Regina v Mark Anthony Esposito

[2006] NSWSC 1454

CITATION:	Regina v Mark Anthony Esposito [2006] NSWSC 1454 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	3 November, 23 November and 11 December 2006
JUDGMENT DATE :	20 December 2006
JUDGMENT OF:	Latham J
DECISION:	Manslaughter - Non-parole period of 4 years to date from 3 September 2004, expiring 2 September 2008. Balance of term 2 years 10 months, expiring 2 July 2011.
CATCHWORDS:	Sentence - Manslaughter - Joint Criminal Enterprise to Assault - No evidence of offender's particpation in assault.
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999
CASES CITED:	RNM v Regina [2006] NSWCCA 375
PARTIES:	Crown - Regina Accused - Mark Anthony Esposito
FILE NUMBER(S):	SC 2006/301
COUNSEL:	Crown - LL Lungo Offender - KA Chapple SC
SOLICITORS:	Crown - S Kavanagh Offender - Robertson Saxton Primrose Dunn

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

LATHAM J

20 December 2006

2006/301 REGINA v MARK ANTHONY ESPOSITO

SENTENCE

1 The prisoner, Mark Esposito, was found guilty by a jury on 16 August 2006 of the offence of manslaughter of Hao Nam Tran, in the alternative to a charge of murder upon which indictment the prisoner had been tried commencing 7 August 2006.

2 The circumstances giving rise to the death of Mr Tran were substantially not in dispute at trial. On 13 August 2004, Mr Tran and his associates had gone to the prisoner’s home at Hinchinbrook and had made threats of violence towards the prisoner, who was not at home, and to the prisoner’s de facto wife in the presence of his children.

3 Whilst the motive for this offence remained obscure, it appears that Mr Tran was under the impression that the prisoner owed him money, possibly arising out of a drug debt. These events were reported to police and Mr Tran was subsequently charged with a home invasion offence.

4 On the afternoon of 16 August 2004, the prisoner and several of his associates gathered at the home of a Mr Hanchard. Included in the prisoner’s associates was one Khaled Hayek, an expert in martial arts, and known by the prisoner to be so qualified. The prisoner’s de facto wife was also in attendance. There was a discussion between Hayek and others concerning the threats made by Mr Tran towards the prisoner’s family. The evidence of the prisoner’s de facto spouse suggested that at the time of this conversation the prisoner was otherwise engaged, playing with his children in the backyard of the premises. In any event, it seems clear that Hayek indicated his intention to teach Mr Tran a lesson.

5 The prisoner either independently or in association with the plan hatched by Hayek agreed to meet Mr Tran on the evening of 16 August 2004. The prisoner told his de facto wife in the course of conversations which were the subject of listening device intercepts in the days and weeks following Mr Tran’s death, that he did not want to take Mr Tran to Hayek’s premises but that Hayek insisted. The prisoner was at Hayek’s unit in Cabramatta at the time that Mr Tran was instructed to come, and the prisoner remained there after Mr Tran arrived.

6 The forensic evidence, namely, a quantity of blood splatter on the curtains and walls of the living area, and on the wall and floor of the bathroom, together with the content of the prisoner’s subsequent conversations with his de facto spouse, establish that Mr Tran was assaulted within the unit principally by blows to the head, most likely inflicted by Hayek striking Mr Tran with his feet, then enclosed in shoes.

7 The terms of the prisoner’s conversations with his de facto wife established the prisoner’s presence during the assault and the prisoner’s participation in an agreement with Hayek to exact some retribution for Mr Tran’s treatment of the prisoner’s family. There was however no evidence capable of establishing that the prisoner himself participated in the assault. When it became clear that Mr Tran had died from the injuries inflicted by Hayek, the prisoner assisted in disposing of the body by dumping it in Broad Street, Cabramatta, in the early hours of 17 August 2004.

8 The jury’s verdict therefore accepted the proposition that the prisoner was a party to an agreement with Hayek to assault the deceased, and that the prisoner’s knowledge of Hayek’s qualifications in martial arts brought with it a realisation that Hayek would assault the deceased by way of unlawful and dangerous acts.

9 The objective gravity of this offence must be measured principally in terms of the unlawful death of a human being which is, in any circumstances, regrettable and worthy of punishment. Whatever the antecedents and reputation of the deceased, it must never be forgotten that the law places considerable value on the worth of a human life. However the prisoner stands to be sentenced for his part in an agreement to inflict some harm upon Mr Tran, absent any evidence of actual blows inflicted by the prisoner.

10 This aspect of the matter brings me to a consideration of the role played by Hayek in the deceased’s death. It is a matter of some surprise and concern that Hayek was not charged in relation to the death of Mr Tran despite the identification of blood splatter on the shoes of Hayek. It appears that Hayek seized the opportunity afforded by a police interview to substantially blame the prisoner for the deceased’s death. As a result of the prisoner’s conviction and an extended interview with police in the expectation that the prisoner might provide the prosecuting authorities with some assistance, some consideration is presently being given to charging Hayek with an offence arising out of the death of Mr Tran, however I am informed that the Director does not regard the prisoner as a reliable witness given the lengths to which the prisoner went to distance himself from any role in the assault upon Mr Tran, and that it is unlikely that the prisoner will be of any assistance in any forthcoming prosecution of Hayek.

