R v SSA

[2007] NSWSC 1202

CITATION:	Regina v SSA & Siose [2007] NSWSC 1202
HEARING DATE(S):	05/02/07-07/02/07, 09/02/07, 12/02/07-16/02/07, 19/02/07; 21/02/07; 26/02/07; 29/06/07
JUDGMENT DATE :	2 November 2007
JUDGMENT OF:	Hidden J at 1
DECISION:	The juvenile offender is sentenced to imprisonment for a non-parole period of thirteen years, commencing on 27 July 2005 and expiring on 26 July 2018, and a balance of term of five years, commencing on 27 July 2018 and expiring on 26 July 2023. I direct that he serve his sentence as a juvenile offender until he turns twenty-one years of age. ; John Phillip Siose is sentenced to imprisonment for a non-parole period of three years and nine months, commencing on 28 September 2005 and expiring on 27 June 2009, and a balance of term of three years, commencing on 28 June 2009 and expiring on 27 June 2012.
CATCHWORDS:	CRIMINAL LAW: - Sentence - stabbing - young offenders - one found guilty of murder at trial - other pleaded guilty to manslaughter
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 s21A Children (Criminal Proceedings) Act 1987 s19(3)(a)
CASES CITED:	R v E & B (2006) 164 A Crim R 208 R v Hearne (2001) 124 A Crim R 451
PARTIES:	Regina (Crown) SSA (young offender) John Phillip Siose (offender)
FILE NUMBER(S):	SC 2006/00003137 (2006/1112); 2006/00003136 (2006/1111)
COUNSEL:	T Baily (Crown) D Yehia (young offender) P Young SC (offender)
SOLICITORS:	Director of Public Prosecutions (Crown) Heenan & Co (young offender) Nikola Velcic & Associates (offender)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL DIVISION

HIDDEN J

2 November 2007

2006/00003137 (formerly 2006/1112) & 2006/0000313 (formerly 2006/1111)

Regina v SSA & Regina v John Phillip Siose

REMARKS ON SENTENCE

1 HIS HONOUR: These two young men stand for sentence for the killing of Dong Jun Kim, himself a young man, at an amusement parlour in Parramatta in the afternoon of 27 July 2005. One of them was under the age of eighteen at the time and, rather than using his name, I shall refer to him as the juvenile offender. He was found guilty of the murder of Mr Kim after a trial. The other offender, John Phillip Siose, was also charged with murder. He pleaded guilty to manslaughter, and that plea was accepted by the Crown in discharge of the indictment against him.

Facts

2 The deceased was playing an amusement machine at the parlour in the afternoon in question when the two offenders arrived. Both of them were carrying knives. It seems that they thought it was necessary to do so for their own protection because they were afraid of some men who frequented the area, and it is not suggested that they were carrying them for any aggressive purpose. Nevertheless, the foolishness of their being armed in that way is demonstrated by the tragedy which ensued.

3 The offenders did not know the deceased. They were watching him playing a machine when there was an altercation, in the course of which the juvenile offender stabbed him fatally. How that altercation began is far from clear. The only explanation for it is to be found in Mr Siose’s recorded interview with the police. The juvenile offender declined to be interviewed and did not give evidence at his trial. However, relevant parts of Mr Siose’s interview were admitted in evidence against him.

4 Mr Siose said that on several occasions the deceased turned to look at them and said, “What?” It seems that the offenders interpreted this as a gesture of aggression. They both presented their knives, and they said to the deceased words to the effect of, “Have you got a problem?” This led to a fist fight between the deceased and Mr Siose which, according to Mr Siose, the deceased initiated and in which the deceased was getting the better of him. Eyewitness evidence at the juvenile offender’s trial does not disclose who started the fight. Certainly, eyewitnesses saw the two men exchanging blows, but their evidence does not give unqualified support to the proposition that the deceased was getting the upper hand. Indeed, some of the evidence was to the contrary. There was also eyewitness evidence that the deceased struck the juvenile offender, and that he struck the deceased with a plastic chair.

5 I find it unnecessary to resolve the conflicts in the evidence about the fight. I accept that, when the offenders presented their knives, they intended only to scare the deceased. It may be that it was he who threw the first punch but, in my view, little turns on this. It is clear that it was a brief incident. What is important is that, in the course of it, the juvenile offender stabbed the deceased once to the chest, penetrating the left lung and the heart. Among the matters raised at his trial was whether he was acting in self-defence or in defence of Mr Siose, and those issues were left to the jury as a possible basis for outright acquittal or for the alternative verdict of manslaughter. Clearly, the jury resolved those issues against him on both bases.

