R v RJB

[2019] NSWSC 719

Supreme Court

New South Wales

Medium Neutral Citation:	R v RJB [2019] NSWSC 719
Hearing dates:	16 May 2019
Date of orders:	14 June 2019
Decision date:	14 June 2019
Jurisdiction:	Common Law - Criminal
Before:	Hidden AJ
Decision:	For the murder of Luke Browning the offender is sentenced to imprisonment for 22 years comprising a non-parole period of 16 years and 6 months, commencing on 15 April 2015 and expiring on 14 October 2031, and a balance of term of 5 years and 6 months, commencing on 15 October 2031 and expiring on 14 April 2037. He will be eligible for release on parole on 15 October 2031.
Catchwords:	CRIMINAL LAW – sentence – murder – conviction at trial – stabbing – spontaneous - intent to inflict grievous bodily harm
Legislation Cited:	Crimes Act 1900 (NSW), s 421 Crimes (Sentencing Procedure) Act 1999 (NSW), s 10A
Category:	Sentence
Parties:	Regina (Crown) RJB (Offender)
Representation:	Counsel: Mr C Maxwell QC (Crown) Mr R Pontello (Offender)   Solicitors: Director of Public Prosecutions (Crown) Kiki Kyriacou Lawyers (Offender)
File Number(s):	2015/00111895
Publication restriction:	Order, until further order, that publication of the name of the offender be prohibited: s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW)

SENTENCE

1. The offender stood trial before me on an indictment alleging the murder, or alternatively the manslaughter, of Luke Browning at St Clair on the 14 April 2015. He pleaded not guilty to murder but guilty to manslaughter. The Crown did not accept that plea of guilty in satisfaction of the indictment, and the matter proceeded to trial. The jury found him guilty of murder, and he now stands for sentence for that offence.

Facts

2. Put shortly, the offender was involved in an altercation with the deceased, Mr Browning, outside the home of Mr Peter Barbara at St Clair. In the course of the altercation the offender produced a knife and inflicted two wounds upon the deceased. One was to the front of his right thigh, and the other was to the back of his lower right leg. The deceased fled from the scene, but collapsed in the side of a house in a nearby street. Neighbours alerted police and ambulance, but when ambulance officers arrived they were unable to resuscitate him. A post-mortem examination concluded he had died of blood loss from the wound to the right thigh, which was considerably more serious than the wound to lower leg.

3. The Crown case was that the offender had inflicted those wounds with the intention of causing really serious bodily harm to the deceased. Obviously this was the jury’s finding. I shall turn later to the basis upon which the plea of guilty to manslaughter had been entered.

4. The background to this event was the subject of a deal of evidence, raising a number of detailed factual disputes which for present purposes need not be resolved. The offender had known the owner of the house at St Clair, Mr Barbara, for some time. He owed Mr Barbara money and, according to Mr Barbara, he had gone to his home on the morning in question to discuss the matter. The deceased, whom the offender did not know, was also there.

5. The offender gave evidence at the trial. Again put shortly, it had been his case that for some time prior to the fatal incident he had owed money to a man named Cem Elve. He had been unable to repay that money, and had been assaulted and threatened by members of outlaw motorcycle clubs on Mr Elve’s behalf. He also said that Mr Barbara had falsely claimed that he had taken a large sum of money from Mr Barbara, which Mr Barbara owed to Mr Elve. Mr Elve, he said, had phoned him the night before the fatal incident demanding that money and telling him that he should come to Mr Barbara’s home the next day to sort the matter out. In the circumstances he took the knife with him for his own protection, should the occasion arise.

6. His evidence continued that when he arrived at the house, he was confronted by Mr Barbara, the deceased and another man. Mr Barbara told him that if he did not produce the money owing to Mr Elve, he, his wife and his children were going to be killed. He said that Mr Barbara pointed at the deceased and said that he had been sent to collect the money for Mr Elve.

