R v M.A.H

[2005] NSWSC 871

CITATION:	R v M.A.H [2005] NSWSC 871
HEARING DATE(S):	23/6/05, 10/8/05
JUDGMENT DATE :	30 August 2005
JUDGMENT OF:	Hislop J
DECISION:	MAH, for the offence of murdering ST I sentence you to a term of 22 years imprisonment, to date from 25 April 2005. That sentence will expire on 24 April 2027. I specify a non-parole period of 16 years and 6 months also to commence on 25 April 2005 and to expire on 24 October 2021. The first date upon which you will be eligible for consideration for release to parole is 24 October 2021.

CATCHWORDS:	Criminal law - Murder - Juvenile - Sentence.
LEGISLATION CITED:	Children (Criminal Proceedings) Act 1987 Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900
CASES CITED:	R v Previtera (1997) 97 A Crim R 76 R v Bollen (1998) 99 A Crim R 510 R v Berg [2004] NSWCCA 300 R v Tzanis [2005] NSWCCA 274 R v AEM [2002] NSWCCA 58 R v SK; R v OZ [2001] NSWCCA 492 R v Ma (2004) 145 A Crim R 434 Veen v The Queen (No. 2) (1988) 164 CLR 465 Ibbs v The Queen (1987) 163 CLR 447 R v Merritt (2004) 59 NSWLR 557 R v Harris (2000) 50 NSWLR 409 R v JSK [2004] NSWSC 470 R v Fernando (1999) NSWCCA 66 R v Mungomery (2004) 151 A Crim R 376 R v McHugh (1985) 1 NSWLR 588
PARTIES:	Regina - Crown M.A.H - Offender
FILE NUMBER(S):	SC 2004/33
COUNSEL:	Mr W Roser - Crown Mr P Bodor QC - Offender
SOLICITORS:	Director of Public Prosecutions (NSW) - Crown Williamson Isabella Lawyers - Offender

LOWER COURT JURISDICTION:

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

HISLOP J

30 August 2005

2004/33 Regina v M.A.H

JUDGMENT

Introduction

1 On 2 May 2005 the offender was convicted, after trial, of the murder of ST. He now appears for sentence.

2 At the time of the offence the offender was under the age of 18, as were a number of witnesses and the deceased. The publication and/or broadcasting of the names of the offender, such witnesses, the deceased and other persons referred to in s 11(1) of the Children (Criminal Proceedings) Act 1987 (“CCPA”) is prohibited by that section.

3 ST went missing on the afternoon of 21 October 2000. He was last seen in the company of his friends, JSK and the offender. In August 2003 his skeletal remains were found in a shallow grave in bushland in the Cordeaux Dam area. The parietal bones of his skull were fractured, as were both sides of his jaw.

4 The remains were found after JSK confessed to police on 9 August 2003 that he and the offender had murdered ST on 21 October 2000. He informed police of the existence and location of the grave.

5 JSK was charged with the murder of ST. He pleaded guilty and offered to assist the authorities in prosecuting the offender. On 14 May 2004 he was sentenced to 11 years imprisonment with a non-parole period of 7 years. The sentence evidenced a significant discount for the utilitarian value of the plea, contrition, assistance to the authorities and by reason of the disclosure of an offence that otherwise would probably have remained undetected. Such discounting factors are not present in MAH’s case. The sentencing judge also took into account the youth of JSK, his background, his immaturity and his prospects of rehabilitation.

6 The offender denied, and continues to deny the offence.

7 The offender was born on 4 December 1982, ST on 11 February 1983 and JSK on 10 September 1984.

Facts

8 No oral evidence which covered the objective circumstances in which the offence occurred was adduced at the sentence hearing. However, considerable evidence was called and/or tendered at the trial, including the oral evidence of the offender and JSK.

9 Consistently with the jury’s conclusion, I find the facts to have been as follows: the offender was jealous of the relationship between ST and the offender’s girlfriend, EG, and believed that ST was flirting with EG. In consequence he decided to murder ST. He disclosed his intent to JSK during the week before the murder. He made plans to carry out his decision. Such plans involved selecting the site for the murder, recruiting JSK to assist him, arranging to meet ST on the afternoon of 21 October 2000, and obtaining a shovel. On 21 October 2000 the offender, ST and JSK met, ostensibly to go four wheel driving in the offender’s four wheel drive vehicle. The offender, ST and JSK drove in that vehicle to a campsite in bushland in the Cordeaux Dam area. There ST was struck by JSK and the offender. He attempted to run away but was tackled and whilst down, the offender and JSK kicked him in the head until he was semi-conscious. They took a large log and forcibly dropped it onto ST’s head a number of times. They then conveyed ST, who by then was comatose if not deceased, by row-boat from the campsite to a remote part of the dam area and there buried him in a shallow grave. At the instigation of the offender, all personal items were removed from ST and a version of events which the offender and JSK would relate, if questioned, was agreed upon.

