R v NR
[2011] NSWSC 280
•15 April 2011
Supreme Court
New South Wales
Medium Neutral Citation: R v NR [2011] NSWSC 280 Hearing dates: 22 November to 3 December 2010; 25 February 2011 Decision date: 15 April 2011 Jurisdiction: Common Law - Criminal Before: Garling J Decision: (a) Sentence to a term of imprisonment without parole of 4 years and 6 months to commence on 28 February 2009 and to conclude on 27 August 2013;
(b) Sentence to a balance term of 3 years, to conclude on 27 August 2016.
(c) The first day eligible for release from custody is 27 August 2013.
(d) In accordance with s 19 of the Children (Criminal Proceedings) Act 1987, order directing that the whole of the term of imprisonment is to be served as a juvenile offender.
Catchwords: CRIMINAL LAW - Sentencing - Homicide - Manslaughter - Juvenile offender - Considerations of deterrence and rehabilitation in sentencing for juvenile offenders - Discount for offer to plea guilty - Offer rejected by Crown - Special circumstances for varying statutory ratio for non-parole period - Special circumstances for offender to serve non-parole period in a juvenile detention facility - Limited availability of educational facilities in adult correction centres Legislation Cited: Children (Criminal Proceedings) Act 1987
Crimes (Sentencing Procedure) Act 1999Cases Cited: APT v R [2009] NSWCCA 230
Cheung v The Queen (2001) 209 CLR 1
KT v R (2008) 182 A Crim R 571
R v Adamson (2002) 132 A Crim R 511
R v AJC [2010] NSWCCA 168
R v Borkowski [2009] NSWCCA 102
R v Carroll [2008] NSWCCA 218
R v Edwards (1996) 90 A Crim R 510
R v GDP (1991) 53 A Crim R 112
R v Isaacs (1997) 41 NSWLR 374
R v Johnson [2003] NSWCCA 129
R v MacDonell (NSWCCA, 8 December 1995, unreported)
R v Oinonen [1999] NSWCCA 310
R v Pham & Ly (1991) 55 A Crim R 128
R v Previtera (Supreme Court of NSW, 27 May 1997, unreported)
R v Thomson; R v Houlton (2000) 49 NSWLR 383Category: Sentence Parties: Regina (P)
NR (D)Representation: Counsel:
Richard Herps (P)
Janet Manuell SC (D)
Solicitors:
Office of the Director of Public Prosecutions (P)
Legal Aid NSW (D)
File Number(s): 2009/154043 Publication restriction: Non publication of any information or material that may lead to the identification of the convicted young man, and the young people involved as witnesses (s 15A Children (Criminal Proceedings) Act 1987
Judgment
On 27 February 2009, NR killed DA at an abandoned house in Bayview Road, Canada Bay.
He did so by walking up behind DA, who was sitting unsuspectingly in a lounge chair, and striking him with a forceful blow to the head with a piece of timber.
The blow fractured DA's skull and caused serious brain injury. He did not recover and on 3 March 2009, DA died without ever having regained consciousness.
NR was arrested on 28 February 2009 and has been in custody ever since. He was charged with murder.
On Monday, 22 November 2010 when arraigned in front of the jury, NR pleaded not guilty to the charge of murder but guilty to the offence of manslaughter. The Crown declined to accept this plea in full discharge of the indictment.
The trial proceeded. On Friday 3 December 2010, the jury returned a verdict of not guilty of murder but they found NR guilty of manslaughter.
It is now time for NR to be sentenced for his crime. The Crimes Act 1900 provides that there is a maximum term of imprisonment for the offence of manslaughter of 25 years.
Judicial Task on Sentencing
In the circumstances of this present case, it is appropriate that I remind myself of the judicial task on sentencing.
In the present system of criminal justice I must exercise a discretion as to what sentence should be imposed upon NR by applying well identified principles of law to the facts which I find: R v MacDonell (NSWCCA, 8 December 1995, unreported) per Hunt CJ at CL at 1.
The principles of law are well established and are conveniently summarised in the following way:
"1. Where, following a trial by jury, a person has been convicted of a criminal offence, the power and responsibility of determining the punishment to be inflicted upon the offender rests with the judge, and not with the jury...;
2. Subject to certain constraints, it is the duty of the judge to determine the facts relevant to sentencing. Some of these facts will have emerged in evidence at the trial; others may only emerge in the course of the sentencing proceedings ...;
3. The primary constraint upon the power and duty of decision making ... is that the view of the facts adopted by the judge for purposes of sentencing must be consistent with the verdict of the jury ...;
4. A second constraint is that findings of fact made against an offender by a sentencing judge must be arrived at beyond reasonable doubt ...;
5. There is no general requirement that a sentencing judge must sentence an offender upon the basis of the view of the facts, consistent with the verdict, which is most favourable to the offender.... However, the practical effect of 4 above, in any given case, may be that, because the judge is required to resolve any reasonable doubt in favour of the accused, then the judge will be obliged, for that reason, to sentence upon a view of the facts which is most favourable to the offender ...".
