R v Steven Katic

[2008] NSWSC 1330

CITATION:	R v Steven KATIC [2008] NSWSC 1330 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	14/11/08
JUDGMENT DATE :	12 December 2008
JUDGMENT OF:	Hidden J
DECISION:	Aggravated armed robbery: FT 4 years from 26/02/07 Manslaughter: 9 years, NPP 5 1/2 years, from 26/02/09
CATCHWORDS:	CRIMINAL LAW - sentence - manslaughter by excessive self-defence - associated aggravated armed robbery
LEGISLATION CITED:	Crimes Act 1900
CATEGORY:	Principal judgment
CASES CITED:	R v Henry [1999] NSWCCA 111, 46 NSWLR 346 R v Forbes [2005] NSWCCA 377, 160 A Crim R 1
PARTIES:	Regina Steven Momir Katic
FILE NUMBER(S):	SC 2008/7271
COUNSEL:	M Hobart SC (Crown) P Cattini (Defendant)
SOLICITORS:	T Lopis (DPP) H Shaw (LAC)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HIDDEN J

12 December 2008

2008/7271

Regina v Steven Momir KATIC

REMARKS ON SENTENCE

1 HIDDEN J: The offender, Steven Momir Katic, is to be sentenced for offences arising out of a tragic incident at Glenfield in the afternoon of 20 February 2007. He held up a newsagency, carrying an air rifle, obtained money and ran from the shop. The proprietor pursued him and, in circumstances which I shall describe shortly, he struck the proprietor in the head with a fence paling, causing his death.

2 The offender was indicted before me for murder and for robbery whilst armed with a dangerous weapon, that being an offence under s97(2) of the Crimes Act which carries a maximum sentence of 25 years imprisonment. He pleaded not guilty to the murder but guilty to the aggravated armed robbery. His trial for murder proceeded, but the jury found him guilty of manslaughter. He stands for sentence, then, for manslaughter and the robbery.

Facts

3 The offender lived in rented premises not far from the newsagency. In the afternoon in question, he went to the newsagency with an accomplice. He was carrying an air rifle, which was unloaded. He went into the shop, wearing a mask, while the accomplice remained outside as the lookout. He pointed the rifle at the proprietor, Mr Chinh Nguyen, and demanded money. It seems that, despite the mask, Mr Nguyen recognised him as a customer of the newsagency. Mr Nguyen handed over notes amounting to a little under $200, and the offender ran from the shop. All this was witnessed by Mr Nguyen’s mother, Ms Susan Huynh, who had been in a back room of the newsagency.

4 Unfortunately, Mr Nguyen, who must have been a man of no little courage and who could not have known whether the air rifle was loaded or not, pursued the offender. What then occurred was the subject of a good deal of evidence at the trial, but I can state my findings for the purpose of sentence fairly briefly.

5 The newsagency was on Railway Parade, Glenfield. The pursuit took the two men into a side street, leading to Waterloo Place. There Mr Nguyen caught up with the offender, there was a struggle, the offender discarded the money and Mr Nguyen wrested the air rifle from him. Waterloo Place is a cul-de-sac, with a pedestrian laneway leading back to Railway Parade. The offender ran into that laneway and Mr Nguyen pursued him, holding the rifle. To one side of the laneway there is a paling fence, and about half way down the laneway there is what could be described as a metal barrier. At that point the offender picked up a loose paling from the ground and struck Mr Nguyen forcibly to the head.

6 The offender ran into Railway Parade and made good his escape. Mr Nguyen, despite being seriously injured, managed to make his way back to the newsagency, where his mother was. He was clearly in a bad way and was unable to speak. An ambulance was summoned and he was taken to Liverpool Hospital. Treatment over a period of days was unable to save him, and he died in the early hours of 27 February 2007. A post-mortem examination confirmed that his skull had been fractured and that he had died of severe brain injury.

7 The count of murder had been left to the jury on two bases: what is still loosely termed felony murder, or an act causing death accompanied by an intent to kill or to inflict really serious bodily injury. As to felony murder, there was an issue whether the killing occurred “immediately after” the robbery for the purposes of s18 of the Crimes Act. As to murder based on intent, the alternative of manslaughter by unlawful and dangerous act was left to the jury. However, in both bases of murder self-defence was an important issue and the jury was directed about the possibility of manslaughter by excessive self-defence.

