Regina v A

[2006] NSWSC 1035

CITATION:	Regina v A [2006] NSWSC 1035
HEARING DATE(S):	14/08/2006, 17/08/2006. 08/09/2006, 26/09/2006
JUDGMENT DATE :	3 October 2006
JUDGMENT OF:	Buddin J
DECISION:	Sentenced to a non-parole period of 9 years and 6 months with a total sentence of 12 years and 8 months to commence on 23 September 2004. The non-parole period will expire on 22 March 2014 on which date the offender will be eligible for release on parole. The total term will expire on 22 May 2017.
CATCHWORDS:	Plea of guilty to "felony-murder" - young offender - assistance to the authorities - departure from standard non-parole period
LEGISLATION CITED:	Children (Criminal Proceedings) Act 1987 Crimes Act 1900 Crimes (Sentencing Procedure) Act
CASES CITED:	Andrews v R (2006) 160 A Crim R 505 Cameron v the Queen (2002) 209 CLR 339 CTC v Regina [2006] NSWCCA 263 Johns (T.S) v The Queen (1980) 143 CLR 108 MAH v R [2006] NSWCCA 226 Mulato v R [2006] NSWCCA 282 R v AB [2006] NSWSC 69 R v Adamson (2002) 132 A Crim R 511 R v AEM (Snr) & Ors [2002] NSWCCA 58 R v AJP (2004) 150 A Crim R 575 R v Chu (unreported, NSWCCA, 16 October 1998) R v Duong (1992) 61 A Crim R 140 R v Durocher-Yvon (2003) 58 NSWLR 581 R v FD & JD (2006) 160 A Crim R 392 R v Hearne (2001) 124 A Crim R 451 R v Hoang [2003] NSWCCA 237 R v Huynh and Phung [2001] NSWSC 357 R v Imnetu [2006] NSWCCA 203 R v JB and RJH [1999] NSWCCA 93 R v MA (2004) 145 A Crim R 434 R v Mangano (2006) 160 A Crim R 480 R v Markarian [2005] HCA 25 R v MD, BM, NA and JT (2005) 156 A Crim R 372 R v Mills (unreported, NSWCCA, 3 April 1995) R v MLP [2006] NSWCCA 271 R v Mostyn (2004) 145 A Crim R 304 R v NP [2003] NSWCCA 195 R v Patison (2003) 143 A Crim R 118 R v PG (2001) 122 A Crim R 529 R v Pham [2006] NSWCCA 288 R v Previtera (1997) 94 A Crim R 76 R v Satorre [2006] NSWCCA 298 R v Sharah (1992) 30 NSWLR 292 R v Simpson (2001) 53 NSWLR 704 R v Sukkar [2005] NSWCCA 55 R v Suteski [2002] NSWCCA 509 R v Thomson & Houlton (2000) 49 NSWLR 383 R v TNT [2002] NSWSC 537 R v Tran [2002] NSWSC 394 R v Trevenna (2004) 149 A Crim R 505 R v Voss [2003] NSWCCA 182 R v Vu [2006] NSWCCA 188 R v Waqa (No2) [2005] NSWCCA 33 R v Way (2004) 60 NSWLR 168 R v Wigney [2004] NSWCCA 171 R v Whitfield [2002] NSWCCA 59 R v Yildiz [2006] NSWCCA 97 Veen v The Queen (No2) (1988) 164 CLR 465 York v R (2005) 221 ALR 541
PARTIES:	Regina A
FILE NUMBER(S):	SC 2005/298
COUNSEL:	C Maxwell QC/ M Cunneen (Crown) G Nicholson QC (Offender)
SOLICITORS:	S Kavanagh (Solicitor - Public Prosecutions) Law & Order - The Firm (Offender)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Non Publication Order

BUDDIN J

TUESDAY 3 OCTOBER 2006

2005/298 - REGINA v A

REMARKS ON SENTENCE

Introduction

1 HIS HONOUR: On 3 February 2006 the offender (whom I shall refer to as A) pleaded guilty to the murder of a man named Gao Jin (the deceased). The offence occurred on 20 December 2003 at Peakhurst. The maximum penalty for the offence is life imprisonment.

2 I have been provided with an Agreed Statement of Facts. What follows is taken substantially from that document. That material, in turn, is drawn in large measure from an electronically recorded interview which was conducted with the offender on 27 January 2006.

3 Before referring to the facts, it is necessary to set out a short chronology of relevant events. The offender was arrested and charged with the present offence on 23 September 2004. He was refused bail and has remained in custody ever since. Accordingly, the sentence which I shall impose will commence on that date. Following his committal for trial, the offender was arraigned and entered a plea of not guilty on 1 April 2005. Trial dates which were fixed for July and October 2005 respectively were vacated upon the application of the Crown following the arrest of other persons. In October 2005 a co-accused, Mahmoud Houri, was arrested. A further trial date of 3 March 2006 was then allocated.

4 During the course of the interview of 27 January 2006, the offender admitted his involvement in this offence and also implicated Mr Houri in it. He then pleaded guilty, as I have said, on 3 February 2006. It is necessary to sentence the offender in order that he can give evidence at the trial of Mr Houri, which is listed to commence this week.

Factual background

5 On 20 December 2003 the offender met up with Houri and together they planned to commit an armed robbery upon the Mobil service station situated on the corner of Forest Road and Pearce Avenue, Peakhurst. Although Houri is 3 years older than the offender he and the offender had known each other from having attended the same high school.

6 It was agreed between them that Houri would carry a knife. The offender told police that although he knew that the knife would be used to facilitate the commission of the armed robbery, he maintained that it was his understanding that it was only going to be used in order to scare the console operator.

7 The offender telephoned a close associate of his whom I shall refer to as H. He and Houri then drove to H’s house in the offender’s motor vehicle. There they told H that they intended to rob a service station and that they wanted him to act as their driver.

