R v JH

[2014] NSWSC 1878

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v JH [2014] NSWSC 1878
Hearing dates:	25/08/14 to 13/10/14
Decision date:	12 December 2014
Jurisdiction:	Common Law
Before:	Hall J
Decision:	Offender convicted of the offence of manslaughter. Sentence to a non-parole period of imprisonment of 7 years to date from 5 October 2014 and to expire on 4 October 2021, with a parole period of 3 years to commence on 5 October 2021 and to expire on 4 October 2024
Catchwords:	CRIMINAL LAW - sentence – offender convicted of manslaughter - joint criminal enterprise - juvenile offender - finding of special circumstances - variation to statutory ratio for non-parole period - direction that the offender serve as a juvenile offender until the day upon which he attains the age of 21 years
Legislation Cited:	Children (Criminal Proceedings Act) 1987 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Cheung v The Queen (2001) 209 CLR 1 JM v R [2012] NSWCCA 83 JT v R [2011] NSWCCA 128 KT v Regina [2008] NSWCCA 51 MacKenzie v R (1996) 190 CLR 348 Maglis v R [2010] NSWCCA 247 R v AEM [2002] NSWCCA 58 R v Andrews Weatherfoil Limited (1971) 56 Crim App R 31 R v Dennis (NSWCCA, 14 December 1992, unreported) R v Fowler [2003] NSWCCA 321 R v Isaacs (1997) NSWLR 374 R v Khamas (1999) 108 A Crim R 499 R v Pham & Ly (1991) 55 A Crim R 128 R v Voss [2003] NSWCCA 182 R v Webb [2004] NSWCCA 330; 149 A Crim R 167 R v West [2011] NSWCCA 91 Regina v Dodd (1991) 57 A Crim R 349 Regina v Hoerler [2004] NSWCCA 184 The Queen v Olbrich (1999) 199 CLR 270
Category:	Sentence
Parties:	Regina (Crown) JH (Offender)
Representation:	Counsel: P Leask (Crown) J Hickleton (Offender) Solicitors: Solicitor for Public Prosecutions (Crown) Uther Webster & Evans (Offender)
File Number(s):	2011/190145
Publication restriction:	Pursuant to s 15A of the Children (Criminal Proceedings Act) 1987, publication of the name of the offender or any underage witness is prohibited

REMARKS ON SENTENCE

1. The offender, whose name has been suppressed from publication by order made under the Children (Criminal Proceedings) Act 1987, was charged on indictment that he did murder the victim, Eden Delir. He pleaded not guilty to that charge.

2. The trial initially before 12 jurors, subsequently reduced to 11, commenced on 25 August 2014.

3. On 13 October 2014 the jury returned a verdict of not guilty of murder but guilty of manslaughter.

4. At the hearing on sentence on 28 November 2014, Ms J Hickleton of counsel, who had represented the offender at trial, again appeared on his behalf.

5. The evidence on the sentencing hearing comprised documentary material as identified in the Schedule to these remarks.

6. The Crown case was that the offender was a party to a joint criminal enterprise. The jury’s verdict of manslaughter was based upon unlawful and dangerous act manslaughter, namely assault of the deceased in circumstances of reasonable contemplation of an additional offence being committed, namely, unlawful and dangerous act.

7. The Crown relied upon written submissions on sentence dated 27 November 2014, supplemented by oral submissions on 28 November 2014. In addition, the Crown relied upon its written submissions dated 3 December 2014.

8. Ms Hickleton of counsel relied upon her oral submissions on sentence made on 28 November 2014, supplemented by written submissions dated 9 December 2014.

Factual Circumstances

9. On 30 October 2010, Eden Delir was invited and attended a Halloween party at Bossley Park. He was then 17 years of age. The party commenced at or soon after 5:00pm. At the time of the offence there were a large number of young people present, many of whom had been invited on Facebook and a number of persons attended who had not been invited.

10. The offender attended uninvited in company with a number of associates who were also uninvited. They were described in evidence as being of Middle Eastern appearance. They entered through the front door of the premises and shortly thereafter proceeded to the rear yard of the premises where a number of young people were present. There was evidence that the group, or at least a number of the group, who were known as the “Wakeley Boys”. They had attended by reason of the fact that they had anticipated that a number of other youths known as the “Campbelltown Boys” would be attending. After entering the rear yard of the premises some of the offender’s group confronted particular partygoers asking whether they were “a Campbelltown boy” and otherwise in loud and aggressive tones calling out “where are the Campbelltown Boys?”.

11. The evidence at trial indicated that they had attended the party with the view to confronting the Campbelltown Boys. In the event, the Campbelltown Boys did not attend the party. The Crown at trial contended that the offender and his associates arrived at the party with a violent intent, though not then directed towards Eden Delir. The evidence varied as to whether one, or more than one, of the Wakeley boys was armed with a steel pole. There was evidence from the witness JD that she saw the offender arrive with the group, at which time he was yelling “Let’s go and have some fun boys”: T 587.

12. A little later in the evening, the offender and his associates moved to the front of the premises and gathered out on the nature strip. There were a number of other partygoers in that general locality and in the front yard of the house. Eden Delir was one of those at the front of the house. At some point he was identified by one or more of the males who were standing in company with the offender as the person who it was thought had reported the offender to police over an incident that had occurred in February 2010.

13. There was evidence that at one point there appeared to be an argument amongst the group. One witness, to whom I shall refer to as MH, said the offender was among the group at that time: T 1274. A little later one of them called out to Eden Delir. Two witnesses gave evidence that the person called out “Eden” and then they walked towards each other. The witness ED said he heard one of the group say to Eden Delir: “you’re that guy that snitched” or something like that: T 989. There was evidence that indicated that the co-offender MG made that statement.

14. The witness JZ gave evidence that after he heard a male call out “Eden” and Eden Delir approached the person facing him he grabbed Eden’s hat and held it in his hand and said “what’s this?”: T 909. He described the situation at this point as “hostile”: T 940.

15. A second male then came from behind a parked truck and struck the deceased to the right side of his face with such immense force that it knocked him to the ground.

16. Other witnesses gave evidence that a number of the young males described as of Middle Eastern appearance surrounded Eden Delir. Though the estimates varied, there were probably at least six males surrounding him and they commenced to assault Eden Delir whilst he was on the ground. Some witnesses said that they saw Eden being “stomped” kicked and punched with considerable force: T 356. Whilst the group attack proceeded, one of the young males, the co-offender JP, who had been holding a bottle, wielded it and smashed it on Eden Delir’s head. There was evidence that the bottle struck him as he was getting to his feet after having been stomped, kicked and punched: T 923. During this process he was trying to defend himself by raising his hands to try and block the attack: T 449. There was evidence that the attackers formed a circle around Eden and that “most of them” were involved in delivering blows: T 822.

