R v MRN
[2010] VSC 671
•8 December 2010
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 2010 of 0168
| THE QUEEN |
| v |
| MRN |
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JUDGE: | COGHLAN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 December 2010 | |
DATE OF SENTENCE: | 8 December 2010 | |
CASE MAY BE CITED AS: | R v MRN | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 671 | |
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CRIMINAL LAW – Being an accessory to murder – Guilty plea - Reasonably serious example of offence – Substantial assistance provided with investigations – Undertaking to give evidence - Circumstances of offending – Youthful Offender.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M. Gibson | Office of Public Prosecutions |
| For the Accused | Mr M. Croucher | Robert Stary Lawyers |
HIS HONOUR:
On 9 December 2010, you pleaded guilty before me to one count of assisting [JLE], knowing or believing him to be guilty of murder, by doing acts for the purpose of impeding his apprehension, prosecution, conviction or punishment.
[JLE] is alleged to have attacked Nitin Garg in Cruickshank Park, Yarraville. Your crime flows from your knowledge that he had committed the offence and the assistance you gave him afterwards.
Mr Gibson, of counsel, who appeared on behalf of the DPP, opened the case in detail and his written opening became Exhibit 1. The following outline of the facts is taken largely from that opening.
In June 2009, both you and [JLE] were attending Bayside Secondary College. You came to know one another through a mutual friend and school mate, Aaron Foster. You became good friends. It turned out that you lived near one another.
At about 9.00pm on Saturday, 2 January, you met outside the local milk bar in Robert Street, Yarraville. After visiting [JLE]'s house, you then moved onto Coles, intending to return to [JLE]'s home. On the return journey you stopped in Cruickshank Park, which normally, you would pass.
You stopped at various places in the park and at 9.51 pm, made a telephone call to Aaron Foster. You were near the Kingsville Primary School car park at that stage.
It was then you noticed Nitin Garg walking towards you along the path. He was speaking on his mobile phone. By the time the telephone conversation to Foster had finished, Mr Garg was 10 to 15 metres away from the two of you. You said something to [JLE] about Mr Garg’s mobile phone “looking nice”.
I now quote directly from the opening:
“Following this comment, [JLE] removed the long sleeve jumper he was wearing and wrapped it around his head as a form of disguise to conceal his identity. [JLE]’s face was covered, except for the area around his eyes. [MRN] asked, ‘What are you doing?’, he replied, ‘I’m going to roll him’, being a reference to taking his phone from him. At this point, [JLE] pulled out the knife from the waist of his pants and ran towards the deceased. As he ran, he pulled the blade out from the handle of the knife. As he approached the deceased from behind, he raised the knife and said, ‘Give me your phone now’. The deceased, Mr Garg, turned around to face [JLE] and grabbed his arm. It was at this time that [JLE] stabbed him in the abdomen. Mr Garg fled in the direction of Hungry Jacks, where he was employed.”
I note there was nothing about the nature of the wound inflicted, as described subsequently by the pathologist, which would have prevented Mr Garg from doing that.
Records shown that at 9.54 pm a call was made to 000 from Mr Garg’s phone. The call, however, did not go through to completion. Mr Garg was commanded to drop his phone, which he did. Shortly after that, you went and picked up the back part of the phone, which had become detached from the front part. You did so in order to ensure the two parts of the phone were kept separate, thinking that doing so gave [JLE] more time to get away. When [JLE] called out “Let’s get out of here” however, you dropped part of the phone. You then both left the scene and went back to [JLE]'s home.
Mr Garg staggered to the nearby Hungry Jacks. His friends rendered assistance and an ambulance arrived. He was taken to hospital. He had suffered extensive internal injuries which lead to his dying, in spite of surgical intervention, in the early hours of 3 January.
The police commenced their investigation and you became a suspect. You provided a statement to police on 19 January 2010. You made no reference to most of the events outlined above. You did say that you had met [JLE] on that night. When [JLE] made his statement on 26 January, he said that you had both been at Coles and in Cruickshank Park. You were formally interviewed on 10 April and admitted you had been in Cruickshank Park. You said you knew nothing of the murder and gave an explanation for your earlier failure to mention your presence in the park.
On 15 April, [JLE] was formally interviewed and repeated events consistent with those outlined in his earlier statement. He made a further statement at that stage.
On 21 May 2010, during a visit to your friend, Stephen Connell, you confided in his father, also named Stephen Connell, that you had been present when [JLE] had stabbed Mr Garg. Mr Connell passed that information on to Acting Sergeant Leveridge of the Footscray Police Station. You also spoke to him, anonymously, confirming what you had told Mr Connell and stating that you intended to seek legal advice.
You attended at the Homicide Squad offices and made a statement on 25 May 2010. Based on legal advice you had received, you declined to sign it at that stage. You participated in a record of interview on 14 June 2010 and confirmed the accuracy of your statement which you signed on that occasion. It has become an exhibit before me.
