R v ML
[2014] ACTSC 58
•20 February 2014
R v ML
[2014] ACTSC 58 (20 February 2014)
CRIMINAL LAW – Judgment and Punishment – Sentencing – Aiding and abetting in the commission of the offence of intentionally inflicting grievous bodily harm – Young offender
Crimes Act 1900 (ACT), s 19
Crimes (Sentence Administration) Act 2005 (ACT), s 64(3)(f)
Criminal Code 2002 (ACT), s 45
GAS v The Queen (2004) 217 CLR 198
Markarian v The Queen (2005) 228 CLR 357
Mitchell v Gallagher (2007) 177 A Crim R 94
Ngatte v The Queen [2013] NSWCCA 203
R v C V [2013] ACTCA 22
R v Goundar (2001) 127 A Crim R 331
R v Wright [2009] NSWCCA 3
EX TEMPORE JUDGMENT
No. SCC 305 of 2011
Judge: Refshauge J
Supreme Court of the ACT
Date: 20 February 2014
IN THE SUPREME COURT OF THE )
) No. SCC 305 OF 2011
AUSTRALIAN CAPITAL TERRITORY )
THE QUEEN
V
ML
ORDER
Judge: Refshauge J
Date: 20 February 2014
Place: Canberra
THE COURT ORDERS THAT:
ML be convicted of aiding and abetting GM in the commission of the offence of intentionally inflicting grievous bodily harm on Tayler Hazell on 1 June 2011.
ML be sentenced to twenty months’ imprisonment.
The sentence be suspended for two years from 20 February 2014.
ML sign an undertaking to comply with the offenders good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of two years, with the condition that he perform 100 hours of community service within twelve months.
The infliction of violence is a serious matter and requires the Court to respond in a way that protects the peace and harmony of the community.
Now appearing for sentence for a serious offence of violence is ML. ML was one of a number of young men who were involved when, on 1 June 2011, Tayler Hazell was attacked, seriously assaulted and stabbed fifteen times, requiring immediate surgery.
As a result, ML was initially charged with attempted murder but, on 8 November 2013, he was instead charged with aiding and abetting GM in the commission of the offence of intentionally inflicting grievous bodily harm on Mr Hazell. He pleaded guilty to that charge on 11 November 2013, and now appears before me for sentence.
Intentionally inflicting grievous bodily harm is an offence under s 19 of the Crimes Act 1900 (ACT), for which the maximum penalty as at 1 June 2011 was fifteen years’ imprisonment. Under s 45 of the Criminal Code 2002 (ACT), a person who aids and abets the commission of an offence by another person is taken to have committed the offence and is punished as if he or she had committed the offence. Thus, ML is liable, on conviction, to a maximum penalty of fifteen years’ imprisonment.
This penalty prescribed by the Parliament requires the courts to regard the offence as very serious. See Markarian v The Queen (2005) 228 CLR 357.
The facts
The events have their beginning in the relationship between Mr Hazell and a co-offender, Hayden Tuck, who had been friends since about 2006. Mr Hazell was staying, temporarily, at Mr Tuck’s unit in Scullin, as he did not have a permanent residence. On about 28 May 2011, Mr Tuck and his girlfriend and Mr Hazell and his girlfriend were at the unit when Mr Tuck told his girlfriend that their relationship was over. She became quite upset and Mr Hazell remonstrated with Mr Tuck and they had a fight, ending when Mr Hazell and the two girls left the unit.
On or about 31 May 2011, the two girls and Mr Hazell returned to the unit and Mr Hazell apologised to Mr Tuck for fighting with him. Mr Tuck accepted the apology, saying words to the effect of, “Nah, it’s all good, people do stupid things when they drink alcohol”.
On the afternoon of 1 June 2011, Mr Tuck was at his unit with two friends, Darrell Crawley and Leanne Phillips. Mr Crawley left to buy some alcohol. Later, GM, EL and co-accused, ML, arrived at the unit, GM holding a ten to fifteen centimetre long black-handled flick knife, which he flicked open and closed several times.
