R v Harley Page
[2013] NSWSC 1711
•30 October 2013
Supreme Court
New South Wales
Medium Neutral Citation: R v Harley Page [2013] NSWSC 1711 Hearing dates: 30 October 2013 Decision date: 30 October 2013 Jurisdiction: Common Law - Criminal Before: Latham J Decision: Convicted of the assault with intent to rob in company with wounding upon Angelo Kaloudis and of the manslaughter of Angelo Kaloudis.
On the assault with intent to rob offence, sentenced to a non-parole period of 4 years to date from 29 February 2012, expiring 28 February 2016, with a balance of term of 2 years, expiring 28 February 2018. On the manslaughter offence, sentenced to a non-parole period of 6 years, to date from 29 February 2012, expiring 28 February 2018, with a balance of term expiring 28 February 2021. Eligible for release to parole on 29 February 2018.
Catchwords: SENTENCE - assault with intent to rob in company with wounding and manslaughter - assault on elderly homeless man on train - co-offender plead guilty to murder - offender on bail for similar offences at time of offence - inherent criminality of each offence cannot be meaningfully separated - general and specific deterrence - question of totality - early offer to plead guilty to manslaughter entitles offender to 25% discount - genuine remorse - finding of special circumstances on basis of offender's youth, partial accumulation and demonstrated need for supervision - question of concurrency and partial accumulation Category: Sentence Parties: Regina - (Crown)
Harley Page - (Offender)Representation: Counsel
L Carr - (Crown)
S Corish - (Offender)
Solicitors
Solicitor for Public Prosecutions - (Crown)
Purcell Lawyers - (Offender)
File Number(s): 2011/00278336
SENTENCE
The offender, Harley Page, was found guilty by a jury on 18 October 2013 of the offence of assault with intent to rob in company with wounding (pursuant to s 98 of the Crimes Act 1900) and the offence of manslaughter. The maximum penalty for each offence is one of 25 years' imprisonment. The section 98 offence carries a standard non-parole period of seven years.
The circumstances surrounding the commission of the offences were largely not in dispute. The offender and a co-offender by the name of Nathan Isherwood (who pleaded guilty to murder at the commencement of the trial) were both in an intoxicated state when they encountered the deceased, an elderly homeless gentleman, on a train travelling between Newcastle and Sydney in the early hours of 26 August 2011. It was not disputed that the offender engaged the deceased in conversation, nor that Mr Isherwood ultimately inflicted grievous bodily harm upon the deceased by means of striking him to the head with a large reinforced pane of glass. The offender's account at trial, which was rejected by the jury, was that he had no intention to rob the deceased, let alone assault him, and that Mr Isherwood acted on a frolic of his own.
The critical factual dispute for the jury's determination was whether the offender joined with Mr Isherwood in demanding money from him, then in assaulting him by a series of punches to the face and body. The offender now accepts that the jury's verdict imports a finding that either the offender himself made a demand for money and threatened the deceased immediately prior to joining in an assault with Mr Isherwood, or that the demand was made by Mr Isherwood and the offender is jointly liable for that conduct and the assault by virtue of his presence, assistance and encouragement. In my view, it is not necessary to make a finding beyond reasonable doubt that the offender himself made the demand of the deceased. It is clear from the jury's verdict that the offender participated with Mr Isherwood in an assault upon the deceased with the intention of robbing him. I am not persuaded beyond reasonable doubt that, to the extent that the offender himself punched the deceased, the assault on his part was extensive and sustained.
That said, the offender's cowardly and despicable assault upon an elderly homeless gentleman on public transport was objectively very serious, particularly when account is taken of the fact that the offender was on bail for two other similar offences. Given the offender's criminal history, it is apparent that he committed offences of violence upon members of the public, invariably in the company of Mr Isherwood and invariably when highly intoxicated. His intoxication of course provides no excuse or justification, but it demonstrates that the offender has a problematic relationship with the excessive consumption of alcohol. In my view, should the offender not address this issue upon his release into the community, the risk of reoffending remains moderately high.
Notwithstanding that Mr Isherwood is yet to be sentenced for his part in the death of the victim, I propose to sentence the offender on the basis that Mr Isherwood was responsible directly for the death of the deceased and that the offender contemplated that Mr Isherwood might inflict some harm upon the deceased, short of grievous bodily harm. The criminality inherent in the offence of manslaughter cannot, in the circumstances of this case, be meaningfully separated from the criminality inherent in the section 98 offence. The Crown at trial charged the offender with murder, on the basis that the section 98 offence was the relevant foundational offence for a felony murder verdict. The Crown does not take issue with the submission from the offender that the sentence for each offence ought be entirely concurrent.
