R v TT

[2009] NSWSC 437

CITATION:	R v TT; ET; RT [2009] NSWSC 437
HEARING DATE(S):	30.1.09; 6.2.09; 20.2.09; 1.5.09; 8.5.09
JUDGMENT DATE :	20 May 2009
JUDGMENT OF:	Latham J
DECISION:	TT - Convicted of the Manslaughter of Sione Matevesi. Sentenced to non parole period of 3 years 3 months to date from 6 January 2007 expiring 5 April 2010 with a balance of term of 3 years expiring 5 April 2013. Eligible for release to parole 6 April 2010 ET - Convicted of the Manslaughter of Sione Matavesi. Sentenced to non parole period of 3 years to date from 9 January 2007 expiring 8 January 2010 with a balance of term of 3 years expiring 8 January 2013. Eligible for release to parole 9 January 2010 RT - Convicted of the Manslaughter of Sione Matavesi. Sentenced to non parole period of 3 yrs 6 mths to date from 9 January 2007 expiring 8 July 2010 with a balance of term of 3 years expiring 8 July 2013. Eligible for release to parole 9 July 2010. Sentence to be served as a juvenile offender.
CATCHWORDS:	CRIMINAL LAW - Sentence - Manslaughter - Excessive self defence - Participation in affray in the knowledge that serious physical injury could occur - use of weapons as aggravating feature - plea of guilty in the week fixed for trial - a degree of provocation from victim - strong subjective circumstances.
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 Children (Criminal Proceedings) Act 1987
CATEGORY:	Sentence
CASES CITED:	R v Borkowski [2009] NSWCCA 102
PARTIES:	Regina (Crown) TT (First offender) ET (Second offender) RT (Third offender)
FILE NUMBER(S):	SC 9992/2008
COUNSEL:	B Hughes (Crown) A Lucas (TT) R Jankowski (ET) F Coyne (RT)
SOLICITORS:	S Kavanagh Solicitor for Public Prosecutions (Crown) Ryan & Bosscher (TT) Ryan & Bosscher (ET O'Brien Lawyers (RT)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

LATHAM J

20 MAY 2009

9992/2008 R v T T
R v E T
R v R T

SENTENCE

1 HER HONOUR : These three offenders (all brothers) each stand to be sentenced for the offence of Manslaughter, arising out of the death of Sione Matavesi (the victim) on 6 January 2007. As the following facts disclose, the youngest of the offenders, RT, was directly responsible for inflicting a fatal knife wound to the victim, in defence of his older brothers to an excessive degree. TT and ET are liable for the victim’s death on the basis that they participated in an affray in the knowledge that serious physical injury could result.

2 Before passing to a consideration of the objective criminality of each of the offenders, some general observations are necessary to place the actions of each of the offenders and the victim in their proper context. Emotions were high in both “camps” on the night of the offence, although for different reasons. Two of the offenders, TT and RT, were returning to their home with two friends via North Liverpool Road on the anniversary of the death of another brother, who had been struck by a car on that same road. Mr Matavesi was visiting friends at 28 North Liverpool Rd at the time. He had been consuming large amounts of alcohol and methamphetamine that night in the company of other young males. The two groups came into conflict in the street, where the victim and his associates, who initiated the fight, gained the upper hand and chased the offenders from the scene to their home, about 300 metres away. Both TT and RT were punched by Mr Matavesi. TT was struck in the head with a bottle by a member of Mr Matavesi’s group.

3 Had the skirmish ended there, the offenders’ parents would have their three remaining sons at home, the offenders would be living productive lives within a loving and supportive environment, and Sione Matavesi would know the youngest of his three daughters, born after his death. Instead, in a show of senseless bravado, TT and RT woke ET from his sleep and all three returned to confront Mr Matavesi and his friends. TT and ET had armed themselves with a knife and a sword. These weapons were visible to Mr Matavesi and his friends as the offenders approached, and, in response, the victim’s group also took up swords and knives. Mr Matavesi struck first at ET with a sword, and a general melee broke out. The result was the loss of a young man’s life, a young man who had family of his own, and the loss of the offenders’ liberty.