17. One witness said that one of the attackers chased after Eden when he broke free of the group: T 929.

18. Another witness saw one of the attackers in a “hoodie” run after Eden with a pole in his hand. He said that that man pulled his hoodie up and struck Eden in the back of his head with the pole, twice.

19. Though by then seriously injured, Eden somehow managed to run up Restwell Road and escape his attackers.

20. There was evidence in the trial of an incident that occurred in February 2010 which involved both the offender and Eden Delir. They had known each other after having attended the same school. In February 2010, the offender rang Eden and asked him to meet up outside Eden’s home. The evidence establishes that the offender, in asking Eden to meet him, was setting him up for an attack. Within a short time of the meeting a number of persons wearing disguises set upon Eden assaulting him and taking his mobile phone. The offender ran from the scene just before the attack commenced. In that incident Eden Delir suffered injuries and was taken to hospital for treatment.

21. Eden Delir subsequently was interviewed by police over the assault and robbery and he provided a statement to the police. This is the so-called “snitching” to which reference was made by one of the attackers just before the bashing on 30 October 2010 that resulted in brain damage being inflicted on Eden Delir.

The Medical Evidence

22. Dr Stephen Wills, forensic pathologist, gave evidence and he performed a post-mortem examination of the deceased on 9 November 2010. He stated that examination revealed that the deceased had sustained a considerable number of injuries including, in particular, injuries to his head. The nature of the injuries evident on post-mortem reflected a multiplicity of assaults upon Eden Delir. They included multiple wounds and bruising to areas of the face, a laceration to the upper right frontal scalp, an incised wound on the superior right parietal scalp caused by a sharp object to the top of his head, an area of abrasion and bruising on the interior occipital scalp (that is, at the back of the head) and multiple abrasions and wounds, bruising of areas in the left upper limb including a sharp injury associated with bruising to the left hand apparently caused by contact with a sharp object. That wound, Dr Wills stated, potentially was sustained when Eden Delir tried to fend off an attack with a sharp object.

23. Multiple bruises were also located on the deceased’s right arm, bruising was noted on areas of the lower limbs. Dr Wills accepted that these could have been caused by kicks or direct blows.

24. Dr Wills said that the overall pattern position and nature of the injuries were indicative of an assault involving several points of blunt impact to the head, the face and additional sharp force injury: T 1367.

25. Dr Wills said that the deceased had been conveyed to Liverpool Hospital where a CT scan showed an acute left-sided subdural haematoma. The haematoma was surgically evacuated and he was returned to the Intensive Care Unit. Dr Wills explained that the haematoma caused pressure within the skull to rise with secondary effects upon the brain, in particular, starving it of blood and oxygen. The increase in pressure compromised blood flow into the skull and caused damage to the brain due to starvation of blood.

The Trial

26. Whilst the offender did not give evidence at the trial the defence case relied upon the evidence of a covertly recorded conversation between MK and the offender on 5 November 2011. A transcript of that conversation was admitted into evidence and became Exhibit W in the proceedings.

27. In the recorded conversation the offender told MK that he was not present during the attack. He said he had received a call from a Marven Georgis who, he claimed, had asked him to come and pick him up. He told MK that as he drove off “… all the boys started running to the car”: Exhibit W at p 5. He said that “the boys” included a co-offender, MG, and another person, “Little Alan”, another member of the group of males involved in the attack.

28. The Crown, in its submissions on sentence, stated that the jury’s verdict “… involved the wholesale rejection of the defence case” to the effect that the offender was not present during the attack: Crown’s Written Submissions, 27 November 2014 at [8].

29. MK was called in the Crown case. Her evidence was to the effect that she set up the interview with the offender with the intention of secretly recording it on her mobile phone determined to ascertain who had been involved in the attack upon Eden Delir, he having died earlier that day.

30. The offender’s statement to her “I was not there when it happened and I didn’t tell anyone to go hit him” (Exhibit W, p 29) was subsequently undermined, indeed contradicted, by his own statements which revealed that he in fact was present, that he spoke to MG on the question of Eden being “hit” after which he proceeded to relate and then describe in detail the sequence of events that took place. At the time of the conversation with MK, it is clear that the offender had heard that Eden had died earlier that day. By the time he spoke to MK, he knew that the attack had assumed the seriousness of a homicide. His protestations in the conversation with MK, of not being present, not being involved, were plainly lies designed to distance himself from any involvement.

31. The truth of his involvement as I have stated emerged later in the recorded conversation. The transcript of the recording reveals that MK continued to press him to reveal what he knew. His responses to her, as I have stated, included an account of what was said before the attack. The transcript of the conversation includes the following:

OFFENDER:   “Milad saw him, ‘oh isn’t that that guy that snitched on youse?’

…

OFFENDER:   “And I was like ‘yeah, yeah, yeah, that’s the guy, that’s the guy’ and then Little Alan he’s like, ‘nah, nah we won’t hit him now’ …”

OFFENDER:   “Anyways, and then Little Alan was like ‘nah, nah, nah we won’t hit him now we’ll wait till the party ends before we go home, so we can have fun’.”

OFFENDER:   “Like alright no worries …” (Exhibit W at p 5).

32. The offender then is heard in the recorded conversation giving a detailed description of the events involved in the attack. His description of what happened is plainly a firsthand account of what he heard others say, what he said, and his description of the events, including persons who joined into the attack and what they did: Exhibit W, pp 5-8.

33. The statements made by the offender in the recorded conversation as to what was said by him and others just prior to the attack on Eden Delir, supports the following conclusions:

(1)   That contrary to the defence case, the offender was present both before and during the attack on Eden Delir.

(2)   That he engaged in discussions with his associates before any attack commenced on the subject of attacking Eden Delir.

(3)   As a party to those discussions, the offender was a participant in the decision-making on the proposal to attack Eden Delir and the timing of the attack.

(4)   The particular matter mentioned in what I will call the pre-attack discussions was that Eden Delir was the person who had “snitched” on the offender about the February 2010 robbery and assault on Eden Delir.

(5)   Immediately after Eden Delir was identified as the person the offender believed had given information to police about his involvement in the February 2010 attack, there were discussions between the offender and his associates. It is clear from the evidence that the discussions related to a plan of attack implemented within a very short time. The co-ordination of the roles played in the attack by the participants becomes apparent from the evidence as to the way that the events unfolded.

(6)   The surprise nature of what was a planned ambush of Eden Delir caught him off guard. It placed him at a complete disadvantage in terms of defending himself, he being completely outnumbered, and quickly rendered vulnerable to what became a ferocious attack by a group of attackers against one then defenceless victim.