All those present were talking and, except for GM and EL, drinking alcohol. Mr Tuck, GM, EL and ML talked about Mr Hazell and GM said words to the effect, “Let’s get this over and done with. Let’s get Taylor here so we can bash him”. ML and EL said words to the effect of, “We’ll help you”. Mr Tuck then said words to the following effect, “I want to bash Taylor. One of you can hide in the cupboard of my bedroom until Taylor goes to the toilet. When Taylor gets into the bathroom, you can bash him”. GM said words to the effect of, “When Taylor gets into the bedroom”.
Mr Tuck then sent an SMS to his former girlfriend, who was with Mr Hazell and his girlfriend, and invited them over to his unit for a party. GM then asked about gloves and Mr Tuck rang Mr Crawley asking him to get three pairs of kitchen gloves. Mr Crawley later returned with some alcohol and three pairs of gloves. Mr Tuck gave one pair each to GM, EL and ML, and they put them on. Mr Tuck received a text message that Mr Hazell and the two girls were on their way and would arrive in half an hour to an hour.
Shortly after, GM, EL and ML hid in the bedroom and bathroom. GM had his flick knife with him, though it is not clear from the agreed Statement of Facts that ML knew that, or that GM was going to use it, only the word “bash” having relevantly been used. Mr Hazell and the two girls arrived at about 6:50 pm. GM was standing in the bedroom but turned the light off. A little later, Mr Crawley left to buy some more alcohol.
Sometime after that, Mr Hazell got up to go to the toilet, which had to be accessed through the bedroom. Mr Tuck opened the bedroom door and GM pulled Mr Hazell into the bedroom. Mr Tuck closed the door, pulling the handle to prevent it from being opened from the inside. GM then punched Mr Hazell in the right temple and kicked him in the leg and he fell to the floor. EL came out of the bathroom and saw GM striking Mr Hazell, who fell to the floor bleeding. EL then ran back into the bathroom and he and ML took off their gloves, climbed out of the bathroom window and ran from the scene.
Mr Hazell screamed and tried and tried to open the door but Mr Tuck made sure he could not do so. In the struggle, GM stabbed Mr Hazell about fifteen times. At about this time, Mr Hazell’s girlfriend rushed to the bedroom door and managed to push Mr Tuck out of the way and opened the door. She saw Mr Hazell covered in blood and GM with his sleeves rolled up and wearing white rubber gloves. Mr Hazell, bleeding profusely, ran out of the bedroom screaming, “Help me, please”, followed by GM still holding the flick knife. Mr Hazell ran out of the unit followed by GM.
Mr Hazell ran to a supermarket across the road where a worker made a triple zero call and police and ambulance arrived. In the meantime, the two girls tried to help Mr Hazell. He was later taken to Canberra Hospital where he was found to have multiple stab wounds in his chest, back, abdomen, both arms and left groin. He suffered lacerations to one kidney, his spleen, both lungs and his lower stomach. As I have noted, Mr Hazell underwent two operations that night and two further operations later that month. EL was arrested later that evening. He does not appear to have spent any period of time in custody.
Subjective circumstances
ML was born eighteen years ago and was sixteen years old at the time of the offence to which he has pleaded guilty. His father was absent from his life, his mother and stepfather abused drugs and his mother also faced mental health challenges, so ML and his younger sister were, after a period of foster care at age two, reared by his maternal grandparents in Melbourne, where he went to school and enjoyed a normal life.
His behaviour deteriorated in his early teenage years and he decided to return to Canberra to live with his stepfather. He enrolled at Canberra High School in Year 10 and began playing basketball. The change, however, was disastrous for him. He described his stepfather in his evidence to me as “gross”. He was denied food; indeed, he said the food he was offered would then be taken from him and fed to the dog. He was not given a bed on which to sleep. He was used by his stepfather to deliver drugs in which his stepfather was dealing and suffered some violence, particularly if he did not deliver the drugs for his stepfather.
Despite the shameful conditions under which he was living, he managed to continue at school, although it appears only for half a day at a time, and engaged in sports that he enjoyed. In late 2011 or early 2012, his grandparents visited and, seeing his physical condition and the conditions in which he was living, arranged for him to move in with his former neighbours and close friends, with whom he has since lived.