Subjective circumstances

10 The offender had an unremarkable background in terms of upbringing, schooling and employment. A report obtained pursuant to s 25 of the CCPA was tendered in evidence by the Crown. It recorded, among other things, that the offender was the eldest of three children, that he claimed to have had a normal childhood, and appeared to have a close relationship with his family. He had attended high school until the end of year 11 and at school he had a number of friends and followed interests of camping, BMX riding and speed skating.

11 After leaving school he commenced employment as an apprentice mechanic at a Mower Centre. He worked there for 18 months then moved to alternative employment with an engineering firm, which he left after 3 months to work in a bakery. He left the bakery 3 months later then commenced to work on a casual basis as a builder’s labourer. In January 2003 he commenced employment as a mechanic, a job which he found well suited him. The offender had undergone major surgery in relation to his aorta at ages 2 and 12, but currently reported himself to be in good health.

12 The report recorded that the offender was adamant that he did not commit the offence; he stated he was unable to express remorse while maintaining his innocence; he said he felt terrible that ST’s family have had to deal with the loss of their son; and that his relationship with his girlfriend (EG) continues.

13 The author of the report stated that:

… [the offender] appears to be a private young man who does not openly express his emotions. This does not necessarily mean that (he) is void of emotion, but chooses not to openly express it …

14 She concluded:

Regardless of the outcome of his court matters, (MAH) appears to be in need of psychological assistance. Considering possible outcomes, (MAH) is going to be emotionally vulnerable after sentencing. At present he is rallying strength, particularly from his family and girlfriend, but the reality of the sentence may lessen his ability to remain composed. He should be referred to appropriate services to monitor his mental health status.

15 The offender had a conviction on 9 November 2001 for negligent driving, otherwise, but for the current offence, his record is clear. He did admit during the trial to having stolen the row-boat in which ST was conveyed.

Victim Impact Statement

16 ST’s mother read a victim impact statement. That statement details the devastating consequences upon the family of ST which lost their son as the result of a senseless act of criminality. The uncertainty surrounding ST’s disappearance, the searching and waiting for news that he may yet be alive, the raising and dashing of hope and then the final reality must have been traumatic in the extreme. It is impossible to summarise the loss which has been occasioned in a few short paragraphs, and to do so, or attempt to do so, would only be to detract from their content.

17 I have received and considered the victim impact statement having regard to the principles stated in R v Previtera (1997) 97 A Crim R 76, a decision which was accepted by the Court of Criminal Appeal in R v Bollen (1998) 99 A Crim R 510. It may be those decisions will be reconsidered by the Court of Criminal Appeal in the light of the amendments to the CSPA (see R v Berg [2004] NSWCCA 300 and R v Tzanis [2005] NSWCCA 274) but until that occurs, I consider the principles in R v Previtera binding upon me. Thus the victim impact statement is not relevant to the sentence to be imposed upon the offender.

Sentencing - general principles

18 At the time of the offence the offender was a child as defined in s 3 of the CCPA, being under the age of 18 years. Notwithstanding that he is now over 21, he is to be sentenced for the offence that he committed as a juvenile. As the offence of murder is a serious childrens’ indictable offence, he is to be dealt with according to law (CCPA s 17).

19 Section 6 of the CCPA applies. It provides:

A court, in exercising criminal jurisdiction with respect to children, shall have regard to the following principles:
(a) that children have rights and freedoms before the law equal to those enjoyed by adults and, in particular, a right to be heard, and a right to participate, in the processes that lead to decisions that affect them,
(b) that children who commit offences bear responsibility for their actions but, because of their state of dependency and immaturity, require guidance and assistance,
(c) that it is desirable, wherever possible, to allow the education or employment of a child to proceed without interruption,
(d) that it is desirable, wherever possible, to allow a child to reside in his or her own home,
(e) that the penalty imposed on a child for an offence should be no greater than that imposed on an adult who commits an offence of the same kind.