6 Equally clearly, the stabbing was a spontaneous act of aggression in the heat of the moment. Nevertheless, the jury must have been satisfied that the juvenile offender had the intention to kill the deceased or to inflict grievous bodily harm upon him. For the purpose of sentence, the Crown prosecutor submitted that I should be satisfied of the intent to kill, given the position and obvious force of the wound. However, the spontaneity of the killing is such that I am not satisfied beyond reasonable doubt of that intent. He will be sentenced upon the basis that he intended to inflict grievous bodily harm.

7 As to Mr Siose, it was agreed between the parties that he was to be sentenced for manslaughter on the basis that he and the juvenile offender assaulted the deceased by displaying their knives, intending to instil fear in him. (Merely to display a knife with that intention is sufficient in law to amount to an assault.) Knowing that the juvenile offender was armed with a knife, Mr Siose contemplated that he might do an unlawful and dangerous act exposing the deceased to an appreciable risk of serious injury, yet he failed to withdraw from the assault.

Victim impact statement

8 I received a victim impact statement by the parents of the deceased, which was read at the sentence proceedings by a family friend. The family came to this country from Korea when the deceased was just ten years old. His parents worked hard to provide him with the opportunity of a happy and fulfilled life. As one would expect, his violent, senseless and untimely death has devastated them. The statement expresses eloquently their grief and their loss.

9 I have regard to that statement in accordance with well-established principle. I express my deepest sympathy to them, as I did when the statement was read.

Subjective cases

SSA

10 The juvenile offender was seventeen years old at the time of the offence and is now twenty. He was arrested towards midnight on the day of the offence, 27 July 2005, and has been in custody since. He has a brief history of prior offences, dealt with in the Children’s Court, including an entry for being in custody of a knife in a public place. The record is consistent with his background, to which I shall turn in a moment, but it is not significant for the purpose of sentence.

11 That background is sketched in a comprehensive Juvenile Justice report, a psychological report, and a moving and enlightening statement by one of his sisters. He was born in the Philippines, and his family migrated to this country when he was an infant. He has two older sisters and a younger stepbrother. His parents divorced when he was three years old, and his background thereafter was considerably disturbed. There is no need to recite the circumstances, which are to be found in the material to which I have referred. He had been close to his maternal grandmother, and it seems that she had provided a measure of stability in his otherwise troubled upbringing. Sadly, she died in 2004.

12 His situation was complicated by the fact that he suffers from a condition called hypopituitarism, a hormone deficiency which has impeded his growth. The condition was diagnosed when he was four years old, and he has been treated for it over the years, but he remains of unusually short stature. It seems that this led to his being bullied at school. For that reason, and others associated with his upbringing, his educational progress was not satisfactory. There were disciplinary problems and absenteeism, and he left school in the course of year 9.

13 As his sister put it in her statement, he “preferred to surround himself with older and bigger peers” and “had a tendency to be easily influenced”. Mr Siose, whom he had known from high school, appears to have been his closest friend. He told the Juvenile Justice officer who prepared the report that he was “like a brother to him”. From the age of about fourteen he became involved in gangs of youths. As one might expect, he made enemies in that milieu which, no doubt, was an environment conducive to the carrying of knives for personal protection.

14 As one might also expect, that association led him to the use of illicit drugs. He started by using marijuana, and then progressed to methamphetamine and heroin. Through prior contact with the Department of Juvenile Justice, he had made a number of attempts to address his drug abuse, but without success. He admitted having used marijuana and heroin on the day of the offence, although it is not suggested that that had any bearing upon his culpability. After leaving school he had a number of unskilled jobs, but his employment came to be compromised by his escalating drug use.

15 Despite this rather bleak history, a number of members of his family assured Juvenile Justice officers that they had never known him to be violent or aggressive. In her statement his sister made it clear that she recognises the enormity of his crime and the “overwhelming” grief he has caused to the family of the deceased. Nevertheless, since his arrest she and the rest of the family have rallied to his support, and it is clear that he will continue to enjoy that support in the long term.

16 Much has changed during the period of over two years that he has been in custody. To the various officers who have dealt with him he has been respectful and compliant. He has participated in sport and increased his fitness. More significantly, he has furthered his education. He has completed year 10, and is currently studying year 11 subjects with a view to undertaking the Higher School Certificate. The principal of the school within the juvenile correctional centre at which he is being held has attested that his behaviour in class has been commendable and that he “presents as a steady, independent worker”. He has also completed a number of TAFE courses. All this has been achieved notwithstanding his assessment by Dr Lennings, who provided the psychological report, as having “low average to average cognitive abilities”.

17 Also significantly, he has undergone drug and alcohol counselling and has expressed a determination never to “touch hard drugs again”. The author of the Juvenile Justice report recommended, nevertheless, that he “participate in offence focused counselling to address drug and alcohol issues and relapse prevention, anger management and peer refusal skills”.

