Regina v KR

[2010] NSWSC 188

CITATION:	Regina v KR [2010] NSWSC 188
HEARING DATE(S):	19/02/2010, 05/03/2010
JUDGMENT DATE :	19 March 2010
JUDGMENT OF:	Howie J at 1
DECISION:	In respect of the murder, count 1, the offender is sentenced to a term of imprisonment made up of a non-parole period of 12 years to date from 30 April 2009 with a balance of term of 6 years 9 months. The offender is eligible to be released to parole on 29 April 2021. In respect of count 2 the offender is sentenced to imprisonment for a fixed term of 12 months. That sentence commenced on 30 July 2008 and expired on 29 July 2009. In respect of count 3 the offender is sentenced to imprisonment for a fixed term of 6 months. That sentence commenced on 30 April 2009 and expired on 29 October 2009.
CATCHWORDS:	CRIMINAL LAW - Sentences for killing in the course of robbery and associated robberies after pleas of guilty - juvenile offender - parity with co-offender
LEGISLATION CITED:	Children (Criminal Proceedings) Act 1987 - ss 6, 19(3) Crimes (Sentencing Procedure) Act 1999 - s 21A(3)
CATEGORY:	Sentence
CASES CITED:	R v LR [2010] NSWSC 22
PARTIES:	Regina v KR
FILE NUMBER(S):	SC 2009/7539
COUNSEL:	G Tabuteau - Crown H White - Offender
SOLICITORS:	S Kavanagh - Crown J Krajcik - Offender

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

HOWIE J

FRIDAY 19 MARCH 2010

JUDGMENT

1 HIS HONOUR: The offender, who is a juvenile, pleaded guilty to three offences that all arose from a single criminal enterprise that he committed with another juvenile, LR. I have already sentenced the co-offender for his offences: see R v LR [2010] NSWSC 22.

2 The offender was arraigned on an indictment that contained three counts. The first count alleged that on or about 14 June 2008 he murdered Daniel Owen. The second count alleged that on or about 13 June, while being in company with LR, he assaulted Virginia Gay with intent to rob her. The third count alleged that on or about 14 June 2008, while being in company with LR, he assaulted Richard Young with intent to rob him. The offender pleaded guilty to the first two counts on arraignment on 7 August 2009. He pleaded guilty to the third count on 4 September 2009.

3 In respect of the offence of murder the maximum penalty is life imprisonment. Because the offender is a juvenile the standard non-parole period does not apply. In respect of the other two offences the maximum penalty is imprisonment for 20 years.

4 The facts were contained in an agreed statement. The offender did not give evidence before me. I sentenced LR, who was not charged with the offence relating to Ms Gay, based upon the agreed facts and evidence given by LR that was not challenged by the Crown. I indicated in the sentencing remarks that I believed that LR was minimising his involvement in the killing but was bound by his unchallenged evidence that he played a lesser role in the killing than did this offender.

5 Of course I cannot use the evidence of LR for the purpose of sentencing this offender, and in the absence of evidence from the offender I simply draw what conclusions I can from the agreed facts. However, whereas I was bound to find facts that to some degree mitigated LR’s involvement in the murder, there are no such facts in the case of the offender apart from his intoxication.

6 The facts can be summarised as follows. On the night of 13 June 2008 the offender and LR were at a party at a club in Tempe. Friends picked them up from the party after 11 pm in a motor vehicle and the co-offender was noticeably intoxicated. In the vehicle LR suggested to this offender that they rob someone. He said, "Let's pop a roll." The offender agreed. They were let out of the vehicle in Illawarra Road, Marrickville for the purpose of finding someone to rob.

7 Shortly after 12.05 am on 14 June the deceased was found in the driveway of 476 Illawarra Road, lying face down in a large pool of blood. He was aged 31 and resided in a unit at that address. When ambulance officers arrived a short time later, he was pronounced dead. The deceased's wallet was found in the driveway and was empty of cash. DNA was found in the wallet that matched this offender. The deceased's keys were found a short distance away but his mobile telephone was missing. An autopsy revealed that he had died from "blunt force head injuries". It was clear that the assailant or assailants had stomped on his head and face numerous times. Shoe patterns were located on his skull, face and neck. There were also rib fractures. It is clear that the deceased had been kicked to death.

8 LR had retained the deceased’s mobile telephone and made a number of calls using it, some of which were lawfully intercepted by police.