R v Isaacs (1997) 41 NSWLR 374 at 377-378; See also Cheung v The Queen (2001) 209 CLR 1 at [14] and at [169].
I will apply these principles in the course of this sentence.
The Relevant Legislation
The Parliament of NSW has determined the purposes for which a court may impose a sentence on an offender. Section 3A of the Crimes (Sentencing Procedure) Act 1999 provides that those purposes are:
"(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."
Because NR was 16 years 11 months old at the time he killed DA, I am obliged to exercise my sentencing functions having regard to some further principles determined by the Parliament of NSW, which are to be found in s 6 of the Children (Criminal Proceedings) Act 1987. Those principles include:
"(a) ...
(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) ...
(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;
(f) That it is desirable that children who commit offences be assisted with their reintegration into the community so as to sustain family and community ties;
(g) That it is desirable that children who commit offences accept responsibility for their actions and, wherever possible, make reparation for their actions;
(h) That, subject to the other principles described above, consideration should be given to the effect of any crime on the victim."
Principles of Sentencing
The courts have developed clear guidance for the exercise of the sentencing discretion by every judge. These principles are to be found in decided cases.
The courts have recognised for many years that sentencing for the crime of manslaughter is a difficult task. That is because the range of conduct which can result in the death of an individual is very great. In all cases of manslaughter, matters of fact and degree arise. Views as to the relative importance of particular facts and matters will undoubtedly differ.
However, one principle which is important for a sentencing judge to always keep in mind when considering the crime of manslaughter is that the starting point for consideration of the appropriate penalty, and a key element in assessing the gravity of the objective circumstances of the case, is that what is involved in this case, and in every case of manslaughter, is the felonious taking of a human life: See R v Blacklidge (NSWCCA, 12 December 1995, unreported), per Gleeson CJ.
Manslaughter, as an unlawful homicide, however it occurs, has always been regarded by the law as a most serious crime. That is because the protection of human life and personal safety is a primary objective of the system of criminal justice: See R v Edwards (1996) 90 A Crim R 510, per Gleeson CJ (James and Ireland JJ agreeing).
But NR is not the first juvenile to commit a manslaughter. The courts have in many cases examined the principles involved in sentencing juveniles on manslaughter and other charges: See R v AJC [2010] NSWCCA 168; APT v R [2009] NSWCCA 230 at [19] per Grove J (Macfarlan JA and Hoeben J agreeing); R v Carroll [2008] NSWCCA 218 at [8] per McClellan CJ at CL (Hislop J agreeing); KT v R (2008) 182 A Crim R 571 at 577-578 per McClellan CJ at CL; R v Adamson (2002) 132 A Crim R 511 at [29]-[32] per Beazley JA (Bell J agreeing); R v Pham & Ly (1991) 55 A Crim R 128 at 135 per Lee CJ at CL (Gleeson CJ and Hunt J agreeing); R v GDP (1991) 53 A Crim R 112 at 115-116 per Mathews J (Gleeson CJ and Samuels JA agreeing). Those principles include, and I recognise that my sentencing exercise must include, these matters:
(a) Considerations of general deterrence and principles of retribution are, in most cases, of less significance than they would be when sentencing an adult for the same offence;
(b) In recognition of the capacity for young people to reform and mould their character to conform with society's norms, considerable emphasis is placed on the need to provide an opportunity for rehabilitation;
(c) The law recognises the potential for the cognitive, emotional and/or psychological immaturity of a young person to contribute to their breach of the law. Accordingly, allowance will be made for the offender's youth, not just their biological age;
(d) 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. There remains a significant public interest in deterring anti-social conduct. Of course, the weight to be given to a person's youth diminishes the closer the offender approaches the age of maturity:
(e) The emphasis given to rehabilitation rather than general deterrence and retribution when sentencing young offenders may be moderated when the young person has conducted him or herself in a way an adult might conduct him or herself and has committed a crime of violence or considerable gravity.
I will need to bear in mind the legislation by which I am bound and the principles which the courts have determined upon, when proceeding on my exercise of sentencing NR.
The Facts
I find the facts of the matter to be as follows.
NR was in a relationship of boyfriend and girlfriend for about eleven months, on and off, with JC. They were both 16 at the time. Their relationship ended in mid-February 2009.
On 27 February 2009, JC met up with several friends who were also known to NR. Those friends included the deceased DA who was at that time about 19 years old. They spent the morning and most of the afternoon together hanging out in an abandoned house in Bayview Road, Canada Bay. From time to time they were smoking cannabis.
NR spent the day at work as an apprentice greenkeeper with the Ryde Municipal Council. On a number of occasions during the day, NR tried telephoning JC, but he did not succeed in having a conversation with her.
