R v O J S
[2009] VSC 265
•30 June 2009
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1442 of 2009
| THE QUEEN |
| v |
| OJS |
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JUDGE: | KAYE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 June 2009 | |
DATE OF SENTENCE: | 30 June 2009 | |
CASE MAY BE CITED AS: | R v OJS | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 265 | |
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CRIMINAL LAW – Manslaughter – Sentence – Plea of guilty – Offending at low end of scale of manslaughter cases – Young offender aged 15½ years at time of offending – Rehabilitation – Genuine remorse – No previous convictions – Otherwise good character.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr D Brown | Office of Public Prosecutions |
| For the Accused | Mr P G Nash QC | McGuinness Hosking |
HIS HONOUR:
OJS. You have pleaded guilty to the manslaughter of Yuxiong Han on 18 July 2008.
The circumstances which led to the death of Mr Han took place late on Monday 7 July 2008. You were then 15 and a half years of age, and were in Year 10 at school. At the time of the offence you were on school holidays, and on the previous evening you had stayed overnight at the house of a friend.
You spent most of the evening of 7 July in company with a group of friends in the Forest Hill and Blackburn areas. During the evening, you attended the McDonald’s store near the corner of Canterbury Road and Main Street. You then boarded a bus, intending to travel to a friend’s place. At that stage, you were in a group of eight friends, whose ages ranged between 16 and 18 years. You all alighted from the bus at the intersection of Canterbury Road and Blackburn Road, and commenced to walk in an easterly direction along Canterbury Road towards Forest Hill Chase.
On the same evening Mr Han, who was 21 years of age, had been working at a restaurant in Box Hill. He had caught the same bus from the Blackburn Railway Station, and also alighted from it at the corner of Blackburn and Canterbury Roads. After Mr Han left the bus, he also walked in an easterly direction along Canterbury Road towards his accommodation in Forest Hill. Mr Han walked past the group of which you were a member, and continued along Canterbury Road.
As your group was walking, it broke into smaller groups. You were in the front group, together with Aaron Toal and Sami-Jones Tactay. When the three of you approached the intersection of Blackburn Road and Drummond Street, Tactay said to you and Toal “Do you want to go him?”, referring to Mr Han who was in front of you. Mr Han turned around. Mr Tactay then told you and Aaron Toal to leave him alone. However, you and Toal decided otherwise. Someone was heard to say words to the effect “let’s roll him” or “let’s hit him”, and Toal offered you $10 to do so.
Thereupon, Aaron Toal and you ran towards Mr Han. You were slightly ahead of Toal. As you got close to Mr Han, you swung your arm out towards him. In response, Mr Han ran off in a north easterly direction onto the westbound carriageway of Canterbury Road. At that point Canterbury Road is a divided road, with three lanes for traffic travelling in either direction.
As Mr Han ran onto the roadway, Mr Furness was approaching the same intersection in his vehicle, travelling in a westbound direction in the middle lane of Canterbury Road. Mr Han ran straight into the path of Mr Furness’s car, without giving Mr Furness any opportunity to take any evasive action. Mr Han was struck by the front of the vehicle. As a consequence, he sustained massive head injuries. I should add that at the time of the collision, it is estimated that Mr Furness’s vehicle was travelling at less than the prescribed speed limit of 70 kilometres per hour.
Immediately after the collision, both you and Aaron Toal walked away quickly from the scene, without pausing to render any assistance to Mr Han. Some other members of your group remained at the scene, and some nearby residents, who heard the noise of the impact, came onto the roadway to offer assistance. The residents telephoned the police and the ambulance. You and Toal returned to the scene and asked onlookers what had happened, so as to give the false impression that you had just arrived there. You then left the scene with all your friends, before the ambulance and the police arrived.
Mr Han received emergency treatment by the ambulance officers, and then was conveyed to the Royal Melbourne Hospital. He died at the Hospital as a result of his head injuries on 18 July 2008.
In the evening of 8 July, you attended the Nunawading Police Station in company with your mother. There you were arrested and interviewed in relation to your involvement in the accident. In the course of your interview, you told the police that Aaron Toal had offered you $10 if you went and hit the deceased, that you jogged toward the deceased followed by Toal, and then threw your arms out. You stated to the police that your arms did not come into contact with Mr Han. You also told the police that when Mr Han turned around he looked a bit scared, and that you could understand how your actions might have frightened Mr Han and caused him to run across the roadway into the path of the traffic.
You pleaded guilty to the charge of manslaughter at your committal proceeding in the Magistrates’ Court, which proceeded by way of hand up brief. Indeed, your counsel announced your intention to plead guilty at the second committal mention hearing. The basis upon which you have pleaded guilty to manslaughter is that by your unlawful and dangerous act in assaulting Mr Han, you brought about his death. By your plea of guilty, you have acknowledged that a reasonable person of your age, in your circumstances, would have realised that your assault of Mr Han involved an appreciable risk of serious injury to him. Your counsel, Mr Nash QC, acknowledged to me that you understood the component elements of the crime of manslaughter, which by your plea of guilt you have admitted.