34. The fact of co-ordination and planning involved is evident from the sequence of events – one group member, possibly JP, called Eden over, the distracted him by taking his hat/cap; another then came running around the truck and delivered the forceful blow to the right side of the deceased’s head so severe as to knock him to the ground, then the attackers, having encircled him, proceeded to inflict injuries by kicking, punching and stomping on him.

35. While these attacks were occurring, one of the attackers, accepted as being JP, smashed an empty bottle over Eden Delir’s head whilst Eden was getting to his feet, causing him to fall to the ground again.

36. The Crown in its opening address to the jury outlined the basis of the offender’s alleged liability. It was particularised as conduct amounting to encouragement and assistance. The Crown conceded that the jury may be unable to find that the offender struck a blow or blows himself in the violence. The Crown in its written submissions, 27 November 2014, observed:

“The Crown placed a common basis against all six, namely accessorial liability, and that was done in circumstances where a jury may have been left in doubt as to which individual was directly responsible for causing death. The pathology reduced the mechanism of death to the high probability of it being the bottle blow to the head, a single blow.” (At [14])

37. The Crown did not allege in relation to the offence of murder charged in the indictment that the offender acted with an intention to kill, but rather had an intention to inflict grievous bodily harm. Further, the Crown case did not depend upon a finding that the offender himself inflicted blows upon Eden Delir.

Crown Submissions

38. The Crown submission was that the evidence established that the offender was the person who set Eden up to be robbed and assaulted in February 2010. Further, the Crown submitted that the offender believed that after the incident Eden Delir had “snitched” on him by reporting it to police and that this had motivated him to “orchestrate” the planned attack on Eden Delir on 30 October 2010. This joint attack, the Crown argued, was to his benefit in the sense that it would, at least in his mind, either deter Eden Delir from giving evidence in any proceedings against him, or alternatively, it would serve to punish Eden Delir for having done so.

39. A lawfully intercepted telephone conversation involving the offender on 14 November 2010, establishes that the offender believed that Eden had told police that he and others had been involved in the February incident and also believe that he made another statement to police about the matter subsequently: Exhibit BB, transcript of the intercepted call 14 November 2010 at p 3.

40. The Crown case at trial was that it was within the offender’s contemplation that there was an appreciable risk that serious injury would be inflicted on Eden Delir from the “planned attack” involving the force of numbers against a defenceless 17-year old male. These facts, taken in conjunction with the offender’s motivation, it was submitted, established a “high level of moral culpability” in the offender. In the Crown’s submission these facts drove his liability upon sentencing for the crime of manslaughter “to a position precariously close to murder”: Crown Submissions, 3 December 2014 at [6].

41. Taking all these matters into account, the Crown contended the consequence was that the sentence to be imposed would be one that exceeded the sentence imposed on the co-offender JP: Crown Written Submission, 3 December 2014 at [6]. The offender’s moral culpability, the Crown submitted:

“… exceeded by any responsible measure that of any other co-offender (including [JP]) in the joint venture.” (Written Submissions at [7])

42. The Crown contended that the defence case comprised the following propositions:

• That the offender was not at the scene at the time the violent attack upon Eden Delir took place;

• That he did not know that an attack on Eden Delir was to take place;

• That his version of the attack as covertly recorded on 5 November 2010, and the part played by those who participated in the attack, had been derived by him from accounts given to him by participants in the attack and not from his own direct knowledge through being present.

43. The Crown submission was, however, that the defence case had been completely rejected by the jury. This was said to be particularly evident by reason of trial directions given to the jury that they were required to determine whether the offender was in fact present during the attack. Having regard to the jury’s verdict, the Crown submitted, it is evident that the jury found that he was present and that he was in a relevant and material sense participating in the attack by reason of his willingness to encourage or assist his co-offenders.

44. The Crown submitted that his statement in the recorded conversation on 5 November 2010 to the effect that he was not present, he having supposedly left the party to drive and pick up a friend, was plainly rejected by the jury. The Crown submitted that the evidence, including the evidence as to the offender’s actions in relation to the attack on Eden Delir in February 2010, and the offender’s belief that Eden Delir had “snitched” to police, was evidence of his motive or intention to have his co-offenders inflict physical violence upon him. The Crown noted that the only person in the attacking group who knew Eden Delir, was the offender.

45. The jury’s rejection of the offender’s statement that he was not present during the attack, the Crown observed, did not then mean that he was to be convicted of murder. Whilst the jury were not satisfied to the requisite degree or standard that he had the necessary state of mind for the offence of murder, namely, an intention to inflict grievous bodily harm (or that it was in his contemplation that one of the group would do so), the Crown noted that this was a case in which it could not prove that he was physically active in the sense of him inflicting a blow or blows on Eden Delir. However, notwithstanding the Crown noted that the jury were satisfied that the Crown’s case on manslaughter had been proven beyond reasonable doubt.

46. The Crown emphasised that whilst in his opening address it was conceded that the jury may not be able to find that the offender struck a blow or blows himself (without conceding that this did not occur), the Crown case against him “particularised” as conduct amounting to encouragement or assistance, was established to the requisite standard.

47. The Crown identified the factors relevant in any comparative consideration of the relative culpability of the offender to his co-offenders as follows:

• That he had previously “set-up” Eden Delir for the attack by unidentified persons in February 2010;

• That of all the participants involved in the joint attack upon Eden Delir at the Halloween party, only the offender had known Eden Delir before 30 October 2010.

• That prior to 30 October 2010 he alone had a belief or a state of mind following the attack in February 2010 that Eden Delir had gone to the police and “snitched” on him;

• That he alone had a motive to attack Eden Delir on 30 October 2010. This was his motive, it was submitted, for orchestrating the joint attack at the party.

48. The Crown made submissions on the likely basis upon which the verdict of JP (manslaughter) and in the joint trial of MG, SB and AE (verdicts of murder) should be understood. In the trial of JP, the Crown stated that there was no necessary connection between JP’s use of the bottle as a weapon and proof of the requisite intention for murder. The bottle broke once and there was no evidence of other strikes by JP with the bottle.

49. The Crown submitted that whilst the verdicts against JP and the offender may be attributable to a deficiency in evidence necessary to sustain a conviction for the offence of murder, the Crown case against MG, SB and AE “delivered a less complicated and divergent series of factors”: Crown Submissions, 27 November 2014 at [24].

50. The Crown contended that inconsistency of verdicts did not arise. Reference was made to the test propounded in MacKenzie v R (1996) 190 CLR 348 at 367 in the joint judgment of Gaudron, Gummow and Kirby JJ. I note that their Honours in that case at p 366 in relation to apparent inconsistency as between verdicts affecting a co-accused or persons tried separately in relation to connected events noted that an apparent inconsistency, may, in some circumstances, be no more than what has been referred to as “differences in the evidence presented at two trials” or “the different views which the juries separately take of the witnesses”: see in that respect, R v Andrews Weatherfoil Limited (1971) 56 Crim App R 31 at 40.