20 The principles to be applied in cases involving the sentencing of young offenders, especially for serious offences, are well established. In R v AEM [2002] NSWCCA 58, the Court of Criminal Appeal said:

It is well accepted that in the case of youth, general deterrence and public denunciation usually play a subordinate role to the need to have regard to individual treatment aimed at rehabilitation…However, important as that principle is, it cannot defeat the primary purpose of punishment nor, in circumstances where young offenders conduct themselves in a way which an adult does, can it stand in the way of the need to protect society.

21 In sentencing children, punishment is not to be determined simply by reference to the objective facts, no matter how extreme they may be – R v SK; R v OZ [2001] NSWCCA 492 at [19] per Newman AJ.

22 Sections 3A and 21A of the Crimes (Sentencing Procedure) Act 1999 (“CSPA”) in their present form apply to this case (CSPA Schedule 2 clause 45(2)). Section 44 in its present form and Division 1A of Pt 4 of the CSPA do not apply to this case (CSPA Schedule 2 clause 45(1)).

23 Section 3A provides:

The purposes for which a court may impose a sentence on an offender are as follows:
(a) to ensure that the offender is adequately punished for the offence,
(b) to prevent crime by deterring the offender and other persons from committing similar offences,
(c) to protect the community from the offender,
(d) to promote the rehabilitation of the offender,
(e) to make the offender accountable for his or her actions,
(f) to denounce the conduct of the offender,
(g) to recognise the harm done to the victim of the crime and the community.

24 The Court of Criminal Appeal in R v Ma (2004) 145 A Crim R 434 characterised s 3A as being a codification and elaboration of the purposes of criminal punishment which were described by the High Court in Veen v The Queen (No. 2) (1988) 164 CLR 465. A majority of the Court, in a passage which is apposite to the present case, said:

… sentencing is not a purely logical exercise, and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions (at 476).

25 A person who commits the crime of murder is liable to imprisonment for life (Crimes Act 1900 s 19A). However if, by any provision of an Act, an offender is made liable to imprisonment for life, a court may nevertheless impose a sentence of imprisonment for a specified term (CSPA s 21(1)).

26 The imposition of a maximum penalty for any offence is a sentencing option reserved for cases which can properly be characterised as falling within the worst category of cases for which that penalty is prescribed – Ibbs v The Queen (1987) 163 CLR 447 at 451-452.

27 Section 61 of the CSPA provides:

(1) A court is to impose a sentence of imprisonment for life on a person who is convicted of murder if the court is satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence.
(6) This section does not apply to a person who was less than 18 years of age at the date of commission of the offence.

28 Section 61(1) of the CSPA is a restatement of the common law – R v Merritt (2004) 59 NSWLR 557. It has not abrogated the common law position - R v Harris (2000) 50 NSWLR 409.

The Crown’s submissions

29 The Crown submits that the appropriate penalty in this case is imprisonment for life, that the crime is so heinous and the level of culpability so extreme that life imprisonment is the only penalty which would satisfy the community’s interest in retribution and punishment.

30 The Crown relies upon the following matters:

(a) The objective nature of the offence which, among other things, involved pre-meditation, planning, and violence. There was an intention to kill as opposed to an intention to inflict grievous bodily harm. As the sentencing judge in R v JSK ([2004] NSWSC 470) correctly observed:

…this was a cowardly and cold blooded killing perpetrated upon a young man who would have had absolutely no reason to suspect that he was to be murdered by two of his friends.

(b) The presence of a number of aggravating factors pursuant to s 21A(2) CSPA which were required to be taken into account. These were:


(i) Offence committed in the company of JSK (section 21A(2)(e) of the CPSA).

(ii) Offence involved gratuitous cruelty (section 21A(2)(f) of the CPSA).

(iii) Substantial injury, emotional harm, loss or damage caused by the offence (section 21A(2)(g) of the CSPA).

(iv) Offence motivated by hatred (section 21A(2)(h) of the CSPA).

(v) Offence planned (section 21A(2)(n) of the CSPA).

(vi) The offender is a risk to society (section 21A(3)(g) of the CSPA).


(c) That the loss of ST to his family was “of the highest order”, as evidenced by the victim impact statement; and that the victim impact statement was “admissible and relevant to the appropriate sentence to be imposed upon the prisoner”. Sections 3A(g) and 21A(2)(g) of the CSPA were relied upon.

(d) That in R v Fernando [1999] NSWCCA 66 each offender received a life sentence in circumstances which the Crown contends were less objectively serious than the present case. That case involved an element of pre-meditation and planning prior to the actual killing. The offence was committed by two young adult males. It involved the forced abduction of the victim, a nurse, from her place of employment, the holding of her for a period of one hour or so during which time she suffered acute degradation and humiliation, including physical torture and sexual abuse before she was brutally murdered with a machete.

