Regina v CVH

[2004] NSWSC 205

CITATION:	Regina v CVH [2004] NSWSC 205 revised - 30/10/2009
HEARING DATE(S):	09/03/2004
JUDGMENT DATE:	22 March 2004
JUDGMENT OF:	O'Keefe J at 1
DECISION:	Sentences.; (1) For manslaughter - imprisonment for eight and a half years to commence on 25 January 2002 and to expire on 24 June 2010. Parole period fixed at five years to commence on 25 January 2002 and to expire on 24 January 2007; (2) For assault - fixed term of imprisonment of two years to commence on 25 January 2002 and to expire on 24 January 2004. Sentence to be concurrent with sentence for manslaughter; (3) For affray - fixed term of imprisonment of one year to commence on 25 January 2002 and to expire on 24 January 2003. Sentence to be concurrent with sentence for manslaughter.
CATCHWORDS:	Criminal law - Manslaughter - Assault - Affray - Plea of not guilty - Killing in company - Gang - Drugs - Revenge - Youth of prisoner - Remorse - Rehabilitation prospects - Educational courses in prison - Resentence - Statistics
LEGISLATION CITED:	Children (Criminal Proceedings) Act 1987 (NSW) s 25, Regulation 6 Crimes Act 1900 s 24 Crimes (Sentnencing Proceedures) Act ss 21A, 24
CASES CITED:	GDP (1991) 53 A Crim R 112 Wong v The Queen (2001) 207 CLR 584
PARTIES :	Regina CVH - Prisoner
FILE NUMBER(S):	SC 70012/01
COUNSEL:	Mr G Rowling - Crown Ms L Flannery - Prisoner
SOLICITORS:	Director of Public Prosecutions (NSW) Catherine Hunter - Prisoner

IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

O’Keefe J

22 March 2004

70012/01 Regina v CVH

REMARKS ON SENTENCE

Background

1 On 25 February 2002 CVH (the prisoner) was convicted by a jury of the manslaughter of Tremain Watene, assault on GF, and affray, all of which offences occurred at Campsie on 10 November 1997 at Lahood’s Amusement and Snooker Centre (Lahood’s). His offences were committed in concert with MTN and others and formed part of a joint attack on each of the victims.

2 The prisoner’s sentence hearing took place on 26 April 2002. Because of delays in obtaining relevant reports in relation to the prisoner’s co-offender the sentences for both of them were not handed down until 26 August 2002. The prisoner received the following sentences:

(i) In respect of the manslaughter of Tremain Watene he was sentenced to imprisonment for 10 years to commence on 25 January 2002 and to expire on 24 January 2012. There was a finding of special circumstances and the non-parole period in respect of this offence was fixed at 6 years to commence on 25 January 2002 and to expire on 24 January 2008.
(ii) In respect of the assault on GF he was sentenced to a fixed term of imprisonment to commence on 25 January 2002 and to expire on 24 January 2004. The sentence in respect of this offence was ordered to be served concurrently with the sentence for manslaughter.
(iii) In respect of the offence of affray he was sentence to a fixed term of imprisonment of one year to commence on 25 January 2002 and to expire on 24 January 2003. This sentence was also ordered to be served concurrently with the sentence for manslaughter.

The sentences referred to in (ii) and (iii) above have thus already expired.

3 The prisoner appealed against the severity of the sentences imposed on the following grounds that:

(i) the sentencing proceedings miscarried because of the failure to comply with s 25 of the Children (Criminal Proceedings) Act 1987 (the Act);
(ii) insufficient weight was given to the applicant’s youth at the time he committed the offences.
(iii) The sentences imposed were manifestly excessive.

4 The Court of Criminal Appeal (McColl JA, Grove and Dowd JJ) determined that the pre-sentence report tendered by the Crown at the sentence hearing, without objection on behalf of the prisoner, did not strictly comply with the provisions of Regulation 6(d), (e) and (f) of the regulations made under the Act. Those provisions require that the report relating to a prisoner to whom the Act applies must deal with the prisoner’s friends and associates (6(d)), the nature and extent of the prisoner’s participation in the life of the community (6(e)) and the prisoner’s disabilities (6(f)). Although many of the aspects required by the relevant regulation were before the court those referred to above were not. The Court of Criminal Appeal determined that there was no error demonstrated in the application of the principle of totality. However, because of the non-compliance with Regulation 6(d), (e) and (f) the matter was sent back for re-sentencing. It should be noted that in the Court of Criminal Appeal the question of the length of the sentence was not the subject of a determination.

STATUTORY MATTERS

5 The maximum penalty provided for manslaughter in s 24 of the Crimes Act 1900 is imprisonment for 25 years. The maximum penalties for the other two offences need not be considered further in view of the structuring of the sentence that is proposed and the fact that the times limited by the sentences previously imposed have already expired.