The offence of manslaughter is a particularly serious offence. By your unlawful and dangerous actions, you have caused the death of another human being. It is appropriate that I say something about your victim. Yuxiong Han was born in February 1987. He has a younger sister. After Mr Han completed his secondary education in China in 2006, he undertook studies in the English language, and then qualified to be enrolled in the Box Hill TAFE College, in order to study automobile engineering. Mr Han’s parents used all of their savings to sponsor him to come to Australia. Yuxiong Han arrived in Australia on 17 March 2008. He attended Box Hill Institute to further his English studies, and then commenced his automobile engineering course. At that time, he was living in shared accommodation with other students in Box Hill. In order to survive, he was working part time in Box Hill as a waiter. As a good and loving son, he spoke to his parents once per week in China. He last spoke to his mother and father just one day before the fatal accident. In his statement to the police, Mr Han’s father stated “We only heard positive feedback about (Yuxiong’s) life in Australia and his education. He had made many friends in Australia”.
I have told you something about Yuxiong Han, because by your actions you have taken the life of a good and decent person. Mr Han came to Australia, because we welcome overseas students, who are an important part of our society. Unlike you, he did not have spare time to wander about the suburbs with his friends. Rather, on the evening of his death, he was trying to make ends meet by working, until late in the evening, as a waiter. He was enjoying his life, undertaking studies so that he could pursue the occupation in which he had always been interested.
By your actions, you have not only cost a decent young man his life, but you have taken from his parents their only and much beloved son, and deprived his sister of her only sibling. I have read the victim impact statements of Mr Han’s two parents. The pain, anguish and despair, caused to them by your offending, will stay with them for all their lives. The victim impact statements are a salutary reminder that not only did your actions cost the life of another human being, but there are others who are left to struggle with the grief and desolation occasioned by it. Those consequences are a direct result of your criminal behaviour.
You yourself are now 16 and a half years of age. You are in Year 11 at Heathmont College, and are completing the alternative VCE program known as the VCAL, which includes work placement and work experience, in addition to academic studies. At the moment, you are undertaking studies in audio visual sound and light. You live at home with your mother, your stepfather and your two younger brothers, who are aged 4 years and 18 months.
You have no previous convictions. On your plea, I heard evidence from four witnesses, namely, your mother, your grandfather, and two close family friends. In addition, two character references were tendered on your behalf. Each of the character witnesses, and the testimonials, speak as to your good character. A common thread of the evidence before me is that, apart from your offending in this case, you are an exceptionally kind, caring and considerate person. None of the witnesses, who gave evidence before me, have detected any violent, aggressive or malicious streak in you. On the contrary, the evidence is that you are of a passive and gentle nature. The witnesses all hold you in high regard. I was impressed with the four witnesses who gave evidence before me, and I accept, without qualification, their evidence. It is clear, therefore, that your offending in this case was not only out of character, but indeed inconsistent with your basic character traits and background.
It is also clear from the evidence that you have been profoundly affected by the events of 7 July 2008. In particular, I am satisfied that you have suffered genuine and significant anguish and regret as to the loss which you have caused to Mr Han’s family, and that you are deeply remorseful for what you have done. Your mother has described to me, in some detail, the problems which you suffer in relation to such matters as your sleep and appetite, and that you experience recurrent nightmares and bad dreams. The report of the psychologist, Mr Thornton, which was tendered before me, sets out in some detail the ongoing problems, which you suffer as a result of your involvement in the death of Mr Han. Mr Thornton, who has interviewed you on three occasions, considers that your symptoms may be evidence of a severe anxiety state.
I am also satisfied that you will, at least for the indefinite future, continue to suffer emotionally as a result of your experiences of the evening of 7 July 2008. Your grandfather, to whom you are particularly close, considers that the effects of that tragic evening will remain with you for the rest of your life. On the basis of the evidence put before me, I accept that that may well be so.
In addition, I accept that a custodial sentence would bear more heavily on you than it might on other persons of your age. Your grandfather, and Mrs Susan Eels, who gave evidence before me, both expressed considerable concern that you would not cope in a youth detention centre. Mr Thornton has expressed the view that a period of incarceration may aggravate your anxiety levels. I accept that evidence. In particular, I accept that a person of your passive nature and temperament may well have substantial problems in coping in a custodial environment.