He told me that, when he moved, “everything changed”. He returned to full-time schooling. He suddenly found that there was food for him to eat. He increased his participation in basketball, playing in four teams and very successfully. He played in a national representative capacity. In July 2012, however, he tore a ligament and, though there was some recovery, it was by December that year clear he was not able to continue playing.
He started at Lake Ginninderra College and completed Year 12. He achieved below average grades, lower than he would have liked to have achieved. He has, however, obtained his White Card and a Responsible Service of Alcohol Certificate. He left school in early 2013 and gained employment delivering pizzas and then in sports marketing. He appears to have put a great deal of energy into that job, where he sells products for clients and is the number four salesperson for the company to which he is contracted.
He met GM at school and they continued together at college, becoming best friends. Since the offence, however, he has not seen him and has changed his group of friends. He now concentrates on his business and is very keen to make a success of it. ML went through a period of teenage binge drinking with his friends, but in the last twelve months has significantly moderated his alcohol consumption. He now drinks moderately in a social or domestic setting. He has not used illicit drugs to any relevant degree.
Since his employment, he has significantly improved his sense of wellbeing and his outlook has much improved. He has some issues with anger, but maturity has lessened that. He has had some limited contact with mental health professionals. He has no prior criminal convictions, though he was subject of what was described as “a brief police intervention” for under-age drinking, but he “attended as directed”.
He says that he participated in the current offence because he had drunk about nine standard drinks. He saw the context as one of “stupid” teenage rivalry and he was worried by some of the older people present. He became scared as the incident escalated and, as noted above, left when he realised the ferocity and enormity of the attack on Mr Hazell. He described the offence as the largest mistake he had ever made and, in his evidence before me, expressed what I judged to be genuine remorse, showing insight into his behaviour. He says it should never have happened.
He also wrote me a letter expressing his feelings about the offence, stating clearly his acceptance of “one hundred per cent of responsibility for [his] actions”. He says he still feels regret and wished it had never happened. He also referred to the changes he has made, especially making new and more responsible friends and turning his life around, particularly with his employment, which he finds rewarding and gives him an aim in life, worth striving for.
I had a number of references. His landlady described the change she has seen since he first came to live with her husband and her. She stated that he had “grown from a malnourished, sometimes immature adolescent boy into a very strong, happy and positive young man”. ML has been on strict bail conditions since his arrest and has generally complied with them, though there have been some breaches, or alleged breaches, resulting in him spending some seven days in custody.
His grandmother described his background and home life and has seen him grow, in her words, “into a very responsible, hardworking young man, who is very remorseful of his actions when he was sixteen”. His other referees speak of his remorse, maturity, pride in his job, that he is genuinely a kind hearted person who gets on well with many different groups of friends and who never holds a grudge. He was described as “truly a top bloke” that one could really trust.
They disclose someone who has genuinely changed, for whom this terrible and serious offence is now quite out of character. Indeed, it is really difficult for me to understand how someone of that kind carried out or was participating in this offence.
Victim impact statement
Mr M Fernandez, who appeared for the Crown, expressly stated that he had no victim impact statement. Even without it, the Court can accept that the events of the evening must have had a profound effect on Mr Hazell, both physically and mentally. He must have been terrified at the obvious ferocity of the attack and the pain and suffering where he may well have thought he would die. The agreed Statement of Facts refers to the permanent scarring Mr Hazell now has, and no doubt he also suffers ongoing psychological trauma.
I note that the Crown handed up the sentencing remarks of Higgins CJ when sentencing Mr Tuck and of Burns J when sentencing GM. In the latter, his Honour quotes an extract from a victim impact statement of Mr Hazell; given, however, the expressed statement of Mr Fernandez and that the sentencing remarks were not received in evidence but simply handed up, as would be expected, I have no regard to the extract quoted by his Honour.
The offence
The Crown referred to the objective seriousness of the principal offence, which was clear from the degree of violence inflicted and the injuries sustained. It was, it was submitted, high in the range of such offences. Indeed, Mr Fernandez described it as at “the top of the range”. It was accepted that the plea of guilty was entered at the earliest opportunity and justified a significant discount. Nevertheless, it was submitted that the ferocity of the attack and its consequences required general deterrence to play a significant role in sentencing.