6 The Crimes (Sentencing Procedures) Act 1999 (the Sentencing Act) makes provision for regard to be had to a number of considerations. The primary obligation of the Court is to impose a sentence that is appropriate to all the circumstances of the case. (s 21A(1)). For that purpose the Court must take into account the matters specified in s 21A(2) and (3) of the Sentencing Act. Those referred to in s 21A(2)(b) (c), (d), (e), (g), (i), (l) and (n), are relevant as are those specified in s21A(3)(i) and (j). In addition in imposing a sentence the Court must take into account any time which the offender has spent in custody in relation to the particular offence (s 24(a)). Furthermore, the age and antecedents of the prisoner are relevant considerations. So too is the effect of the offence on the victim and the family of the victim. However, this factor and its effect are to be understood in the manner defined in the decided cases.

7 Because of the age of the prisoner at the time he committed the offence for which he is to be sentenced, the provisions of the Children (Criminal Proceedings) Act 1987 must be taken into account. The youth of the prisoner at the time of the commission of the offences is a matter of considerable importance and in determining the sentences to be imposed in the present casse, I have had regard to this factor and to the other matters referred to in the Children (Criminal Proceedings) Act 1987. Reference is to be made to such Act and its effect later in these reasons.

FACTS

8 For the purposes of re-sentencing the prisoner I adopt the matters and findings of fact in paragraphs 6, 7, 8, 9, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34 and 35 of my Remarks on Sentence of 26 August 2002. I also adopt paragraphs 39, 40, 41, 42, 49, 50 (subparagraphs 1 to 6 inclusive), 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 65, 66, 67, 68 and 69 of such Remarks on Sentence.

PRIOR CRIMINAL HISTORY OF THE PRISONER

9 When he was sentenced in August 2002 the prisoner had two convictions. The first offence was for shoplifting on 18 April 2000 for which he was fined $100.00 on 8 May 2000. The second offence was for supplying a prohibited drug on an ongoing basis on 22 November 2000. He was sentenced in the Sydney District Court on 22 June 2001 to imprisonment for 3 years with a non-parole period of 2 years in respect of this offence. The criminal record of the prisoner tendered in the present proceedings does not reveal any additional offences.

PERSONAL CONSIDERATIONS RELATING TO THE PRISONER

10 As indicated above, for the purposes of the present proceedings I adopt paragraphs 39, 40, 41, 42, 49 and 50 (sub paragraphs 1-6 inclusive) of my remarks on sentence of 26 August 2002. A report from the Department of Juvenile Justice was also tendered by the Crown. It was agreed that it was in accordance with the requirements of the Children (Criminal Proceedings) Act 1987 and the regulations made under such Act. It reveals in essence the facts referred to in paragraph 8 above, however, there is additional information concerning the prisoner’s two older brothers, namely, that they had recently been released from prison for drug charges and were staying with the prisoner’s mother who is unemployed. The prisoner reported a history of positive relationships with his mother and siblings but not with his father since the age of 14, when his mother and father separated.

11 The report reveals that he began to use cannabis shortly after the separation of his parents and by age 15 he was smoking heroin on a daily basis, however, this was not, according to him, as a result of anything done by his brothers. The report further reveals that after spending some 10 months on remand at a Juvenile Justice Centre as a result of the current offences, he was released in October 1998 and moved to Vietnam where he remained for six months with his grand parents. He said this was done to address his drug problem and avoid negative peer influence.

12 He returned to Australia in 1999 and rapidly became a heroin user again, however, by that time he was injecting the heroin rather than smoking it.

13 At age 18 the prisoner was remanded in adult custody for drug offences the sentence for which he has now completed. However he has remained in custody because of the current convictions in respect of which he now stands for sentence.

14 During the last three years that the prisoner has been in adult custody his mother has remained in close contact with him and his sister has also visited him. The prisoner claims a positive relationship with his mother and siblings, that she has always been supportive and has indicated her intention to continue this support for the foreseeable future.

15 During the time of his remand in the Juvenile Justice Centre he attended alcohol and other drug counselling, but after his release from that centre he did not continue with or undertake any further counselling or intervention. Since his imprisonment for the current offences he has, however, undertaken a number of courses. These are:

· a seven week course in relapse prevention (June 2002);

· “Writing for Self Expression” (May 2003);

· “Raising Awareness for Change (20 June 2003). This course included topics such as Facilitating Change, Self Esteem, Communication, Drug and Alcohol Awareness, Gambling Awareness and Vocational Orientation;

· Obtaining partial certificates in General Education for Adults Foundation (August 2003);

· Obtaining two certificates (2.6 and 2.7) in “Reading for Practical Purposes”;

· Completing level 2 “Anger Management”, level 2 “English” and a TAFE ESL course.

