R v SMP

[1999] NSWCCA 318

CITATION:	R v SMP [1999] NSWCCA 318
FILE NUMBER(S):	CCA 60015 of 1999
HEARING DATE(S):	11/10/1999
JUDGMENT DATE:	15 October 1999
PARTIES :	SMP (applicant) Regina (respondent)
JUDGMENT OF:	Sully J at 1; Hidden J at 1; Greg James J at 1

LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S) :	70095/97
LOWER COURT JUDICIAL OFFICER:	Barr J

COUNSEL:	P J D Hamill (applicant) C K Maxwell QC (respondent)
SOLICITORS:	Legal Aid Commission (applicant) Director of Public Prosecutions (respondent)
CATCHWORDS:	Sentence - manslaughter - juvenile - use of knife - low level of culpability
ACTS CITED:	Children (Criminal Proceedings) Act 1986
CASES CITED:	R v Troja (CCA unreported 16 July 1991) Azar (1991) 56 ACrim R 414 Taouk (CCA unreported 20 March 1992) Sofokleous (CCA unreported 13 December 1993) MacDonald (CCA unreported 12 December 1995) Bollen (CCA unreported 9 September 1997) R v Karhani (CCA unreported 14 October 1998)
DECISION:	Appeal allowed

IN THE COURT OF
CRIMINAL APPEAL

60015 of 1999

SULLY J
HIDDEN J
GREG JAMES J

Friday 15 October 1999

Regina v SMP

Reasons for judgment

1     THE COURT: The applicant seeks leave to appeal against a sentence imposed upon him by Barr J for manslaughter. He had embarked upon a trial for murder, but on the second day of the trial the Crown accepted his plea of guilty to manslaughter in full discharge of the indictment. In passing sentence, his Honour took into account a related offence of obtaining a sum of money by deception. The applicant was sentenced to penal servitude for seven years, comprising a minimum term of four years and an additional term of three years, and his Honour directed that the sentence be served in a detention centre until he turned twenty-one. The sentence was to date from 14 May 1997, the day the applicant was taken into custody.

Facts

2     In the early hours of 30 April 1997 the applicant went to the house of a friend, Justin Wong, intending to buy marijuana. The deceased, another young man whom he did not know, was also at the house. There was some unpleasantness of no particular consequence between the applicant and Mr Wong, on the one hand, and the deceased, on the other. The deceased left the home, as did the applicant some time later.

3     His Honour’s findings about what then occurred are these. The applicant walked towards his car, which was parked in a nearby street. It was quite dark. The deceased was hiding behind a tree, armed with a knife. He grabbed the applicant and threw him to the ground. The applicant also had a knife, which was a small, folding knife. It fell out of his pocket, and he picked it up and opened it. As the deceased came towards him, he stabbed him in the neck and the head. The stab wound to the neck penetrated his upper spinal cord, causing his death.

4     By his plea of guilty to manslaughter, the applicant admitted killing the deceased by an unlawful and dangerous act and abandoned an assertion that he had been acting in self-defence. It seems that the deceased was normally a placid young man, but he was addicted to illegal drugs and suffered a mental illness which caused him to act impulsively on occasions. That said, his Honour emphasised the seriousness of the charge, as a life had been taken. He said of the deceased, “Even though he started the scuffle, he did not deserve to die.”

5     On the other hand, his Honour made a number of findings about the circumstances of the offence which were favourable to the applicant. In his remarks on sentence he said:

The prisoner had not met the deceased before they found themselves together at Wong’s house. He bore him no ill will and would have had no further contact with him if the deceased had not lain in wait for him. The altercation was not of his desire or making. He was surprised in the dark and must have been very frightened when he was thrown to the ground.
There was no evidence to show why he was carrying the knife which fell out of his pocket, but it was not a particularly dangerous object of its kind, and there was no suggestion that it was carried with intent to injure. The scuffle must have lasted no more than a few seconds.
Although homicides committed by the use of knives are regarded very seriously by the courts, I think that this was one of the least serious offences of that kind because of the lack of any premeditation or ill will on the part of the prisoner and of the circumstances of urgency in which the knife came, almost accidentally, to be available to the prisoner to use.

6     The applicant telephoned Mr Wong after the incident, to tell him that he had killed the deceased. He rang him later in the morning and arranged to meet him at Wollstonecraft. There, he told Mr Wong that a brother of a member of the 5T gang had been present at the stabbing and that the gang was demanding payment of $30,000 to keep quiet about the matter. This was untrue. Mr Wong later met the prisoner again and gave him $2,000, believing the demand to be genuine. It was this which gave rise to the offence of obtaining money by deception which his Honour took into account. For present purposes, it is of little significance.

7     His Honour noted that it was apparent from the applicant’s interview with police that he was conscious of the enormity of what he had done, and found that he had continued to be contrite. He pleaded guilty to manslaughter as soon as the Crown made that option available to him.

Subjective case

8     There was conflicting evidence about the applicant’s date of birth, but his Honour found it to be 10 June 1979. That being so, he was seventeen years old at the time of the offences and is now twenty. Unfortunately, that confusion led to his being detained in adult prisons between the dates of his arrest and sentence, a period of about nineteen months, due to a mistaken belief that he was eighteen. He has no previous convictions.

9     The applicant was born in South Korea. His parents separated when he was very young, and his father migrated to Australia. He and his younger brother remained with their mother who, it seems, was unable adequately to care for them. The two boys spent some years in a State institution, where conditions were poor and discipline was harsh. In 1994 they came to this country to be reunited with their father, who had remarried. After some initial adjustment, the applicant developed a good relationship with his stepmother. The family in Australia, which includes his paternal grandmother, have remained very supportive of him since his incarceration.