(e) Little or no weight should be given to the age of the offender in mitigation, having regard to the circumstances of the offence.

Discussion

31 I would accept the descriptions of the offence contained in paragraph 30 (a) (indeed I do not understand the offender’s counsel to submit otherwise). I also accept that murder is the most serious offence in the criminal calendar and is by its nature a heinous crime. However I am unable to accept the Crown’s contention that this is a case where a life sentence would be appropriate for the reasons which follow.

32 I accept the Crown can rely on s 21A(2)(n) as an aggravating factor. However I do not accept that the other matters alleged to be aggravating factors under s 21A(2) and referred to in paragraph 30(b) above may be relied upon as such because:

(i) I have had regard in assessing the objective gravity of the offence to the fact it was committed in company, indeed, the Crown case was put on the basis of joint criminal enterprise. In those circumstances I do not consider it appropriate to have additional regard to that feature of the case.

(ii) The cruelty associated with the offence was part of that offence, and to treat it as an additional aggravating factor under s 21A(2)(f) would contravene the last sentence in s 21A(2).

(iii) The effect of the death of the victim upon others is not a relevant consideration to aggravate the offence or increase the sentence as the law presently stands – R v Previtera (1997) 94 A Crim R 76.

(iv) Section 21A(2)(h) is concerned with an offence motivated by hatred for a group of people to which the victim was believed to belong. That is not this case.

(v) The reference to section 21A(3)(g) appears misconceived.

33 R v Fernando is not authority for the proposition that a life sentence should be imposed in this case. As Spigelman CJ observed in R v Mungomery (2004) 151 A Crim R 376 at [5]:

Prior sentences are in no way precedents that need to be distinguished. They may be relevant as a guide and issues of consistency are of significance. Nevertheless, the broad judgment required for the determination of an appropriate sentence turns on the facts of a particular case and the facts of other cases are virtually never so similar as to require detailed exposition. It will often be appropriate for a sentencing judge to refer only to an impression that s/he acquires from reading relevant prior judgments and from the range of statistics available on the Judicial Commission’s database.

34 A schedule containing reference to some 46 sentences for violent murders committed by juveniles was placed before the court by counsel for the offender. These offences evidence a wide range of sentences from a maximum term of 7 years to a maximum term of 35 years. Some of the cases are superficially similar to the present, but on closer examination, bear out the Chief Justice’s comments in Mungomery. However it is noteworthy that in none of the examples was a life sentence imposed.

35 The type of matters which, to my mind, may justify inclusion in a worst case category are cases of contract killings, multiple murders, torture and gross sexual assault. Objectively viewed, the present case, in my opinion, does not fall within the worst category of murder.

36 The offender was at the time of the offence under the age of 18 and had a minimal criminal history. These are mitigating factors under s 21A(3) of the CSPA. The impact of his youth, the likelihood of greater maturity and insight in the future and rehabilitation are all important factors. Moreover, the legislature has seen fit to exclude children from the operation of s 61(1) from which it may be inferred the legislature considered it would be inappropriate to impose a life sentence upon a child.

37 That is not to detract from the seriousness of the offence. The nature of the offence in this case is such as to call for a sentence that has regard to the objective criminality and the need for retribution, punishment and deterrence, notwithstanding the youth of the offender. It is necessary to impose a sentence which properly reflects the objective gravity of the offence and which gives effect to the various matters referred to in s 3A of the CSPA.

38 I have not had any regard to the standard non-parole legislation contained in Division 1A of Part 4 of the CSPA in sentencing in this matter as, for the reasons earlier stated, those provisions are inapplicable.

39 The offender was in custody exclusively referable to this offence for 4 days from 11 – 14 August 2003 inclusive, and since 29 April 2005, when bail was revoked. I propose to take into account the time spent by the offender in custody pursuant to s 47 of the CSPA (see R v McHugh (1985) 1 NSWLR 588).

40 There are no special circumstances which would justify reducing the non-parole period to less than three quarters of the term of the sentence and the contrary was not submitted by counsel for the offender.

41 MAH, for the offence of murdering ST I sentence you to a term of 22 years imprisonment, to date from 25 April 2005. That sentence will expire on 24 April 2027. I specify a non-parole period of 16 years and 6 months also to commence on 25 April 2005 and to expire on 24 October 2021. The first date upon which you will be eligible for consideration for release to parole is 24 October 2021.

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