R v CQD

[2002] NSWSC 732

CITATION:	R v CQD [2002] NSWSC 732
FILE NUMBER(S):	SC 70068/01
HEARING DATE(S):	11/06/2002, 9/08/2002
JUDGMENT DATE:	23 August 2002
PARTIES :	Crown CQD
JUDGMENT OF:	Hidden J at 1

COUNSEL :	Mr B Smith - Crown Mr J Stratton - Offender
SOLICITORS:	SE O'Connor - Crown Brenda Duchen - Offender
CATCHWORDS:	CRIMINAL LAW: Sentence - detaining for advantage and concealing serious offence - offender a juvenile at the time.
LEGISLATION CITED:	Crimes Act 1900 Children (Criminal Proceedings) Act 1987 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	R v Crofts (CCA, unreported, 10.3.95) R v Hearne (2001) 124 A Crim R 451
DECISION:	See para 22.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HIDDEN J

Friday, 23 August, 2002

70068/01 – REGINA v CQD

SENTENCE

1 HIS HONOUR: The offender has pleaded guilty to a charge of detaining for advantage (s 90A of the Crimes Act, since repealed) and concealing a serious offence (s 316(1) of the Act). He was sixteen years old at the relevant time and, in accordance with s 11(1) of the Children (Criminal Proceedings) Act 1987, I shall not name him. Almost everyone else involved in this affair, including the victim, was also a juvenile at the time and is entitled to the anonymity afforded by that provision. It is convenient to refer to all of them by their initials.

2 The first charge relates to the offender’s limited participation in events which culminated in the murder of a young man, HHL, in the southwest of Sydney on 7 August 1996. The second charge arises from the offender’s failure to say anything to the police about the murder until he was interviewed about it on 19 December 1996.

Facts

3 In the afternoon of 7 August 1996 the deceased, HHL, was escorted from a coffee shop at Bankstown by a number of young men, including three to whom I shall refer as MHN, TNT and HLD. He was taken to a station wagon and driven to a nearby park, where he was seriously assaulted. He was then driven to a house at Villawood. The offender and another man, PP, lived at that house and they were there at the time.

4 The deceased was placed into a bedroom and PP directed the offender to guard him. The deceased was obviously injured as a result of the assault perpetrated upon him at the park. The offender kept watch on him for several hours, and during that period he heard MHN say that he was to be killed. From what he said, it appeared that MHN feared reprisals from associates of the deceased if he were allowed to go. What MHN or any of the other men had against the deceased is entirely obscure and it is not suggested that the offender knew anything about that.

5 The deceased was later taken from the bedroom to the garage of the premises, where one or more of the other men attempted to strangle him with a length of wire. At this time the offender went to the garage but, as soon as he saw what was being done, he ran back to the house. HLD returned to the house and told the offender what had happened, saying that the deceased was unconscious but not dead. The other men then drove the deceased to a construction site at Chester Hill. Either there or at some other location MHN stabbed him a number of times in the throat. Early the following morning his dead body was found at that site.

6 MHN was arrested and charged with the murder in November 1996. He later pleaded guilty to that offence and was sentenced by Kirby J. More recently, TNT and HLD were also arrested and charged. TNT pleaded guilty to the murder before me and has been sentenced. For his part in the incident, HLD pleaded guilty before me to attempted murder and is yet to be sentenced.

7 As I have said, the offender was interviewed on 19 November 1996. At that stage he said nothing about his own involvement, but claimed that MHN had told him after the incident what had occurred. However, in a subsequent interview on 21 March 2001, he made admissions consistent with the facts which I have outlined. He told police that, when the deceased was brought to the house, he thought that the other men would release him in due course and it was not until “a couple of hours later” that he became aware that he was to be killed. When he heard MHN say that, he said, he was scared. Asked in evidence before me why he did not try to stop the killing, he said that there was nothing he could do as he was the youngest of the group. He also expressed remorse, which I accept as genuine, for the plight of the deceased and for his own part in the incident.

8 He was arrested on 24 April 2001 and has been in custody since.

Assistance to Authorities

9 Significantly, at around the same time as his confession of March 2001, the offender also provided police with information about another unrelated murder which he had witnessed. He gave evidence for the prosecution in relation to that matter, both at committal and at trial, and convictions were obtained. I gather that that evidence was important and he was described by the Crown prosecutor in those proceedings as an excellent witness.

Subjective case

10 The offender is now twenty two years old. He was born in Vietnam and has two sisters, one older than he and one younger. When he was about three years old his parents left Vietnam, taking the younger sister with them. They made their way to Malaysia and, after some years in refugee camps in that country, arrived in Australia. The offender and his older sister remained in Vietnam with their grandmother. They joined their parents in Australia in 1990, when he was about ten.

11 The family lived at Canley Vale. In evidence, the offender described his father as a devout Buddhist and a very strict man. His parents worked very long hours at a clothing factory on six, sometimes seven, days of the week and they later went into business on their own account. Their industriousness was laudable and, no doubt, was motivated by their desire to provide for their children. Unfortunately, however, they had little free time to devote to the offender. He was unhappy and was not attending school regularly, and at the age of sixteen he ran away from home. It was in these circumstances that he formed his association with the other young men involved in this tragic incident, and came to be living at the house at Villawood.