NR also telephoned one of the other young people who was present. And perhaps on more than one occasion. It does not matter. On one occasion, NR learnt that JC and the other young people were at the abandoned house, although he did not know the address.
He must have suspected that JC and DA were alone together because he asked the other young person to whom he spoke whether he knew what they were doing. He was told that the young person did not.
At about 4pm, having finished work, NR managed to speak directly to JC on a mobile telephone. They arranged to meet later that afternoon at the McDonalds restaurant at Five Dock, on Parramatta Road.
JC, accompanied by DA and another, arrived at McDonalds first. They sat at one of the outside tables. A short time later NR arrived, having been taken to McDonalds by his mother. Although there is some differing evidence at the trial, I am satisfied that when NR arrived, he shook hands with DA, greeted him and said something to the effect that he had not seen him in a long time.
NR and DA were known to each other. They had first met some many months before this incident.
NR and JC left the other two young men at the outside table and walked into one of the disabled toilets at McDonalds. They closed the door. It is clear that they had an argument in the disabled toilet. While that was happening, DA and the other young man left McDonalds and walked back to the abandoned house.
In the course of the argument in the disabled toilet, NR noticed a mark on JC's neck which he thought indicated that she had been kissed by someone. After some persistent and rather heated questioning, NR was told by JC that she and DA had been kissing during the course of the afternoon. Upon hearing this, NR got very angry and became quite distressed. He punched the wall with his fist. He immediately left the disabled toilet to look for DA, but soon realised that he was no longer at McDonalds.
NR then persuaded a very reluctant JC to take him to the abandoned house to where they both assumed DA had gone. He said that he wanted to confront DA when he found him and to have a fistfight with him.
There is a complete conflict of evidence between JC and NR as to a central fact which occurred at some point on the walk from the McDonalds restaurant to the abandoned house. The conflict of fact concerns where, and at what stage, on the walk NR picked up two items, one of which he discarded, but either of which could be used as a weapon to assault DA.
JC gave evidence that in the car park outside OfficeWorks which was immediately adjacent to McDonalds, NR first picked up a block of concrete and walked some distance with it, indicating his intention to take it to the abandoned house. He then placed it back on the ground apparently because it was too heavy and awkward. She said that he then picked up a piece of timber in the same carpark, and carried it with him, at least for some part of the way, in a furtive and concealed manner, as they walked to the abandoned house.
NR denied this version of the events when he gave evidence at the trial, and said that he had picked up a concrete block for a few moments when they were well into the walk, but had replaced it, and he had then continued the walk to the abandoned house. He said that he had only picked up the piece of timber when he was in relatively close proximity to the house and only after arriving in Bayview Road.
I am not persuaded that I should accept JC's version of this event. I think the version of the facts which is more consistent with the jury's verdict is that of which NR gave evidence. That is because the jury's verdict means that they were not satisfied that NR had the intention to kill DA or cause him grievous bodily harm. Carrying the piece of timber from the OfficeWorks carpark for a period of at least ten minutes and concealing it in a furtive manner suggests a clear intention to use it in a way which would have caused DA serious physical harm.
The evidence of NR that when he left McDonalds he intended to have a fist fight with DA, was I find compelling. In order to do that he did not need any weapon. His evidence that he realised upon turning into Bayview Road, in Canada Bay, that this was the street in which a very close friend of his had died in traumatic circumstances, was corroborated and I also found compelling.
NR's evidence that he only picked up the piece of timber after turning into Bayview Road, and whilst in a distressed state of mind, seems to me to better accord with the likelihood of what occurred.
I am not satisfied in any event, in weighing up the evidence of JC as against the evidence of NR, the manner in which they each gave their evidence, and the probabilities of which of the two is the more likely version of events, that I would be persuaded beyond reasonable doubt that NR picked up in the timber in the car park at OfficeWorks as JC suggested.
Accordingly, I proceed in this sentence on the basis that the piece of timber was collected in Bayview Road in the general proximity of the abandoned house where the offence took place and only a short time before the offence.
NR gave evidence that when he left McDonalds and commenced the walk to the abandoned house, and throughout the entirety of that walk, it was his intention to have a fist fight with DA. He said that he was very angry with him, he felt he had been betrayed by a person who he regarded a good friend, and that he was going to express his feelings through a fist fight.
There is no doubt that NR was very angry with DA and that he maintained that anger throughout his walk from the McDonalds restaurant to the abandoned house.
This was his state of mind when he entered the abandoned house.
NR, who was carrying a bag over his shoulder, put that bag down outside just before he walked into the house. He carried the piece of wood into the house.
It is appropriate at this point to provide a description of the piece of timber involved. The piece of timber was a little over half a metre long. It was light, weighing less than one quarter of a kilogram. A visual examination of the piece of timber does not suggest that it was likely to be very strong.
However, the evidence from Mr John Ford, a consultant botanist, satisfies me that the timber was the wood of a larch tree, which is in the middle range for strength, hardness, stiffness and shock resistance. These features, which were not known to NR, provide an explanation for the very severe consequences in this case, which resulted from the blow he delivered to the head of DA.