Submissions for the Offender

51. Ms Hickleton of counsel on behalf of the offender disputed the Crown’s contention that the evidence established a motive in the offender for an attack upon Eden Delir on the basis that he had reported the robbery and assault in February 2010 to police. In support, a number of matters were relied upon. These included that fact that there was evidence that the offender had disclosed to Eden Delir his involvement in setting him up by others to assault and rob him in February 2010, that he had apologised to Eden Delir for his role, that Eden Delir had accepted the same and as at May 2010, had communicated with the offender by Facebook. Additionally, a period of some eight months had elapsed between the February incident and 30 October 2010.

52. The submission was that the events that happened at the party on 30 October 2010 were spontaneous and they were not pre-planned. They were not, it was contended, part of some “harboured dislike of Eden Delir at all”: T 17:30-35. Whether there was motive in others by reason of Eden Delir having “snitched” this it was submitted did not apply to the offender as there was no evidence that he physically attacked Eden Delir. Further, the only evidence relied upon to support the fact that the offender had a motive by reason of Eden having snitched is the recorded conversation. It was submitted that there was no other evidence at all from any other witness on that matter.

53. Reliance was placed upon evidence that the co-accused, MG, knew the witness Chin and that Chin had been charged with offences arising out of the February 2010 assault and robbery of Eden. The co-accused MG and the person referred to as “Little Alan” were said to be the only persons with a motive or a desire to hit Eden by reason of him having snitched: T 19:15-25.

54. Ms Hickleton submitted that the offender’s statement in the recorded conversation to the effect “it wasn’t supposed to be like that” indicated that the events simply got out of hand, that they spiralled out of control in a manner that the offender was not in control of: T 19:15-25.

55. Ms Hickleton referred to the account given by the offender in that conversation when he made a statement that his co-offender MG said to him “isn’t that the guy that snitched on youse?”. The offender stated that he responded “Yeah, yeah, yeah, that’s the guy, that’s the guy …”. In that sense Ms Hickleton stated he was “… the catalyst for it by identifying Eden but it was them, [MG] and Little Alan and perhaps others who then went on to formulate their own plan”: T 20:35-36.

56. It was submitted that in the recorded conversation of 5 November 2010 he did not indicate that he was necessarily agreeing with a plan or proposal to wait for a while before Eden would be “hit” and it is not necessarily to be taken as him having agreed with such a plan or accepting that it was going to happen: T 21:14-20.

57. It was further submitted that whilst the offender may have acquiesced in the statement of Little Alan to wait before hitting Eden, it did not mean that the offender intended to participate in the activity himself. Further, there was no evidence that he himself was involved in the attack at all: T 22:25-35.

58. The further submission was:

“Then if he was involved in the enterprise the question is what was his actual involvement in the assault upon Eden Delir and if he was in the immediate vicinity then he did not choose to enter the affray himself and there was certainly opportunity for him to do it if he was there”: T 22:40-45.

59. It was submitted that there was nothing in the evidence that established that, whilst the offender may have acquiesced in what the others intended to do that he was a person that came up with the plan: T 23:20-30.

60. Accordingly, the Crown’s submission that he was involved in the planning of what was described as a co-ordinated attack was disputed. It was submitted for the offender that he was not involved in the planning at all, or took any “physical part” in it: T 24:5-12.

61. Accordingly, so far as the offender was concerned, the submission may be summarised in the following terms:

(1)   That the offender was not present at the time or during the attack.

(2)   That if he was present he took no part in it either in the planning or in the physical assaults.

(3)   If there was co-ordination with allocation of roles to members of the attacking group, he did not partake in any role.

(4)   The evidence did not establish that any planned attack involved the offender as a participant in it. Alternatively, if he had been given a role then he did not go ahead with it: T 25:1-6.

62. In terms of comparative culpability the submission for the offender was that JP who hit the deceased over the head with a bottle when Eden Delir was on the ground, had a greater culpability than the offender who, it was contended, was “… simply standing at the side and not entering [the] affray”: T 28:30-36.

63. It was further submitted that the offender whilst, on the jury’s verdict, having been found to have been present and “potentially” required to enter the affray, nonetheless he did not do so. Furthermore it was argued that he did not have a weapon and finally there had been no suggestion, in the submission for the offender, that he was involved in the pre-planning including the use of weapons: T 28:40-50.

64. Accordingly, the submission was:

“… his role in the actual assault [was] he was merely present and perhaps ready and willing to give encouragement. I accept what the jury found. But the actual role in the assault is very different from those who physically carried out the attack. And one has to accept that if he was there he had the opportunity to enter the affray and he chose not to.” T 29:15-25.

65. It was further submitted that when, after the attack, the offender later returned to the party he, as he told Juvenile Justice, did not think that Eden had been seriously hurt. This I find to be a surprising statement given the number and nature of the assaults and the smashing of the bottle over the deceased’s head. I do not accept that anyone witnessing what was clearly a ferocious attack with objects used as weapons, could have concluded otherwise than that Eden Delir had been seriously injured.

Consideration

Findings

66. The evidence establishes to the requisite standard:

(1)   That he was present with a group of young males out the front of the premises when one of that group, probably MG, noticed Eden Delir was present.

(2)   That the offender participated in discussions and a plan whereby members of the group then present would assault Eden Delir.

(3)   That the reason for the decision to assault Eden Delir was the fact that the offender believed he had “snitched” on him (that is, reported the offender’s involvement in the February 2010 offences (the assault and robbery offences) to police.

67. I do not, however, accept the Crown’s submission that the evidence is sufficient to establish to the requisite standard that the offender’s motive was to deter Eden Delir from giving evidence against him in relation to the events occurring in February 2010. I, however, accept the submission that the offender and the members of the attacking group held a strong belief that Eden Delir had “snitched” something he and they considered to have been unacceptable conduct deserving of physical punishment. The evidence establishes to the requisite standard that this is what motivated the offender and the associates to attack Eden Delir.

68. Whilst I do not consider that the evidence establishes that the offender “orchestrated the attack” as the Crown submitted (in the sense that he was the sole instigator of it), I have, as I have indicated, concluded that he and others jointly decided upon launching the group attack upon Eden Delir and encouraged others to do so. That finding plainly establishes a high level of moral responsibility in the offender.

Sentencing Considerations

69. The maximum penalty for the offence of manslaughter is imprisonment for 25 years. There is no prescribed standard non-parole period.

