Regina v MTN; Regina v CVH

[2002] NSWSC 1160

CITATION:	Regina v MTN; Regina v CVH [2002] NSWSC 1160 revised - 29/10/2009
FILE NUMBER(S):	SC 70034/00;70012/01
HEARING DATE(S):	29, 30, 31 January; 4, 5, 6, 7, 8, 11, 12, 13, 14, 15, 18, 19, 20, 21, 22, 25 February 2002; 26 April 2002; 14 June 2002
JUDGMENT DATE:	26 August 2002
PARTIES :	Regina MTN CVH
JUDGMENT OF:	O'Keefe J

COUNSEL :	Mr G T Tabuteau - Crown Mr P Bodor QC - Prisoner MTN Mr F Santisi - Prisoner CVH
SOLICITORS:	DPP, Sydney - Crown Michael Croke & Co, Woollahra - Prisoner MTN Nicopoulos & Assoc, Burwod - Prisoner CVH
CATCHWORDS:	Murder - Manslaughter - Malicious wounding - Affray - Youthful offenders - Immigrants - Youthful victims - Rival gangs - Incorrect identification of victims - Vengeance - Brutal group attack - Knife used - Stabbing - Wounds to heart and lung - Deliberate act - No actual intention to kill - Intention to inflict grievous bodily harm - Drug habits of prisoners - Sentence statistics - Remorse - Contrition - Totality
LEGISLATION CITED:	Crimes Act 1900; ss 19A, 24, 35, 61 Crimes (Sentencing Procedure) Act 1999; ss 21A(2), 22, 23, 24 Evidence Act 1995: s 165(1) Evidence (Audio and Audiovisual Links) Act 1998 Children (Criminal Proceedings) Act 1987; ss 6, 33
CASES CITED:	Regina v Storey (1997) 89 A Crim R 519 Regina v Isaacs (1997) 98 A Crim R 587 Savvas v The Queen (1995) 183 CLR 1 Regina v Hill (1980-1981) 3 A Crim R397 Regina v Dodd (1991-1992) 57 A Crim R 349 Regina v Blacklidge (NSWCCA 12 December 1995 unreported) Regina v Previtera (1997) 94 A Crim R 76 Bollen v Regina (1997 - 1998) 99 A Crim R 510 Regina v Webster, (NSWCCA 15 July 1991, unreported)
DECISION:	CVH; 1. For the manslaughter of Tremain Watene on 10 November 1997, sentenced to imprisonment for 10 years, to commence on 25 January 2002, and to expire on 24 January 2012. Special circumstances found, and non parole period in respect of this offence fixed to commence on 25 January 2002 and to expire on 24 January 2008, on which date you will become eligible for parole. 2. For the assault on GF on 10 November 1997, sentenced to a fixed term of imprisonment of two years, to commence on 25 January 2002 and to expire on 24 January 2004. This sentence will thus be served concurrently with your sentence for manslaughter. 3. For the offence of affray on 10 November 1997, sentenced to a fixed term of imprisonment of one year to commence on 25 January 2002, and to expire on 24 January 2003. This sentence will thus be served concurrently with your sentence for manslaughter. MTN 1. Sentenced to imprisonment for three years in respect of the conviction on the charge of having maliciously wounded GF on 10 November 1997. Such sentence is to commence on 26 February 2001 and to conclude on 25 February 2004. Non parole period in respect of this offence fixed at two years, to commence on 26 February 2001 and to conclude on 25 February 2003. 2. In respect of the conviction for affray, sentenced to a fixed term of imprisonment of one year to commence on 26 February 2001 and to conclude on 25 February 2002. This sentence will thus be served concurrently with the sentence imposed on you in respect of your conviction for malicious wounding. 3. In respect of the murder of Tremain Watene on 10 November 1997, sentenced to imprisonment for 16 years and 6 months, to commence on 26 February 2002 and to expire on 25 August 2018. Special circumstances found, and as a consequence non parole period fixed at 11 years, to commence on 26 February 2002, and to expire on 25 February 2013, on which date you will become eligible for parole. The sentence imposed in respect of the murder of Tremain Watene is thus partially concurrent with the other sentences already imposed upon you.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