The starting point for any sentence for manslaughter is that the unlawful taking of a human life must be recognised and reflected in that sentence. Both general and specific deterrence have a role to play in sentencing this offender. There is now a general awareness in the community and a corresponding denunciation of random and violent assaults by intoxicated young men on unsuspecting members of the public who have the right to venture out at night without fearing for their personal safety. The tragic death of the victim in this case was a direct product of that type of conduct engaged in by the offender.
The offender is presently 24 years of age and has acquired a short but serious criminal history. In 2009 the offender received two section 10 bonds for resisting and assaulting police, followed by two sentences in 2012 of 4 years' imprisonment each, for robbery in company and aggravated assault with intent to rob. The imposition of those sentences raises questions of totality, given that the offender has remained in custody since 29 August 2011, the date upon which he commenced to serve the first of those sentences. The offender's present earliest release date is 28 February 2015. The aggregate non-parole period that he is presently serving is therefore 3 1/2 years. It is accepted that I am required to impose a sentence for the instant offences that takes account of the totality of the criminality represented by the present aggregate non-parole period and any further period of custody commensurate with the offence of manslaughter.
The offender is the product of a troubled relationship between his mother and a man who continues to refuse to acknowledge the offender as his son. The offender has two brothers and two sisters. All five children were raised by the offender's mother as a single parent who worked full-time in order to provide for the family. The offender attended Belmont Christian College, then Hunter high school and Cardiff high school for short periods of time before leaving school midway through year nine. His mother was initially unaware that he had left school. The offender apparently demonstrates an aptitude for semiskilled manual work and numeracy. However, the offender is reportedly barely literate. The offender also excelled at sport, in particular rugby league and cricket.
The offender first left home at about the age of 16 or 17 in the company of a friend and lived on the streets and with his sister from time to time. At one point he was employed at a Cardiff powder coating firm in 2010. However that employment terminated when the offender came into contact with the courts. The offender apparently met Mr Isherwood in about 2007 or 2008.
The evidence from the offender's mother provides some optimism, in that the offender has the ongoing support of his mother and extended family. It was his mother's intervention following the receipt of a text message from the offender that facilitated the offender's attendance at the police station and his disclosure to the police of his involvement (albeit minimised) in the offences. It is accepted that the offender displayed genuine grief and remorse at the police station with respect to the death of the victim. I accept that the offender continues to be remorseful and that he has developed some insight into his offending behaviour. His prospects of rehabilitation are in my view moderate.
The offender offered to plead guilty to manslaughter in full satisfaction of the indictment prior to committal. That offer was rejected by the Crown and was rejected again in the course of the trial. Having regard to the complete correspondence between the section 98 offence and the manslaughter offence, a plea to manslaughter at the time it was offered would have represented a considerable saving to the criminal justice system. The offender is entitled in my view to a discount of 25% in recognition of that latent utilitarian value.
I find special circumstances on the basis of the offender's youth, the partial accumulation of sentences and the demonstrated need for supervision to allow the offender to reintegrate into the community. However, the alteration to the statutory ratio will necessarily be moderate, in order to reflect the objective gravity of the offending in the non-parole period.
Notwithstanding the Crown submission that I would separately address the question of the objective seriousness of the section 98 offence (bearing as it does a standard non-parole period) I expressly refrain from that course. To do so would in my view import an element of artificiality into the sentencing exercise given that the section 98 offence is subsumed within the manslaughter offence. In any event, I have determined to approach sentence on the basis that the objective and subjective factors, together with the guideposts represented by the maximum penalty in each case and the standard non-parole period in the case of the section 98 offence, ought be synthesised in order to produce a sentence appropriate to the criminality of each offence. The question of concurrency and partial accumulation ought then be addressed.
For the offence of manslaughter, disregarding the discount for the plea of guilty, an appropriate sentence is one of 12 years' imprisonment. For the section 98 offence, disregarding the discount for the plea of guilty an appropriate sentence is one of 8 years' imprisonment. Both sentences are to commence on 29 February 2012.
Harley Page, you are convicted of the assault with intent to rob in company with wounding upon Angelo Kaloudis and of the manslaughter of Angelo Kaloudis. On the assault with intent to rob offence, I impose a non-parole period of 4 years to date from 29 February 2012, expiring 28 February 2016, with a balance of term of 2 years, expiring 28 February 2018.
On the manslaughter offence, I impose a non-parole period of 6 years, to date from 29 February 2012, expiring 28 February 2018, with a balance of term expiring 28 February 2021. You are eligible for release to parole on 29 February 2018.
Decision last updated: 20 November 2013
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