4 This is yet another occasion for the Court to comment on the abhorrence with which the law regards the use or threatened use of knives and similar weapons, particularly in public, in order to settle a dispute between parties. The resort to weapons during the commission of offences has always been regarded by the courts as an aggravating feature, and for good reason. That long-standing policy is now recognised in s 21A(2)(c) of the Crimes (Sentencing Procedure) Act 1999.

5 Notwithstanding the submissions of counsel for ET to the contrary, all three offenders fall within the terms of s 21A(2)(c). The provision speaks in terms of the offence involving the actual or threatened use of a weapon. Even accepting the assertions by ET that he armed himself with a samurai sword (described by the Crown as “conspicuous”) in order to protect himself and his brothers, and that he went to the North Liverpool Rd premises “to hear from them what their excuse was” (Exhibit 4), it cannot be doubted that his actions were interpreted, not surprisingly, by Mr Matavesi as hostile. Thus, despite telling Mr Matavesi that he only wanted to talk, ET was very soon thereafter engaged in a sword fight with Mr Matavesi, during which ET suffered a head wound. This was the beginning of the affray, which underlies ET’s plea to the offence. In that sense, the offence involved the actual use of a weapon by ET, albeit for a short period of time.

6 TT also attempted to use the knife he had brought with him, against Mr Matavesi, but was struck to the head with a blunt instrument and dropped the knife. It was that knife which RT retrieved from the ground and used to stab Mr Matavesi. Both of these offenders used the same weapon in the course of the offence.

7 The objective criminality of ET and TT are indistinguishable, save that TT was subject to a two-year good behaviour bond for a minor property offence. RT’s objective criminality must be greater, given that he was directly responsible for the wound that penetrated the upper left section of the victim’s back, passing between the fifth and sixth ribs into the lower lobe of the left lung, where the pulmonary blood vessels were cut. The blow with the knife was sufficiently forceful to break the handle from the blade. I accept that the actions of all three offenders were provoked by the victim’s aggressive behaviour, and that the victim could not be restrained, even by members of his own group. That factor tempers the objective criminality of each of the offenders and the objective gravity of the offence.

8 RT was seven months short of his 18th birthday at the time of the offence. The principles established by s 6 of the Children (Criminal Proceedings) Act 1987 have some limited relevance in his case, given his proximity to adulthood. Punishment and general deterrence are of only marginal lesser weight than in the respective case of his brothers in these circumstances.

9 Allowing for the broad range of circumstances that are capable of constituting the offence of Manslaughter, this offence occupies a position moderately below the middle of the range indicated by the maximum penalty of 25 years. General deterrence and punishment must find expression in the sentence, particularly because of the use of weapons in the context of violent public disorder. However, the subjective circumstances of each offender must also figure in the formulation of the sentence to be imposed in each case. ET and RT had no criminal history at the time of the offence, although RT had committed a break and enter offence before his arrest for this offence. Nothing in the offenders’ backgrounds indicate a propensity to violence ; on the contrary, the family espouses strong Christian values and is highly regarded in the community. This offence appears an aberration in that respect. Neither personal deterrence nor rehabilitation has a significant role to play in the sentencing exercise.

10 There are a number of subjective features which are common to each offender. The offenders’ father (step-father to TT and ET) is from Fiji and is employed as a warehouse worker. Their mother works in a hardware store and is of half Maori origin. Both parents are in good physical and mental health and enjoy a positive and supportive relationship with their three sons and two daughters. All three offenders completed their secondary schooling in Sydney and obtained employment immediately after leaving school. All three offenders claim to have been subjected to racial taunts whilst at school and coped by becoming protective of each other and socialising primarily within the family. They were all deeply affected by the tragic death of their brother Darryl in January 2006. All three offenders report some moderate consumption of alcohol and experimentation with cannabis. However none of the offenders appear to have any substance abuse issues. Alcohol and drugs were not factors in the commission of the offence, at least as far as the offenders were concerned. All three offenders have expressed deep remorse through their mother, and in the case of ET, in the course of evidence. I accept that they are unlikely to re-offend and that their rehabilitation is assured by the support of their family. None of them have served any custodial sentence.