8 Whatever might have been the reasoning of the members of the jury, it is a matter for me to determine the basis of manslaughter for the purpose of sentence. Counsel for the offender, Mr Cattini, did not urge one basis over the other. However, consistently with the stance of the Crown prosecutor, I am satisfied that it is excessive self-defence. I do not think that the offender intended to kill Mr Nguyen and, indeed, it was never the Crown case that he did. He stands for sentence on the basis that he struck Mr Nguyen, intending to cause him really serious bodily injury. He did so because he feared that Mr Nguyen was going to attack him but, in the circumstances, to have struck Mr Nguyen in the way he did was not a reasonable response to the threat which he believed he faced.

9 His case at the trial was that Mr Nguyen had in fact struck him with the rifle, causing him injury. That was also his account to a psychologist, who prepared a report for the purpose of sentence. However, this finds no support in the eyewitness evidence at the trial, it was not pressed by Mr Cattini in submissions on sentence, and I do not accept it. That is not to say that his account is a deliberate fabrication. What I do accept is that he had been drinking spirits in the morning in question and had later taken a number of serapax tablets, and it is possible that the combination of those substances clouded his perception of events at the critical time.

Victim impact statements

10 Ms Jan Fuller, of the Homicide Victims Support Group, read to the court victim impact statements by the deceased’s mother, his wife, and his children. They are eloquent testimony to their grief and to the enduring effects of this tragedy upon their lives. The statement of his mother is particularly moving. It traces her family’s struggle to escape from their native Vietnam during the period of unrest after the country came under Communist rule, and records the death of her daughter at sea during that process. It also expresses her pride in the achievements of her son, the deceased, after settling in this country. I conveyed my sympathy to Ms Huynh and to the deceased’s wife and children after those statements were read, and I do so again now.

Subjective case

11 The offender was 29 years old at the time of the offences and is now 31. He has a brief criminal history, of no significance for present purposes. It includes an entry for violence, but that was dealt with many years ago by a non-custodial order in the Children’s Court. He has been in custody in respect of the present matters since 26 February 2007.

12 I have the benefit of a comprehensive and insightful report by Ms Kathryn Wakely, psychologist. It discloses the offender’s troubled background, particularly in his teenage years and early adulthood. He is a member of a large family, but his six siblings are considerably older than him and were the product of an earlier relationship of his mother’s. When he was ten years old, his father separated from his mother. He returned to the family home regularly, but to the offender he remained a remote figure.

13 The offender was close to his mother and described his childhood with her as “great.” Sadly, she died of cancer when he was sixteen. Thereafter, he lived on and off with each of his siblings, but he found this difficult. He felt different from them because they did not share the same father. Also, they were significantly older and had families of their own to care for. At times, he lived on his own or with friends.

14 His education did not progress beyond year eight, and he was poorly disciplined during high school. He tried a number of TAFE courses but did not complete any of them. He had some employment after leaving school, but at the time of his arrest for the current offences he had not worked for five years.

15 Against this background, it is perhaps not surprising that he abused alcohol and drugs. This began with alcohol and cannabis when he was only eleven, but from the age of sixteen he became a daily user of heroin and, subsequently, amphetamine. He also took prescription medication, such as serapax and rohypnol. For some years prior to his arrest he was on methadone, and that program has continued since he has been in custody.

16 He found a measure of stability through a long term relationship with a woman, and for four years prior to his arrest they had lived together at Glenfield. To Ms Wakely he described this as “the most stable time since mum died”. However, she terminated the relationship upon his arrest and they have had no contact since.

17 There have been some positive developments during his time in prison. He has regained contact with his father, who has visited him, and he feels that they are now closer than they ever have been. For the past twelve months or so, he has been working five days a week in the cabinet shop. He has undertaken a number of courses and has obtained certificates of achievement in various endeavours, such as alcohol and drug awareness and skills for work and training.

18 To Ms Wakely he displayed an awareness of the difficulties which he would face in "getting his life back on track” upon his eventual release, but he appeared motivated to do so. She recorded him as saying:

When I’m out it’s going to be different. I found myself in here, I know who I am, I’m not on drugs, I’ve been going to church every day here, I want to keep doing that and be a good person. I haven’t felt this healthy and alive since I was a teenager, I’m getting back to who I used to be, it shouldn’t have taken this but it has.