Whilst the content of some of these courses is unknown it is apparent that since his last sentence hearing the prisoner has undertaken a number of recognised courses within the prison system and I am of opinion that this is a positive feature for the prisoner. There was no evidence of such a kind at his sentence hearing in April 2002.

16 On the last occasion he was before me the prisoner did not give any evidence of remorse. He has, however, given such evidence at this hearing. Although this gave an impression of having been rehearsed, this could have been because of his limited command of English. Moreover, in a statement dated 27 August 2002 in which he applied for an opportunity to engage in an educational programme he said:

“As I am remorseful for the crime I have committed I feel it isn’t enough to prevent it from happening again.
This programme can help me beneficially. I hope you give me the opportunity to become a better person through this programme.”

17 It is clear from the documentation tendered that the prisoner was permitted to take part in the educational programme from which I infer that the prison authorities took the view that he was a worthwhile prospect for programmes of such a kind.

18 The foregoing indicates a change of attitude on the part of the prisoner. He has matched words with action, has deposed to his remorse and I am prepared to give him the benefit of the doubt in relation to remorse, although I still have some doubts about this matter.

19 The prisoner told the Juvenile Justice officer that he has no intention of being involved in further violent behaviour for the rest of his life. This statement is laudable, but does not sit well with the fact that a urine test in May 2003 was described in the prison records as “dirty”. He is, however, polite and courteous to staff and has been employed in the laundry shop and the packing shop. In September 2003 his Correctional Service case notes state:

“There have been no adverse reports on his running sheets. Fits in well with the wing.”

20 The prisoner denied that he was a member of any gang and informed the Juvenile Justice officer who prepared the report that was tendered to the court that at the time of the relevant offences he “was spending all his time with his co-offenders and other heroin users.” He said that he had not remained in contact with his co-offenders and other drug-using peers and does not intend to ever contact them again. I do not accept his denial in relation to his gang membership. As far as his co-offenders are concerned, being in prison would prevent him from making contact unless they were in the same prison and his statement about not initiating contact with other heroin users does not sit well with the matters referred to in paragraph 19 above.

21 The version of events given to the Juvenile Justice officer is quite self serving and inconsistent both with the verdict of the jury and my own findings of fact. Whilst it is understandable that the prisoner would wish to paint himself in as good a light as possible, his refusal or inability to face the facts as they are, poses problems for his rehabilitation. Admission of criminality is often a first step towards rehabilitation. The Juvenile Justice officer notes that “his honesty in regard to his account is questionable.” This, in my opinion, puts a complexion on his statements that is more favourable than the facts really allow.

22 The conclusion in the report from the Department of Juvenile Justice adverts to the prisoner’s vulnerability at the time the offence was committed due to his drug addiction, the fact that he lived in a troubled area and lacked a male role model. These are factors that I take into account in imposing the sentences for the offences for which the prisoner is to be re-sentenced. However, the prisoner’s problem with heroin is seen as a significant factor in relation to his future, so too is his need for further education. I think that heroin addiction remains a real problem.

SUBMISSIONS ON BEHALF OF THE PRISONER

23 At the forefront of the submissions on behalf of the prisoner is his youth at the time he committed the offences for which he is to be sentenced. It is a highly relevant matter and I take it into account. The principles embodied in s 6 of the Children (Criminal Proceedings) Act 1987 apply. That which is relied on most heavily is the principle of taking into consideration that children who commit offences must bear responsibility for their actions but, because of their state of dependency and immaturity, require guidance and assistance (GDP (1991) 53 A Crim R 112).

24 It is important in applying these principles to note that responsibility for their actions is part of the same consideration that requires their state of dependency, immaturity and need for guidance to be taken into account. They are considerations that will have varying effect according to the circumstances of the case. Where young offenders act like adults and commit adult crimes that are serious they may attract less leniency in sentencing than their age might otherwise support. However, where immaturity is a significant contributing factor to an offence then it may be fairly said that the criminality involved is less than it would be in the case of an adult of mature years. Generally, the younger the offender the greater the weight to be given to the element of youth. Furthermore, the considerations of general deterrence are not of the same weight for a young person as they are for an adult. I take these considerations into account in fixing the sentences.

25 In the course of the submissions reference was made to the sentences imposed on other persons who were involved in events at Lahoods on 10 November 1997. I do not think that these references are of assistance. JD received a sentence of 2 years imprisonment for assault occasioning actual bodily harm and a 12 month bond for the offence of affray. He pleaded guilty and assisted the authorities; indeed his evidence was significant in the trial of the prisoner. Andre Nasr received a sentence of 18 months periodic detention and a 12 month concurrent sentence for affray. He too pleaded guilty and gave evidence against MTN at his joint trial with the prisoner. HDN did not plead guilty. He was sentenced to imprisonment for 2 years and 10 months for assault occasioning actual bodily harm and affray. His minimum term was fixed at 22 months and 18 days.