10     His educational progress here was unsatisfactory, due in large part to his poor command of English. He left school without obtaining his School Certificate, and engaged in unskilled work until his arrest. He had been a daily user of marijuana but has not used the drug since being taken into custody. On the whole of the material before him, including pre-sentence and Juvenile Justice reports, his Honour concluded that the applicant’s rehabilitation was well under way and that he was unlikely to re-offend.

11     His Honour received victim impact statements by the parents and sisters of the deceased. In accordance with prevailing authority, he did not take that material into account in determining the sentence. However, entirely appropriately, he noted the family’s anguish and extended to them the Court’s sympathy.

The application

12     In this Court, counsel for the applicant, who did not appear in the sentence proceedings, argued that the sentence is manifestly excessive and that, in any event, his Honour fell into error in ordering that the applicant serve the sentence in a detention centre only until he turns twenty-one. In addition, counsel relied upon what was said to be fresh evidence. As we are satisfied that the sentence is manifestly excessive, we find it unnecessary to determine whether that material qualifies as fresh evidence. However, it is appropriate that we should receive it for the purpose of re-sentence.

13     This Court has commented on a number of occasions on the breadth of the range of sentence for manslaughter, given the wide variety of human conduct which might constitute that crime: see, for example, R v Troja (unreported 16 July 1991) per Kirby P at pp2-3. It is for that reason that guidance is not readily available from other decisions of this Court and the statistics produced by the Judicial Commission of NSW must be approached with particular caution. Nevertheless, those statistics in respect of all offenders, drawn from a large sample of cases, place both the head sentence of seven years and the minimum term of four years in about the middle of the range. This accords with our experience of the pattern of sentence for manslaughter.

14     We were referred to a number of decisions of this Court in cases of manslaughter arising from the use of a knife: Azar (1991) 56 ACrim R 414, Taouk (unreported 20 March 1992), Sofokleous (unreported 13 December 1993), MacDonald (unreported 12 December 1995), Bollen (unreported 9 September 1997). It is unnecessary to analyse those cases in this judgment. It is sufficient to say that they are consistent with our view that the present sentence cannot stand. We have arrived at that view only after careful consideration, as we are mindful of the great experience of the learned sentencing judge. However, given the applicant’s youth and his Honour’s findings about the level of his culpability, quoted above, a sentence significantly lower in the range was appropriate.

15     We have observed that another complaint in the appeal is his Honour’s order that the applicant should serve his sentence in a detention centre until he turns twenty-one, even though the four year minimum term would not then have expired. It may be that his Honour made that order under a misapprehension that, when a person reaches that age, he or she can be detained only in an adult gaol. The decision of this Court in R v Karhani (unreported 14 October 1998) is testament to the fact that that misapprehension is both widespread and understandable. The power to make the order which his Honour did is to be found in s19 of the Children (Criminal Proceedings) Act 1986. The effect of that section is that a court, when dealing with a person who was under eighteen at the time of the offence and is under twenty-one at the time of sentence, may direct that the whole or any part of the sentence imposed be served in a detention centre. The section does not prevent such an order continuing to have effect after the person turns twenty-one.

Re-sentence

16     As we have said, for the purpose of re-sentence it is necessary to examine the new material upon which the applicant relies. That material discloses his experience of custody at Long Bay and Silverwater before he was sentenced, and in detention centres since that time.

17     It appears that he found incarceration at Long Bay terrifying. He feared sexual abuse and he alleges that on one occasion he was physically assaulted by prison officers. However, when he was moved to Silverwater he felt that he was treated fairly and he was given a part-time job as a sweeper. Unfortunately, the situation deteriorated after he was transferred to Kariong Juvenile Justice Centre in December 1998, when he was sentenced. He was at that institution during its notoriously turbulent period in March and April of this year, although it is not suggested that he took part in any of the violent or destructive behaviour which occurred at that time.

18     On 23 April 1999 the applicant was moved to the Juvenile Justice Centre at Mount Penang. There, he was involved in two violent incidents. In one of them he was acting honourably, attempting to protect one young man from being assaulted by others. He was seriously injured, requiring surgery for a fractured cheekbone. In the other he was the aggressor, assaulting another resident who was abusing him verbally. However, a report of the Department of Juvenile Justice described his behaviour as having been “compliant and cooperative” since that time. In a report of a departmental psychologist it is said that he is “a thoughtful, mature young man”, who is “not a management problem”.

19     Since being sentenced the applicant has set about furthering his eduction. Apart from basic tuition in English and mathematics, he has undertaken a number of specific courses, including visual arts. Reports speak very favourably of his application and progress. He would be able to undertake the School Certificate at Mount Penang next year, and would be eligible for Higher School Certificate candidature at that institution in 2001.

20     In one sense, it would be desirable for the applicant to remain in the custody of the Department of Juvenile Justice so as to complete his education. However, that is no reason to fix a minimum term which, having regard to ordinary sentencing principles and the circumstances of the case, would be excessive. It is to be hoped that, with his new found maturity and the support of his family, he would be able to achieve his educational goals while at liberty. In arriving at what we consider to be the appropriate sentence, we have had regard to all the material that was before his Honour, together with the new material before this Court evidencing the hardship he has experienced in custody since being sentenced, as well as the significant progress he has made. Clearly, as his Honour found, there are special circumstances warranting a departure from the usual proportion between minimum and additional terms.

21     Leave to appeal should be granted, the appeal allowed, and the sentence passed by his Honour quashed. We re-sentence the applicant to penal servitude for five and a half years, comprising a minimum term of two years and nine months, commencing on 14 May 1997 and expiring on 13 February 2000, and an additional term of two years and nine months. We direct that the whole of the custodial component of the sentence be served in a detention centre.

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