8 H drove the vehicle to the service station to enable Houri and the offender to make observations of it. H then drove to a nearby street where he parked the vehicle. He remained in the vehicle whilst the offender and Houri carried out the robbery.

9 The offender and Houri arrived in the vicinity of the service station shortly before 9 pm. They hid behind a fence until they were sure that there were no customers in the premises. The deceased was working alone as the attendant/console operator. At the invitation of the parties, I viewed a video recording of the incident, which was recorded on CCTV, as well as an enhancement of the video which had been reproduced in the form of a DVD. That material is clearly capable of providing some support for the offender’s version of events.

10 The offender and Houri were each wearing dark coloured long sleeved hooded tops (bearing a brand logo across their chests), dark pants and dark balaclavas. As they entered the premises, the deceased raised both his hands in the air in submission.

11 Houri moved to the console area whilst the offender closed the sliding door, through which they had entered the premises, with his left hand. He then joined Houri in the console area. The positions which they took up meant that the deceased was confined between them and the cash register. Although the deceased offered no resistance, Houri nevertheless produced a knife. He held it against the left side of the deceased’s neck whilst tightly gripping him by the shirt with his other hand.

12 Whilst Houri was holding the knife to the deceased’s neck, the offender rifled through the deceased’s trouser pockets and the cash register. In all approximately $600 cash was taken from the cash register. The deceased’s Nokia 3210 mobile phone, and his wallet containing an unknown amount of cash and personal papers, were also stolen.

13 The offender then took a step backwards out of camera shot. Houri then suddenly, and without apparent provocation, stabbed the deceased in the back. The deceased tried to pull away but Houri maintained his grip upon him. Houri pulled the deceased toward him and then stabbed him a total of four times. At that point Houri released his grip and the deceased slumped to the floor. The offender walked to the door and opened it with his left hand. Houri walked through the door and both of them left the premises. The offender told police that as he was walking away from where the deceased had been standing, he had looked over his shoulder. He said that he had seen Houri stab the deceased on one occasion.

14 The offender and Houri returned to the vehicle and were driven away from the scene by H. According to H, the offender immediately questioned Houri as to why he had stabbed the deceased. Houri, it appears, replied that he had done so because he believed that the deceased had activated the silent security alarm.

15 A short time later, a customer discovered the deceased on the floor and summoned assistance. Ambulance officers arrived and attempted to resuscitate the deceased before transporting him to hospital. The deceased died on route to the hospital.

16 A police investigation then began. Crime Scene investigators viewed the CCTV footage of the incident and observed that the offender had touched the inside surface of the sliding door. They then examined the scene and obtained a DNA sample from the relevant part of the door. Subsequent analysis indicated that the offender’s profile matched the profile developed from the DNA which had been obtained from the surface of the door.

17 An analysis of call charge records revealed that a telephone call had been made from the offender’s mobile phone to H approximately 30 minutes before the proposed armed robbery.

18 Those records also revealed that at 3.49 am on 30 December 2003 the SIM card for H’s mobile phone number had been inserted into the deceased’s stolen Nokia 3210 mobile phone. It had then been used to make a telephone call which lasted for 52 seconds.

19 On 19 May 2004 a warrant was granted authorising the interception of mobile telephone services used by the offender. Over the following three months a large number of telephone conversations were intercepted.

20 On 9 June 2004, a warrant authorising the installation of a listening device at 4/69 Dudley Street, Punchbowl, was granted. Conversations conducted in those premises between 10 June and 29 June 2004 were intercepted. A covert surveillance camera was also installed which recorded images of persons arriving and leaving the premises.

21 On 11 June 2004 police executed a search warrant at H’s home. Among the items seized from H’s bedroom was the SIM card, which had been used by him on 30 December 2003 to make the telephone call from the deceased’s stolen Nokia 3210, together with components of a Nokia 3210 mobile phone. H was arrested and taken to Hurstville Police station. He declined however to be interviewed by police.

22 The following morning the offender telephoned H but was unable to speak to him as he was asleep at the time. He did however speak with H’s mother. A little later he spoke to another friend, whom I shall refer to as SM. It can be inferred from the contents of those phone calls that the offender was aware that H had been spoken to by police.

23 Later that afternoon the offender was observed entering 69 Dudley Street, Punchbowl. At about 6.05 pm a conversation between the offender and a number of his associates at those premises was intercepted. The offender is recorded as saying “You know in his phone..H made one phone call from the guy’s home..and they traced it”. It can be inferred that he was also discussing disposing of the clothes that he had been wearing at the time of the offence and discussing what he might say to the police should he be questioned by them.

24 On 18 June 2004 police executed a search warrant at the offender’s home. Among the items seized from his home was a SIM card for a mobile phone which he had been using. He was taken to Bankstown Police Station where he participated in an electronically recorded interview. After an initial denial, the offender admitted to having used that mobile phone during the relevant time frame. He also said that he used lots of different phones, most of which he maintained, he had purchased from “junkies in Riverwood”.

25 The offender was informed that H had been arrested the previous Friday arising from his use of the deceased’s stolen Nokia 3210 mobile phone. The offender denied that H had told him that he had been arrested.

26 The offender also denied knowing anything about the murder. When asked whether he was sure about that, the offender replied:

Yeah. Straight up. It doesn’t bother me…cause he’s not my family or nothing.

The offender was unable however to account for his movements on the night in question.

27 The offender was released from police custody just after 7.30 that evening. A short time later a conversation between the offender and a number of his associates in the unit in Dudley Street were intercepted. It can be inferred from what is recorded that the offender was once again discussing the disposal of clothing that he had been wearing at the time of the offence.

28 On 23 September 2004 a further search warrant was executed at the offender’s home. Several dark coloured hooded jumpers were seized. The offender was arrested and taken to Hurstville Police Station. After receiving legal advice, he declined to be interviewed. He was then, as I have said, charged with the present offence.