The objective seriousness was somewhat increased, though, through a degree of pre-planning for the offence and the fact that Mr Hazell was lured into Mr Tuck’s apartment so that the offence could be committed. ML knew that GM had a knife, although it was not entirely clear that he understood that it was likely to be used; so much may be accepted. Mr Fernandez referred me to what had been said by Lee CJ at CL, speaking for the Court in R v Pham and Lee (1991) 55 A Crim R 128 at 135
It is true that courts must refrain from sending young persons to prison unless the 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.
I will refer to this approach later.
The Crown, however, acknowledged that this was an unusual case where ML had made what was described as “a remarkable turnaround” and seized the opportunity that the relatively long period between the commission of the offence and sentencing to show how he could reject the criminality in which he had engaged.
Submissions
Ms T Warwick, who appeared for ML, conceded that the offence was, objectively, very serious, the assault leading to life threatening injuries and committed with great savagery. ML’s involvement, however, was quite limited, certainly less than that of Mr Tuck, who had been charged with the same offence. He was, of course, a young offender at the time of the offence. Indeed, he was the youngest of the offenders. I was urged to accept that he had rehabilitated himself and taken seriously the need to distance himself from the friends who had participated in the offence and the circumstances that constituted the offending.
Parity
The evidence before me showed how the other offenders had been punished. As to GM, he had no prior convictions when he was sentenced. He was, however, sentenced for other offences, including two offences of wounding committed on 2 April 2011 and a charge of theft for the same day. Two offences of assault were also taken into account. For the offence of intentionally inflicting grievous bodily harm on Mr Hazell, GM was sentenced to six years’ imprisonment, of which five years was to be served consecutively upon concurrent sentence of twelve months’ imprisonment and two years’ imprisonment for the earlier offences, making a head sentence of seven years.
Since a non-parole period could not be set for a young offender, s 64(3)(f) of the Crimes (Sentence Administration) Act 2005 (ACT), the sentence was suspended after four years. His Honour expressed particular concern that GM was on bail from the earlier offences when he committed this offence shortly after those earlier offences. As to Mr Tuck, he had three relatively minor offences on his criminal record, though, one involved the possession of a knife without reasonable excuse. He had also failed to comply with a good behaviour order.
He was regarded by the learned Sentencing Judge as the initiator of the offence and played the part of luring Mr Hazell to the apartment where the offence was committed. His Honour found, which is somewhat different from the facts with which I am concerned, that Mr Tuck did not know that GM had a knife. His Honour imposed a sentence of three years’ imprisonment, releasing Mr Tuck on the date of sentencing by which he had served nineteen months and eight days in custody.
Youth of ML
There is no doubt that the fact that ML was seventeen years old at the time of the offence is very relevant. The Court of Appeal has accepted as much in R v C V [2013] ACTCA 22 at [40]. The Court there said, at [42]-[44]
42.In R v PM [2009] ACTSC 24 at [52]-[54] Refshauge J pointed out that the Sentencing Act reflects the position at common law. His Honour cited the remarks of Matthews J, with whom Gleeson CJ and Samuels JA agreed, in R v P (1991) 53 A Crim R 112 at 116:
The approach to be adopted in the sentencing of young offenders has been discussed in a number of cases. In Wilcox (unreported, Supreme Court of NSW, 15 August 1979), Yeldham J remarked during the course of sentencing a young offender that ‘in the case of a youthful offender ... considerations of punishment and of general deterrence of others may properly be largely discarded in favour of individualised treatment of the offender directed towards his rehabilitation’. His Honour relied upon Smith [1964] Crim LR 70, where it was said: ‘In the case of a young offender, there can rarely be any conflict between his interests and the public’s. The public have no greater interest than that he should become a good citizen’ ...
43.The weight to be given to the youth of the offender does not vary with the seriousness of the offence: R v Hearne (2001) 124 A Crim R 451 at [24].
44.It is true that CV was close to the legal age of majority at the time of the offence. In such cases, the court may make ‘little allowance’ for these considerations (R v SDM (2001) 51 NSWLR 530 at [16] per Wood CJ at CL (Giles JA agreeing)), but we do not think it is necessarily such a case as the evidence suggested that CV’s legal age did not coincide with his level of emotional maturity (cf R v Karma (2000) 110 A Crim R 47). Accordingly, we are not persuaded that his Honour erred in giving less weight to deterrence and punishment than to rehabilitation.
