R v HT

[2010] NSWSC 324

CITATION:	R v HT [2010] NSWSC 324
HEARING DATE(S):	02/02/10, 26/03/10
JUDGMENT DATE :	23 April 2010
JUDGMENT OF:	Hidden J
DECISION:	Sentenced to imprisonment for 6 years, NPP 3 years, from 26.3.10.
CATCHWORDS:	CRIMINAL LAW - sentence - manslaughter - plea of guilty - excessive self-defence - juvenile offender - use of knife
LEGISLATION CITED:	Criminal Procedure Act 1986 Children (Criminal Proceedings) Act 1987
CATEGORY:	Sentence
PARTIES:	REGINA (Crown) HT (Offender)
FILE NUMBER(S):	SC 2008/69201
COUNSEL:	J Pickering (Crown) P Bodor QC (Offender)
SOLICITORS:	S Kavanagh (Solicitor for Public Prosecutions) (Crown) Nyman Gibson Stewart (Offender)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HIDDEN J

Friday 23 April 2010

REMARKS ON SENTENCE

1 HIS HONOUR: In the early evening of Sunday, 21 December 2008 the offender, who was then 16 years old, fatally stabbed a 17 year old youth on a train which was stopped at Campsie railway station. He was charged with murder, but on the day of his trial he pleaded guilty to manslaughter and the Crown prosecutor accepted that plea in discharge of the indictment. The plea was entered, and accepted, on the basis of excessive self-defence. He also pleaded guilty to a summary offence of carrying a knife in a public place without reasonable excuse, transferred to this Court on a certificate under s 166 of the Criminal Procedure Act 1986.

2 Because the offender and the victim were both juveniles at the time, their full names should not be published and the offender should be referred to only by his initials. I shall refer to the victim by his first name, Andrew. Both of them were accompanied by young companions, aged from 15 to 17 at the time, and I shall use their first names also.

Facts

3 I received an agreed statement of facts. At about 5 pm on the day in question, Andrew and four friends went to Sydenham railway station to catch a train to Campsie. His companions were three young men, Robert, Marlon and Louis, and a young woman, Katherine. The offender and three young male companions, Brett, Syed and Agus, were also on the platform. Some members of each of the two groups knew one another because they lived in the same area or had been attending school together. Apparently, Andrew and the offender did not know each other, although, as will be seen, Andrew had recently heard of the offender.

4 The male members of each group stared at one another. Andrew said to his companions words to the effect of, “I don’t like them.” He said that there had been some conflict or tension between two other friends of his and the offender. Those other friends, again using their first names only, were Sebastian and his girlfriend, Lara. Lara knew the offender.

5 It seems that, only a few days before the fatal incident, Sebastian had gone overseas for a holiday. Shortly thereafter, Lara had gone to the offender’s home to “hang out” with him and some other friends. While there, she sat on the offender’s lap and they kissed each other. One of the other young people who were there recorded the event on a mobile phone camera. When Sebastian was told about this incident, and that there was a video of it, he ended his relationship with Lara. Andrew became aware of the situation, although Sebastian himself had not told him about it.

6 The train to Campsie arrived and both groups boarded it. Andrew’s group entered the fourth carriage from the front, and the offender’s group the third. Both groups were able to see each other and continued to stare at each other. As the train moved off, Andrew said “I hate coming home with a ripped shirt after a fight, I get killed at home.” Shortly afterwards he also said, “It is either going to happen here or Punchbowl.”

7 The train stopped at Hurlstone Park station, and one of Andrew’s companions, Louis, alighted from it, saying, “I don’t want nothing to do with it.” Andrew then said to the remainder of the group, “Let’s walk down.” Katherine remained in the carriage, but Andrew, Robert and Marlon began to walk through the carriage towards the offender’s group. As they did so, Andrew said to his companions, “If I get fifty bucks off it I will give it to you.”

8 The offender’s group, having seen Andrew and his companions moving towards them, began to move away from them towards the front of the train. As they did so, the offender said to his companions, “Get ready for a fight.” The train stopped at Canterbury. The offender’s group stepped out of the train, as did Andrew’s group. However, both groups got into the train just before it moved off. As the train travelled towards Campsie, the offender’s group moved into the first carriage and to the front boarding area of that carriage. Andrew’s group followed them.

9 When the train arrived at Campsie, Andrew said, “If they say anything to me or anything, we can just hit them once and then, like go away, you know, don’t do anything harsh.” Robert said, “Whatever… We’ll talk to them first”, and Marlon said, “Just talk.” The three of them then alighted from the train and walked along the platform to the front boarding doors of the first carriage, where the offender’s group was standing. Other passengers alighted, leaving the offender and his companions in the carriage vestibule adjacent to the open boarding doors.

