R v Es

[2006] NSWDC 2

CITATION:	R v ES [2006] NSWDC 2
HEARING DATE(S):	18/05/06 02/06/06 23/06/06
JUDGMENT DATE:	23 June 2006
JUDGMENT OF:	Berman SC DCJ
DECISION:	The offender is sentenced to imprisonment. I set a non-parole period of one year to date from today. The non parole period will expire on 22 June 2007 on which date the offender is to be released to parole. I set a total term of two years imprisonment and I make an order directing that the offender serve the whole of that sentence as a juvenile offender.
CATCHWORDS:	Criminal Law - Maliciously Inflict Grievous Bodily Harm - Children - Sentence
PARTIES:	Crown ES
FILE NUMBER(S):	06/11/0085
COUNSEL:	Shane McAnulty (Offender)
SOLICITORS:	NSW DPP Crichton-Brownes

SENTENCE

1 HIS HONOUR: On 24 August 2005 a sixteen year old boy by the name of BT was travelling home from school. During the school day there had been argument involving BT’s sister. BT intervened to protect his sister. He was told by a number of boys of similar age to himself that he would be attacked after school. That is why, when he was confronted by a number of young people on the train, he was scared and armed himself with a pair of scissors. One can understand his apprehension. He was confronted by about eight boys of similar age to himself.

2 Whilst on the train he had received a cutthroat gesture from another person who mouthed the words, “you’re dead”. BT did not get off at his usual station which was Granville because he thought if he got off at Central he would be safer. He never got there.

3 The offender, ES, was one of a group of boys threatening BT. He was not a student at the school and was not involved in the initial altercation at the school. Nevertheless, he decided to join in, for reasons which are difficult to understand. One of the group punched BT to his face. The others then became involved, kicking and punching him while he attempted to protect himself.

4 In the course of evidence, these events were described as a fight. It is a most inaccurate description. I am satisfied that what was happening was a group of boys punching and kicking and overwhelming a single boy who was unable to offer any effective resistance at all.

5 I mentioned before, that BT had armed himself with scissors. These were held partially concealed with the blade up the sleeve of his school uniform. Once the attack upon him commenced, they dropped to the floor. The offender, who had been punching and kicking BT along with the others, picked up the scissors and stabbed BT in the back twice. The group of boys broke off their attack, leaving BT battered and bleeding.

6 Assistance was summonsed and BT was taken to hospital where he was operated upon. He had suffered a number of injuries. Amongst the most serious were a collapsed lung, a broken jaw and a broken tooth. He spent five days in hospital and because of his broken jaw could not eat solid food for about a month.

7 It was the offender alone who stabbed BT. He was also involved in a joint criminal enterprise with the others to attack BT by punching and kicking him. To join in an attack which leaves a young boy with a broken jaw and a broken tooth is bad enough, but to stab a defenceless person to the back is seriously criminal and deserving of severe punishment, even despite the offender’s relative youth.

8 The issue arises as to why the offender would pick up the scissors and stab BT. What was it that made the offender perform such a callous and violent act? The offender gave evidence during the course of the sentencing proceedings. He said that he stabbed BT after he was cut by the scissors as BT was trying to defend himself. He said, “I got hurt and just reaction”.

9 The suggestion that BT was defending himself was contrary to the statement of facts tendered by the Crown without objection from counsel appearing for ES. That statement of facts read, “at no time did the victim attempt to defend himself”. That statement appears to have been based upon a passage from a statement made by Jessica Facaris who was a young woman seated in the train carriage at the time BT was attacked. Accordingly, the Crown sought leave to reopen its case and called evidence from EF and BT.

10 After considering the evidence on the issue, I am satisfied beyond reasonable doubt that BT made no attempt to defend himself, apart from covering up his face with his arm and leaning forward. I am satisfied beyond reasonable doubt that at no stage did he actually use the scissors and that they fell to the ground in the course of him being assaulted. If the offender was cut during the course of these events I have described, it was as he, himself, was stabbing BT.

11 The offender gave evidence that he was cut on his right palm and cut on his knuckles as well. When the offender saw a doctor sometime after assaulting BT the doctor noted scars and a swollen fifth knuckle. He made no mention of any injury at all to the offender’s palm. This is consistent with the custody management records kept by police which were tendered by the Crown.

12 Neither of the two officers who filled in those forms noted any injury on or complaint of injury by the offender.

13 Further, although JF’s view was on occasions blocked by the boys who were attacking BT, she saw no attempt on his part to defend himself, apart from covering his face. Certainly she did not see everything because her view of BT was at times blocked by the boys who were attacking him, but at no time did she see BT wave his hands around, nor did she see him do anything which would have caused one of the boys who was attacking him to be cut. BT himself has no memory after being first punched or kicked.

14 The Crown also tendered transcripts of electronic recorded interviews of three boys who were, to some extent, involved in these events. I note two important things about these interviews. Firstly, there is the possibility that they were attempting to maximise the role played by someone other than themselves in order to exculpate themselves from involvement in these offences. Secondly, and this is related to the first matter I have mentioned, they each nominated the offender as being the person who first attacked BT, but the Crown asked me to proceed on the basis that this was not the case.