The room in which DA was seated was not the first room that NR entered. He walked through one of the other rooms of the house before walking momentarily through the door of the room where DA was. In that room there were a number of other people. Some were facing away from NR, some were facing towards him.
The evidence suggests that he stepped back out of the doorway and then very quickly thereafter re-entered the room, and hit DA over the head with the piece of wood.
DA immediately slumped forward in the arm chair and was clearly unconscious. NR took about 30 minutes before calling an ambulance. He then received instructions from the 000 operator and made an attempt in accordance with those instructions to revive DA. That attempt was unsuccessful.
It is clear that when DA slumped forward, as a consequence of the blow on his head, he began to make snoring noises. NR was very agitated. He prevented others in the room from calling for an ambulance. In evidence, he said that he expected DA would recover immediately and they would have a fist fight. He said that he had panicked and that they were the reasons why he did not permit an ambulance to be called.
I am persuaded that NR was clearly in an agitated and panicked state. He was angry when he arrived. He did not intend to kill DA or even to cause him serious bodily harm. But his blow had produced a result which was inconsistent with his intention. In those circumstances, and in the context of these young people gathering in an abandoned house where they had no right to be, I am satisfied that he would have panicked. The steps which he took immediately, in particular refraining from calling, and not allowing the others to call for, an ambulance, reflected that panic and nothing more. I do not accept the Crown's submissions that this conduct was a demonstration of the intent which NR had towards DA when he entered the house.
When the panic subsided he made all of the efforts which he was required to make in accordance with the instructions of the 000 operator.
Police and ambulance were called and it is clear that the police and the ambulance officers were all given an entirely false story. In the course of the trial, the Crown seemed to be attempting to prove that NR was the person responsible for making up that story and requiring the others to tell it.
For the purposes of sentencing, I am not so satisfied. JC gave evidence, which I accept, that it was her idea to make up the false story and the others all went along with it. I therefore do not take into account that false story in considering what the extent of the culpability of NR was at the time of the offence.
DA was taken to hospital by ambulance. He had very serious head injuries as a consequence of the blow which was struck. He did not ever recover consciousness. On 3 March 2009 his life support system was turned off and he died.
Police Investigation
NR and JC were taken to the police station. Two of the other people present when DA was attacked left the scene and ran away.
Initially, NR and JC when questioned by police officers adhered to the false account of what happened. Eventually, after police had spoken to one of the other people present, JC and NR were informed that the police did not accept their accounts and regarded them as false.
At about 4.50am on the following morning, 28 February 2009, NR admitted that the account which he had given was false and that it was he who had struck a blow which caused the injuries from which DA was then suffering.
He was arrested and charged at that time. He has remained in custody since then.
Specific Sentencing Considerations
Section 21A of the Crimes (Sentencing Procedure) Act identifies a number of matters as aggravating factors to which regard must be had in determining the appropriate sentence to be imposed. In applying that legislation in this case there are a number of these aggravating factors. The first is that the offence involved the actual use of violence: See s 21A(2)(b). However, given the nature of the crime of manslaughter, I am satisfied that this aggravating factor is accounted for as being an element of the offence, and that I should not have additional regard to it.
The second aggravating factor which is applicable to this case is that NR actually used a weapon, namely the piece of timber. I have already recorded the salient features of the piece of timber. I have found that NR would not have known the inherent features of the timber. To him, the timber would have appeared as a light weapon which was unlikely to cause serious harm. However, it was a weapon and that matter is an aggravating factor to which I have regard: s 21A(2)(c).
The offence was committed in the presence of a number of people under the age of 18 and that is a further aggravating factor: s 21A(2)(ea).
The Crimes (Sentencing Procedure) Act also identifies a number of matters which are to be taken into account as mitigating factors. Leaving aside the plea of guilty by NR to which I will come in due course, mitigating factors include the fact that he did not have any record of any previous conviction, and, as my findings will in due course show, he is unlikely to reoffend and has good prospects of rehabilitation: s 21A(3)(g) and s 21A(3)(h).
One relevant mitigating factor is whether an offender has shown remorse. But this can only be considered if an offender has accepted responsibility for his actions and has acknowledged any injury, loss or damage which he has caused: s 21A(3)(i).
I am satisfied that NR has shown remorse in the way which the legislation requires. The evidence of NR himself, is that he is remorseful. In particular, the evidence of Dr Katie Seidler, an expert clinical and forensic psychologist, in her report of 15 February 2011, is most persuasive to me on this issue.
I will take this factor into account and, particularly having regard to the context of the offence and NR's age, I attribute importance to these matters.
The Criminality Involved
In my opinion, the criminality involved was serious. The general course of conduct followed by NR leading up to the blow being struck was not accidental but was intentional. He intended to go to the abandoned house in Canada Bay and there confront DA. He intended to have a fistfight with him. Shortly before entering the house he picked up the piece of wood and then used it.