11 The extent to which the prisoner should receive a discount on the sentence otherwise appropriate to the objective gravity of the offence on account of the information provided by the prisoner to police in the course of the extensive interview conducted on 15 November 2006, is the subject of some contention. The prisoner’s senior counsel submitted that the issue of the prisoner’s reliability in any forthcoming prosecution of Hayek was a question for the jury.

12 That is a self-evident proposition but one that is likely to remain theoretical in the light of the Director’s present refusal to call the prisoner to give evidence against Hayek. However the Crown Prosecutor accepts that it is appropriate to nominate a discount on the basis that the prisoner will be identified within the prison system as an informer, thereby placing himself at personal risk and affecting his conditions of custody, see RNM v Regina [2006] NSWCCA 375.

13 It should also be borne in mind that the legal representatives for the prisoner offered a plea to manslaughter on 23 June 2005 when the matter was still before the Local Court. It was indicated at that stage that the prisoner would assist in the prosecution of other persons involved in the assault upon Mr Tran.

14 The Director formed the view that the offer of a plea should be considered after the prisoner had provided an induced statement. No such induced statement was provided. In addition, the Crown indicated its willingness to accept a plea of guilty to manslaughter shortly prior to trial, but that offer was ultimately rejected and the trial proceeded.

15 I accept that the prisoner was willing to assist the authorities at various times, but that the prospect of retaliation towards himself and/or members of his immediate family dissuaded him from that course. Having regard to the factors set out in s 23(2) of the Crimes (Sentencing Procedure) Act 1999, I do not regard a discount of more than fifteen per cent as warranted in the circumstances of this case.

16 The innocent complexion that the prisoner places upon his presence in the unit on the night of Mr Tran’s death is also consistent with the lack of remorse demonstrated by the prisoner in the course of his contact with Probation and Parole for the purposes of preparing the pre-sentence report that is now exhibit B on sentence. The prisoner continues to deny the commission of any offence.

17 I turn to the prisoner’s subjective circumstances. The prisoner is the youngest of three children born in 1971. In 1973, the prisoner’s mother was struck by a train and died. The prisoner’s father remarried one year later to a woman who had two sons by a prior relationship. The prisoner’s father and stepmother had a daughter. When the prisoner was seven years of age, and there were six children in the family, the prisoner witnessed his stepmother’s death in a car crash. The family then broke up, with two of the prisoner’s stepbrothers leaving to reside with their grandmother.

18 Not surprisingly, the prisoner describes his childhood as unhappy. The prisoner also alleges a period of ongoing sexual abuse as a child at the hands of a relative.

19 The prisoner left home and commenced to frequent Kings Cross where he was introduced to heroin. For approximately three years, the prisoner was predominantly homeless and part of the Kings Cross drug subculture until his first custodial sentence in 1992 for property offences and assault with intent to rob. Prior to that time, the prisoner had received the benefit of probation and recognisances for a large number of property offences committed between 1988 and 1989.

20 The prisoner has had two prior significant relationships, one between 1989 and 1991, resulting in the birth of a daughter who currently lives with her mother, and a further relationship between 1995 and 2000 resulting in the birth of another daughter. The prisoner has the custody of that daughter, whose care has been undertaken by the prisoner’s present de facto spouse. This third and continuing relationship has been on foot since 2000 and has resulted in the birth of a third daughter. The prisoner’s de facto partner is supportive and looking forward to the prisoner’s release from custody.

21 The prisoner left school at the age of fourteen years and began work in the construction industry, primarily as a cement renderer. He claims that there have only been two years in which he has not been employed since 1994, other than periods of time spent in custody. The prisoner has expressed an intention to seek a career outside the building industry upon his release.

22 The prisoner’s history of heroin abuse commences at the age of sixteen years. It is promising however that he has been on a methadone programme at various times, most notably between May 2000 and August 2004. He claims to have abstained from heroin use for up to seven years but has relapsed on occasions.

23 His criminal history is consistent with intermittent addiction, that is, primarily it consists of property offences. The last custodial sentence was imposed in November 1999, resulting in the prisoner’s release in January 2000.

24 I regard his prospects of rehabilitation as guarded, although I was impressed by his de facto spouse, who is a highly intelligent woman seemingly devoted to the prisoner. She is capable in my view of influencing the prisoner for the better.

25 The prisoner has been in custody solely in relation to this offence since 3 September 2004. Accordingly, the sentence will be imposed from that date. I have determined that the prisoner’s need for further supervision in the community to assist him to avoid a relapse into drug abuse constitutes special circumstances.

26 Taking all these matters into account, I regard a head sentence of eight years imprisonment appropriate to the prisoner’s objective and subjective criminality. Applying a discount of fifteen per cent to that sentence I have determined to impose the following sentence.

27 You are convicted. I sentence you to a term of six years and ten months imprisonment commencing 3 September 2004 expiring 2 July 2011. I fix a non-parole period of four years to date from 3 September 2004 expiring 2 September 2008, after which time you are eligible for release to parole.

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18/01/2007 - Amendment to coversheeet - Paragraph(s) Not applicable