15 Despite these qualifications, I do find that there is support for the version of events suggested by the Crown - namely, that BT did not try and defend himself beyond merely covering up and more precisely the offender was not cut as BT tried to defend himself with the scissors. I refer, in particular, to the interview with CD at 206, the interview with KC at 86 and 168 and 499 and the interview with H A-M at 411 and following.

16 It is clear, indeed it is conceded by Mr McAnulty on behalf of the offender, that the offender had already been inflicting violence upon BT before he stabbed him in the back. I find that once he began joining in the attack, it was not a reaction to him being cut which led him to stab BT. His decision to do that has to be explained in some other way, most likely to do with the offender’s immaturity and his presence in a larger group of violent young males.

17 As a result of the offender’s conduct he has pleaded guilty to an offence of maliciously inflicting grievous bodily harm upon BT with intent to do him grievous bodily harm. This is a serious criminal offence, carrying a maximum penalty of twenty-five years and a standard non-parole period of seven years.

18 The offender was born on 11 March 1990, so he was only fifteen years old at the time of the offence and is only sixteen years old now. Although there was nothing reported on the criminal history handed to me by the Crown, it appears that the offender has come to the attention of police before and been dealt with in the Children’s Court or cautioned by police. This is consistent with the contents of a Juvenile Justice report which speaks about the offender coming under the influence of a negative peer group. To escape that peer group, he moved to Tasmania to live with his cousin in August 2005. He was on holiday back in Sydney when this offence occurred.

19 Since returning to Sydney permanently the offender has begun to live with his sister and her husband, ZP. It seems that he is a very positive influence in the offender’s life. He and his wife recognise that the offender needed assistance and needed a change in his environment and it was for those reasons that they offered to have the offender live with them. The offender is happy with the current situation and no longer associates with the others who were involved in this offence. Those people interviewed by the officers from the Juvenile Justice say that they have noticed an improvement in the offender’s presentation and behaviour.

20 The offender is currently at High School where he hopes to complete his HSC and then go to university. He also has a part time job assisting his mother in a café which she manages. The offender expressed his remorse both to the authors of the report and in court before me. He, like many sixteen year old boys, is not a person who speaks at length about emotional issues and I have taken this into account in deciding whether or not his expressions of remorse are genuine. I am satisfied they are.

21 It was suggested that the offender got involved in this offence because he was held in esteem by his peers because he was physically larger than a lot of them. The offender liked being perceived as being a leader rather than a follower and when the opportunity presented itself, he, because of immaturity common to fifteen year old boys, demonstrated that leadership in a most inappropriate way.

22 As I mentioned, there is a standard non-parole period for this offence of seven years. The fact that the offender pleaded guilty means that the seven year period is not of direct application but it remains as a guide post. Quite clearly, the fact that the offender was a relatively immature fifteen year old boy when he committed this offence, is a significant factor suggesting a much lower non-parole period than the standard set by the legislature.

23 The plea of guilty has a utilitarian value. I note, however, that the plea was entered only after the offender was committed for trial and there was the need for there to be a hearing to resolve disputed issues of fact. Nevertheless, the plea does have substantial utilitarian value. There were real issues of identity involved and a trial of this allegation would have occupied some time and required the calling of a number of witnesses. In these circumstances, I will reduce the sentence I would otherwise have imposed by about twenty per cent to reflect the utilitarian value of the plea.

24 Although a custodial sentence is, especially in the case of children, a sentence of last resort, I am satisfied that such a sentence is required. It seems indeed that it was conceded by Mr McAnulty on behalf of the offender. The offender has good prospects of rehabilitation. He has moved away from those elements in his life which led him to offend. He has shown positive attitude towards schooling and taken steps towards his rehabilitation.

25 Quite clear, the offender did not plan to stab BT. He did not come armed with a weapon and only decided to use the scissors upon BT they had been dropped to the floor. The stabbing was thus as Mr McAnulty described it, a moment of madness. However, the offender’s participation in the attack upon the unfortunate BT is not in the same category.

26 Quite clearly there are special circumstances. In this case they relate to the offender’s youth and the desire to see the positive rehabilitative steps which the offender has been taking continue whilst he is on parole.

27 Of course, although I am sentencing the offender according to law, that does not mean that I should treat him as though he was an adult. General deterrence is to be given less weight when sentencing this offender than when sentencing someone who is more mature. The rehabilitation of the offender is to be given greater weight as well. The offender requires guidance and assistance.

28 However, none of that means that the offender does not deserve to be punished and significantly so for his violent actions. Personal deterrence is also important in order to ensure that the offender understands he must not act this way again.

29 The offender is sentenced to imprisonment. I set a non-parole period of one year to date from today. The non-parole period will expire on 22 June 2007 on which date the offender is to be released to parole. I set a total term of two years imprisonment and I make an order directing that the offender serve the whole of that sentence as a juvenile offender.

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