I am satisfied, consistently with the verdict of the jury, that I should find that this was a thoughtless act. NR did not intend to cause DA any serious physical injury by using the timber. He intended to strike him and thereby provoke a fight between them. It was a cowardly, brutal and thoughtless attack. He gave DA no chance to defend himself. But rather he chose to get in the first blow.
The Crown submits that this matter is one which ought to be regarded as "... a worst case scenario for manslaughter " because:
"This was adult behaviour involving planning, the use of a weapon and an intention to, at least, inflict actual bodily harm. He made no attempt to assist the victim having whacked him with considerable force."
The Crown also submits that the Court would have regard to the fact that NR's understanding and reasoning were unimpaired by intellectual deficits, or the effect of drugs or alcohol.
I do not accept the Crown's submission that this offence ought to be so regarded. This offence, namely hitting DA over the head and, thereby, causing his death, was not adult behaviour as that term is discussed in the authorities, nor was it planned (or premeditated). On the contrary, it had all of the hallmarks of a lack of emotional maturity and an inability of NR to control his impulses and feelings.
It cannot be overlooked, as the Crown's submissions seem to, that in the lead up to and at the time of the offence, NR was distressed about two matters. They were: First, finding out that JC, who he seems to have still thought of as his girlfriend, had been physically intimate with someone who he had thought of as a friend; and secondly, upon turning into Bayview Road, Canada Bay, being reminded of the tragic and sudden death of a very close friend who had died in that street. The traumatic nature of that death and its effect on NR was well described in the evidence of Ms Saadeh, a former teacher, whose evidence I accept.
Dr Seidler described NR's emotional state at the time of the offence as NR "... experiencing acute levels of emotional distress at the time ". I accept this description.
As I have already said, manslaughter is regarded as a most serious offence. But the circumstances in this matter are such that I am persuaded that the conduct of NR demonstrated emotional immaturity, such as the feelings of jealousy and anger over JC's and DA' romantic liaison, poor impulse control, exhibited by punching the wall at the McDonald's restaurant and his action to strike DA as soon as he entered the room, and a complete lack of mature reflection - a moment's thought ought to have resulted in a different course of conduct.
The offence had all of the features which suggest that full and proper allowance ought be made for NR's youth and lack of maturity in considering the seriousness of the offence. I will make such allowance.
It is clear when considering the offence in question that NR's approach to what occurred was most immature. The features of the relationship with JC, the regular breaking up and re-engagement of that relationship, the arguments which characterised it, and the inability of NR to adequately think through what was occurring and the ramifications of it, are all completely consistent in my view with juvenile immaturity. The very notion that having been hit with a piece of timber DA would stand up and present NR an opportunity to fight was itself an indication of his immaturity of thought.
I accept as the jury must have, that NR never thought that his actions would cause serious physical injury to DA. But what he did was dangerous and unlawful. He sought to express his emotions with violence. It resulted in the death of DA.
Subjective Features
NR was born on 26 March 1992. He was 16 years 11 months at the time of the offence. He was raised in a family which consisted of his mother, his stepfather and a half sister.
Although his natural father had separated from his mother when NR was an infant, he maintained contact with his father and had a reasonable relationship with him.
His relationship with his mother and stepfather was at times strained during NR's adolescence and prior to this offence. Notwithstanding these conflicts, the family appears to have had a generally reasonable home life. They ate meals together. They took family holidays together. The sort of strain and conflict which occurred does not seem to me to be out of the usual in a home with parents who provide a good level of supervision and proper boundaries, and adolescents who strain at those boundaries.
NR was educated at both primary and secondary school until the end of year 10. Although he obtained a School Certificate at the end of year 10, NR's parents suggested that he find employment rather than continuing at school.
He found a variety of employment positions having left school. Ultimately, NR commenced an apprenticeship in horticulture. He had completed about six months of his training through Ryde Council as an apprentice greenkeeper at the time of his arrest. He had anticipated continuing with this trade had he not entered custody.
Since his arrest, and whilst detained as a juvenile offender, albeit prior to conviction, NR has undertaken studies with the aim of completing his Higher School Certificate through distance education.
At the time of the sentencing hearing, he was preparing to commence his year 12 Higher School Certificate subjects. His progress with his studies whilst being detained as a juvenile offender has been very good. He has a number of academic awards due to his high achievements and he is desirous of completing his education.
To the extent that he can contemplate entering a career after serving his sentence, he presently has a wish to join the fire brigade.
Prior to the offence, NR had some interaction with alcohol, cannabis and ecstasy. In the six months prior to his arrest he was accustomed to daily cannabis use and the use of ecstasy once or twice per week. Since his arrest, he has completed a series of courses aimed at reducing and managing addictions.
After his arrest, NR was initially not well behaved. However, his misbehaviour did not lead to any criminal charges being laid. In all of the circumstances here, I do not regard this misbehaviour as being of any consequence.
