R v TM

[1999] NSWSC 504

CITATION:	R v TM [1999] NSWSC 504
CURRENT JURISDICTION:	Common Law Division
FILE NUMBER(S):	70023 of 1998
HEARING DATE(S):	19/04/99, 20/04/99, 20/05/99
JUDGMENT DATE:	28 May 1999
PARTIES :	Regina TM
JUDGMENT OF:	Hidden J at 1

COUNSEL :	C Davenport (Crown) D B Wetmore (TM)
SOLICITORS:	DPP (Crown) Hovan & Co (TM)
CATCHWORDS:	Sentencing - juvenile offender - plea of guilty to manslaughter - knifing during street attack
ACTS CITED:	Sentencing Act
CASES CITED:	R v Previtera (1997) 94 A Crim R 76 R v GDP (1991) 53 A Crim R 112
DECISION:	Sentenced to 3 years MT, 2 years AT

THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

HIDDEN J
Friday 28 May 1999

No: 70023/98
Regina v TM

Remarks on Sentence

1 The prisoner was indicted for the murder of Shane Peter Greenacre at Villawood on 19 February 1997. He pleaded not guilty but guilty of manslaughter, and the Crown prosecutor accepted that plea in satisfaction of the indictment. The plea was entered on the basis that the prisoner had caused the death of Mr Greenacre by an unlawful and dangerous act.
2 The circumstances of the offence are most distressing. On the evening in question the prisoner, who was then seventeen years old, was in the company of a number of young companions, both male and female. He and a young woman walked to a hotel to buy cigarettes. Outside the hotel the young woman became involved in an argument about nothing of any consequence with another woman, Tricia Guth, who was unknown to her. The prisoner and the young woman rejoined their companions and the group decided to return to the hotel to confront Ms Guth.
3 On the way some members of the group armed themselves with empty beer bottles found outside a house. The prisoner was not one of them, but he had a knife which he normally carried for protection. As they approached the hotel, Ms Guth was leaving it in company with the deceased, whom she had met only that night. A verbal altercation occurred near the hotel. Ms Guth ran off and was pursued by three of the prisoner’s female companions, who caught up to her and assaulted her.
4 At the same time, the deceased ran across the road and was chased by the other members of the group, including the prisoner. Beer bottles were thrown at him, some of which struck him on the back. On the other side of the road he tripped and fell. He was kicked to the head and body but, on the material before me, I am not satisfied that the prisoner took part in that activity. It was in the course of this assault that he was stabbed three times in the right thigh. One of those stab wounds severed his femoral artery, leading to his death.
5 When first spoken to by police, the prisoner denied any knowledge of the incident. About a month later, when spoken to again, he admitted having been present during the assault but denied that he had stabbed the deceased or that he had seen anyone else do so. Finally, in an electronically recorded interview on 27 June 1997, he admitted responsibility for the stabbing, although I suspect that his account of the surrounding circumstances was still expurgated to some extent.
6 The prisoner said that he saw blood on his knife but had no recollection of having stabbed the deceased. This may be true, as it is not uncommon for people to have an impaired memory of a sudden and frightening event. Particularly is this so when, in the course of that event, they have committed a serious and uncharacteristic act of violence.
7 There is evidence to suggest that more than one knife was used. The forensic pathologist who conducted the post-mortem examination considered that the fatal wound was inflicted by a different knife from that which caused the other two wounds. As I have said, in the electronically recorded interview the prisoner accepted responsibility for the stabbing and did not suggest that anyone else had also used a knife. If someone else had been involved, one can only speculate as to why the prisoner adopted the position he did, a position from which he did not depart in the proceedings before me. It could be the result of impaired memory or, of course, a desire not to implicate one of his companions.
8 However that may be, by his plea of guilty to manslaughter the prisoner has formally admitted involvement in the killing, whether or not he himself inflicted the fatal wound. Of course, he does not stand for sentence on the basis that he intended to kill the deceased or to cause him serious bodily injury. The crime is that the death of the deceased was brought about by an unlawful act which, viewed objectively, carried with it an appreciable risk of serious injury. This is not to deny the seriousness of the prisoner’s conduct. It was an exhibition of mindless violence perpetrated upon a man who had done absolutely nothing to provoke it. Too often does this Court have to deal with cases such as this: spontaneous, senseless killings by young men armed with knives which they claim to carry for their own protection.