I shall take this approach into account.
Consideration
I take into account ML’s plea of guilty which, as agreed by both the Crown and Ms Warwick, was made at the earliest opportunity. The offence, however, was a very serious one and at the high end of the range of seriousness. It is moderated in this case by the fact that ML withdrew when he realised how serious the assault was.
As an aider and abettor, ML, of course, remains liable for the maximum penalty of the offence, but his precise culpability must be assessed by reference to what his actions actually were. As the High Court said in GAS v The Queen (2004) 217 CLR 198 at 209; [23]
… it is not a universal principle that the culpability of an aider and abettor is less than that of a principal offender … A manipulative or dominant aider and abettor may be more culpable than a principal. And even when aiders and abettors are less culpable, the degree of difference will depend upon the circumstances of the particular case.
In R v Goundar (2001) 127 A Crim R 331 at 335; [31]-[33], Wood CJ at CL, with whom Powell JA and Sully J agreed, said:
This Court approved the observation of the sentencing judge, when assessing the objective criminality of the offenders, as “being of the same quality” upon the basis that they had involved themselves “in a course of criminal conduct which could be described as a joint criminal enterprise”.
This does not automatically mean that every participant in such an enterprise shares the same degree of objective criminality. The assessment does, however, begin or should begin with the proposition that each intended the crime and each set out to carry it into effect.
On some occasions cause will arise for differentiation between them, for example, if one offender stands out as the obvious ring-leader, or abuses some inside knowledge or connection with the premises to carry the crime into effect, or is the person who actually elects to carry out the threat of violence by using the weapon offensively to cause injury to the victim.
As Howie J, with whom Giles JA and Fullerton J agreed, observed in Mitchell v Gallagher (2007) 177 A Crim R 94, some differentiation in the sentence imposed may be warranted where the criminality of one offender is lesser than that of a co-offender in a joint criminal enterprise. See also R v Wright [2009] NSWCCA 3 and Ngatte v The Queen [2013] NSWCCA 203 at [31].
Unlike in Mitchell v Gallagher, it does seem to me that ML did play a significantly lesser role in the attack on Mr Hazell and the Crown did not contend otherwise. Thus, in my view, the culpability of ML was very much less than that of GM and less than that of Mr Tuck. It is relevant that he left the apartment when he appreciated that this was very much more than a bashing, about which they had earlier spoken. That would have been serious enough.
I consider that ML’s lesser personal culpability than that of the other participants should be reflected in the sentence. I take into account ML’s age and personal circumstances to which I have earlier referred. I take into account that he has no prior convictions, despite the distressing circumstances in which he was reared. I take into account the very substantial efforts that he has made to get his life back into order into a very pro-social situation and the impressive efforts he has made in his business.
I accept that he is remorseful, and I also take into account his positive good character, as attested to by his referees. I take into account his financial circumstances. I consider, also, current sentencing practice, though I note that neither counsel referred me to any relevant decisions of this Court. Nevertheless, the seriousness of the offence and the injuries inflicted on Mr Hazell require, in my view, a significant response. I consider that no other sentence than a sentence of imprisonment is appropriate, but because of the particular circumstances I have described, I do not require ML to serve any part of it in full time custody. I have carefully considered the sentences imposed on GM and Mr Tuck.
ML, please stand:
1. I convict you of aiding and abetting GM in the commission of the offence of intentionally inflicting grievous bodily harm on Tayler Hazell on 1 June 2011.
2. I sentence you to twenty months’ imprisonment. Had you not pleaded guilty I would have sentenced you to two years and four months’ imprisonment.
3. I suspend that sentence today for two years.
4. I require you to sign an undertaking to comply with the offenders good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of two years, with the condition that you perform 100 hours of community service within twelve months.
I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 12 May 2014
Counsel for the Crown: Mr M Fernandez, Mr J Hiscox
Solicitor for the Crown: Director of Public Prosecutions (ACT)
Counsel for the defendant: Ms T Warwick
Solicitor for the defendant: Kim Bolas Criminal Lawyers
Date of hearing: 7 February 2014
Date of judgment: 20 February 2014
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