However, since having been transferred from the Kariong Correctional Centre to the Cobham Juvenile Justice Centre about a year ago, he has not displayed any misbehaviour and according to reports provided to the Court has displayed commendable behaviour.
He has received counselling including therapy based on the cognitive behavioural theory and has ensured that he has a positive engagement with those around him.
The evidence satisfies me that since his arrest, he has been well supported by his family with whom he seems to have a close and supportive relationship.
Prospects of Rehabilitation
I am satisfied that the prospects of NR's rehabilitation are very good. He has a degree of insight into his present state. He has engaged in counselling. He has undertaken courses which will improve his personal understanding of how to manage difficult situations. He has improved his level of education and such ambitions as he does have for the future suggest that he has reasonable prospects of a proper rehabilitation. As well, he is now considerably more mature than he was at the time of his offence.
In particular, since going into custody he has improved relationships with his family and has re-established links with longstanding friends which will help him to rehabilitate when released from custody.
His approach to further education and study bodes well for his prospects of rehabilitation. These prospects will be enhanced if he continues his education with the availability of educational support at the optimum possible level.
I agree with the assessment of Ms Kennedy-Schultz, a psychologist with the Forensic & Mental Health Program of the Department of Juvenile Justice, who was responsible for the preparation of the background report which s 25 of the Children (Criminal Proceedings) Act requires, when she expressed this view:
"As a result of his engagement in programs whilst in custody, [NR] is on track to achieve his educational goals and as a result of his performance should be able to access opportunities should he wish as he would not have been able to such as university studies. [NR] has consistently maintained focus and determination regarding achieving the goals he sets for himself and provided this continues, suggests good prospects that he will achieve his desired outcomes. These protective factors, combined with ongoing participation in targeting interventions should minimise risk factors and increase the likelihood of [NR's] successfully achieving his goals."
This opinion is consistent with the opinion of Dr Katie Seidler. In particular, I note and accept her opinion expressed in paragraph 35 of her report of 15 February 2011, that:
"35. ...
...
Comment on [NR]'s prospects for rehabilitation - Acknowledging the serious nature of [NR]'s offending behaviour, he impresses as a reasonable and insightful young man, who has positive future goals and who seems to have coped with detention admirably by focussing on positive pursuits. In other words, he has demonstrated the capacity to utilise social supports and other significant resources to meet his criminogenic and other needs, whilst at the same time completing his education and improving his skills for independent and productive community living. As such, [NR] impresses with sound prospects for rehabilitation, although he will need support to transition back into the community after such a long period of incarceration at the vulnerable time of adolescence."
However it is clear that NR's prospects of rehabilitation will be enhanced by having a suitably long period of supervision on parole after any custodial part of his sentence has expired. I accept the opinion of Dr Katie Seidler, expressed in her report of 15 February 2011, to this effect:
"36. Recommendations: ... However, he is yet to address unresolved grief and loss and relationship concerns through individual psychological treatment and this remains an unmet need. However, it may be that this kind of treatment is best facilitated when [NR] is in the community where he can be better supported. Such intervention is available through community-based Juvenile Justice Services, through Adolescent Mental Health or through a youth specific counselling service like Head Space. Moreover, [NR] would be able to access psychological treatment with a fee-for-service clinician in his local area and such a person can be identified through the Australian Psychological Society's Referral Service... He is likely to be eligible to have any such treatment supported by the Government's Medicare initiative and to this end, [NR] will require a Mental Health Care Plan completed by his General Practitioner...
37. In addition to mental health treatment, I recommended that [NR] will require support to transition back into the community. Participating in the Department's Works Release programme will certainly assist to this end, as will the various trade and other work-related programmes that [NR] has participated in so as to improve his skills and employability. However, [NR] will require an extended period of community-based supervision and in order to assist in his making a meaningful return to community living, it is recommended that facilitating this transition to supported and supervised community living will be in his best interests as soon as possible..."
One contested issue that needs to be resolved is the extent to which facilities would continue to be available to NR to pursue further education, including his aim of completing his Higher School Certificate, should he serve a custodial sentence in an adult correctional centre.
The evidence of the Crown is that inmates in adult correctional centres may be offered the Higher School Certificate but then only through correspondence. Some centres provide the support of an education officer. At some facilities, more intensive education programs are provided.
A letter from Mr Anthony Becker of the Adult Education and Vocational Training Institute, which is part of Corrective Services NSW, tendered by the Crown, makes it plain that AEVTI does not deliver the Higher School Certificate to inmates in NSW correctional centres. He notes that it may be possible for inmates to study subjects in the Higher School Certificate but only through a distance education mode. He notes that not all centres offer distance education opportunities and that inmates often undertake distance education studies in cell hours after the centre's structural day is complete.