7. He said that the three men went inside the house and then the deceased came out. He claimed that the deceased told him that he, the deceased, would kill him and his family if he did not get the money owing to Mr Elve. This was the beginning of the altercation leading to the stabbing. He said that the deceased looked as though he really was ready to kill him. He panicked and threw a punch at the deceased, and then withdrew the knife from his pocket. He claimed that he “poked” it at the deceased to scare him, with no intention to stab him or inflict any injury upon him.

8. It was on this basis that the offender pleaded guilty to manslaughter. He admitted that he had caused the death of the deceased but claimed that he did so without the intention to inflict really serious bodily injury upon him. Alternatively, it was his case that he believed his conduct to be necessary to defend himself, his wife and his children, but admitted that that conduct was not a reasonable response in the circumstances as he perceived them: s 421 of the Crimes Act 1900 (NSW). By their verdict, the jury found, as I have said, that he did have the intention to inflict really serious bodily harm, and also found that he did not believe that his conduct was necessary in defence of himself, his wife or his children.

9. The verdict casts an unfavourable light on his evidence as a whole and, making due allowance for the fact that he was an accused man giving evidence in his trial on a very serious charge, I found him far from a satisfactory witness. That said, I am prepared to accept that he went to Mr Barbara’s home that morning anticipating that there might be some violence directed towards him. It may be that there was some issue concerning indebtedness to the man Elve, and he had been exposed to threats and violence of some kind relating to it. I accept that Mr Barbara was a drug dealer, who had in the past been involved in attempts to recover debts by threats of violence. Otherwise I can make no firm finding about what transpired between those men that morning, other than that it related in some way to outstanding money. That, in turn, may well have related to drug transactions, but for present purposes it is not necessary to make any finding about that.

10. At the trial the Crown Prosecutor led some evidence which suggested that the offender might have borne the deceased ill will before he went to the home that morning. That was not pressed for the purpose of sentence, and the Crown Prosecutor frankly acknowledged that no satisfactory explanation for the violent incident can be found in the evidence. It certainly cannot be said that the offender went to the home that morning intending to cause the deceased harm. As noted above, there is no evidence that he knew the deceased and, certainly, no evidence that he had any reason to believe that the deceased would be there at that time.

11. There was in evidence some brief CCTV footage of the violent incident, which happened quickly. That footage puts paid to any suggestion that the offender was in fear of the deceased. It portrays the offender as the aggressor from the outset. He appeared to be angry. He pushed the deceased to the chest, and there was a brief scuffle between the two men with the deceased apparently attempting to ward him off. The deceased then ran behind a tree and the offender pursued him. They emerged from behind the tree and the deceased fell to the ground. The offender is then seen to kick him and, while it is not clearly depicted, it was then that the stabbing occurred. The deceased ran off and the offender walked towards the car in which he had driven to the scene. The deceased had no weapon and clearly it was he, not the offender, who was in fear.

12. The offender was arrested the following morning at Sydney Airport, where he was attempting to board a flight to Lebanon.

Subjective case

13. The offender was 32 years old at the time of the offence, and is now 36. He has a brief criminal history, comprising offences of common assault, stalking and intimidating, damaging property and contravening apprehended violence orders in 2013, dealt with by way of fines or bonds. In 2014 there are entries for a further offence of contravening an apprehended violence order, and custody of a knife in a public place, both dealt with by way of conviction without penalty under s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW). Prior to these matters he had been fined for a few other minor offences to which it is not necessary to refer.

14. After the present offence, while in custody awaiting his trial, the offender was convicted of an offence of assaulting a law officer, and sentenced to a short term of imprisonment which has expired. I was supplied with the facts of that offence. On 16 April 2018, a senior prison officer was involved in supplying meals to inmates in the unit where the offender was being held. The offender asked to see the intelligence officer, and was told that that matter would be dealt with after the process of supplying the meals had been completed. The offender abused the officer and attempted to punch him through the bars of his cell. He also spat at the officer, the saliva striking his face.