29 The following day he made a telephone call from custody to an acquaintance, whom I shall refer to as AM. He told AM to “tell (H) not to come back bro…they might think that we have done it together with someone else”.

30 The offender pleaded guilty to the offence of murder upon the basis that his conduct amounted to “felony-murder”. The relevant foundational crime for present purposes is armed robbery with wounding, an offence which pursuant to s 98 of the Crimes Act, attracts a maximum penalty of 25 years imprisonment. The relevant principles so far as that category of murder is concerned were enunciated by the Court of Criminal Appeal in R v Sharah (1992) 30 NSWLR 292 at 297 and it is the application of those principles which informed the offender’s decision to plead guilty.

31 The Crown recognised that a finding that the offence could be so characterised was properly open to me. It submitted that the offender’s conduct could also come within what it described as “the extended concept of common purpose”: see Johns (T.S.) v The Queen (1980) 143 CLR 108; R v Duong (1992) 61 A Crim R 140 and R v Suteski [2002] NSWCCA 509. It submitted that it was possible to so regard the offender’s conduct because it was open to find that he had contemplated the possibility that grievous bodily harm would be inflicted upon the victim during the course of the armed robbery. Such a possibility would have been within the offender’s contemplation, so it was submitted, because it would have been apparent that the victim may have struggled during the course of the incident and may thus, as a consequence, have sustained a really serious injury.

32 Insofar as the distinction between the two bases of liability has any practical significance in the circumstances of the present case, I have formed the view that it is appropriate to proceed upon the basis that the offence is properly to be regarded as one of “felony-murder”. I have done so having reviewed all the material, including the Agreed Statement of Facts, the contents of the interview conducted with the offender by the police, and the video recording of the incident. In any event, an offence which is characterised as a “felony-murder” does not for that reason alone dictate the conclusion that a lower level of culpability is involved than applies to other categories of murder: see R v Mills (unreported, NSWCCA, 3 April 1995). The seriousness with which a particular instance of felony-murder is to be regarded depends “on the nature of the acts of the offender which played a part in the death of the victim”: R v JB and RJH [1999] NSWCCA 93 at para 33.

33 I have received a victim impact statement from the deceased’s wife, Ms Julie Wang, in which she expresses the profound sadness which she and her son have experienced as a result of the loss of her husband. Not surprisingly, she refers to her complete dismay at the senselessness of her husband’s death, especially given that he had acquiesced in the demands made upon him by the offenders. The feelings which she so eloquently expresses and the grief which she and her son have suffered are entirely understandable. It is quite impossible to adequately summarise that sense of loss in a few sentences and to do so, or to attempt to do so, would detract from the contents of her statement. Clearly no sentence which any court could impose can ever begin to make good that loss. I extend to Ms Wang and her son my deepest sympathy. The approach of a sentencing judge to a statement of this kind is nevertheless now well settled: see R v Previtera (1997) 94 A Crim R 76; R v FD & JD (2006) 160 A Crim R 392; MAH v R [2006] NSWCCA 226.

Subjective features

34 The offender and his father both gave evidence during the course of the sentence proceedings. I have also been provided (as s 25 of the Children (Criminal Proceedings) Act 1987 requires) with a background report in respect of the offender, as well as a pre-sentence report, together with a psychological report prepared by Anna Robilliard and a psychiatric report prepared by Dr Bruce Westmore.

35 I was originally furnished with a pre-sentence report but it is clear that such a report does not adequately meet the requirements of s 25 of the Act: R v Hoang [2003] NSWCCA 237. Accordingly I ordered that an appropriate report be prepared by officers of the Department of Juvenile Justice as well.

36 From that material the following profile of the offender emerges. He was born on 17 January 1987 to parents of Lebanese background who migrated to Australia in 1976. He was thus 16 years and 11 months at the time of the offence and is now aged 19 years and 8 months. Prior to his arrest he was living with his parents and three older sisters at the family home. His eldest sister suffers from cerebral palsy and is unable to function independently. Her mother is her principal carer. That state of affairs has clearly placed a significant burden upon the entire family. The offender is particularly close to his sister and found it very distressing when he was teased about her condition at school.

37 The offender comes from a close and supportive family. If anything it appears that as the only son, the offender may have been over-indulged by his parents. He accepts the description of himself as having been a “rebellious adolescent”. His teenage years were particularly turbulent after he came under the influence of an uncle who was engaged in “drug taking and associated criminal activities”. It was during that time that he was expelled from high school whilst he was mid way through year 10.

38 After leaving school, the offender enrolled at a private college where he studied information technology. He failed however to complete the course. It would appear that the reason for his failure to do so was due, in part, to his having sustained a serious motor vehicle accident. As a result he was required to spend several weeks in hospital, a fact that disrupted his studies. His employment record is limited to a sales position which he held for a short time, and assistance which he provided, on an intermittent basis, in his father’s painting and decorating business.

39 Cannabis has been the offender’s drug of choice since he was about 14 and at the time of the offence he was using it on a daily basis. He was also drinking alcohol to excess. He candidly described himself as being involved in petty criminal activities at the time of the offence. Against that background it is unsurprising that the offender indicated that his motivation for having committed the armed robbery was in order to obtain “quick money for pot and gambling”.

40 An antecedent report indicated that the offender has only one matter recorded against him, a driving offence in respect of which he was fined and disqualified from driving. The background report however also reveals that in 2002 the offender received a 12 month probation order for an offence of robbery in company and that in 2005 he received a 12 month bond and a fine in respect of an offence of receiving stolen property.

41 The evidence reveals that the offender has now developed some insight into his offending behaviour. The following extract, which appears in the presentence report, demonstrates the point.