You agreed to meet [JLE] to discuss the matter whilst wearing a listening device. You met with [JLE] at your home on 26 June 2010 and in the course of your discussion, [JLE] made some admissions. [JLE] was arrested on 17 June 2010. You were arrested on 18 June and bailed from the Melbourne Children's Court. There appears to be some listening device material confirming [JLE]’s involvement, but no material obtained on telephone intercepts on both your phones.
The acts which you did to impede the apprehension, prosecution, conviction and punishment of your co-accused include your continued voluntary protestations to the police that you knew nothing of the murder. Even having later conceded that you had been in Cruickshank Park on the night in question. You adopted such course to protect [JLE]. There may also have been an element of self protection about it, but it was a course nonetheless directed to his protection.
The prosecution have, by accepting your plea, agreed that although you were present at the time of the murder, the actions of [JLE] were - what the law has traditionally called – “a frolic of his own”. It would seem to follow that the prosecution accept that you were not party to the crime of armed robbery, as you did not know of the presence of the knife until the moment when Mr Garg was stabbed, or very shortly before it. In such circumstances, the question of whether you might have become a party to the crime of robbery is moot, since the entire enterprise was overtaken by what [JLE] did.
It is an important feature of this case and so I note that both you and [JLE] are very young. You are now 16 years old and were 15 years and eight months at the time of Mr Garg’s death. [JLE] is about one and half months younger than you are.
Because this case involves the death of Nitin Garg, it is a very serious one. You are not to be held directly responsible for that death. Instead, your responsibilities stem from your choice to impede the subsequent police investigation. It was within your power to assist and you chose not to do so by putting forward a false version of events. That delayed the police investigation. It led to the investigation of innocent people who became suspects and it left the family of Mr Garg in a position where they did not know what had happened.
Mr Garg was an Indian national who was in Australia on a student visa. He graduated in October 2009, having completed by correspondence a Bachelor of Accounting at the University of Queensland.
In March 2007, the deceased had commenced working part time at Hungry Jack's in West Footscray. In January 2008 he was promoted to the position of shift manager on a part time basis. He worked in this position until the time of his death. In fact, he was scheduled to begin work on the 10 pm evening shift the night he was killed.
On the plea I received and tendered as an exhibit, victim impact statements from Parveen Garg, the mother of Nitin Garg, Hanish Garg, the brother of Nitin Garg and from Divya Garg, the sister of Nitin Garg. Their loss has been deep and dramatic, affected to a large degree by the death of their loved one alone and a long distance from home. I have already observed that you are not to be held directly responsible for their grief, yet the possibility remains that had these matters been resolved somewhat earlier, such grief might have been somewhat reduced.
I also tendered various material put forward on your behalf. In particular I note two written references and a letter indicating that during next week, you will have the opportunity to go to Victoria University. This comes with the possibility of getting into an introductory course, leading to you being able to take up an apprenticeship in plumbing. Those are matters to be encouraged.
The other references I received indicate the quality of support that you have, in addition to the very firm support provided by your family. Those references were from Tim McCrae and from Nicola Roland.
It might be old-fashioned to say so, but it appears that your conscience got the better of you. I accept that you knew that once you told Mr Connell what had happened, the truth would come out, and that is your good.
As I have observed, you are currently 16 years of age. You live at home with your mother, father and sister. I say again, your family are very supportive of you and you have the benefit of a safe, supportive home environment. For reasons which will emerge, you have been a relatively unsatisfactory student at school and have been suspended in each year of your secondary education. You have however progressed to Year 11, which you completed satisfactorily.
On the plea, I received a report from Dr Aaron Cunningham, a psychologist consulted on your behalf, who examined you. Dr Cunningham provided a report dated 12 November 2010. The most pertinent of his opinions appear to be these:
“Summary and opinion
[MRN] is a 16 year old male charged with accessory to murder. Results of the mental state assessment indicated a DSM4 diagnosis of Asperger’s disorder. Psychometric testing indicated impaired non-verbal reasoning and low risk of violent recidivism. He does not present with significant indicators of childhood instability. It appears that [MRN]’s offence specific risk factor is his negative peer association. [MRN] reported that he felt surprised and shocked at his friend’s behaviour. It appears he did not have foreknowledge of his friend's intentions. Underlying this offence specific risk factor, [MRN] presents with offence related risk factors in the form of Asperger’s disorder. As a result of his Asperger’s disorder, [MRN] presents with significant impairment in adaptive behaviour, moral understanding and social skills. Individuals with Asperger’s disorder have impairments in distinguishing the moral appropriateness of the behaviour of their peers from what is socially accepted. Their deficits in social skills impair their ability to source pro-social peer interactions. Due to their deficits in moral reasoning, individuals with Asperger’s disorder have an impaired ability to identify negative peers. Without a proper understanding of the negative nature of certain peer interaction, individuals with Asperger’s disorder are more susceptible to negative influence and manipulation. It appears that Asperger’s disorder contributed to [MRN]' offending behaviour by increasing his vulnerability and susceptibility to negative peer association. [MRN] presents with protective factors that may reduce his risk of offending and improve his psychological health. He has a supportive family who continue to provide him with care and accommodation. Despite the impairment of his Asperger’s disorder, [MRN] has persisted with education and has maintained pro-social goals. He presents as a low risk of future violent behaviour. From the materials available at the time of the assessment, it appears that [MRN]’s offence behaviour is connected to his negative peer association and Asperger’s disorder. He would benefit from engagement with an Asperger’s disorder support agency such as the Asperger’s Syndrome Support Network. A community support agency may assist [MRN] in developing his moral understanding and insight into the appropriateness of certain peer interactions.