The Crown submitted that the Young Adult Offender Program at John Moroney Correctional Centre would be adequate for NR's further education. I disagree. The document tendered which describes that program in some detail makes no specific mention of the Higher School Certificate. This does not suggest to me that the study of the Higher School Certificate at that facility is a mainstream educational activity. It is demonstrably inferior to the program offered by the juvenile justice authorities. As well, there is no order which this Court can make which will ensure that NR serves his term at the John Moroney Correctional Centre. A recommendation of the Court does not have the force of an order.
I therefore find that the educational facilities currently available to NR in juvenile detention, which provide an important component to his future prospects of rehabilitation, are unlikely to be as readily available to him in an adult correctional centre. This factor is relevant to the determination of the appropriate sentence for NR in that it impacts upon his prospects of successful rehabilitation. But it is principally relevant to the question of whether NR should serve that sentence as a juvenile offender or in an adult correctional facility, an issue which I will come to in due course.
Plea of Guilty
On 8 February 2010, in advance of a listing of the proceedings before the Parramatta Children's Court, lawyers for NR wrote to the Office of the Director of Public Prosecutions indicating that he would plead not guilty to murder, but guilty to manslaughter on the basis that his offence did not involve the necessary intention to constitute the crime of murder. That is, he did not have the intention to kill DA or cause him grievous bodily harm. He accepted then, as he has at all times since, that he did commit an unlawful and/or dangerous act which caused DA' death. The Crown rejected NR's offer and accordingly he stood trial for murder before a jury.
Section 22 of the Crimes (Sentencing Procedure) Act provides that in passing sentence, a court must take into account a plea of guilty, and some associated circumstances. However, the legislation requires that any lesser penalty imposed must: " ... not be unreasonably disproportionate to the nature and circumstances of the offence ".
Here, the Crown submits that there are two reasons why the Court would not allow any discount under this section or in accordance with the general law. They are:
(a) When offering to plead guilty to the offence of manslaughter, NR did so on the basis of an inadequate outline of facts; and
(b) The offence committed in this case is so serious that no discount should be given.
By a letter dated 8 February 2010, NR offered to plead guilty to manslaughter. In so doing, his solicitors articulated the basis of the plea in this way:
"... he intends to plead ... guilty to manslaughter on the basis that he did not have the intent to kill DA or cause him grievous bodily harm, but that he did commit an unlawful and/or dangerous act which caused DA' death."
The letter goes on to expand on that basis by making assertions as to NR's motivations and the conclusion which ought to be reached about his conduct.
The terms of the letter bear a striking resemblance to the arguments advanced at trial by senior counsel for NR. I am satisfied that these arguments were accepted by the jury in finding NR guilty of manslaughter.
The Crown's submission, that NR's offer of 8 February 2010 was made on an inadequate basis, must be rejected. I do not accept that there was any substantial difference between the terms of the letter and what ultimately emerged in Court. It is self-evident that the letter contains much less detail than what emerged. But I see no reason why a discount ought be denied to NR because the Crown declined his offer. This is particularly so in this case, as the Crown also did not seek to explore the offer by having further correspondence with NR's solicitor about it, nor were there any attempts to explore the basis of the offer in discussion between the respective lawyers.
To accept the first submission of the Crown would be, in effect, to punish NR for the conduct of the lawyers for the Crown. That would be wholly inappropriate.
The second submission advanced by the Crown is that the seriousness of the offence is such that no discount should be permitted.
In R v Thomson; R v Houlton (2000) 49 NSWLR 383, Spigelman CJ, with whom Wood CJ at CL, Foster AJA, Grove and James JJ agreed, said, at 418 [157] and [158] this:
"157. There are circumstances in which the protection of the public requires a long sentence to be imposed so that no discount for the plea is appropriate: see, eg, R v Stabler (1984) 6 Cr App R (S) 129 at 131; R v Costen (1989) 11 Cr App R (S) 182 at 184).
158. There are crimes that so offend the public interest that the maximum sentence, without any discount for any purpose, is appropriate. This includes situations in which a life sentence can be and is imposed, notwithstanding the plea: see, eg, R v Kalache [2000] NSWCCA 2, see especially per Sully J (at [38]-[42])."
This is not a case where the protection of the public requires such a long sentence that a discount is inappropriate. Nor does the crime call for the maximum sentence so that any discount is inappropriate. This case is very far from the two exceptions dealt with by Spigelman CJ. I reject the Crown's submission that no discount ought to be permitted.
But I still need to be satisfied that the offer to plead guilty would, if accepted, have achieved a utilitarian benefit for the efficiency and effectiveness of the criminal justice system as a whole. I am so satisfied. The offer of the plea was made on 8 February 2010. The matter was then at a very early stage before the Children's Court, it was about three months before the date fixed for the committal hearing, it was at a time before NR had received all of the statements ultimately obtained by the investigating police. Had the plea been accepted, there would have been a substantial benefit to the administration of justice in NSW.
A much earlier offer of a plea is, having regard to the time of the year, and the need to obtain proper legal advice, for a juvenile, hard to imagine.