9 On 28 July 2008 police spoke with the offender and received from him a pair of Nike shoes that bore a tread similar to that found upon the head of the deceased. During investigations a number of pairs of shoes were obtained from the offender and LR. Paragraph 19 of the agreed statement contains the following:

Subsequent examination of shoes seized from both the offender and the co-offender showed that visible shoe tread patterns on the posterior region of the deceased’s head were consistent with the tread pattern of the shoes worn by the offender.

The words “posterior region of the” were added at the request of counsel for the offender.

10 The facts state that both LR and the offender acted jointly to cause the death of the deceased and did so with the intention that grievous bodily harm would be inflicted upon him. It is also stated that both offenders participated in the infliction of grievous bodily harm upon the deceased.

11 A clear inference from the facts is that the offender inflicted at least some of the identifiable shoe prints upon the deceased’s head. However the facts in relation to the robbery of Ms Gay state that, where LR had been seen by the victim to be standing at the time she was robbed by the offender, a shoe print similar to those identified upon the deceased’s head was found. It was put to me that I should find that this print was left by LR and, therefore, I should conclude that he was responsible for the infliction of injuries to the head of the deceased.

12 No shoes were recovered from LR that bore that shoe print yet two pairs of shoes obtained form the offender did. There is nothing to suggest that the police would not have taken all the shoes LR had in his possession. It is highly likely that the print recovered from where LR had been standing was also made by the offender at some time around the robbery of Ms Gay. I am satisfied beyond reasonable doubt that the offender inflicted the shoe prints found upon the deceased’s head. However, I am not satisfied beyond reasonable doubt that he alone was responsible for the injuries inflicted to the head and face of the deceased. For the purpose of sentencing the offender I am satisfied that both offenders were equally responsible for the death of the deceased.

13 I understand that there is an inconsistency in the facts upon which I sentence the two offenders in relation to the murder, but that is a result of the different evidence before me. This has been brought about to a large degree because I could not sentence the offenders together. This was a result of this offender sacking his barrister and then contemplating whether to withdraw his pleas of guilty. I was not prepared to delay sentencing LR while there was uncertainty as to whether this offender would maintain his pleas of guilty.

14 It is also a result of the decision of the offender not to give evidence before me. He is not treated more harshly simply because he did not give evidence. But I have no account from him to explain the circumstances in which the killing took place. Although I have always had doubts about the honesty of the account given by LR, it was not challenged by the Crown and was not inconsistent with the agreed facts.

15 Mr White, counsel for the offender, tried valiantly to maintain that I should impose the same sentence upon both offenders according to the principle of parity. But because the factual basis upon which I sentenced LR is different to the factual basis upon which I sentence this offender, there must be disparity in the sentences imposed. If I imposed the same sentence on this offender as I did on LR, then LR would have grounds to complain that he was unfairly treated having regard to the mitigating facts found in his favour.

16 As I stated when sentencing LR this was a bad case of murder. Both accused were fortunate to have the Crown agree that there was no intent to kill, presumably on the basis of the intoxicated state of the offenders. I have difficulty accepting that even an intoxicated person would not realise the severity of the injury being inflicted by repeatedly stomping on the head and face of a person who is lying on the ground unable to defend or protect himself. But in any event the grievous bodily harm they must have intended to inflict upon the deceased was very grave indeed and there was such an obvious high risk of death resulting that there is little mitigation in the fact that they did not act with the intention of killing the deceased.

17 Like LR the offender is very fortunate indeed that there is no standard non-parole period applicable to a juvenile. I believe there is much to commend the return of the standard non-parole period in cases of murder by juveniles. The youth of the offender can be taken into account in the decision to depart from the standard non-parole period. Yet it seems to me that the offence is so serious that it is important that the standard non-parole period be a relevant consideration when sentencing any offender for that crime despite his or her age. I think that it is particularly arbitrary that the standard non-parole period of 20 years will apply to a person just over the age of 18 but not to a person just under that age, as was the offender. The relevant principles that guide the sentencing of young persons have considerably less significance when sentencing a young person for murder.

18 The facts of the robbery offences can be stated briefly. The first of these was an attack upon a male cyclist aged 20 who suffered minor injuries when attacked while riding on Illawarra Road, Marrickville. The victim could not remember the incident. Items of the victim were later recovered and on an identification card were found the fingerprints of the offender.

19 The other robbery was more serious. Ms Gay was walking on Illawarra Road when the offender struck her to the back of the head. She was knocked off her feet into a fence. She slid to the ground. The offender then snatched her bag causing the strap to break. He poured out the contents onto the footpath. He demanded her wallet but she said she did not have one. The offender than punched her hard twice to the head and kicked her in the left cheekbone. Fortunately for the victim a bus came by and she was able to flag it down. She asked the driver to call police and the offender and LR ran into a park. The victim suffered redness and swelling to her cheekbone, tenderness to her right cheek and a lump over the right ear. These were not the type of injuries that would aggravate the offence although it is relevant that she suffered actual violence and not simply the threat of violence.