10 Andrew then rushed into the vestibule and, with his fists raised, moved directly towards the offender. The offender had his right hand in the right side pocket of his trousers and, as Andrew moved towards him, he removed a knife from that pocket.

11 Having moved up close to the offender, Andrew grabbed or grabbed at him, and began to punch or throw punches at him, a number of times. As he did so, the offender stabbed him several times with the knife. The struggle lasted only a few seconds, but the result of the stabbing was two track wounds which penetrated Andrew’s chest, his heart and other internal organs.

12 Andrew stumbled backwards out of the train onto the platform and fell to the ground, bleeding heavily from the wounds to his torso. In the meantime, there had been scuffles between other members of Andrew’s group and the offender’s group. At this point, however, Andrew’s companions realised that something had happened to him and they left the train to assist him. The train driver, having heard the disturbance, saw Robert and Marlon standing on the platform with their fists raised, yelling, “I’ll get you” and words to that effect. They attended to Andrew, and Marlon used his mobile phone to call an ambulance.

13 By then the train doors had closed, and the offender’s group began to move back through the carriages towards the rear of the train. The offender removed and carried the white hooded top he had been wearing at the time of the stabbing. He tried, unsuccessfully, to persuade a passenger to take the knife and hide it.

14 He and his companions made their way to the fourth carriage, where Katherine was. By that time, blood could be seen on his arms and, although he was carrying the knife wrapped in his white hooded top, it remained clearly visible. He approached Katherine and said to her, “I stabbed the fob one.” As he said this, he placed the knife and its sheath into her bag, which was open. She said, “What do you mean?… they are my friends.”

15 The offender and his companions then continued towards the back of the train. Katherine was unable to leave the train because the doors were locked. However, although she was crying and distressed, she made her way to the front carriage and was allowed to leave through the driver’s compartment. She then joined Andrew and his companions. She removed the knife and sheath from her bag and dropped them on the platform.

16 Police arrived, and located the offender and members of his group in the fourth carriage. The offender was taken to the platform, where he was spoken to by Detective Senior Constable Rogers.

17 Asked by Detective Rogers what had happened, the offender said, “I stabbed him.” After being cautioned, he explained the circumstances, saying, among other things:

“I thought we were going to be rolled because we got off the train at Canterbury and those other guys followed us. We got back on the train and headed to Campsie. The other guys were giving us filthies.”
…
“We were all in the last carriage at Campsie. We got in a fight and I got punched. When I was getting hit I pulled out my knife and stabbed him.”

18 Asked by the Detective where he had stabbed Andrew, he said, “Not to the head.” He said that he had given the knife to “the girl”. He described the knife as “a camping knife about 20 centimetres long” with “a hook on it.” This is consistent with the appearance of the knife, described as a “hunting style” knife, in police photos of it taken in the position where it was lying on the railway platform. He said that he kept it “for protection” because he got “rolled all the time.” He was arrested and conveyed to Campsie police station, where he declined to make any further comment and was charged.

19 Ambulance officers attended, and found that Andrew was not breathing. Efforts were made to resuscitate him at the scene and as he was conveyed to St George Hospital. There, although further efforts were made to resuscitate him and emergency surgery was undertaken, he died. An autopsy established that the cause of death was the result of “stab wounds to the trunk.” There were two stab wounds to the left chest wall, which passed through a number of organs, including the heart, left lung, diaphragm, stomach and spleen. There were also a number of incised wounds on the left arm, apparently defence wounds. Minor blunt force injuries on his right arm and face were observed, but how these occurred is not clear.

20 The description in the agreed statement of facts of the events leading up to the stabbing, the stabbing itself, and what occurred thereafter is consistent with CCTV footage from the train which is in evidence. In particular, there is clear footage of the brief and violent interaction between Andrew and the offender in the vestibule of the front carriage during which the stabbing occurred.

21 The offender told a Juvenile Justice officer and a psychologist, both of whom provided reports, that from time to time in the past he himself had been the victim of violence. He told the psychologist that he had been “picked on” by groups of youths outside his school. More importantly, he told the authors of both reports that he had been assaulted and robbed on a train a month before the fatal incident. This material is not in dispute.

22 The effect of what he told them about the knife was that it happened to be in his possession at the time of the incident because he was holding it for a friend, to whom he intended to return it. I do not accept that explanation, which was not pressed by Mr Bodor QC, who appeared for him. I am satisfied that he carried the knife for the reason he gave to the detective, that is, that he had it for protection after the experience of being robbed.