26 None of the persons referred to in paragraph 25 was convicted of an offence of the seriousness of that for which the prisoner was convicted and I do not think that any real assistance is obtained from the sentences imposed, particularly when regard is had to the spectrum of such sentences.

27 The written submissions on behalf of the prisoner also addressed the question of totality. Reference is made to the sentence of 3 years that was imposed on the prisoner on 22 June 2001 for the supply of prohibited drugs. It was submitted that some regard should be had to this fact when considering the commencement date of the sentences to be imposed. I do not agree. The offence for which the prisoner was sentenced to imprisonment for three years was quite independent of the present offences. It was a drug offence. It was committed at a different place. It was committed at a different time. It was committed in different circumstances. To discount the appropriate sentence for the crimes for which the prisoner is now to be sentenced would in my opinion have the effect of giving him a benefit for his other criminality and send the wrong message to other persons who may be inclined to act as the prisoner acted on 10 November 1997.

STATISTICS

28 The statistics produced by the Judicial Commission of New South Wales in relation to penalties imposed for manslaughter were referred to. They show that in some 90 percent of the cases a sentence of imprisonment was imposed. In the submissions made on behalf of the prisoner reference was made to the median term derived from the statistics. In my opinion there are difficulties in using this mathematical concept as a datum. The first source of difficulty is the very nature of the crime of manslaughter itself. The second is the wide range of sentences revealed in the statistics. A third is that adverted to by the High Court in Wong v The Queen (2001) 207 CLR 584 in which Gaudron, Gummow and Hayne JJ said:

“… to attempt some statistical analysis of sentences for an offence which encompasses a very wide range of conduct and criminality … is fraught with danger, especially if the number of examples is small. It pretends to mathematical accuracy of analysis where accuracy is not possible. It may be mathematically possible to say of 20 or 30 examples of an offence … where the median or mean sentence lies. But to give any significance to the figure which is identified assumes a relationship between all members of the sample which cannot be assumed in so small a sample. To take only one difficulty, why were the highest and lowest sentences set as they were? (at 608)

29 Notwithstanding these difficulties, but bearing them in mind, it may still be of some assistance to consider the various statistics. The range of sentences revealed by the statistics relating to manslaughter is from 18 months to 20 years. The statistics also show that the head sentences in 80 percent of the cases range from 6 years to 14 years, with more than 33 1/3 percent of the sentences falling between 8 years and 14 years and that in just over 33 1/3 percent of the cases the non-parole periods range from 5 to 10 years. The outliers in the statistics, that is, head sentences below 4 years or above 14 years, account for only 11 percent of the sentences. It is highly likely that these sentences were imposed in respect of manslaughters committed in circumstances that were especially heinous on the one hand or of low culpability on the other.

30 The present case is not at the very high end of the spectrum of culpability nor is it in the lower levels of culpability. It was, as I have found, a deliberate group crime. It involved gratuitous violence. It involved planning. It involved a body of young men combining to attack two other young men. It was seen by the attackers, including the prisoner, as an act of revenge. It resulted in the death of one young man and the wounding of another. A clear message needs to be sent that such behaviour will be viewed by the courts in a most serious manner by the imposition of a condign penalty, even though the prisoner was a young person at the time of the offences.

CONCLUSION

31 When regard is had to the objective seriousness of the crime of manslaughter, the circumstances in which the subject manslaughter was committed and the subjective factors to which I have referred above, including the prisoner’s youth, the remorse expressed by him, his attempts to improve his lot whilst in prison and his apparently changed attitude since he was sentenced, I am of opinion that the sentence for manslaughter now to imposed on the prisoner should be reduced from 10 years to 8 ½ years and in view of the special circumstances I am of opinion that the non-parole period should be reduced from 6 years to 5 years. However, I do not think that the sentences imposed on the prisoner on 26 August 2002 in respect of the malicious wounding of GF and affray should be altered.

SENTENCE

32 CVH you have been convicted by a jury of your peers of the manslaughter of Tremain Watene on 10 November 1997, of assault on GF and affray on the same date. I impose the following sentences on you in respect of those offences.

(i) For the manslaughter of Tremain Watene I sentence you to imprisonment for eight and a half years to commence on 25 January 2002 and to expire on 24 June 2010 and I fix the non parole period in respect of this offence as five years to commence on 25 January 2002 and to expire on 24 January 2007, on which date you will become eligible for consideration for parole.

(ii) For the assault on GF I sentence you to a fixed term of imprisonment of 2 years to commence on 25 January 2002 and to expire on 24 January 2004. This sentence is to be served concurrently with your sentence for manslaughter.

(iii) For the offence of affray I sentence you to a fixed term of imprisonment of 1 year to commence on 25 January 2002 and to expire on 24 January 2003. This sentence is to be served concurrently with your sentence for manslaughter.

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Last Modified: 10/30/2009