15. On other occasions during his period in custody he has been dealt with internally for breaches of prison discipline. These include offences of intimidation in 2016 and January 2019, and for fighting with other inmates on two occasions in 2017.

16. An affidavit of the offender setting out his background and present circumstances was read, and he was cross-examined on certain aspects of it. He was born in Lebanon, and has a brother and a sister. His only formal education was in primary school in that country, which he left when he was eight years old. Thereafter he worked for his uncle in a mechanic business. He later worked to help the family financially, starting with menial tasks and eventually learning the trade of a motor mechanic.

17. The family faced a difficult time during the civil war in Lebanon. The Assyrian army had direct control of the town in which they lived. He recounted an occasion, when he was about 11 or 12, when he and friends were confronted by army personnel, who pointed guns at their heads and made off with their property. The circumstances led the family to attempt to migrate to this country.

18. Over a period of time he, his mother and his sister, and other members of the extended family settled here. His father and his brother remained in Lebanon. He arrived in December 1999, at the age of 16.

19. He was married in 2002, and the union produced four children, now aged between 6 and 14 years. When he arrived in Australia he did not speak English, but he learned the basics of reading and writing English through his wife. He had been working in the cement rendering business, and in due course he started his own business in that field, which proved to be successful. This enabled him to support his wife and children, as well as to contribute to the support of members of his own family, including his father and brother in Lebanon.

20. His mother has a variety of health problems, and both she and his sister had been involved in a car accident. He had been helping his mother and taking her to all her medical appointments, as neither she nor his sister could drive. He deposed that, being in custody, he regrets not being able to provide that assistance to her. He has the continuing support of his mother and his sister, but other members of his extended family have turned their backs on the three of them.

21. He is now divorced from his wife. When he first came into custody he signed a power of attorney giving her full control over their home and finances. She had instituted the divorce proceedings in 2016. He deposed that he felt betrayed by her because their relationship had been solid and he trusted her. He was cross examined about this on the basis of the convictions in 2013 to which I have referred. They were offences committed in his domestic context, to which he had pleaded guilty. Details of the conduct towards his wife, the subject of the offences, were put to him, and he denied them. He claimed that he was not guilty of any of the offences and had pleaded guilty because his lawyer told him to, assuring him he would get a good behaviour bond and “it would be finished.”

22. I found this evidence unconvincing, and I do not accept that his relationship with his wife had been as stable as he claimed. I might add that in the history he provided to a psychologist, whose report I shall refer to, he acknowledged having behaved in intimidating ways towards his wife by smashing objects in the home, but denied ever having physically assaulted her.

23. All that said, the relationship has come to an end. The offender deposed, and I accept, that as a result he has lost contact with his four children, with whom he had been involved and to whom he had been close. His wife sold the family home to live off the proceeds. Of course, his business has come to an end.

24. The offender has more recently formed a relationship with a young woman whom he met in 2017 while she was visiting her brother-in-law, who was serving a prison sentence at the same gaol. That woman provided a testimonial to the Court, affirming her support for him, and their intention to marry and have a family when he is released. She also wrote that he constantly expresses to her his remorse for this crime, which she accepts as genuine. That crime, she wrote, was not the behaviour of the man “that I have got to know.”

25. He deposed that since early 2018 he has been in segregation. He was told that he had been placed there for his own safety, although there is no clear evidence of what the threat to him might have been. He was cross-examined about this, it being put to him that his segregation was because of the assault on the senior officer to which I have referred. The facts in that matter state that, a few days after the incident, he told someone in a recorded phone call that they had moved him “back to segro” because of what he had done to the officer.

26. I found his evidence about this somewhat confusing but it did convey that he had already been in segregation, that he did not want to be, and that it was about that matter that he wished to see the intelligence officer. The effect of his evidence was he wanted to be in the main gaol because a segregated status might suggest that he was a “dog” (an informer). For the purpose of the sentence proceedings his solicitor wrote to Corrective Services about his status, and received a reply that he was “currently managed as a segregation offender administered by the department for the good order and discipline within a correctional centre.”