70. The offender is to be sentenced on the basis of an unlawful and dangerous act that caused the death of the deceased.

71. In assessing the objective seriousness of the offence of manslaughter by way of unlawful and dangerous act, it has been said that there is no hierarchy of seriousness between voluntary and involuntary manslaughter. Spigelman CJ said as much in Regina v Hoerler [2004] NSWCCA 184 at [29]:

“Even a case where there is present an intention to kill or maim, which would constitute murder but which is reduced, by reason of provocation or diminished responsibility, to a charge of manslaughter, will not necessarily attract a higher sentence than other forms of manslaughter, including the relevant one here, ie, killing by an unlawful and dangerous act. As a five judge bench of this Court, including Gleeson CJ, Mason P, Hunt CJ at CL, Simpson and Hidden JJ, said in R v Issacs (1997) 41 NSWLR 374 at 381:

‘The argument for the appellant advanced on this appeal appeared to assume that a case of provocation manslaughter is necessarily, or at least ordinarily, worse than a case of manslaughter by unlawful and dangerous act. We do not accept that. Each case depends upon its own circumstances. The range of sentencing available in the case of manslaughter is notoriously wide. There have been cases where provocation manslaughter has resulted in non-custodial sentences.’”

72. In determining the sentence in the present case, I am required to consider the objective and subjective factors relevant to the offence and the aggravating and mitigating factors in accordance with the provisions of s 21A of the Crimes (Sentencing Procedure) Act 1999 and relevant sentencing principles. I am, in particular, required by law to take account of a number of matters in determining the objective gravity of the offence committed by the offender and relevant subjective factors. The sentence to be imposed is one that is appropriate to the particular crime, having regard to the gravity of the offence viewed objectively: Regina v Dodd (1991) 57 A Crim R 349 at 354.

73. Without setting out the provisions of s 21A of the Crimes (Sentencing Procedure) Act, I bear in mind that those provisions seek to identify the relevant objective and subjective factors that establish the aggravating and mitigating circumstances of the offence.

Objective Seriousness of the Offence

74. The principles that apply to the findings of fact following a verdict at trial are well-established: R v Isaacs (1997) NSWLR 374, 377-8; The Queen v Olbrich (1999) 199 CLR 270 and Cheung v The Queen (2001) 209 CLR 1. The primary constraint upon the power and duty to make findings is that the view of the facts adopted by the judge for the purposes of sentencing must be consistent with the verdict of the jury and arrived at beyond reasonable doubt.

75. As the remarks and findings I have earlier made indicate, this was not a case merely involving a spontaneous act. The objective seriousness of the offence in this case is much greater than those all-too-frequent cases where someone is punched to the head and falls to the ground and dies as a result of injuries sustained. The objective seriousness of this manslaughter cannot, in my assessment, be characterised as anything other than extremely grave.

76. The evidence establishes that the offence of manslaughter in this case involved an unlawful attack involving a number of serious matters. These included the following:

(i)   That the act causing death occurred in circumstances in which a group of young males including the offender (approximately six in number), identified the deceased who was known to the offender and a decision was then made to physically attack him as a group.

(ii)   The attack had not been preceded on the day in question by any dispute or confrontation involving the deceased. He as an invited guest at the party was simply a participant enjoying a social occasion.

(iii)   The member of the group who called Eden over clearly did so for the purpose of setting him up for a group attack.

(iv)   The evidence as to the attack reflects a degree of co-ordinated activity amongst at least some members of the group – in the respects that I have earlier stated.

(v)   Eden Delir was subjected to a multiplicity of assaults including to his head causing brain damage that caused his death.

(vii)   The assaults comprised punching, kicking and stomping before and after the deceased was struck with the bottle. The ferocity of the attacks was of a high order.

77. The fact that Eden Delir was outnumbered approximately six to one, that the attack was without any warning, that it was unprovoked and that a number of attackers continued to kick, punch and stomp upon an increasingly injured young man followed by the smashing of the bottle over his head, underlines the brutality and complete callousness of the attack that subsequently brought about the death of a young person approaching the threshold of young adult life.

78. This was not, in other words, a case merely involving a spontaneous act. The objective seriousness of the offence in this case is, as I have stated, much greater than those all-too-frequent cases where someone is punched to the head and falls to the ground and dies as a result of injuries sustained. The objective seriousness of this manslaughter cannot, in my assessment, be characterised as anything other than extremely grave. The actions of the offender, and his companion attackers evidence a serious element of calculated criminal conduct.

79. The evidence in this trial as to the existence in certain sectors of the community of a culture or code of silence designed to protect lawbreakers is a matter of great concern. It is one that has no place in our society.

80. Any culture in which an associate of an offender, or even a victim of a criminal offence is put in fear that revenge or retribution may be expected if information concerning an offence is given to police cannot be permitted. Tragically, this is such a case. Eden Delir having been interviewed by police about the assault and robbery committed against him in February 2010, he having been set-up by the offender, on the evidence and findings to which I have referred, was later targeted by the offender and his co-offenders at the Halloween party on 30 October 2010 for having provided information to police.

81. The ferocious attack upon Eden Delir was the product of the perverted culture to which I have referred. As events have turned out it rebounded badly upon the offender and his associates with convictions in three separate trials of five offenders and one pleading guilty to manslaughter. I have made reference to these matters by reason of their connection with the commission of the subject offence and possible relevance to deterrence, a matter I will separately address.

Subjective Factors

1. Remorse

82. It was submitted for the offender that statements made by him in the recorded conversation display remorse. These were: I swear to God Mary … like why would I want someone to die for Mary …” (Exhibit W at p5)” and later “Mary, I swear to God, I’m so sorry.” (Exhibit W at p 8) It was submitted that this reflected remorse and regret for the death of Eden Delir.

83. An examination of the context in which those statements were made does not, in my opinion, evidence genuine remorse by the offender. In the recorded conversation the offender displayed an attempt to minimise his involvement and he was not focussed upon the death of Eden Delir.

82. The Crown submitted that the offender has shown no remorse.

83. As I have earlier discussed the Juvenile Justice Background Report states that the offender has displayed an attitude of minimising or justifying his actions and has not accepted responsibility for his participation in the attack on Eden Delir.

84. In her report of 8 December 2014, Ms Elana Jones, Forensic Psychologist, wrote:

“4.3   … Despite a verbal concurrence that he felt remorse, there was little indication of such …”

87. An examination of the evidence, in my opinion, leads to the conclusion that the offender has not shown any genuine remorse or contrition.

2. Bail Conditions

88. On the issue of restrictive conditions of bail it was submitted that as the offender was required to live at home with his parents, and for the first one and a half years was not allowed to leave the home without being in the presence of one or other of his parents, or an adult approved by one or other of his parents, this meant that his liberty was significantly curtailed.