If sentenced to a term of imprisonment, [MRN] would benefit from serving his sentence within a Youth Justice Centre. Due to his Asperger’s disorder, [MRN] is significantly vulnerable to negative influence and manipulation in a prison environment.
If granted a community based disposition, [MRN] would benefit from engaging with a community support agency for Asperger's disorder I am available to assist with referrals if requested.
On the basis of clinical interview and psychometric assessment, [MRN] does not present as a high risk of re-offending with access to appropriate community supports.
[MRN] presents with positive prospects of rehabilitation.”
I accept that your prospects of rehabilitation are very good, particularly in the context of the support that you have from your family.
I note that you are a person who has not previously been engaged with the authorities. Your attempts to enrol at Victoria University show that you have a positive attitude toward what might happen to you in the future. Your plea of guilty is significant, and you are to receive substantial discount in penalty for it.
Perhaps more important to note in this case, is the fact that you, of your own will, decided to come forward and tell people what had happened. You have followed that through in the most appropriate way that you can. You have admitted the part you played in these matters to the police. You have made statements in relation to the involvements of [JLE]. You have cooperated with the authorities by taking part in the discussion with [JLE] recorded by listening device and you have undertaken to give evidence at both the committal and at any potential trial.
It seems to me that you have thought that through, and you have a pretty good understanding of what it involves.
The other matters put forward on your behalf are really encapsulated, in one way or another, by the matters to which I have already adverted. As I observed in discussion, I am not entirely sure what role your Asperger’s played in relation to what happened. These are events that appear to have happened very, very simply and very quickly. It is however sensible to try and get some support for your Asperger’s disorder in the manner described by Dr Cunningham.
I had indicated that I would not impose any special conditions on the probation order that I intend to make, but I now think that I may well impose a condition in relation to continuing to seek support from Dr Cunningham in relation to that particular aspect.
Having had regard to the matters in s 360, 361 and 362 of the Children, Youth and Families Act 2005, matters which are appropriate for me to have regard to due to the operation of s 586 of that Act, I order that you be convicted of the offence of assist offender and that you be released on probation for a period of 18 months. I make such order on the following conditions:
(1)You must report to the Secretary within two working days after the order is made;
(2)you must, during the period of the probation order, report to the assigned Youth Justice Officer as required;
(3)you must not re-offend during the period of the probation order;
(4)you must not leave the State without the written permission of the Secretary;
(5)you must notify the assigned Youth Justice Officer of any change of residence, school or employment within 48 hours after the change; and
(6)you must obey the reasonable and lawful instructions of the assigned Youth Justice Officer.
I add the following special condition:
(7)You accept the advice of Dr Aaron Cunningham in relation to treatment and/or support for your Asperger’s disorder and that you obey any lawful instruction of his in that regard.
That is a bit ham-fisted, but I think it says what I want to say.
The other matter I need to deal with MRN is that I will be ordering you to have a forensic sample, so that your DNA will be obtained and it will go on the database, which for effective purposes will be accessible by all law enforcement authorities in Australia. I indicate to you that it is entirely usual in relation to matters that involve offending of this kind to have such orders made.
If I could indicate, and it may be that I omitted to say so in my reasons for sentence, but the crime of which you are being convicted, is a serious crime. It is a crime that carries a maximum penalty of 20 years and it is a reasonably serious example of the offence itself.
I state pursuant to s 6AAA of the Sentencing Act 1991 that had it not been for your guilty plea in the circumstances and your cooperation with the authorities, I would have ordered that you be detained in a Youth Justice Centre for two years.
In relation to the forensic sample, pursuant to s 464ZF(2) of the Crimes Act, I order that you undergo a forensic procedure for the taking of scraping from the mouth, in accordance with sub-division 30(A) of Part 3 of the Crimes Act 1958 until a sample of sufficient standard is obtained for placement on the database. I make that order for the following reasons, the serious of the circumstances of the offending warrant the making of the order, the order is not opposed and the granting of the order is in the public interest and I will make that order now.
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