[The offender] said that at the time of his arrest, he did not feel personally responsible for the murder because he was not the person who stabbed the victim. However, during his remand in custody, he has had time to reflect on his situation. He said that he now understands that by his involvement in the armed robbery, he contributed to the situation in which a loss of life occurred and consequently he cannot absolve himself from responsibility.
…
[The offender] was co-operative in the preparation of this report and appeared to answer questions frankly without resorting to superficial rationalizations. He did not attempt to blame others for his situation and seemed to realize that he has made serious mistakes in his life, which have contributed to his current circumstances.
[The offender] appears to have developed some insight into those attitudes and behaviour which led to his offending and the victim’s murder. Additionally, [the offender] has accepted shared accountability for the victim’s death and has demonstrated that acceptance of responsibility in his actions since his arrest.

42 To similar effect are various responses which the offender gave in his interview with police on 27 January 2006, as the following extracts reveal:

‘Cause now I want to say the truth and let the truth be known. And I’ve changed my plea. Before I was denyin’ what I done and what had happened, now I’m ownin’ up to it.
…
I feel bad for what happened to Mr Jin,…just get it off my conscience what happened, others to show God that I’ve really repented by owning up to it. And I’m really sorry your (sic) what happened, you know, and I deserve, like, to do the time for the robbery I done, and Mahmoud deserves to do time for the murder that he done.

43 Later on he said:

I apologise for my actions, I apologise for my actions and if I had known a man was gunna be hurt, I wouldn’t have done it, let alone….And if I could go back, like, if I could go back into time and not do that robbery, I would, but I can’t and all I can do is, like, I know what, no words
…
a man’s life been taken, but all I can do is say, sorry, and I apologise for what happened, and I will apologise to the family if I ever get a chance.

44 Tendered on behalf of the offender was a letter in which he says that he “will attempt to convey the deep shame and sincere guilt [he] feels in relation to the offence”. In it he also expresses the hope that “by helping the authorities in bringing the other party, including myself to justice, it will serve as a manifest expression of my guilt, and somehow help the family of the victim gain some degree of closure and peace in life.” The offender has, as I understand the situation, also written a letter in similar terms which he has asked to be passed onto the family of the deceased.

45 Dr Westmore, who examined the offender, found that he did not exhibit any psychotic symptoms. Nor could he detect any psychiatric order. In his report Dr Westmore did however make the following observation of the offender:

He is a young man who has some potential. He is intelligent, articulate and he appears to have a caring and supportive family. If he can return to the community and not re-use illicit drugs and if he has received some education and job training, then his longer term prognosis may be favourable.

46 The evidence reveals that the offender has been spending his time in custody productively. In addition to doing courses of study he has been working and is currently employed as a barber. He has completed an Information Technology course through TAFE and is now studying a business course. He has completed various courses designed to address his issues with drug and alcohol dependency. He has also done an Anti-Violence program and a variety of other educational courses. He has received consistently good reports from custodial staff concerning his conduct.

47 It is apparent from the evidence of his father that the offender enjoys the continuing support of his family. It is the wish of both the offender and his family that when he is eventually released into the community that he resume involvement in his father’s business with a view to ultimately taking it over.

Relevant sentencing principles

48 I am required to bear in mind the relevant statutory framework that pertains to the sentencing of offenders and to the principles which are enunciated in the authorities that bear upon the issue. That being so, it is common ground that I must have regard to the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act.

49 The Court of Criminal Appeal in R v MA (2004) 145 A Crim R 434 characterised s 3A as being a codification and elaboration of the purposes of criminal punishment, which were described by the High Court in Veen v The Queen (No2) (1988) 164 CLR 465. In a passage which is particularly apposite to the present case, a majority of the court in Veen (No2) said:

[S]entencing is not a purely logical exercise, and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guide posts to the appropriate sentence but sometimes they point in different directions. (at 476)

50 It is trite to say that murder is regarded as the most serious offence in the criminal calendar. As I have already observed, the maximum penalty prescribed by the legislature is life imprisonment. That indicates the seriousness with which the community views the offence. The starting point for any consideration of the appropriate penalty is the fact that a human being’s life has been taken.

51 The Crown did not submit however that the present offence fell within the worst category of case. I accept that serious as it is, it does not warrant a sentence of imprisonment for life as provided for in s 61 of the Crimes (Sentencing Procedure) Act. That being so, s 21 of that Act, which provides for the imposition of a “sentence of imprisonment for a specified term” in circumstances such as the present, has application. Accordingly, I propose to impose a determinate sentence upon the offender.

52 In determining the appropriate sentence for the offender I must also have regard to the various aggravating factors which are set out in s 21A of the Crimes (Sentencing Procedure) Act. It is apparent from the concluding words of s 21A(1) that the list is not exhaustive. I must also weigh in the balance those matters upon which the offender is entitled to rely in order to mitigate the otherwise appropriate penalty: see s 21A(3). As long as I take into account those factors that are relevant and known it is not necessary, as I understand the situation, to deal seriatim with each matter which is identified: Andrews v R (2006) 160 A Crim R 505. I will make specific reference to those matters which I regard as being of particular relevance to the sentencing exercise. Suffice it to say that I have had regard to the statutory requirements to which I have just referred, and given due weight to the matters which I consider as being of particular relevance. In considering this aspect of the matter, I remind myself that I am not to take into account any aggravating feature if it is an element of the offence or if it is an “inherent characteristic” of the offence charged: see R v Yildiz [2006] NSWCCA 97.

53 The relevant aggravating features include the fact that the offence involved the use of a weapon: s 21A(2)(c). It was also committed in company: s21A(2)(e); R v Imnetu [2006] NSWCCA 203. Of particular significance is the fact that the deceased, by reason of his occupation as a service station attendant, was “vulnerable” within the meaning of s 21A(2)(l). The offence was “part of a planned criminal activity” in that it involved an armed robbery which was clearly planned. However, that activity is an “inherent characteristic” of the present offence of “felony-murder”. In any event, the homicide itself was clearly not planned or premeditated, particularly so far as this offender is concerned. None of this is to suggest that the offence does not reveal criminality of a high order because plainly enough it does. Nevertheless it is necessary to give due recognition to the fact that the offender played a subsidiary role in the offence by reason of the fact that he did not inflict the fatal wounds.