27. It may be that his segregated status has been for more than one reason, including his assault on the officer and his other disciplinary infractions. However that may be, it is his unchallenged evidence in the affidavit that his segregated status subjects him to strict conditions. He is not able to mix with other inmates or speak with them. He is largely confined to his cell and all his meals are taken there. He has no access to work or courses. Visits are difficult because of limited facilities in the area where he is held, and the number of phone calls he can make is limited.

28. I received a comprehensive psychological report of Ms Sarah Brann. To Ms Brann the offender expanded upon his background, and this material is not challenged. He described a deprived childhood, marred by domestic violence and emotional neglect. His parents frequently fought and his father, when drunk, meted out violence towards his mother and towards himself and his siblings. The family circumstances were impoverished, and he reported feeling that he was never as important to his parents as his siblings. His experience of the civil war, not surprisingly, had negative impacts upon him. It led to a level of distrust and negative attitudes towards authority.

29. For the two or three years after his arrival in Australia his life was stressful. He was living with an uncle and a number of other members of the extended family in overcrowded conditions, until his mother could afford to rent a home for the three of them.

30. The lengthy history he provided to Ms Brann up to the time of the offence conveyed to her “marked alteration in arousal and reactivity apparently associated with his traumatic experiences.” She also saw his history of hard work as suggesting that “staying busy has been a form of potential distraction from his internal experiences,” noting that he may not be aware of this. She also noted “pervasive issues with interpersonal distrust in his interpersonal relationships.” She saw in all this symptoms of post-traumatic stress disorder, and was of the opinion that the condition became “a more prevalent issue” in the lead-up to the present offence. Part of the history upon which she relied for this opinion was the offender’s account of his indebtedness to Mr Elve and the threats and violence associated with it, about which I have my reservations. Nevertheless, I do not understand that matter to be essential to Ms Brann’s diagnosis, which is otherwise supported by the history.

31. Part of Ms Brann’s psychological assessment conveyed to her that the offender tended “to portray himself in a more positive light,” lacking insight into himself. Formal risk assessment, taking into account historic and dynamic factors, led her to the conclusion that he poses a “moderate risk of reoffending violently.” This, she reported, should receive a “moderate intensity of case management and psychological intervention.” She made recommendations about his management in custody and at liberty, while noting that two familiar custodial programs relating to violence might not be suitable or meet his criminogenic needs and related programs in the community might also not meet those needs.

Victim impact statements

32. None of this is to deny the seriousness of this offence and the devastating effects it has had upon those who were close to the deceased. I received victim impact statements from the deceased’s mother, Ms Christine Weeks, his sister, Ms Jasmine Weeks, and his partner, Ms Jennifer Watt. Jasmine Weeks read her own statement, and that of Ms Watt, to the Court. Christine Weeks also read her statement. All three statements expressed eloquently their love of the deceased, Mr Browning, the contribution he made to their lives in many ways, and their grief and outrage at his violent and untimely death.

33. I expressed my deepest sympathy to them during the sentence proceedings, and I do so again now.

Sentencing issues

34. Murder, of course, is inherently a very serious crime. However, in assessing the gravity of this offence it is to be noted that the stabbing was spontaneous, perpetrated in a fast moving incident and apparently engendered by anger. It should be noted, however, that the stabbing occurred after a brief pursuit of the deceased, who was plainly in fear of the offender. The offender’s intention was to inflict really serious bodily injury, not to kill. His counsel, Mr Pontello, noted the fact that the two wounds were to the deceased’s leg, one being significantly less serious than the other, arguing that this indicated an intention to inflict what he described as “a relatively low degree of grievous bodily harm.”

35. I do not accept that submission. As the Crown Prosecutor pointed out, the CCTV footage discloses that the stab wounds were inflicted at a time when the deceased was moving on the ground, and it cannot be said that the knife was consciously aimed at the leg as opposed to some other part of his body, where graver injury might have been occasioned. On the other hand, the attack ended there, and when the deceased got to his feet and ran the offender did not pursue him further.