Victim impact statements

23 I received victim impact statements by Andrew’s parents and his two brothers. Each of the brothers read his statement to the Court. Both were obviously distressed, and it cannot have been an easy task for them. Statements of Andrew’s mother and father were read by Ms Jennifer Law, a counsellor with the Homicide Victims Support Group. Both statements were an eloquent expression of the family’s grief, and justifiable outrage, at the violent and untimely death of their loved one. I expressed my sympathy to all of them at the time, and I do so again now.

Subjective case

24 The offender is now 17 years old. He has no criminal history. He was in custody for a month after his arrest, prior to being released on bail. He remained on bail until the conclusion of the sentence proceedings before me on 26 March 2010.

25 His background emerges from the comprehensive Juvenile Justice report, and the report of the psychologist, Mr Sam Borenstein. He was born in New Zealand and, like Andrew and his family, is of Maori origin. His parents separated when he was a toddler. He remained with his mother but maintained contact with his father. He has three step-siblings, including an older maternal sister.

26 When he was 6 years old, he came to this country with his mother and step-sister. He had a strong and loving bond with his mother and his childhood was happy, although he acknowledged the emotional and financial difficulty of growing up with one parent only. His mother said that it had been difficult for him without a male role model in his life, and that as a single parent she worked long hours and was not always available to her children.

27 Despite the fact that his father resided in New Zealand, the offender continued contact with him and saw their relationship as close. He was devastated when his father died of a heart condition in 2001. He was only about 9 years old at the time. Fortunately, he has enjoyed the support of an uncle and aunt, who live in Sydney, and he is close to his step-sister.

28 He left school after obtaining the School Certificate in late 2008, not long before the offence. He was below average academically. After his release on bail, he worked for about 7 months as a steel fixer until he was retrenched following the downsizing of his employer’s enterprise. He was not given to the abuse of alcohol or of illicit drugs.

29 Although he had experienced violence, he has no history of aggressive behaviour himself. I observed him to be short and of slim build, and Mr Bodor informed me that he weighs only 47 kilograms. I received testimonials from two of his teachers at high school, which speak highly of him and from which it appears that his behaviour on this occasion was entirely out of character.

30 The author of the Juvenile Justice report, Ms Lavers, noted that the offender disclosed “anxiety and some paranoid thinking”, that he was “highly concerned about his safety” and that he continued “to be traumatised by being a victim of violence in the past.” She saw his “significant fear of assaults and fear for his safely in general” as “concerning and problematic.” She observed that those issues “may have been a complicating factor” in his offending behaviour, both in regard to his carrying a weapon and his use of it. She recommended a full psychological assessment, followed by ongoing counselling and appropriate therapeutic intervention “to address and manage these feelings in the future.”

31 Mr Borenstein observed no sign of serious psychiatric disorder. He noted the offender to be quietly spoken and of an “introverted nature.” He found that he did not “open up easily”, although he presented as being honest.

32 He wrote of the offender that his “personal history and background does not predict violence.” From the history he obtained from the offender and his mother, it was apparent that the assault and robbery incident frightened him considerably and left him anxious and fearful of a possible recurrence. Mr Borenstein was of the opinion that it led to his suffering post traumatic stress disorder and that, consistently with that diagnosis, the offence was the product of a reaction “from a position of increased vigilance and wariness.” He found the offender to have “a low emotional intelligence”, and concluded that he would need assistance “to manage cumulative feelings which date to being assaulted prior to the incident, and the incident itself…”, as well as his father’s death.

33 The offender presented to Ms Lavers and Mr Borenstein as genuinely and deeply remorseful for his crime, and I accept that he is. He pleaded guilty to manslaughter on the day fixed for his trial. However, he had indicated his preparedness to do so, through his counsel, in the week prior to the trial and, as a result, no jury panel was required and no witnesses had to attend court. I shall reduce the sentence otherwise appropriate by 15% in recognition of the utilitarian value of that plea.

Sentencing

34 As I have said, the basis of the offender’s culpability for manslaughter is excessive self-defence. He believed at the time that it was necessary to stab Andrew as he did to defend himself, but that conduct was not a reasonable response in the circumstances as he perceived them. Andrew was unarmed and it was not reasonable for the offender to have defended himself by using a knife, inflicting several stab wounds to Andrew’s torso. It is apparent from the CCTV footage that the offender did not produce the knife and attempt to defend himself by threatening Andrew with it. Rather, he pulled the knife from his pocket and stabbed Andrew as soon as the conflict began.

35 The use of the knife is an important factor bearing upon the seriousness of the offence. All too often this Court sees the tragic consequences of young men carrying knives, for whatever reason: men of an age at which impusivity so easily overrides common sense and sound judgment. I accept that the offender carried the knife only for his own protection, and that he would never have used it to initiate violence. Nevertheless, this case is yet another demonstration of the futility and very real danger of that practice.