89. In the period on bail he was not allowed to have a mobile phone and accordingly his ability to communicate with people was severely limited unless somebody utilised the phone for him.

90. It was submitted that allowance should be made in sentencing for the restrictive bail conditions and that as he has matured and exhibited signs of somebody with a strong work ethic, he will become a productive member of society.

91. The bail undertaking given by the offender on 16 May 2011 was tendered in evidence and was marked as Exhibit 5.

92. On 22 September 2011 the bail condit6ions were varied as follows:

1. The bail undertaking remains the same, except that condition 3 of that bail undertaking is now to read ‘not to leave home/be in a public place unless in the company of parent, or an adult approved of in writing by a parent’.”

93. In determining whether any credit should be given in sentencing the offender for reasons of the conditions of bail to which he was subjected to on and after 16 June 2011, the following matters are to be brought into account:

(i)   The length and term of an offender’s period of bail awaiting trial is a matter relevant to the determination of the proper sentence to be imposed.

(ii)   The bail conditions as considered either individually or collectively in determining if the offender has been the subject of onerous or stringent constraint.

(iii)   In particular, whether or not the bail conditions imposed any really serious restriction on the offender’s liberty.

94. In accordance with accepted sentencing principles it is open to a sentencing judge to take into account onerous conditions of bail in assessing sentence, but he or she is not obliged to do so: R v Webb [2004] NSWCCA 330; 149 A Crim R 167 at [19] per Grove J, Simpson and Shaw JJ agreeing.

95. In R v Fowler [2003] NSWCCA 321, the Court (Tobias JA, James and Howie JJ) observed:

“242   We accept that in an appropriate case the length and terms of an offender’s period on bail awaiting trial or sentence is a matter relevant to the determination of the proper sentence to be imposed. What weight is to be given to such a matter will vary from case to case, depending upon what other factors need to be considered and what sentence is required in the particular case to address the purpose of punishment. Where that purpose is the protection of the community and the conditions of bail are particularly onerous, such as where the offender has been required to reside at a rehabilitation establishment, very significant weight might be placed upon such a factor where it is appropriate having regard to the nature of the offence. However, in other cases, less weight may be given to such consideration, particularly where the imposition of a sentence of imprisonment is required for the purposes of denouncing the crime and reflecting the general deterrence.”

96. In that case, the Court determined that there had been an obvious and significant disruption to the appellant’s life and restrictions upon his liberty over a lengthy period of time as a result of the offence committed. However, it was held that the sentencing judge was not required to reduce the sentence because of such considerations: at [243].

97. See also R v Dennis (NSWCCA, 14 December 1992, unreported); R v Khamas (1999) 108 A Crim R 499 at [27].

98. Although the conditions of bail in this case, in particular condition 3, curtailed the offender’s liberty by the requirement for him to be in the company of a specified adult person, and the period he was on bail has been lengthy, I do not consider that those conditions, individually or collectively, have been so onerous as to require credit to be given on the sentence to be imposed.

99. The offender during the period of bail has been able to maintain his pursuit of his working life and social life including maintaining his personal relationship with his girlfriend, who Ms Jones, Forensic Psychologist, noted he had met a year ago through mutual friends.

100. Other factors that may be taken into account in determining whether credit should be allowed include the nature of the offence committed by the offender and the need for general deterrence. In a case such as this those factors are, in my assessment, particularly important. The gravity of the offence, the need for an appropriate and adequate sentence to be imposed and general deterrence are all factors to be given considerable weight.

101. I accordingly, as indicated, determine that there should be no credit allowance in sentencing the offender for the period spent on bail.

Rehabilitation Prospects

102. Ms Hickleton submitted that, on balance, the offender has good prospects of rehabilitation and that he was unlikely to offend again. He has family support and prior to bail conditions imposed he had not mixed with his co-offenders nor since.

103. It was submitted that this reflected a desire to distance himself from their behaviour.

104. The Juvenile Justice Report does not express an opinion that would support a confident prediction as to the offender’s rehabilitation prospects. Much, no doubt, will turn upon whether the offender benefits from the therapeutic interventions which the authors of the Report address.

105. A similar position rises from Ms Jones’ report of 8 December 2014. Ms Jones, as earlier noted, indicated that his VRS estimate of his risk of violent re-offending is low range. The recommendation made for him to obtain his Year 10 Certificate and participation in therapeutic programs would appear to be factors that would increase his prospects of employment and education in the community and minimise his chance of re-offending.

106. On the evidence as it presently is, the offender’s prospects of rehabilitation, I assess, with some caution, to be moderate.

Personal Factors

107. At the time of the offence, the offender had left school and he was then 15 years and 9 months, and had obtained a job working at concreting.

108. Reference was made to the testimonial provided by his employer, David Buhagiar, who was so impressed with the offender that he recruited him to come back and work in his new business. He spoke highly of his honesty and loyalty and hard work and sense of responsibility.

109. In addition to working in the concreting field he worked in his father’s pizza parlour to help out. Accordingly, it was said his work ethic was high.

110. In terms of his personal life it was submitted that he had a girlfriend who had and remains particularly supportive. This, his desire to work and his desire to be with family with whom he is close, the fact that he has a supportive family and that maturity has taken place in the years that have intervened since the offence, all indicate, it was submitted, that the offender is very unlikely to re-offend at all.

111. By reason of the fact that he was 15 years at the time of the offence and had not long left school he was a young offender and that is to be taken into account in determining sentence.

112. It was submitted that in relation to the offence itself, there was no indication that he wished to see Eden Delir die, or indeed seriously hurt, although it was conceded that the jury must have found that should have been within his reasonable contemplation. However, it was submitted that did not mean that he wished for that to occur.

113. It was submitted that emphasis should be placed on the offender’s ongoing rehabilitation and the fact that he will re-enter society with every prospect of being a hardworking contributing member of society and unlikely to re-offend.

114. In addition to being a young offender, it was noted that he had no prior offences.

115. It was submitted that, on balance, the offender has good prospects of rehabilitation and was unlikely, as earlier noted, to offend again.

116. I have also had the benefit of other testimonials taken on the sentence hearing which I have read and taken into account.

117. The Bail Undertaking contains a date on the Certificate of the Authorised Officer of 16 June 2011. There are six conditions specified. They include condition 3 in the following terms:

“Not to leave home/be in a public place unless in company of parent.”

Sentencing Juvenile Offenders

118. In sentencing an offender I am required to take into account the objective seriousness of the offence, the subjective circumstances of the offender and the special sentencing considerations applicable to young offenders.

