TS's early life was generally stable but periodically traumatic. Shortly after his birth, his mother left the offender in the care of her parents in Narrandera. They raised the offender until his teenage years, when he went to live with an aunt in Griffith. This move followed a motor vehicle accident in which the offender's grandmother was seriously injured. The offender remained with his aunt for a period of six months, then returned to Narrandera to live with his grandparents. At about this time, the offender's mother returned to that town and the offender's behaviour began to deteriorate. He was suspended from high school and went back to Griffith to live with another aunt. Following an incident with a teacher at Griffith High School he was also suspended from that school in August 2006. At the time of the offence, TS was living between Griffith and Narrandera during the school holidays.

25 The offender began drinking alcohol at 14 years of age on weekends with a group of friends and has also experimented with cannabis. On the night of the offence TS had in fact been taken home from the party by security guards, when they saw him with a quantity of alcohol. Despite being told by his auntie to stay at home, TS jumped the back fence and returned to the party. TS also expressed his remorse through the Juvenile Justice officer, the author of a report from Duffy Robilliard, psychologists (Exhibit 1) and a testimonial under the hand of a family friend (Exhibit 2).

26 Since being in custody, TS has adjusted well to the environment, with very few entries reporting any negative or disruptive behaviour. He has received regular counselling from a Department psychologist and seems to be benefiting from that intervention. He continues to enjoy the support of a large family network. His prospects of rehabilitation appear to me to be more promising than his co-offender.

27 Counsel appearing on behalf of the offenders have referred me to a number of comparable cases, the most relevant of which are R v O’Hare [2003] NSWSC 652, R v LAL & PN [2007] NSWSC 445 and R v KT [2007] NSWSC 83. Each of these sentences at first instance involved a juvenile or youthful offender pleading guilty to manslaughter by an unlawful and dangerous act, being the infliction of one or more blows to the victim. Each of them also displayed impulsive acts of violence in circumstances where the victim was unknown to the offenders. I accept the range for full time terms of imprisonment extracted by the Chief Judge at Common Law in R v LAL & PN.

28 For this offence, aggravated as it is by the fact that it was committed in company, I regard a sentence of 6 years imprisonment as appropriate to the objective and subjective features, after the application of a 25% discount in each case for the early pleas of guilty. I accept that a finding of special circumstances is warranted, primarily because both offenders demonstrate a need for ongoing lengthy supervision and counselling after their release from custody. There is very little to distinguish the offenders in terms of criminality, although CK was undoubtedly the instigator and was subject to a bond at the time of the offence. For these reasons, I am of the view that he requires a longer period in custody than TS.

29 CK would you please stand. On the offence of Manslaughter, you are convicted. I sentence you to a non parole period of 4 years, to date from 2 January 2007, to expire 1 January 2011, with a balance of term of 2 years, expiring 1 January 2013. You are eligible to be released at the expiration of the non parole period. Pursuant to s 19 of the Children (Criminal Proceedings) Act, I direct that your sentence be served in a juvenile justice centre. I further direct that your supervision whilst on parole be undertaken by the Probation and Parole Service.

30 TS would you please stand. On the offence of Manslaughter, you are convicted. I sentence you to a non parole period of 3 years and 6 months, to date from 2 January 2007, to expire 1 July 2010, with a balance of term of 2 years and 6 months, expiring 1 January 2013. You are eligible to be released at the expiration of the non parole period. Pursuant to s 19 of the Children (Criminal Proceedings) Act, I direct that your sentence be served in a juvenile justice centre. I further direct that your supervision whilst on parole be undertaken by the Probation and Parole Service.

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