12 For some years thereafter he appears to have lost direction in his life and to have drifted within a criminal subculture. He began to abuse a variety of illicit drugs. His criminal history includes entries in New South Wales for possessing and supplying heroin, and in Queensland for possessing cannabis. In evidence, he acknowledged having been a street dealer in those drugs. That said, his record is relatively minor and is consistent with his wayward lifestyle. I consider it of little significance for present purposes.

13 Much has changed since the offender was taken into custody in April last year. He has re-established contact with his family. His parents separated in the late 1990’s. They now live apart in Queensland but, apparently, they stay in touch and are supportive of each other. They have maintained contact with the offender through regular visits and telephone calls. He also enjoys contact with his siblings, who live in Sydney, and other members of his extended family. His parents and other family members were present at the sentence hearing.

14 He has been detained at the Kariong Juvenile Justice Centre. He has pursued his education and last year attained the School Certificate. He has also undertaken a number of practical training courses, including cabinet making. He hopes, with the assistance of his teacher at Kariong, to obtain an apprenticeship in that trade upon his release. Finally, he has been undergoing counselling to address his substance abuse and other lifestyle issues.

15 A chaplain at Kariong gave evidence and provided a brief report, which speaks favourably of the offender’s behaviour whilst at the centre, his insight into his previous debased lifestyle and his determination to seize the opportunities for improvement available to him while in custody. I also have the benefit of a helpful background report from the Department of Juvenile Justice. Its assessment of the offender is encouraging and is consistent with my own conclusions from the whole of the evidence. This is a young man who has had a difficult background and whose life became completely derailed during a significant period of his adolescence and early adulthood. The maturity he has achieved whilst in custody is demonstrated not only by his participation in education, training and counselling, but also by his remorse, his insight into his crimes and his willingness to assist the authorities in the prosecution of the other murder to which I have referred. My sentencing order must be fashioned so as to foster his prospects of rehabilitation, which are good.

16 Where he will live upon his release is a matter of some concern. To pursue the apprenticeship in cabinet making it may be necessary for him to live in Western Sydney but, given his assistance to the authorities, he may be in some danger there. He may be able to live in Queensland with one or other of his parents, but his employment prospects there are unknown. This, however, is not a matter which I can resolve. No doubt, those supervising him will give it careful attention.

Sentence

17 For the offence of detaining for advantage, s 90A provided for a maximum sentence of 20 years of imprisonment unless the Court was satisfied that the victim had been liberated without substantial injury, in which event the maximum was 14 years. The present offence, of course, carries the higher maximum. (Provision for the offence is now to be found in s 86 of the Crimes Act). I have been supplied with Judicial Commission statistics for sentence under s 90A, derived from a sample of one hundred and twenty seven cases. Of those, eighty six resulted in full time custodial sentences. The sentences ranged from 6 months to 10 years, with a significant number being of the order of 3 to 4 years. No doubt, some of the recorded cases, including some of those which were visited with custodial sentences, involved offences carrying the lesser maximum.

18 For concealing a serious offence, s 316(1) of the Crimes Act provides a maximum sentence of 2 years imprisonment. Understandably, I was not furnished with sentencing statistics for that offence. Its ambit is so wide that any figures would be of little or no assistance. However, I was supplied with one decision of the Court of Criminal Appeal where the offence concealed was murder: R v Crofts (CCA, unreported, 10.3.95). That case involved an adult offender who was able to make out a strong subjective case. The Court confirmed a sentence of 6 months imprisonment.

19 In the present case, the offence of detaining for advantage is a serious one. The offender kept guard on the victim for some hours knowing, for at least part of that time, that he was to be killed. The offence under s 316, though clearly related to the more serious offence, extended over a period of several months, and I am persuaded by the Crown prosecutor’s argument that it calls for a cumulative sentence.

20 On the other hand, the offender has made out a substantial claim for leniency. Apart from the subjective matters to which I have referred, appropriate weight must be given to his youth at the relevant time, notwithstanding the seriousness of the offences: R v Hearne (2001) 124 A Crim R 451 at paras 22-5. The sentences otherwise appropriate for both offences must be reduced in recognition of his admissions to the police, belated as they were, his pleas of guilty and his assistance to the authorities. Clearly, there are special circumstances calling for a departure from the usual proportion between head sentence and non-parole period.

21 But for the offender’s plea of guilty and cooperation with the authorities, I would have imposed a sentence of 5 years imprisonment for the offence of detaining for advantage. In the light of those factors, I propose to reduce that sentence by forty percent to 3 years. I shall specify a non-parole period of 12 months. His concealing a serious offence calls for an undiscounted sentence of 6 months imprisonment, and I consider that justice would be achieved by a one-third reduction to 4 months.

22 On the charge of detaining for advantage, the offender is sentenced to imprisonment for 3 years, to date from 24 April 2001, with a non-parole period of 12 months. On the charge of concealing a serious offence, he is sentenced to imprisonment for 4 months, to commence at the expiration of that non-parole period. Upon the expiry of that sentence he will be entitled to release on parole, and I direct that he be subject to the supervision of the Probation and Parole Service for as much of the remainder of the 3 year sentence as that Service thinks fit. I shall consult the parties about any further order which should be made, given the provisions of ss 48 and 50 of the Crimes (Sentencing Procedure) Act 1999.

(After hearing submissions from counsel, his Honour added:)

23 In accordance with s 48 of the Crimes (Sentencing Procedure) Act, I note that the earliest date on which the offender might be released is today and, in accordance with s 50 of that Act, I direct his release today.

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Last Modified: 08/28/2002