34. In these circumstances I consider the offence to be below the mid-range of objective gravity, although not markedly so. Insofar as moral culpability is a different issue, I consider that the offender’s moral culpability is reduced in a modest degree by the symptoms of post-traumatic stress disorder arising from his background identified by Ms Brann. This bears upon the need for the sentence to reflect considerations of retribution and general deterrence, but only to a limited extent. Personal deterrence, of course, remains an important consideration.

35. I take into account the offender’s subjective case, having regard in particular to his difficult and deprived background, despite which he was able to achieve a measure of stability for himself and his family through his pursuit of a successful business. His criminal history is relatively minor. Its only significance is that the convictions to which I have referred, before and after the present offence, portray the type of reactive aggression associated with post-traumatic stress disorder identified by Ms Brann and, to that extent, they bear upon his prospects of rehabilitation.

36. My assessment of those prospects must be guarded, but Ms Brann has identified issues amenable to professional treatment and management, he has the benefit of the continuing support of his mother, his sister and his current girlfriend, and he has proved in the past to be capable of a responsible and productive lifestyle. It is important that his prospects of rehabilitation be fostered, and for that purpose Mr Pontello submitted that I should find special circumstances warranting a departure from the statutory proportion between sentence and non-parole period. However, the sentence for this offence must be lengthy and the application of the statutory portion to the sentence which I propose would leave a substantial period of parole eligibility, during which the offender would have the benefit of supervision and the sanction of parole. Moreover, no lesser non-parole period would be sufficient to mark his criminality.

37. The offender expressed remorse to Ms Brann and, as I have said, to his girlfriend. At the end of his evidence in the sentence proceedings, unprompted, he expressed his remorse to the family members who were present in Court. Two of them challenged this, to which he responded that the offence “was an accident and I didn’t mean it.” I accept that he now regrets the incident but the sincerity of his expressions of remorse is questionable and, certainly, he appears to lacks insight into the gravity of his crime.

38. The offender does not have the benefit of a plea of guilty, but deserves some credit for the efficient way in which the trial was conducted. By his plea of guilty to manslaughter he admitted having caused the death of the deceased and being criminally responsible for it. Basic issues were resolved by an agreed statement of facts, and the trial was able to focus on the issues of intent and excessive self-defence and defence of others. I take this into account, but I do not propose to recognise it by a quantified reduction of sentence.

39. I also take into account the delay in this matter coming to finality, for which the offender bears no responsibility. He faces sentence for a crime committed more than four years ago. I am also prepared to make some allowance for the fact that he has spent a significant period of custody in segregation, with the disadvantages that status entails, even though it might have been the result of his own wrongdoing and there is no evidence of how long it is likely to continue.

40. He has been in continuous custody since his arrest for this matter on 15 April 2015. During that time he was sentenced for the offence of assaulting the prison officer to imprisonment for 9 months with a non-parole period of 4 months which, as I have noted, has expired. Of course that 9 month sentence is a period of custody not referable to the present offence. However, if such a sentence had been imposed while he had been at liberty he would have served in custody only the 4 month non-parole period, the balance of the sentence being served in the community. In these circumstances, I do not propose to adjust the commencement date of the sentence for the present offence, which will be 15 April 2015.

Sentence

43. I have determined that the appropriate sentence is imprisonment for 22 years with a non-parole period that represents the statutory norm of 75 per cent, 16 and a half years. Accordingly, for the murder of Luke Browning the offender is sentenced to a non-parole period of 16 years and 6 months, commencing on 15 April 2015 and expiring on 14 October 2031, and a balance of term of 5 years and 6 months, commencing on 15 October 2031 and expiring on 14 April 2037. He will be eligible for release on parole on 15 October 2031.

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Decision last updated: 21 June 2019