54 On the other hand, there are a number of mitigating factors upon which the offender is entitled to rely. A significant factor to be weighed in the offender’s favour is his plea of guilty: see s 21A(3)(k) and s 22. I referred at the outset to the circumstances in which he entered his plea. It was not entered at the first available opportunity. Moreover it is clear that the offender pleaded guilty only after he became aware that both H and SM had provided statements to police. More importantly he would have been aware that H had directly implicated him in the crime.

55 Nevertheless, it is no small matter to plead guilty to the most serious offence in the criminal calendar. Although as I have said, his plea of guilty cannot be said to have been entered at the first available opportunity, it was still indicated at a sufficiently early time to enable resources of the State and the Court to be saved. Furthermore, a number of witnesses were spared from the ordeal of having to give evidence. Moreover, the offender ultimately made extensive admissions to police concerning his involvement in the offence which were of such a nature as to guarantee his conviction of the offence.

56 In the circumstances the offender has “facilitated the course of justice”: Cameron v the Queen (2002) 209 CLR 339. Accordingly, and because his plea of guilty has utilitarian value, he is entitled to an appropriate discount albeit not one at the top of the range identified in R v Thomson & Houlton (2000) 49 NSWLR 383.

57 I am prepared to allow a further reduction of sentence to the offender on account of the contrition which he expressed not only in his interview with police and in his evidence but in the other material to which I have referred: s 21A(3)(i).

58 The offender is also entitled to a significant additional discount for his assistance to the authorities: s 21A(3)(m); York v R (2005) 221 ALR 541. As well as entering into the very comprehensive video-recorded interview with police to which I earlier referred, the offender also participated in a video walk-through in which he pointed out other details to police concerning where and how the armed robbery had been planned and then carried out. Of particular significance in the present context is the fact that he has signed an undertaking to give evidence against his co-accused. I have been provided with an affidavit from a police officer in respect of this aspect of the matter. I have paid careful attention to its contents.

59 In assessing the weight to be given to this feature of the case I have had regard to the various factors identified in s 23(2) of the Crimes (Sentencing Procedure) Act. Whilst it is true that the disclosure of the co-offender’s involvement in this offence was somewhat belated, (a matter to which I have already referred in the context of his plea of guilty) the offender maintained that he did not come forward earlier because he was concerned for the safety of his family. Since doing so, the offender has been transferred from the Juvenile Detention Centre in which he was then housed, to the Special Purposes Centre (SPC). But for his offer of assistance, the offender may have entertained some prospects of a finding that he remain in a detention centre until he had attained the age of 21: see Children (Criminal Proceedings) Act 1987, s 19(3)(a) and (4). His transfer to an adult gaol in such circumstances has undoubtedly placed a considerable burden upon him.

60 The authorities make it plain that the circumstances in which an offender who is on protection is serving, and is likely to serve, his or her sentence should be carefully scrutinised by a sentencing court: see R v Durocher-Yvon (2003) 58 NSWLR 581; R v Mostyn (2004) 145 A Crim R 304; R v Way (2004) 60 NSWLR 168 at 199-200.

61 In that context I have received a letter from Daryl Gover, who is the Acting Area Manager of the SPC, the relevant parts of which are set out below:

Offenders housed in this unit have full access to the various services available in other centres within the Long Bay complex, i.e. education/vocational training, welfare, psychology and justice health provider. Offenders are also attended by the classification unit within the Department and although given limited options, are still serviced as would any other offender [sic].
Offenders within the centre are also given access to various sporting and activities of a physical nature, although room allocated for this is limited it is still sufficient and meets the needs of the offenders. Limited employment is also offered to suitable offenders within the centre.
As this inmate progresses through his classification plan he will be limited to the centres to which he can be housed, this being restricted to the SPC, Dawn DeLaos and Cooma Correctional centre. The Dawn DeLaos centre being specifically designed to accommodate offenders on the witness protection program who have achieved a minimum security (C1, C2, C3) status.
Although all services are provided to offenders within our structure, due to limited room these services are scaled down somewhat but still adequate. There is, however, some limitations imposed to ensure the safety and security of the centre and the offenders housed here and involved in this program. These taking [sic] the form of the amount of room in which the offenders can move around and a limitation to whom they can associate with. Also a limit to what educational/vocational areas that can be facilitated. Also as a minimum security inmate the option of an open facility in a rural environment is not available.

62 The offender gave evidence that he entertains fears both for himself and for his family as a direct consequence of his decision to assist the authorities. He said that he believed that his life would continue to be at risk even after he is released from custody.

63 Plainly enough the offender has not been denied access to educational programs and other opportunities. Indeed, as I observed earlier, he has been making substantial progress towards his eventual rehabilitation in that respect. Nonetheless, there still remain other aspects of his incarceration which will mean that his time in gaol will be more burdensome than would be the case for a mainstream prisoner: see generally Durocher-Yvon (supra) at 587.

64 It is neither necessary nor appropriate to refer to the evidence which the offender has promised to give in any detail. Suffice to say that its significance can be gauged by the fact that he is in a position to directly implicate his co-offender in the commission of what is apparently a very serious crime indeed. In the view of a police officer associated with the investigation, the offender “has provided truthful and reliable information that has been corroborated by other means and persons”. Moreover he has provided information of which authorities had not previously been aware. In short, the offender’s evidence is accepted by the Crown as being “pivotal” to the prosecution of the co-offender.