NR adhered to the plea on three subsequent occasions - when he was committed for trial in this Court by the Children's Court in May 2010, upon arraignment to this Court, and then when indicted before the jury.
Had the plea been accepted in those circumstances by the Crown, a discount of 25 per cent would have been appropriate. As Grove J, with whom Spigelman CJ and Sully J agreed, said in R v Oinonen [1999] NSWCCA 310 at [15], having regard to the then relevant legislation:
"There has been a long practice, however, in this Court and in trial courts to take into account the offer of a plea of guilty which matches the crime for which a person is ultimately convicted."
See also: R v Johnson [2003] NSWCCA 129 at [37] to [43] per Bell J, Giles JA, and Corruthers AJ agreeing; R v Borkowski [2009] NSWCCA 102 at [32] per Howie J (McClellan CJ at CL and Simpson J agreeing).
Such an approach seems to me to accord with the incentive and the public interest benefit which underlie the provision of a discount for an early plea: See Thomson at [115] and [122] per Spigelman CJ.
Accordingly, I am satisfied that in this case it is appropriate to allow a 25 per cent discount for NR's offer to plead guilty to manslaughter and to his subsequent plea of guilty to that offence.
Sentence
I have already said enough to indicate the crime which NR committed was a serious one. It involved the taking of the life of another. The effect which NR's conduct has had on the family of DA has been expressed by his mother and stepfather in their victim impact statements which were read aloud to the Court. I acknowledge the contents of these statements and I express my sympathy to the whole of DA's family for their tragic and senseless loss. I have regard to those statements in the way which the law allows me: s 28, Crimes (Sentencing Procedure) Act and R v Previtera (Supreme Court of NSW, 27 May 1997, unreported).
NR is a young man and proper weight needs to be given to his rehabilitation. I am satisfied that these prospects are very good.
The sentence which I impose must mark out the Court's obligation to protect life and mark its disapproval of any crime in which a life is lost. But it would not be right to crush all hope of rehabilitation, and indeed, rehabilitation is a matter to which I must give proper account, and is of more importance in this case than deterrence and retribution.
Ordinarily, but for the plea of guilty, I would have sentenced NR to a term of imprisonment of 10 years. In light of the allocation of the discount for his guilty plea, that term will be reduced by 25 per cent.
NR, for the offence of the manslaughter of DA, taking into account your plea of guilty, I sentence you to an overall term of imprisonment of 7 years and 6 months.
Section 44 of the Crimes (Sentencing Procedure) Act requires, as a statutory ratio, that you should serve three-quarters of that term as a non-parole period.
However, in your case I am satisfied that there are special circumstances which enable me to reduce that non-parole period, thereby increasing the period of time you are on parole, because that would be beneficial for the purposes of your rehabilitation.
The special circumstances which I find are the fact that you are still young, the fact that this is your first period of incarceration, and the fact that you have good prospects of rehabilitation. These facts all combine to mean that I should vary the ratio of 75 per cent fixed by the law so that your non-parole period is 60 per cent of the total sentence, which means that you should serve a period in custody of 4 years and 6 months. That term should commence on the day you were taken into custody for this offence.
I am satisfied that such a non-parole period properly reflects the criminality involved in this offence and all of the factors to which I am required to have regard.
I next turn to the question of where you will serve this sentence.
Under the Children (Criminal Proceedings) Act , the offence of manslaughter is a serious children's indictable offence, which means that, as you are now over 18 years old, you will serve any custodial sentence imposed on you in an adult correctional facility, unless a finding of special circumstances is made.
I am satisfied that I should make a finding of special circumstances.
The first reason is that, as I have previously discussed, educational programs and facilities suitable to your needs, having regard to the relationship between further education and your prospects of rehabilitation, are likely to be available only in a juvenile detention centre.
Secondly, I am satisfied that having regard to your present level of maturity and physical stature, you would be at an unacceptable risk of suffering harm, both physical and psychological, if committed to an adult correctional facility. Dr Seidler's psychological report of 15 February 2011 expressed views consistent with this, which I accept.
Accordingly, I am satisfied that, in accordance with s 19 of the Children (Criminal Proceedings) Act , special circumstances exist so that I should make an order that you serve the whole of the sentence as a juvenile offender, that is in a juvenile justice centre, and not in an adult correctional facility.
NR, I impose the following sentence upon you:
(a) I sentence you to a term of imprisonment without parole of 4 years and 6 months to commence on 28 February 2009 and to conclude on 27 August 2013;
(b) I sentence you to a balance term of 3 years, to conclude on 27 August 2016.
(c) The first day upon which you will be eligible for release from custody is 27 August 2013.
(d) In accordance with s 19 of the Children (Criminal Proceedings) Act 1987 , I make an order directing that the whole of the term of imprisonment is to be served as a juvenile offender.
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Decision last updated: 15 April 2011
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