36 That said, it is clear that it was Andrew who initiated the violence and who had the motive, such as it was, to do so. As the Crown prosecutor fairly acknowledged, Andrew and his two companions were the “pursuers” in the matter. Obviously, the offender and his group were in fear of them and sought to avoid conflict. It was for this reason that they got off the train at Canterbury, only to find that Andrew’s group did likewise. They then sought, unsuccessfully, to distance themselves from Andrew’s group by moving to the front of the first carriage.

37 The offender was then faced with a young man, unknown to him, rushing towards him aggressively. In the CCTV footage it can be seen that Andrew was a significantly bigger person than the offender. The autopsy report revealed that he was 169 centimetres tall and weighed 76 kilograms. I have no doubt that the offender was very much in fear, particularly in the light of his relatively recent experience of aggression on a train. Clearly, he acted impulsively in the course of an event which unfolded very quickly. It is inherent in his plea of guilty to manslaughter on the basis of excessive self-defence that he intended to inflict grievous bodily harm upon Andrew. It is not suggested that he intended to kill.

38 Nothing which I have said about the conduct of Andrew and his companions is intended to suggest that in some way he deserved the terrible fate which befell him – far from it. As the Crown prosecutor pointed out, if the offender had not been armed with a knife or, at least, if he had used it merely to threaten but not to strike, the incident might have passed without serious consequences. Andrew’s conduct and that of his companions, however, is relevant to an assessment of the objective gravity of the offender’s crime.

39 The offender’s youth and immaturity at the relevant time are important factors, as the law has long recognised. They provide some explanation for his ill considered behaviour. This is not to deny that his offence is serious and that appropriate weight must still be given to considerations of retribution and deterrence. Nevertheless, the rehabilitation of such a young offender, encouraging his development as a responsible member of society, is of particular importance.

40 The offender presents as a decent, unsophisticated young man. As I have said, he has no criminal history and the violence he exhibited on this occasion appears to be entirely uncharacteristic. He admitted his responsibility for the killing of Andrew when first spoken to by police, and is deeply remorseful. He has the support of his extended family, and his prospects of rehabilitation are good. Nevertheless, it is in the community’s interest that those prospects be fostered by a lengthy period at liberty under supervision and the sanction of parole. Particularly is this so in the light of his need for counselling identified in the reports. Accordingly, I find special circumstances justifying a departure from the statutory proportion between sentence and non-parole period.

41 I propose to order that the offender serve the custodial component of his sentence as a juvenile offender. That order was not opposed by the Crown prosecutor. However, it is necessary to consider the terms of s 19 of the Children (Criminal Proceedings) Act 1987. Manslaughter is a “serious children’s indictable offence”, as defined by s 3 of that Act. By s 19(3), a court sentencing a young person for such an offence cannot order that the sentence be served as a juvenile offender after the person has turned 18 unless there are special circumstances justifying that course. Special circumstances for that purpose are limited to the matters set out in subs (4). Given the offender’s background, his immaturity and his small stature, I am satisfied that committing him to a correctional centre would involve an unacceptable risk of his suffering physical or psychological harm: subs (4)(c).

42 But for the plea of guilty, the sentence for the manslaughter would have been imprisonment for 7 years. A reduction of that sentence by 15% on account of the plea produces a term, in round figures, of 6 years. Finding special circumstances, I shall set a non-parole period of 3 years. The sentence will commence on the date that the offender was taken back into custody, 26 March 2010. He will become eligible for release on parole 3 years thereafter, on 25 March 2013, and if he is released on that day, he will serve the remaining 3 years of his sentence in the community on parole.

43 In arriving at that sentence, I have taken account of the discrete period of custody for one month following his arrest. It is necessary also to deal with the offence of carrying a knife in a public place without reasonable excuse on the s 166 certificate. The Crown prosecutor pointed out that if that offence stood alone and were dealt with in the Children’s Court, it is unlikely that it would attract a custodial penalty. I propose to pass a short sentence for it, which will be wholly concurrent with the non-parole period for the manslaughter.

44 Accordingly, for the manslaughter of Andrew, the offender is sentenced to a non-parole period of 3 years, to commence on 26 March 2010 and expire on 25 March 2013, and a balance of term of 3 years, to commence on 26 March 2013 and to expire on 25 March 2016. For the offence of carrying a knife in a public place without reasonable excuse, he is sentenced to imprisonment for 3 months, also to commence on 26 March 2010. I order that the whole of his sentence prior to his release on parole be served as a juvenile offender.

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