65 In R v Chu (unreported, NSWCCA 16 October 1998), Spigelman CJ observed that although no fixed tariff existed for the provision of assistance to the authorities, discounts in the order of 20% to 50% had frequently been allowed. See also R v Patison (2003) 143 A Crim R 118 per Carruthers J at 135-137. In the present context I have also had regard to what has been said by the Court of Criminal Appeal in R v Sukkar [2005] NSWCCA 55; CTC v Regina [2006] NSWCCA 263 and R v Pham [2006] NSWCCA 288. Often an aggregate or a “rolled-up” discount to take account of both the plea of guilty and assistance to the authorities is deemed to be appropriate: see Thomson & Houlton (supra) at 419; R v PG (2001) 122 A Crim R 529. As to the different approaches which can be legitimately adopted, see R v Waqa (No2) [2005] NSWCCA 33. The authorities make it clear however that the component of the discount which relates to future assistance should be quantified: see Waqa (No2) (supra) at pars 14, 21. The discount which will be extended to the offender for his assistance will be almost entirely attributable to the future assistance component of it.

66 In two recent decisions aggregate discounts of 50% were extended to offenders who had pleaded guilty at an early stage of proceedings and had offered assistance to the authorities: see R v Satorre [2006] NSWCCA 298 and R v AB [2006] NSWSC 69. See also R v Mangano (2006) 160 A Crim R 480.

67 In the final analysis I must also pay due regard to s 23(3) of the Act. In R v NP [2003] NSWCCA 195, Simpson J observed that:

The result of the rigorous application of what have become relatively standardised discounts (especially where a considerable discount for a plea of guilty is added to an even more considerable discount for significant assistance) can, on occasion, cause a sharp intake of breath, but that is the result of the application of correct and established legal principle. The result can appear to be disproportionate to the offence(s). Sentencing judges (as in this case) have to balance the need to impose proper punishment with the need to recognise the benefits to the criminal justice system gained by pleas of guilty and assistance to authorities. The correct balance is not always easy to achieve.

This is where s23(3) of the Crimes (Sentencing Procedure) Act 1999 demands consideration, and, sometimes, application. By that subsection, a sentencing judge allowing a discount for assistance to authorities, is required, notwithstanding, to ensure that the resulting sentence is not unreasonably disproportionate to the nature and circumstances of the offence(s). (pars 49-50)

68 In the present case I have allowed an aggregate discount to the offender, which is significant, for the various aspects of his plea and for his assistance to the authorities. For the reasons which I have identified that discount approaches but nevertheless falls short of the top of the range identified in Chu. I specify that a discount of 20% will be extended to the offender for the future assistance which he has promised to provide to the authorities.

69 The offender is also entitled to have his youth taken into account: s 21A(3)(j). His age brings into play the provisions of the Children (Criminal Proceedings) Act, and in particular s 6 of that Act. Nevertheless since the offence which he committed meets the description of a “serious children’s indictable offence”, it will be necessary to deal with him “according to law”: s 17.

70 I accept that the age of the offender, whom the legislation regards as having been a child at the time, is a relevant consideration in the present sentencing exercise. The principles to be applied in cases involving the sentencing of young offenders, especially for serious offences, are well established. In R v AEM (Snr) & Ors [2002] NSWCCA 58, the Court of Criminal Appeal said:

It is well accepted that in the case of youth, general deterrence and public denunciation usually play a subordinate role to the need to have regard to individual treatment aimed at rehabilitation…However, important as that principle is, it cannot defeat the primary purpose of punishment nor, in circumstances where young offenders conduct themselves in a way which an adult does can it stand in the way of the need to protect society. (at 97)

71 In R v Hearne (2001) 124 A Crim R 451, the Court of Criminal Appeal cited, with apparent approval, the principle that:

In sentencing young people…the consideration of general deterrence is not as important as it would be in the case of sentencing an adult and considerations of rehabilitation should always be regarded as very important indeed. (at 458)

72 The court then went on to observe that:

[o]f course that is not to say that other factors such as deterrence or retribution may not have a relatively greater part to play in the more serious offences than they do in the less serious ones…However it is, we think appropriate to look beyond the simple difference in facts to address the principle which is involved. It lies in at least part of the rationale for making any allowance for youth, that is, the immaturity which is usually involved. Where that immaturity is a significant contributing factor to an offence then it may fairly be said that the criminality involved is less than it would be in a case of an adult of more mature years…. the Courts have taken the view that the younger the offender, the greater the weight to be afforded to the element of youth. (at 458-9)

See also R v Adamson (2002) 132 A Crim R 511 at 516-7 and R v Voss [2003] NSWCCA 182.

73 In R v MD, BM, NA and JT (2005) 156 A Crim R 372, the Court of Criminal Appeal observed:

However, as we have indicated, when imposing sentences, apart from considerations of punishment and deterrence a court must assess the offender’s capacity to reform and return to and make a contribution to the community. This must be of particular concern with young offenders where the opportunity to rebuild a life is more likely to be available. Unless the punishment recognises these possibilities and the circumstances of the incarceration made conducive to rehabilitation, some benefits to the community which may come from appropriate sentencing will be lost. (at 389)

74 I am satisfied that this is a case in which, to use the language employed in Hearne, “immaturity is a significant contributing factor to [the] offence”. Nevertheless, I have endeavoured to strike an appropriate balance between the various competing principles which are to be applied when dealing with young offenders who have committed crimes of the level of seriousness as the present offence. I also acknowledge that the youth of an offender cannot be simply used as a “cloak of convenience”.

75 It is apparent that the offender does not have a “significant record” of previous convictions: s 21A (3)(e). However he could not, given the evidence, be regarded as a “person of good character”: s21A(3)(f). Nevertheless the various factors to which I have referred suggest that he enjoys “good prospects of rehabilitation”: s 21A(3)(g). Indeed the author of the Juvenile Justice Report concluded that “the likelihood of recidivism is low [given] his integration of personal responsibility, level of remorse and commitment to making life changes”.

76 The present offence attracts the operation of s 54A of the Crimes (Sentencing Procedure) Act. Section 54A(2) provides that “the standard non-parole period represents the non-parole period for an offence in the middle of the range of objective seriousness in the Table to this Division”. The standard non-parole period for the offence of murder is 20 years. Section 54B sets out the mechanism by which the non-parole period is to be determined. The relevant sub-sections are in the following terms:

…
(2) When determining the sentence for the offence, the court is to set the standard non-parole period as the non-parole period for the offence unless the court determines that there are reasons for setting a non-parole period that is longer or shorter than the standard non-parole period.