119. Because of his age as at the date of the offence, 15 years, the provisions of the Children (Criminal Proceedings) Act 1987 are, for sentencing purposes, applicable.

120. Section 6 of that Act sets out “principles” to which I am required to have regard. In particular, the youth of an offender is a relevant factor in the sentencing consideration, to be given the appropriate weight, together with all other relevant factors. The above principles in their application will, of course, depend upon the nature of the offence charged as well as the age and the conduct of the offender: R v Voss [2003] NSWCCA 182; R v AEM [2002] NSWCCA 58.

121. In R v Pham & Ly (1991) 55 A Crim R 128 Lee J (with whom Gleeson CJ and Hunt J (as his Honour then was) agreed) stated in the context of offenders respectively aged 17 and 19:

“It is true that courts must refrain from sending young persons to prison, unless that course is necessary, but the gravity of the crime and the fact that it is a crime of violence frequently committed by persons even in their teens must be kept steadfastly in mind otherwise the protective aspect of the criminal court’s function will cease to operate. In short, deterrence and retribution do not cease to be significant merely because persons in their late teens are the persons committing grave crimes, particularly crimes involving physical violence to persons in their own homes.”

122. The principles that apply in the sentencing of young offenders were set out by the Court of Criminal Appeal in KT v Regina [2008] NSWCCA 51 by McClellan CJ at CL at [22]-[25].

123. Although accepted to be of less significance than when sentencing adults, considerations of general deterrence and retribution cannot be completely ignored when sentencing young offenders. It has been noted that there remains a strong public interest in deterring antisocial conduct.

124. In KT v Rgina, supra, it was stated that the emphasis given to rehabilitation rather than general deterrence and retribution when sentencing young offenders, may be moderated when a young person has conducted him or herself in a way an adult might conduct him or herself, and has committed a crime of violence of considerable gravity. In determining whether a young offender has engaged in “adult behaviour” the court will look to various matters including the use of weapons, planning or premeditation, the existence of an extensive criminal history and the nature and circumstances of the offence. Where some or all of these factors are present the need for rehabilitation of the offender may be diminished by the need to protect society. In the present case, as I have noted on the findings I have earlier made, there was the use by the offender’s co-offenders’ of objects as weapons, there was some premeditation, prior to the attack. The circumstances of the offence to which I have referred are to be taken into account. In addition to his age, the fact that the offender does not have a criminal history is another matter of importance in the consideration of the sentence to be imposed.

125. In JT v R [2011] NSWCCA 128 Hoeben J (as his Honour then was) was not persuaded in that case involving an offender who was 16 years and 7 months at the time of the offence, that it was the sort of offence which indicated impulsivity and immaturity on the part of the applicant so that the need for rehabilitation should be given paramount consideration. Rather, his Honour said, it was the very sort of offence that was referred to in KT at [24] and [25].

126. The weight of authority is that the seriousness of an offence is relevant to the emphasis that can be given to the youth of an offender. It has been observed, however, that that does not mean that youth is not an important consideration; but retribution and deterrence cannot, in a case as serious as the present case, give way entirely or even substantially to the interests of rehabilitation: JM v R [2012] NSWCCA 83 per Simpson J at [108] (dissenting but not on this point).

127. In a case such as the present, as I have already indicated, where there was a use of extreme violence occasioning death and occurring in the circumstances to which I have referred, general deterrence and retribution cannot be ignored and must be taken into account.

128. 128 The factors to which I have referred in the sentencing of juvenile offenders, often pull in different directions. That is particularly marked in this case. The offender was in his mid‑teens and he has no criminal history. Allowance must also be made for his immaturity. He has rehabilitation prospects although as I have indicated it is difficult on the evidence to be confident as to how strong those prospects are. Much will depend upon his capacity to free himself from peer groups with so-called normalised views on violence and the success of intervention strategies that provide insight about his use of violence and management of aggression and anti-social behaviours as noted in the Juvenile Justice Report and the report of the Forensic Psychologist, Ms Jones.

129. The extreme level of violence associated with the subject offence in unprovoked circumstances, on a highly vulnerable victim, mark the offence for which the offender is to be sentenced, as an extremely grave one and one that cannot be categorised as the crime of a child.

130. In determining sentence I have considered a number of sentencing decisions which I do not here reproduce. I attach to these remarks a list of the decisions to which I refer.

131. Given the various circumstances of each case they do not, of course, establish any particular pattern of sentencing.

132. By reason of the particular matters associated with the objective gravity of the offence, the sentence I propose to impose is a substantial one.

Special Circumstances

133. I have considered the question as to whether there is a basis for a finding of special circumstances for the purposes of s 44 of the Crimes (Sentencing Procedure) Act 1999 so as to vary the statutory relationship between the non-parole period, and the head sentence. In that respect I have considered the personal and the subjective matters to which I have earlier referred.

134. I have determined that the offender’s age, and the absence of a history of previous juvenile offending, provide a basis for a finding of special circumstances for the purpose of the above provisions.

135. However, although I have made such a finding it does not, in my assessment, permit a reduction of the non-parole period to a level that does not adequately reflect the objective seriousness of the offence and the culpability of the offender after regard is had to all relevant circumstances: Maglis v R [2010] NSWCCA 247; R v West [2011] NSWCCA 91.

136. Accordingly, for those reasons on the special circumstances finding I have made I intend to provide a very limited adjustment only to the statutory ratio, that is, the ratio of the non-parole period to the total term.

Victim Impact Statement

137. Victim Impact Statements prepared by the parents and the sister of Eden Delir were received by the Court. The statements express in clear and dignified terms the grievous effect and the immense loss of the life of Eden Delir has had upon each of them. The loss of a young person in the circumstances with which this case is concerned are exceptionally painful and tragic. On behalf of the Court I extend my condolences to the family of the deceased for the immense loss that they have endured and will continue to endure. Nothing of course can address that immense loss.

138. I have noted the provisions of Division 2 Victim Impact Statements of Part 3 of the Crimes (Sentencing Procedure) Act 1999, in particular, s 28 thereof. I have, of course, closely considered the victim impact statements in this case as significant material before the Court. I have determined the sentence to be imposed on the basis of the evidence and findings to which I have referred above. As there were no submissions made in relation to s 28, I have determined that any sentence should not be increased by virtue of the statements to which Division 2 applies.

Sentencing as a Juvenile Offender

139. In certain circumstances, if a court sentences a person under 21 years of age to imprisonment for an indictable offence it may direct that the whole or any part of the term of the sentence be served as a juvenile offender: s 19(1) Children (Criminal Proceedings) Act 1987.