19 Predictably enough, Ms Wakely’s psychological testing revealed aspects of his personality and his pre-custodial lifestyle requiring treatment. She concluded that he requires a period of psychotherapy and “admission to a structured, long-term residential rehabilitation unit to help him overcome his substance dependence and develop relapse prevention skills for when he is released”. She questioned whether the treatment he needs would be available to him while in custody and added that, upon his release, he would require “close and consistent monitoring by the Probation and Parole Service”.

20 I am satisfied that he is remorseful for these crimes, particularly the manslaughter. He expressed it in no uncertain terms to Ms Wakely, commenting upon Ms Huynh’s distress when giving evidence at the trial, and saying that he thought about what he had done every day and felt bad about it every day. He did not give evidence in the sentence proceedings, but there is confirmation of the genuineness of those expressions. Evidence was led in the trial of a conversation between him and his accomplice in the robbery in a police cell, which was intercepted by a listening device. Clearly, what he said on that occasion was unguarded. Among other things, he said, “I feel real bad for his family. …I am sorry I killed a man. It’s the worst thing I’ve have ever done. …It’s only my fault.” Moreover, I observed him to be obviously distressed in court when the victim impact statements were read.

Sentencing

21 None of this is to deny the gravity of the criminality for which he stands for sentence. Manslaughter in its many and varied forms is always a serious crime, involving the unlawful killing of a human being. The circumstances of the present offence are, or course, both distressing and reprehensible. While it must be accepted that the offender believed that he had to act in self-defence, the situation in which he found himself was of his own making.

22 Aggravated armed robbery is also inherently serious. The offender gains little comfort from the fact that the weapon involved was an air rifle, which was unloaded, and the proceeds of the robbery were relatively modest. The offence was committed in the company of his accomplice and it was the subject of a measure of planning, albeit by no means sophisticated. In sentencing for it, it is appropriate that I have regard to the guideline in R v Henry [1999] NSWCCA 111, 46 NSWLR 346, bearing in mind that that case was concerned with armed robbery in its unaggravated form.

23 I must have regard to his background, including his lack of any significant criminal history. I think that he has reasonable prospects of rehabilitation, but it is important that they be fostered by a lengthy period of parole eligibility. It is in the community’s interest that he serve a significant part of his sentence at liberty, under supervision and the sanction of parole. Accordingly, I find special circumstances justifying a departure from the statutory proportion between sentence and non-parole period.

24 He is entitled to a reduction of sentence for the aggravated armed robbery in recognition of the utilitarian value of his plea of guilty. That plea was entered at the outset of the trial, but I understand that it had always been his intention to plead guilty and that this was known to the Crown well before the trial. As to the manslaughter, there should be a modest reduction of sentence because he had offered to plead guilty to that offence a few weeks before the trial, an offer which the Crown did not accept: cf R v Forbes [2005] NSWCCA 377, 160 A Crim R 1, per Spigelman CJ at [121].

25 It is necessary to determine the appropriate sentence for each offence, but to structure them in such a way as to give effect to the principle of totality. I agree with the Crown prosecutor that this would best be achieved by imposing a fixed term for the robbery, reflecting what the non-parole period for that offence might have been, and then passing a partly cumulative sentence for the manslaughter.

26 But for the offender’s plea of guilty, I would have imposed a fixed term of 5 years for the robbery. In the light of his plea, I shall reduce that to 4 years. The manslaughter calls for a sentence of 10 years, which I would reduce to 9 years because of his offer to plead guilty to that offence. That sentence will commence 2 years after the commencement of the sentence for the robbery. That measure of accumulation is an additional reason for finding special circumstances, and I shall fix a non-parole period of 5½ years. The overall sentence, then, will be imprisonment for 11 years, commencing on 26 February 2007 and expiring on 25 February 2018, with the offender becoming eligible for release on parole after 7½ years, that is, on 25 August 2014.

27 Steven Momir Katic, you are sentenced as follows:

· For the aggravated armed robbery, imprisonment for a fixed term of 4 years, commencing on 26 February 2007 and expiring on 25 February 2011. I decline to set a non-parole period for that offence because of the sentence I am about to pass.

· For the manslaughter of Chinh Nguyen, imprisonment for a non-parole period of 5½ years, commencing on 26 February 2009 and expiring on 25 August 2014, and a balance of term of 3½ years, commencing on 26 August 2014 and expiring on 25 February 2018.

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12/12/2008 - date added to body of judgment - Paragraph(s) o