9 One of the prisoner’s companions was also charged with the murder of the deceased and has yet to face committal proceedings. The others appeared in Children’s Courts on charges of common assault or affray, and were dealt with by way of recognisance or Community Service Order. It is not suggested that any question of parity of sentence arises.
10 I received in evidence a victim impact statement by the family of the deceased. It speaks movingly of the effect upon his extended family of their tragic loss and, in particular, expresses the feelings of his parents and his three sisters. It is eloquent testimony to the serious and enduring effects of the premature and violent death of a loved one. To all of those people the Court expresses its deepest sympathy. However, it would not be appropriate to have regard to that statement in determining the sentence which should be passed, for the reasons expressed by Hunt CJ at CL in R v Previtera (1997) 94 A Crim R 76. His Honour’s approach in that case has been consistently adopted by the judges of this Court when passing sentence in homicide cases.
11 The prisoner is now nineteen years old. He has one entry on his criminal record, a matter which was dealt with in a Children’s Court and which is of no present significance. I have the benefit of a background report by Mr Ken Bourke of the Department of Juvenile Justice. I have also heard evidence from Ms Dianne Langham, the Chaplain at the Kariong Juvenile Justice Centre, where the prisoner has been detained, from the prisoner himself, and from his parents and his brother.
12 From this material it appears the prisoner has had, and continues to have, the benefit of a caring, responsible and supportive family. Nevertheless, he appears to have lost direction in his life some months prior to this offence, taking to drugs and alcohol and keeping undesirable associates. It was in this context that the crime was committed. It is now clear that his arrest and incarceration have chastened him and his lengthy period in custody has matured him significantly.
13 These have been the observations of his family, who have maintained regular contact with him whilst in custody, and of the officers of the Department of Juvenile Justice responsible for his management. His education had progressed to the stage of Year 11 at the time of his arrest. While in custody he has undertaken a number of courses, one of them in carpentry and joinery, for which he has shown a particular aptitude. He has also devoted himself to sporting activities, working towards the Duke of Edinburgh Award. To his credit, he took no part in the recent disturbances at Kariong. The background report describes his behaviour and attitude whilst in custody as “co-operative, responsible and mature”, and assess him as “a young man committed to establishing himself as a positive member of the community”.
14 Part of his maturation has been the development of an insight into the enormity of his crime. He had expressed his remorse to his family, to Mr Bourke and Ms Langham, and he did so again in evidence before me. I accept it as genuine. Upon his release, he has the support of his family and good prospects of employment. There is every reason to be confident of his rehabilitation. Nevertheless, as he is a young man who has yet to prove himself outside a custodial setting, I believe the community would be served by his being subject to supervision and the sanction of parole for an extended period. Accordingly, I find special circumstances within the meaning of s5(2) of the Sentencing Act.
15 The sentencing of a young man with good prospects of rehabilitation for a serious crime is one of the most difficult tasks a judge has to undertake. A balance must be struck between the community’s interest in a sentence which reflects the gravity of the crime, on the one hand and the rehabilitation of a young offender, on the other. The matter has been the subject of a number of authoritative statements in superior courts, which it is unnecessary to repeat. Some of them are to be found in the judgment of Mathews J in R v GDP (1991) 53 A Crim R 112 at 116. The sentence I propose is the best I can do to strike that balance. It will commence on the date the prisoner was taken into custody, 16 April 1997.
16 TM (named), you are sentenced to penal servitude for five years, comprising a minimum term of 3 years to commence on 16 April 1997 and to expire on 15 April 2000, and an additional term of 2 years to commence on 16 April 2000 and to expire on 15 April 2002. I direct that the remainder of your sentence be served in a Juvenile Justice Centre.

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Last Modified: 06/07/1999