(3) The reasons for which the court may set a non-parole period that is longer or shorter than the standard non-parole period are only those referred to in section 21A.
(4) The court must make a record of its reasons for increasing or reducing the standard non-parole period. The court must identify in the record of its reasons each factor that it took into account.
…

77 In construing the section, I have had regard to the principles set out in R v Way (2004) 60 NSWLR 168. The correct approach to be followed appears in the following passages:

In order to give the Division practical utility it seems to us, in the light of the foregoing analysis, that a sentencing judge must ask and answer the following question: “are there reasons for not imposing the standard non-parole period?”

That question will be answered by considering:

(i) the objective seriousness of the offence, considered in the light of the facts, which relate directly to its commission, including those which may explain why it was committed, so as to determine whether it answers the description of one that falls into the mid range of seriousness for an offence of the relevant kind;
(ii) the circumstances of aggravation, and of mitigation, which are present in the subject case, or which apply to the particular offender, as listed in s 21A(2) and (3), and as incorporated by the general provisions in s 21A(1)(c) and by the concluding sentence to s 21A(1).


Depending upon the considerations referred to in the first of these paragraphs, it may become immediately apparent that the case is not one for which the standard non-parole period specified in the Table was intended to apply.

Whatever be the case in that regard, the considerations referred to in the second paragraph may similarly provide a reason for a departure from the standard non-parole period.

If the question, which we consider should be posed, is answered in the affirmative, then it seems to us that the Court should exercise its sentencing discretion in accordance with established sentencing practice and by reference to the matters identified in sections 3A, 21A, 22, 22A and 23 of the Act. The ultimate objective remains one of imposing a sentence that is just and appropriate, having regard to all of the circumstances of the offence and of the offender, and so as to give effect to the purposes mentioned in s 3A of the Sentencing Procedure Act .

In this approach the standard non-parole period can properly take its place as a reference point, or benchmark, or sounding board, or guidepost, along with the other extrinsic aids such as authorities, statistics, guideline judgments and the specified maximum penalty, as are applicable and relevant. In particular, it can have a direct relevance as a reference point to be compared with the sentence which is provisionally reached after an assessment has been made of the relative seriousness of the subject offence, and of the various aggravating and mitigating factors, as well as any other subjective factor that may be present, including in particular the fact, if it be the case, that the offender entered a plea of guilty. In that regard the sentencing judge will need to keep in mind that the standard non-parole periods were framed upon the assumption that the case was determined at trial and that s 22 of the Act contemplates that the fact of a plea will attract a discount.

The reference point has, in this sense, an important role to play in ensuring consistency in sentencing. Because the standard non-parole period will be imposed, subject to s 21A, for matters within the mid range, it will act as a guide for cases that are outside the mid range.

The desirability of a judge adopting the practice of standing back after reaching a provisional sentence, and of reviewing it so as to be sure that it is appropriate for the offence at hand (see the observations made in R v McGourty [2002] NSWCCA 335 at para 45), cannot be understated, and the existence of a standard non-parole period is likely to be of assistance in this respect.

….

What is not appropriate, in our view, is for a sentencing judge to commence the process for every offence (irrespective of its seriousness, and irrespective of whether the offender’s guilt was established after trial or by a plea), at the standard non-parole period, and then to oscillate about it by reference to the aggravating and mitigating factors. The problem with that approach is that the standard non-parole period will tend to dominate the remainder of the exercise, thereby fettering the important discretion which has been preserved by the Act. (pars 117-124; 131)

78 In R v AJP (2004) 150 A Crim R 575, Simpson J provided the following helpful summary of the principles to be applied:

(i) while s54B(2) requires, in sentencing in respect of an offence to which Division 1A applies, unless the sentencing court determines that there are reasons not to do so, that it set the standard non-parole period as the non-parole period for the offence, that obligation exists where the offence in question is an offence in the middle of the range of objective seriousness of offences of that kind; one reason permitting departure from the standard non-parole period is that the offence in question falls outside the middle of that range (para [67]);
(ii) the standard non-parole period was intended for a middle range case where the offender is convicted after trial: a plea of guilty might be in itself a reason for departure from the standard non-parole period (para [68]);
(iii) a sentencing judge will be required, in relation to any given case, to hypothesise what is an abstract offence in the middle of the range of objective seriousness in order to determine where the subject offence lies in relation to such an offence; such an exercise is, in reality, little different from the traditional sentencing exercise of evaluating objective seriousness of any offence, and should be approached intuitively and based upon the general experience of courts in sentencing for the particular offence (paras [74] – [77]);
(iv) circumstances that affect the evaluation of the objective seriousness of any offence include (but are not necessarily limited to) the actus reus , the consequences of the conduct, such factors as impinge upon the mens rea of the offender, matters of motivation, mental state, mental illness or disability (where causally related to the commission of the offence). Factors that affect the circumstances of the offender as distinct from the offence (for example, youth or prior sexual abuse) do not affect the evaluation of objective seriousness (paras [85] – [86]);
(v) that an offence is “typical” or “common” does not dictate that it is in the middle of the range of objective seriousness (para [101]);
(vi) the numerical frequency with which an offence of a particular kind is committed is not an indicator of the objective seriousness of any individual instance of that offence: (paras [101] – [102]);
(vii) where a court determines that there are reasons for departing from the standard non-parole period, the standard non-parole period nevertheless remains of relevance in the sentencing determination, as a reference point, benchmark, sounding board or guidepost (para [122]); see also R v GJ Davies [2004] NSWCCA 319. (par 13)

See also R v Vu [2006] NSWCCA 188; R v MLP [2006] NSWCCA 271; Mulato v R [2006] NSWCCA 282.