20 Notwithstanding that the offender was charged with being in company with LR, who was standing not far away, LR was not charged with this offence. I cannot understand that decision when he was the instigator of the joint criminal enterprise upon which the two were embarked to rob any person they came across. Could it really be suggested that he had withdrawn from the enterprise, or was it more likely the case that the offender, who was a larger person than LR, was quite capable of dealing with Ms Gay himself. Although Mr White suggested that I should take into account that the offender may have a sense of injustice with that result, there is no basis for mitigating the sentence for that reason. If there is injustice arising from the decision of the prosecutor, it is not one that the Court can or should address.

21 Although I gave LR the benefit of a concurrent sentence for the robbery of the cyclist, so grave was the murder, I am not prepared to take the same approach with respect to the robbery of Ms Gay. It was put to me that if the offender appeared before the Children’s Court for that offence he would not receive a custodial sentence. If that is true, then with the utmost respect to those that sit in that jurisdiction, it would be a manifest injustice to both Ms Gay and the community that the offender could behave in that way and yet avoid a sentence which appropriately denounced such behaviour and sought to deter other young men from acting in a similar way.

22 In any event he is not before the Children’s Court and he is not being sentenced for that offence alone. Whatever considerations might be used to justify a non-custodial sentence in that jurisdiction in determining the appropriate sentence for that offence, they have little relevance when I am also dealing with the offender for a serious murder that itself warrants a sentence that denounces senseless violence of that nature by intoxicated young men and seeks to deter other young men from similar conduct. It is difficult to see that s 6 of the Children (Criminal Proceedings) Act has much work to do when it is self evident that the offender must receive a sentence of many years in custody for the killing.

23 Of course his youth is not irrelevant and he will not receive the sentence for either the murder or the robberies that he would have received had he been older. As I made clear in sentencing LR, I must take into account established principles relating to the sentencing of juveniles and the sentence to be imposed is far less than one that would be imposed even had the offender been a young adult. In those sentencing remarks I stated:

It may seem curious that the courts draw such a distinction between persons under the age of 18 and those above that age, but such a distinction runs through other facets of everyday life in the community. It has statutory recognition in the laws relating to criminal proceedings involving persons under the age of 18 years. The sentences imposed by the Childrens Court bear little or no relationship to those imposed in the Local or District Court for the same crimes. The distinction is even greater now that the standard non-parole provisions do not apply to persons under the age of 18 when they commit serious offences.

24 The offender was born on 18 April 1991 and is slightly older than LR. Like his co-offender he has no criminal record. There was nothing to suggest that when intoxicated he is usually violent. I do not regard his intoxication by alcohol and drugs as a matter of mitigation except that it explains at least to some degree why he acted out of character. But it does not explain why he acted with such violence particularly to the deceased and Ms Gay.

25 There was in evidence two Juvenile Justice Reports. The first was the usual report of this nature setting out the background of the offender. Like his co-offender he is also of Aboriginal descent. He was in the care of his maternal grandmother since birth along with two cousins whom he regards as sisters. He has had limited contact with his mother due to her chronic heroin addiction. He had some contact with his father but this ceased when his father reallocated to England when the offender was aged 13. It was then that he started to spend his time with what is described in the report as a “negative peer group”. It is suggested that this was related to the rugby team he joined and with whom he started to drink alcohol. He would drink every Friday and Saturday night usually to excess. He started using cannabis in 2008 and at the time of the offences had developed a “serious poly-drug problem”.

26 The offender completed his School Certificate. He commenced Year 11 but found it too difficult. He has never been employed. Since going into custody he has been attending to studies and courses with good results. He was offered paid employment at Kariong because of his good conduct and attitude. He was subsequently removed to Baxter Juvenile Justice Centre and is engaged in Year 11 studies. He has also engaged in Alcohol and Drug counselling while in custody.

27 The report indicates that the offender had shown genuine remorse for the offences and that he was deeply disturbed by the death of the deceased. It is stated that he has shown significant change and progress while in custody and “is accepting all opportunities to address his issues as well as making improvements in his life”.

28 The second Juvenile Justice report concerned the issue of whether there were special circumstances for the purposes of s 19(3) of the Children (Criminal Proceedings) Act to which I shall return shortly.