As I have stated, the offence, to which you have pleaded guilty, is a serious offence. The maximum prescribed sentence for manslaughter is 20 years, which reflects the high value which our society places on the sanctity of human life. Mr Han gave you no cause whatsoever to attack him. Rather, he was an innocent young man making his way home, after completing his evening’s work. It is a matter of concern that, at the time of the offending, you were a member of a group of young men. Gratuitous attacks by groups of youths on innocent members of our society have become much too prevalent. The offending, in which you were involved, has as its hallmarks the same shameful cowardice which characterises other such attacks in our community. Your offending is made worse by the fact that you attacked another person in the dark from behind, in circumstances in which he had no opportunity to anticipate your assault, let alone defend himself from it. It is little wonder that Mr Han took fright in those circumstances, and reacted in the way in which he did.
Your conduct shortly after the incident also does you little credit. Not only did you depart the scene of the accident with undue haste, later that evening your friends and you sought to collaborate to fabricate an untrue account of what had happened. Nevertheless, it would appear that you did shortly resile from that intention, and give a truthful account when you spoke to the police on the next day.
On the other hand, there are a number of substantial mitigating circumstances in your case. First, as I have already stated, I accept that your offending was entirely out of character, and indeed contrary to your normally normal gentle character. Your attack on Mr Han only involved one blow at him, and you were not armed with any weapon. While any assault on an innocent citizen is unacceptable, the assault which you made on Mr Han was of a less serious nature than those which ordinarily come before this Court. Although you were involved in a group of youths, it was only you, and perhaps Toal, who attacked Mr Han.
In addition, I accept that your decision to attack Mr Han was made only shortly before you ran towards him. It was not the product of any malice on your behalf, but rather was a stupid decision egged on by the foolish dare made to you by your so-called friend. Your actions were instigated by others, who were older than you, and who should have known better. While you are not particularly immature, nevertheless I do take into account the fact that at the age of 15 and a half, you did not have the mature decision making capabilities of someone a little older. I also accept that your immaturity contributed to your discreditable conduct immediately after the accident, both at the scene, and later when, initially, you sought to collude with your friends to concoct a false account as to what had happened.
In addition, there are a number of mitigating factors which attach to your personal circumstances. First and foremost is your youth. The law recognises the primary importance which is placed on the rehabilitation of young offenders. Your rehabilitation is not only important for you personally, but is also in the interests of the community. Although, in a number of cases, the rehabilitation of a young offender may need to give way to other sentencing considerations, in my view in this case it is a factor of significant weight. I am also persuaded that your rehabilitation may well be jeopardised, and that you may suffer emotional and psychological harm, were you to be placed in detention.
As I stated, I accept that you are genuinely remorseful for your involvement in the death of Mr Han, and that you are particularly upset about the grief which you have wrought upon Mr Han’s parents. Furthermore, your plea of guilty in this case is a factor which, I consider, should be given significant weight. You pleaded guilty to the offence of manslaughter at a particularly early stage. As I remarked in the course of sentencing submissions, it might be understandable that a person in your position might be tempted to trust his fate to the jury, on the question as to whether your actions could be characterised as a “dangerous” act. However, you correctly pleaded guilty, and thereby assumed proper responsibility for your fatal actions. The fact that you have done so is a matter which, in my view, significantly mitigates the sentence, which I would otherwise pass upon you.
I also accept that, whatever disposition this Court orders in respect of you, you will continue to suffer from anguish and emotional disturbance as a result of your responsibility for the death of Mr Han. The evidence of the witnesses, and the psychologist’s report, indicate to me that it is important that in the near future you undergo some psychological counselling to assist you in that regard. However, for the purposes of sentencing I accept that whatever sentence this Court imposes on you, you will, in any event, suffer other punishment arising from your knowledge that your criminal actions have caused the death of a blameless and decent human being.
On your behalf, Mr Nash submitted that I should make a youth attendance order, rather than sentencing you to a period of detention in a youth justice centre. Mr Brown, who appeared to prosecute the plea, submitted that it would be appropriate for me to sentence you to a period of detention in a youth justice centre, but he submitted that a youth attendance order would not be sufficient to reflect the gravity of your wrongdoing. At the conclusion of your plea, I directed that the Secretary of the Department of Human Services provide a report under s 398(b) of the Children Youth and Family’s Act 2005 and under s 96(2) of the Sentencing Act 1991, as to your suitability to undergo either of those two sentencing alternatives. I have now received that report, which states that you are a suitable person, in respect of whom a youth justice centre order, or a youth attendance order, might be made. I note that the case worker who compiled the report, Ms Narelle Klaassen, has concluded that you have positive prospects for rehabilitation, and that you may be vulnerable to the influence of more sophisticated young offenders if you were detained pursuant to a youth justice centre order.