79 It is common ground that I should impose a non-parole period which is shorter, and indeed considerably shorter, than the standard non-parole period. I intend to do so primarily because of the offender’s plea of guilty and assistance to the authorities, as well as his age and the other favourable subjective matters to which I have referred.

80 Mr Nicholson, who appeared on behalf of the offender, submitted that the imposition of a non-parole period of 8 years would be within the scope of my sentencing discretion. He arrived at that figure by two different pathways. First, he commenced with a notional starting point of 20 years upon the basis that the present offence met the description of being in the middle of the range of objective seriousness. (I interpolate that at least so far as this offender is concerned, it is my view for reasons which I have earlier expressed that the offence falls slightly below the mid-range). Mr Nicholson then submitted that an overall discount of 60% should be extended to the offender to reflect the various subjective features of the case and in particular his plea of guilty and assistance to the authorities and his age.

81 Mr Nicholson then drew my attention to several authorities which he submitted supported his contention that a non-parole period of the length which he suggested would be appropriate. He referred in particular to R v Tran [2002] NSWSC 394, a decision in which Sully J imposed a sentence of 14 years with a non-parole period of 9 years upon a 16 year old and R v TNT [2002] NSWSC 537, a decision in which Hidden J imposed a cumulative sentence of 10 years with a non-parole period of 6 years upon the same offender in respect of another murder committed by him about a week after the earlier offence. In respect of each offence that offender had pleaded guilty and assisted the authorities. Counsel also relied upon R v Huynh and Phung [2001] NSWSC 357, a decision in which Wood CJ at CL imposed a sentence of 13 years with a non-parole period of 8 years upon a 17 year old who had pleaded guilty to murder.

82 Finally, counsel placed considerable reliance upon the decision in R v Whitfield [2002] NSWCCA 59 in which the Court of Criminal Appeal dismissed an appeal against the severity of a sentence of 20 years imprisonment with a non-parole period of 13 years imposed upon a 17 year old who had inflicted fatal stab wounds upon a victim during the course of a home invasion committed by him in company with others. Mr Nicholson pointed to the fact that JIRS statistics, which were before the Court, revealed that a 20 year head sentence for an offender who was under the age of 21 was “in the top 28% for this offence for this age group”. From that bald statement counsel then submitted that because the present offender was entitled to much more favourable consideration than that offender because of his [the present offender’s] more compelling subjective features a non-parole period of the length which he nominated was appropriate. I do not accept that approach if only because it is not possible to discern an overall range of sentence from a single decision.

83 Mr Nicholson also submitted that the offender was entitled to have a sense of disquiet because of the sentence which was imposed upon his associate, H, whom as I have said was the driver of the vehicle in which he and his co-offender had left the scene. I was informed that he was placed on a bond for having received the deceased’s mobile phone. However, as they are not regarded by the law as being co-offenders, I must reject that submission.

84 The Crown, albeit in a slightly different context, drew my attention to R v Wigney [2004] NSWCCA 171. That offender had entered a hotel with a pistol in order to carry out an armed robbery with a co-offender. After having committed the robbery, the offenders fled. The manager of the hotel pursued Wigney and caught him. A struggle ensued during the course of which Wigney shot and killed the man. At a late stage of the proceedings Wigney pleaded guilty and offered to give evidence against his co-offender. He received an overall 35% discount on account of those factors. The Court of Criminal Appeal allowed a Crown appeal and substituted a head sentence of 16 years 3 months with a 12 year 2 month non-parole period upon Wigney. The Court found that he had formed the requisite intention to commit the offence of murder. Wigney was 39 at the time and had a bad criminal record for offences involving violence and firearms. Moreover, he was on parole at the time. The co-offender, Gilbert Smale was convicted by a jury upon the basis of “felony-murder”. He was not physically present when the deceased was shot and killed. He was sentenced by Patten AJ to 18 years with a non-parole period of 13 years and 6 months [2005] NSWSC 903. He was 47, had a long criminal history and was on a suspended sentence at the time of the offence. He received a 10% discount for having run a “rationalised trial” and for having displayed some remorse.

85 Whilst I have derived some assistance from consideration of those decisions, the extent of any such assistance is necessarily limited given the inevitable differences between those cases and the facts of the present case: see R v Trevenna (2004) 149 A Crim R 505. Furthermore, as far as I can discern, all of the decisions to which I have been referred, pre-date the introduction of legislation making provision for standard non-parole periods. Indeed the approach urged by counsel would fly in the face of what was said by the Court in Way (supra). But more importantly the non-parole period suggested by Mr Nicholson would not, in my view, adequately reflect the objective gravity of the offender’s conduct.

86 In the final analysis, I must exercise my own sentencing discretion having had proper regard to the relevant sentencing principles to which I have referred and having considered the salient features of the present case: see R v Markarian [2005] HCA 25.

87 It was not submitted that I should make a finding of “special circumstances”. In my view there is no occasion for doing so such as would require a departure from the normal statutory proportion. The sentence as structured will provide an adequate period of supervision of the offender following his release from custody.

88 Accordingly it is necessary to impose a sentence which properly reflects the objective gravity of the offence in question, and which gives effect not only to the various matters referred to in s 3A of the Crimes (Sentencing Procedure) Act but also to the maximum penalty prescribed by the legislature. The considerations to which I have just referred apply to the non-parole period as well as to the overall sentence: see R v Simpson (2001) 53 NSWLR 704. Notwithstanding the circumstances in which the offender committed this offence, a human being has needlessly lost his life. Nothing less than a custodial sentence of some length can thus be countenanced.

Sentence

89 A, for the offence of murder, I sentence you to a non-parole period of 9 years and 6 months with a total sentence of 12 years and 8 months to commence on 23 September 2004. The non-parole period will expire on 22 March 2014 on which date you will be eligible for release on parole. The total term will expire on 22 May 2017.

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