140. Section 19(3) of the lastmentioned Act provides that a person who is sentenced to imprisonment in respect of a serious children’s indictable offence (as in the present case) is not eligible to serve a sentence of imprisonment as a juvenile offender after the person has attained the age of 18 years unless one or other of the matters set out in subparagraphs (a), (b) or (c) of s 19(4) are satisfied.

141. The eligibility to serve a sentence of imprisonment imposed in respect of a serious children’s indictable offence as a juvenile offender after a person has attained the age of 18 years, in this case, would depend upon whether or not a finding of special circumstances can and is made under s 19(4) of the Act (in particular, under subparagraphs (a) or (b) or (c) thereof).

Juvenile Justice: Background Report

142. The offender was interviewed on 27 October, 5 and 17 November 2014 by Ms Dean, Juvenile Justice Counsellor and Ms Abusharif, Assistant Manager (Clinical).

143. Their report, to which I have earlier referred, notes that the offender who is now 19 years of age was born in Australia of Iraqi descent. He has siblings with whom he is close. He has been residing with his parents whilst on bail. He has had the support of his family whilst in custody and during the proceedings.

144. He attended primary and secondary school but he was asked to leave the school in Year 8 prior to being expelled following an altercation with a female student. According to the school, the act of violence against the female student was not the first incident where the offender had displayed aggressive behaviour towards other students.

145. He changed schools and left midway through Year 10. According to information provided, the offender had been disciplined on occasion due to misbehaviour, including verbal abuse towards teachers and some physical violence towards other students resulting in three periods of suspension.

146. The Background Report records that the offender appears to struggle with acceptance of responsibility in relation to his role in the offence.

147. As earlier discussed, he denied being present at the party at the time of the attack on Eden Delir and claimed that he did not know that his co-accused were planning on assaulting the victim when he allegedly left the party. I note that this is directly inconsistent with what he said in the recorded conversation on 5 November 2010.

142. The authors of the Report state that the offender appeared to provide responses that minimised or justified his actions. They also observed that he would benefit from “therapeutic interventions to address underlying risk factors that contribute to his pattern of anti-social behaviour”: (p 6).

Forensic Psychology Report

149. Ms Jones, Forensic Psychologist, in her detailed report dated 8 December 2014, noted that the offender has since his custody on 13 October 2014, participated in education programs and counselling offered at the Centre where he is held.

150. Ms Jones noted that he minimised his antisocial attitudes and involvement in antisocial behaviour. His poor insight, she observed, may be reflecting poor self-awareness of his inner thoughts and feelings or an overt attempt to impression management. She suggested both were at play.

151. In terms of risk assessment, Ms Jones stated that the risk of re-offending may be minimised by assistance in the development of effective risk management strategies that target relevant risk factors. These were identified in the offender’s case at 7.4 of the report.

152. Ms Jones recommended that if the offender is held in a juvenile facility he will receive intervention to improve his insight into his antisocial attitudes, his violence and the influence of peers. Psychological intervention could also address his use of minimisation and poor acceptance of responsibility for his offence and past aggressive behaviours.

153. Ms Jones’ report identified suitable therapeutic interventions: at 10.5. She stated that these may assist him in his ability to gain insight into his behaviour. Her report indicates that the interventions she recommended in paragraphs 9.2 and 9.3 of her report are rarely offered to Low Risk offenders (he was assessed on the Violence Risk Scale (VRS) as within the Low Range) in adult custody. In other words, Ms Jones’ analysis and opinion favour the offender remaining in a juvenile detention facility for the maximum permitted age (21 years).

154. I am satisfied on the evidence that the only available therapeutic programs suitable to the offender’s needs are those identified by Ms Jones that are available in detention centres and that are unlikely to be available to him in an adult correctional facility. I am satisfied that special circumstances referred to in s 19(3) and (4)(b) of the Children (Criminal Proceedings) Act 1987 exist.

155. A finding of special circumstances under s 19, of course, does not permit an order to be made that goes beyond the offender’s 21st birthday.

156. On the basis of the evidence to which I have referred, I make an order pursuant to s 19(1) and 19(3), directing that the offender serve his non-parole period as a juvenile offender until the day upon which he attains the age of 21 years.

157. In sentencing the offender it is my intention that he be able to remain in a children’s detention centre as a juvenile offender until the day he turns 21, whereupon he is to be transferred to an adult gaol.

158. In relation to the provisions of s 15C of the Children (Criminal Proceedings) Act I note that no application has been made by either party, or any other interested party, for the usual statutory prohibition on the publication or broadcast of the name of the offender to be lifted on the event of being convicted of a serious children’s indictable offence.

159. Having considered the provisions of s 15C, I do not consider that an order should be made pursuant to s 15C(2) and accordingly it would be an offence for any person to publish or broadcast material that connects the name of the offender with these criminal proceedings.

Sentence

160. JH, you are convicted of the offence of manslaughter. I sentence you to a non-parole period of imprisonment of 7 years to date from 5 October 2014 and to expire on 4 October 2021. There will be a parole period of 3 years to commence on 5 October 2021 and to expire on 4 October 2024.

161. Accordingly, the head sentence is a term of imprisonment for 10 years with a non-parole period of imprisonment of 7 years.

162. The first date upon which you will be eligible to be released to parole accordingly will be on 4 October 2021.

**********

SCHEDULE

163. On behalf of the Crown, the following documents were tendered:

Exhibit A – Antecedents of offender. The record disclosed that the offender had no prior convictions.

Exhibit B – Victims Impact Statements on behalf of the Delir family signed by Annabelle Delir, Dorothy Delir and Ardavaz Delir.

Exhibit C – Juvenile Justice Report dated 20 November 2014.

164. On behalf of the offender the following documents were tendered:

Exhibit 1 – Letter Father Paul Mingana, Assistant Priest, St Thomas the Apostle Chaldean Catholic Church.

Exhibit 2 – Letter David Buhagiar – Sydney Shower Screens & Wardrobes.

Exhibit 3 – Letter Jessica Kaka.

Exhibit 4 – Letter Samir Hanna.

Exhibit 5 – Bail Undertaking, 16 June 2011.

List of Comparative Sentencing Decisions

1. Mariam v R; R v Mariam [2013] NSWCCA 338

2. R v AEM [2002] NSWCCA 58

3. R v AH [2011] NSWSC 1535

4. R v CW [2009] NSWSC 1155

5. Regina v Hoerler [2004] NSWCCA 184

6. R v KT [2007] NSWSC 83

7. R v Pham & Ly (1991) 55 A Crim R 128

8. R v Sutcliffe & Ors [2013] NSWSC 715

9. R v WA [2012] NSWSC 1317

10. R v West [2011] NSWCCA 91

11. R v Voss [2003] NSWCCA 182

Amendments

14 January 2015 - replaced name with JH in paragraph 160

Decision last updated: 14 January 2015