18 Since being found guilty of murder, he appears to have accepted responsibility for his actions. He expressed remorse to his sister and to an aunt, who also provided a statement. To the author of the Juvenile Justice report he said that he took full responsibility for what had happened, and that he knew that he had taken the life of a man who “had a good life and a good family”. He added, “This is going to stick with me for the rest of my life”.

Siose

19 Mr Siose is only a few months older than the juvenile offender. He was eighteen at the time of the offence, and he also is now twenty. Like the juvenile offender, he has a brief criminal history which brought him to the attention of the Department of Juvenile Justice, but it is of no present significance. He was arrested with the juvenile offender late on 27 July 2005, and has been in custody since. However, he was later sentenced to two months imprisonment, commencing on 28 July 2005, for an offence of dishonesty which he had committed in March of that year. For that reason, the sentence I pass will commence on 28 September 2005.

20 His background is to be found in a psychological report. He also was born in the Philippines. He came to this country, with his parents and his younger sister, when he was about seven years old. Like the juvenile offender, his schooling was characterised by disciplinary problems and truancy, and he left in year 9.

21 He confirmed an association with the young offender from his secondary school years. It seems that his poor response to schooling was the result of his mixing with “the wrong crowd”, as he put it to the psychologist, in the Parramatta area. These developments distressed his parents, who appear to have had high expectations of him. They moved to another area of Sydney, where it was hoped that he would sever his connection with his Parramatta associates and enjoy the positive influence of his extended family. He started the School Certificate at a regional TAFE but, after drifting back to his old companions, did not complete it.

22 He explained to the psychologist that he found it difficult to relate to his extended family, who were committed Christians and who tended to preach to him. He said that they made him feel like “the black sheep”, and he felt comfortable with his peers in the Parramatta area, who were not religious and who accepted him for who he was. After personality testing, the psychologist recorded him to be submissive, having “a tendency to be passive in his interactions with others” and a “strong need for support and attention”.

23 This background provides some explanation for his choice of the environment in which he moved at the time of the offence. Fortunately, it did not lead to his abuse of alcohol or drugs to any significant extent. However, it was an environment which could be threatening. He told the psychologist, as he had earlier told the police, that he and the juvenile offender were carrying knives on the day in question because they had been “heavied” by some men who were “bashing Asian guys” and who had assaulted one of his friends.

24 He also has matured during his period in custody. He has pursued his education, reaching a standard equivalent to year 10. He has attended classes regularly and has been described by educational officers as “a very serious student”. He is in a position to commence studying for years 11 and 12. The psychologist assessed his general intelligence as average, and expressed the view that he could undertake vocational training “at a semi-skilled to skilled level”. He hopes eventually to find employment in the computer industry or, perhaps, as an electrical engineer.

25 He is now on good terms with his family, who visit him regularly and are supportive of him. His mother said in evidence that he had expressed to her his remorse for his crime and his determination to achieve a stable and responsible lifestyle. To that end, the psychologist had this to say at the conclusion of her report:

John still needs to establish his own identity, therefore to become somewhat more assertive, able to voice his opinions and attitudes without fearing disapproval or loss of love from the people he cares about. It is thought he would benefit from counselling while in custody to develop skills in communication and assertiveness and to establish goals for the future. Any further training, in computer skills, specific vocational skills and other work related programs would be of benefit to enable John to have a wider range of employment opportunities.

Sentencing

26 Although the juvenile offender does not have the benefit of a plea of guilty, I accept that he now has insight into the gravity of his crime and is remorseful. Mr Siose’s plea of guilty to manslaughter is an appropriate recognition of the measure of his criminal responsibility, and I accept that he also is remorseful. Both offenders appear to have good prospects of rehabilitation, but those prospects would be enhanced by an extended period at liberty in the community under supervision and subject to the continuing sanction of parole.

27 None of this is to deny the seriousness of their crime. Particularly is this so of the juvenile offender, who faces sentence for murder for which a standard non-parole period of twenty years imprisonment is prescribed. That non-parole period is appropriate for an offender who has been found guilty at trial of an offence in the middle of the range of objective seriousness. In that event, a sentencing court should set that non-parole period unless there are reasons for departing from it.

28 The prevalence of young people carrying knives, and the community’s abhorrence of it, hardly need to be emphasised. In the present case, two young men were in company, both armed with knives. The result was the death of another young man, caused by one tragically effective blow. However, the spontaneity of the juvenile offender’s attack and the surrounding circumstances as I have described them persuade me that his crime falls short of the mid-range of objective seriousness. In any event, his age and his subjective case would provide ample reason to depart from the standard non-parole period. Nevertheless, it takes its place in the sentencing process as a reference point or guidepost.