11 I turn to the subjective case advanced on behalf of each offender.

12 TT was 20 years of age at the time of the offence. He sustained a fracture to the right frontal lobe of his skull as a result of the affray on the date of the offence. He spent a number of days in hospital under guard and upon discharge was charged with this offence. It appears that since the offender sustained this head injury, his memory has suffered and he reports severe headaches at least once per week. His current cognitive limitations suggest frontal lobe brain damage. Whilst in custody, this offender has been working for CSI industries as an electrical fitter. He is highly regarded by his former employer as a good worker and a loyal friend. He attends church each week and also Buddhist prayers every second week.

13 ET was 25 years of age at the time of the offence. As the eldest of the brothers he feels a significant sense of responsibility for the commission of the offence, having made the decision to return to the scene of the earlier conflict. ET's natural father went to jail when ET was approximately 7 years of age. Thereafter, he was raised in New Zealand by his grandparents. He came to Australia on his own at the age of 16 years to live with his mother and siblings. After leaving school, he obtained employment on a casual basis, first as an assistant butcher, then as a security guard. A number of testimonials were tendered on his behalf, all of which describe the offender as honest and trustworthy with a gentle disposition. He has been in custody since 9 January 2007. ET suffered a 12 mm skull fracture in the course of the affray and was treated at Liverpool Hospital.

14 RT completed his Higher School Certificate in 2006. His academic performance suffered owing to the death of his brother Darryl in that same year. RT secured some part-time work at his father's place of employment, and was offered full-time work with his uncle in the scaffolding industry. He remained in that employment until his arrest. His employer and former teachers speak well of him. The Juvenile Justice report observes that RT has "demonstrated considerable ability in applying himself to focus and seek educational attainment whilst managing the stress and anxiety of legal matters. He has completed numerous TAFE, vocational and other courses offered whilst in custody." His overall behaviour in custody has been described as very good. RT has been in custody since 9 January 2007.

15 The pleas of guilty were entered in the week fixed for trial, before the Crown had marshalled its witnesses and before a jury was empanelled. It is not to the point that discussions about the basis of the pleas did not begin until that time. The CCA has stated a number of times, most recently in R v Borkowski [2009] NSWCCA 102, that a plea of guilty at or just before the trial date will rarely attract a discount of more than 15%. That is the discount I propose to apply.

16 I accept, and the Crown agrees, that a finding of special circumstances is appropriate in each case, in order to allow for an increased period of supervision in the community following release. Taking into account all of these matters, I propose to sentence as follows :-

17 RT, you are convicted of the Manslaughter of Sione Matavesi. You are sentenced to a non parole period of 3 years 6 months, to date from 9 January 2007, expiring 8 July 2010, with a balance of term of 3 years, expiring 8 July 2013. You are eligible for release to parole on 9 July 2010. I direct that the sentence be served as a juvenile offender.

18 TT, you are convicted of the Manslaughter of Sione Matavesi. You are sentenced to a non parole period of 3 years 3 months, to date from 6 January 2007, expiring 5 April 2010, with a balance of term of 3 years, expiring 5 April 2013. You are eligible for release to parole on 6 April 2010.

19 ET, you are convicted of the Manslaughter of Sione Matavesi. You are sentenced to a non parole period of 3 years, to date from 9 January 2007, expiring 8 January 2010, with a balance of term of 3 years, expiring 8 January 2013. You are eligible for release to parole on 9 January 2010.

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