O’Keefe J

26 August 2002

070034/00 - REGINA v MTN

SENTENCE
BACKGROUND

1 HIS HONOUR: On 25 February 2002 MTN (the prisoner) was convicted of having murdered Tremain Watene at Campsie on 10 November 1997 following a trial which extended over 19 days. He had previously pleaded guilty to having maliciously wounded GF and to a count of affray, both of which occurred on the same day and in the same place as the murder. He had also proffered a plea of guilty to manslaughter on the first day of his trial, but such plea was not accepted by the Crown in satisfaction of the count of murder in the indictment.

2 MTN was born on 8 August 1980; he was thus 17 years and three months at the time of the offences. Tremain Watene (the deceased) was 16 at the time of his death. GF was 17 years and one month at the relevant time. Both the deceased and GF were school boys who had absented themselves from school on the day in question and gone to Lahood's Amusement and Snooker Centre at Campsie (Lahood's), where the offences against them were committed.

3 CVH (the prisoner) was also convicted by the jury on 25 February 2002. His convictions were for the manslaughter of Tremain Watene, assault on GF, and affray, all of which offences occurred at Campsie on 10 November 1997 at Lahood's. They were committed in concert with MTN and formed part of an attack on each of the victims.

4 Following the verdicts of the jury, both MTN and CVH (the prisoners) were remanded in custody so as to enable the Crown to obtain a pre-sentence report in relation to CVH, and the Crown and the defence to prepare for hearings on sentence.

5 The sentence hearing in relation to CVH took place on 26 April 2002, but because of unavoidable delays in having MTN examined by a behavioural scientist/psychiatrist, his sentence hearing could not take place until 14 June 2002.

THE ONUS AND STANDARD OF PROOF

6 The decision of the Court on sentence is an important matter for a prisoner. It has often been said that in some instances it is no less important than the decision as to the guilt or otherwise of the prisoner. The standard of proof in a sentencing hearing is the same as it is in a trial, namely, proof beyond reasonable doubt. This standard applies to any disputed facts which are not covered by the verdict of guilty. In Regina v Storey (1997) 89 A Crim R 519 a specially constituted Court of Criminal Appeal in Victoria confirmed this statement of the law. Winneke P, Brooking and Hayne JJA and Southwell AJA said:

“The judge may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt. On the other hand, if there are circumstances which the judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities" (at 530).

7 In determining what facts are adverse to the interests of the prisoner and what are favourable, the Court must ask what the tendency of the facts is in the particular case under consideration. As was said in Regina v Storey (re supra):

“'Aggravating' and 'mitigating' must be understood in a wide sense and without, for example, drawing the distinction which might be drawn between the significance for another purpose on the one hand of a circumstance which renders the crime more serious (for example, the use of a weapon) or on the other hand of a prior or subsequent conviction.
The test is not what tag should be applied to any particular fact but what use the judge proposes to make of the fact in relation to the offender. If it is a use adverse to the interests of the offender then proof beyond reasonable doubt is required; if it is a use in favour of the offender then proof on the balance of probabilities will suffice".

And:

“We have spoken of disputed 'facts'...there may be a large number of facts which it is contended demonstrate a relevant conclusion. Just as on a trial the Crown does not have to prove every fact on which it relies beyond reasonable doubt in order to conclude that the offence is proved, so too on sentencing, attention must be directed to the relevant issue and it is the issue that must be established to the requisite standard - not each of the disputed facts which is said to bear upon the issue". (supra at 531- 532).

8 The law of New South Wales accords with these statements. (Regina V Isaacs (1997) 98 A Crim R 587 at 592).

9 In determining, as I must, the facts on which the sentence is to be imposed upon the prisoners in this case (Savvas v The Queen (1995) 183 CLR 1) I have applied the law as set out above in the light of the verdicts of the jury.