29 The special considerations governing the sentencing of juvenile offenders are well known, and there is no call for extensive reference to the authorities dealing with them. In R v E & B (2006) 164 A Crim R 208, Kirby J referred to a useful extract from a psychological report which had been quoted in a judgment of the New Zealand Court of Appeal. His Honour set out the passage in his own judgment (at [127]):

It is widely accepted that adolescents do not possess either the same developmental level of cognitive or psychological maturity as adults … Adolescents have difficulty regulating their moods, impulses and behaviours … Immediate and concrete rewards, along with the reward of peer approval, weigh more heavily in their decisions and hence they are less likely than adults to think through the consequences of their actions. Adolescents’ decision-making capacities are immature and their autonomy constrained. Their ability to make good decisions is mitigated by stressful, unstructured settings and the influence of others. They are more vulnerable than adults to the influence of coercive circumstances such as provocation, duress and threat and are more likely to make riskier decisions when in groups. Adolescents’ desire for peer approval, and fear of rejection, affects their choices even without clear coercion … Also, because adolescents are more impulsive than adults, it may take less of a threat to provoke an aggressive response from an adolescent.

30 Consistently with that understanding, it is settled law that considerations of retribution and deterrence remain important in sentencing juveniles for serious crimes, but those considerations are tempered by recognition of the offender’s immaturity and by the need to foster his or her rehabilitation: see, for example, R v Hearne (2001) 124 A Crim R 451. I must approach the sentencing of the juvenile offender guided by those principles. They must also inform the sentencing of Mr Siose. As I have said, he was eighteen at the time of the offence but is only a few months older than his co-offender.

31 Such aggravating or mitigating factors under s21A of the Crimes (Sentencing Procedure) Act as are applicable are apparent from my reasons, and need not be recited. Clearly, the juvenile offender faces a much heavier sentence than Mr Siose, whose criminality is markedly less serious. I think it most unlikely that either of them would re-offend in this way. Nevertheless, general deterrence must be reflected in the sentences which I pass as this tragedy was the result of the fact, all too common, that they were armed with knives.

32 As I have said, it is in the interest of the community that both of them have the opportunity for an extended period of conditional liberty to foster their rehabilitation. For that reason, I find special circumstances warranting a departure from the statutory ratio between sentence and non-parole period. In the case of the juvenile offender, that departure can only be modest because, notwithstanding his youth, his sentence must be lengthy and the non-parole period I set must be sufficient to reflect considerations of retribution and deterrence. I have more flexibility in the case of Mr Siose, who faces a much lower sentence, although his non-parole period also must be sufficient to mark his criminality.

33 Counsel for the juvenile offender provided me with a table of cases, including one decision of the Court of Criminal Appeal, involving murder by a young person by the use of a knife. Some were decided before the introduction of standard non-parole periods, and some after it. Senior counsel for Mr Siose provided me with some cases of manslaughter in circumstances somewhat similar to the present case, also including a decision of the Court of Criminal Appeal. There is no need to set these cases out. Obviously, each of them turned on its own facts. However, in determining how these two offenders should be dealt with, I have had regard to such pattern as emerges from those cases, together with my own understanding of contemporary sentencing standards.

34 I have determined that the appropriate sentence for the juvenile offender is imprisonment for eighteen years with a non-parole period of thirteen years. In my view, it is desirable that he remain in Juvenile Justice detention for as long as possible to continue the progress he has made towards rehabilitation, particularly through his education. I also think that he would be vulnerable in an adult institution because of his youthful appearance and small stature. For those reasons, I am satisfied that there are special circumstances, within the meaning of s19(3)(a) of the Children (Criminal Proceedings) Act, justifying his continued detention as a juvenile offender until he turns twenty-one.

35 Mr Siose’s plea of guilty to manslaughter was entered at a late stage of the proceedings, although before his separate trial was due to commence. It was accepted by the Crown following representations made on his behalf to the Director of Public Prosecutions. He is entitled to a discount of sentence for the utilitarian value of that plea, which I would assess at fifteen percent. But for the plea, I would have imposed a sentence of imprisonment for eight years. The discount produces, in round figures, a term of six years and nine months. I would set a non-parole period of three years and nine months.

36 Accordingly, the formal orders I make are these:

The juvenile offender is sentenced to imprisonment for a non-parole period of thirteen years, commencing on 27 July 2005 and expiring on 26 July 2018, and a balance of term of five years, commencing on 27 July 2018 and expiring on 26 July 2023. I direct that he serve his sentence as a juvenile offender until he turns twenty-one years of age.
John Phillip Siose is sentenced to imprisonment for a non-parole period of three years and nine months, commencing on 28 September 2005 and expiring on 27 June 2009, and a balance of term of three years, commencing on 28 June 2009 and expiring on 27 June 2012.


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