In sentencing you, it is important that the sentence which I pronounce should be sufficient to reflect the seriousness of your offence, and to vindicate the high value which our community places on human life. It is also important that the sentence which this Court pronounces should be sufficiently severe, not only to punish you, but also to deter other like minded individuals from indulging in the type of gratuitous and cowardly violence which characterised your offending in this case.
On the other hand, as I have already stated, it is important that I give full weight to the importance which our community places on your rehabilitation, and that I give due weight to each of the mitigating circumstances to which I have already referred.
The decision, as to what sentence I should impose in this case, is particularly difficult. I consider that the sentence contended for by Mr Nash would only be appropriate in a case of manslaughter in exceptional circumstances, because of the inherent seriousness of that offence. Nevertheless, having given this matter anxious consideration, I am persuaded that it would be appropriate to make a youth attendance order in your case. I do so because I have come to the conclusion that there are a number of relevant mitigating factors, which, combined, make this an exceptional case. At the risk of repetition, I summarise those factors as follows:
(1)Your offending is at the lower end of the scale of manslaughter cases. It involved a relatively moderate degree of violence on your behalf. Your decision to participate in the offence was made on the spur of the moment. It was instigated by suggestions made by others who were older than you. I am satisfied that your participation in the incident was, in no small way, a product of your immature years.
(2)Your offending in this case was entirely out of character, and indeed inconsistent with your normal personality and behaviour.
(3)Your plea of guilty, signified at an early stage in the proceeding, is a circumstance of substantial weight. As I have already stated, this is not a case in which you had no option other than to plead guilty. The fact that you did not try your fortune in front of the jury, but were correctly prepared to acknowledge your responsibility for your illegal actions and their consequences, is a significant mitigating circumstance in this case.
(4)You are, and have been, genuinely and profoundly remorseful.
(5)Your youth, both at the time of offending, and now at the time of sentence, is a factor of primary importance. In particular, the law regards the rehabilitation of young offenders such as yourself as an important sentencing objective.
(6)Connected with that, you have good prospects of rehabilitation. Conversely, I am satisfied that a custodial sentence – even of short duration – might well have an adverse effect on your rehabilitation. Both of those conclusions are supported by the report of Ms Klaassen.
(7)You have suffered, and continue to suffer, emotionally from feelings of shame and remorse, and from the consciousness that your irresponsible and illegal acts have resulted in the death of a decent young man. I am satisfied that you will continue to suffer from the burden of that knowledge for many years to come.
Accordingly, and subject to your consenting to such an order under s 398(2) of the Children Youth and Family’s Act 2005, I propose to make a youth attendance order in respect of you for a term of 12 months. Pursuant to s 399 of that Act, I impose the following requirements on you:
(a)That you do not commit another offence during the period in which this order is in force.
(b)That you attend at a youth justice unit for 52 weeks from the date of this order.
(c)That you report to the Secretary within two working days after the date of this order.
(d)That you do not leave the State of Victoria without the written permission of the Secretary.
(e)That you notify the Secretary of any change of residence, school or employment within 48 hours after that change.
(f)That you comply with the provisions of a notice provided to you by the Secretary under s 402 and with the requirements for attendance specified in s 402(1)(a) and (b).
(g)That you attend at any alternative day and time fixed under s 402(5) or attend for such extension of the term of the order as is fixed under s 402(6).
(h)That you carry out the reasonable and lawful directions of the Secretary or any person acting under the authority of the Secretary under s 406 and 407(1).
I shall also impose a condition suggested by Ms Klaassen, that you undergo such psychological assessment and counselling as is directed by the Secretary or his delegate.
In addition, pursuant to s 399(2) of the Act, I consider it appropriate during the term of your order to impose a curfew on you, particularly given the time at which your offending took place in this case. Thus, as part of the order there will be a condition that you not be absent from your residence between the hours of 8.30 pm and 5.30 am, other than in the company of one or both of your parents, or other than with the written consent of the Secretary.
Section 6AAA of the Sentencing Act requires me to state the sentence which would have been imposed on you, had it not been for your plea of guilty. As I have stated, I regard your guilty plea, in this case, as a factor of significant weight. If you had not pleaded guilty, I would have sentenced you to a term of two years’ detention in a youth justice centre.
Finally, because of the background of your victim, I should record that I am well satisfied on the evidence that Mr Han’s ethnic origins did not play any part whatsoever in your decision to attack him. Indeed, the group of friends, with which you were associating on the night in question, included at least two persons of Asian origin. Both your mother and your grandfather expressed unreserved confidence to me that you are not at all racist. If I had been satisfied that Mr Han’s background played any part in your decision to attack him, then I would have had no hesitation in imposing an immediate custodial sentence on you.
I also conclude my sentencing remarks by expressing my gratitude to Ms Klaassen, of the Department of Human Services, for her cooperation and expedition in compiling her comprehensive and helpful report.
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