29 There have been a number of character references tendered that indicate his normal behaviour in the community is usually beyond reproach. He apparently, like his co-offender, was a talented footballer. There is a letter from his grandmother who will greatly miss him as a companion and a help around the home. There were also in evidence a number of achievement awards and good reports from the George Anderson Walpole School.

30 There was a psychological report in evidence. There is little of significance in it having regard to the offences for which the offender is to be sentenced. He had little recall of the events of the evening apparently because of his state of intoxication from alcohol and “two blue tablets that he had consumed”. He recalled vaguely getting out of the vehicle to obtain money to go “clubbing”. He recalled “running up to the first two victims” who were the deceased and Ms Gay but could not recall the third victim, the cyclist. The psychologist could give no explanation for the offending other than the effects of alcohol and the pills, whatever they were, and being with an associate. The psychologist thought it was the effects of his intoxication rather than immaturity that caused the offences.

31 Although the psychologist expressed his views about the prospects of reoffending and rehabilitation I find it difficult to form any view about these matters as the offender must spend a considerable period of time in custody. Much will depend upon what use he makes of that time. There is no reason to consider that he is beyond redemption given his youth and lack of prior record. If he continues as he has been doing recently in trying to improve his education and address his issues with alcohol and drugs, then there is no reason to think that he should not be released at the end of his non-parole period.

32 The psychologist has addressed the issue of special circumstances in relation to making an order under s 19(3) but I do not consider that these matters are within his expertise. He tells me nothing that I do not know from my own experience. I do not understand why it is so often that psychologists enter into areas beyond their expertise particularly in the fields of penology and psychiatry. I do not accept, as the psychologist apparently does, that older prisoners are necessarily more deviant than younger offenders with whom the offender has been sharing his custody. I doubt that he will come into contact with many adult offenders who have senselessly kicked to death an innocent young man apparently simply for the pleasure of inflicting pain and permanent injury.

33 The second Juvenile Justice report addressed the issue of special circumstances and evidence was called from the author of that report. That material does not indicate to me that there are special circumstances for making a direction that the offender remain in a juvenile detention centre until he is 21 years. The assistance that the offender requires for both his education and to address his alcohol and drug problems are available in adult correctional facilities as is psychological counselling and treatment.

34 The offender did not plead guilty until his arraignment in the Supreme Court. I was told that this was because the issue of intoxication had to be considered. That might be so but the utilitarian value of the pleas was delayed. Although I indicated at the hearing that I thought a discount of 20 per cent would be appropriate, on further reflection that would be unjustified and unfair to the co-offender who pleaded guilty in the Children’s Court. I believe the Crown was correct in his submission that the discount should be less than I suggested. I am prepared to discount his sentence by 15 per cent.

35 Although the offender did not give evidence he wrote a letter to the Court and one to the deceased’s family. The letter to the Court expresses remorse for the offences he committed. Mr White emphasised that the offender has always expressed remorse whereas LR showed an absence of remorse in telephone calls he made on the deceased’s phone. I do not believe this is a significant matter. Ultimately I was satisfied that LR was remorseful. Remorse is a mitigating factor under s 21A(3) of the Crimes (Sentencing Procedure) Act 1999 but by itself it does not seem to me to be a highly relevant matter. Many offenders can be remorseful for the offence yet offend again because of an alcohol or drug addiction or psychiatric illness. Remorse is more relevant to the question of rehabilitation.

36 When sentencing LR I remarked upon the moving victim impact statement read by the deceased’s father. It was read again in front of the offender and was just as moving on the second occasion of hearing it.

37 The appropriate sentence for the murder before discount is 22 years. The sentence for the robbery of Ms Gay before discount is 3 years and that for the other offence 2 years. That results in a sentence for the murder of 18 years 9 months. There should be sentences of fixed terms for the two robberies being the equivalent of the appropriate non-parole periods. As I have indicated there is to be some accumulation of the murder sentence on that for the robbery of Ms Gay. It is my intention that the offender should serve 12 years 9 months in custody before being eligible for release to parole.

38 In respect of count 2 the offender is sentenced to imprisonment for a fixed term of 12 months. That sentence commenced on 30 July 2008 and expired on 29 July 2009. In respect of count 3 the offender is sentenced to a fixed term of 6 months. That sentence commenced on 30 April 2009 and expired on 29 October 2009. In respect of the murder the offender is sentenced to a term made up of a non-parole period of 12 years to date from 30 April 2009 with a balance of term of 6 years 9 months. The offender is eligible to be released to parole on 29 April 2021.

39 I request that the offender be kept in a juvenile detention centre for one month from today in order for an application to be made to convince me that there are special circumstances for an order under s 19(3) of the Children’s (Criminal Proceedings) Act.

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