STATUTORY MATTERS

10 The maximum penalty provided for murder in section 19 A (1) of the Crimes Act 1900 is imprisonment for life. The maximum penalty provided for manslaughter is imprisonment for 25 years (s 24), whilst penalties for malicious wounding and assault are seven years (s 35) and two years (s 61) respectively. However, the Court is empowered to impose a lesser term in respect of all the above offences pursuant to the (Crimes (Sentencing Procedure) Act 1999 s21 (1), (2).)

11 Considerations of retribution, deterrence and rehabilitation are material to the sentencing of the prisoners. So too are considerations of the objective seriousness of the crimes committed, the total criminality involved, and questions related to the cumulative and concurrent sentences.

12 The Crimes (Sentencing Procedures) Act 1999 (the 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). Those specified in s 21A (2) (a), (b), (c), (d), (e), (f), (h), (i) and (j) are material to the present matters. The provisions of s 23 of the Act are also relevant, in particular those set out in s 23 (2) (a). So too in the case of MTN is that he has pleaded guilty to two particular offences, and when such pleas were entered or indicated (s 22 (1)). Section 23 provides that the nature, extent, significance and usefulness of any assistance given by the offender to the authorities, and the truthfulness, completeness and reliability of any such information are to be taken into account. So too are the timeliness of any such assistance. However as no assistance was given by either MTN or CVH, these mitigating considerations are not applicable to them. 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.

THE FACTS

13 On 10 November 1997 Tremain Watene, in company with his friends GF and JG, left school at about 11am and went to Lahood's via Belmore Oval and Belmore Station, arriving at Lahood's in the early afternoon. Lahood's fronts on to Beamish Street, Campsie. Internally it is divided into two sections. The front section houses a number of video and like games. They are arranged on either side of the games room with their backs to each of the walls. This leaves a corridor of reasonable width between them. The back section of the premises has a number of pool and billiard tables in it. They are arranged on either side of the pool room at right angles to the axis of depth of the premises. There is appropriate space between each and an aisle between the two sets of tables. The floor level of the pool room is one step higher than that of the games room. This step is at the transition between the two sections of the premises and on the left hand side of the pool room section of the premises there is a counter which extends for a short distance. This counter gives on to both the pool room and the games rooms. Drinks, cigarettes and the like are sold from the counter area and money for the playing of games and otherwise using the premises is collected by an attendant at the counter.

14 At around 2.30pm or a little later, Tremain Watene and GF were playing pool. As GF and Tremain Watene were playing pool with their friend, JG, a young male came up to them and asked if they knew a particular named person. The person who had made the enquiry then went back out of the premises, but after about five minutes returned and told them that "a fat guy" who was later identified as Andre Nasr wanted to speak to them outside. They agreed to see Andre Nasr after they had completed their game, as they then proceeded to do. When they had completed their game the three companions began to walk from where the game of pool was being played out towards Beamish Street. JG continued walking and left the premises. Shortly after he had left the premises he was confronted by a large group of people who, he said, appeared to be Lebanese and Asian. He approached the person who had first spoken to him and his friends inside the pool room and asked what was going on. He was asked again if he knew the same named person, and was informed that the reason for the enquiry was because the group believed that one of his friends had "bashed up one of our friends". As emerged later, it was alleged that there had been an attack on the named person, who was identified with a gang known as Sing Wa. The attack was said to have been made by persons who were said to be members of, or identified with, a rival gang known as Sing Ma. The two boys who later became victims had been identified, quite wrongly as it happened, as members of the Sing Ma gang.

15 Following the interchange referred to in the preceding paragraph, one of the group, who was identified as young and Asian in appearance, came up to him and said:

“If you don't want anything to happen to you get out of here".

16 JG properly regarded this statement as threatening and, being concerned for his companions, asked:

“What about my friends?”

17 His enquiry was met with the response from another Asian person, who I am satisfied was the prisoner MTN:

“I am just going to talk to them".

18 As a consequence of what had been said to him, JG left the scene and was not subjected to any attack or injury, but was not able to be of further assistance in relation to the events of 10 November 1997 which culminated in the death of Tremain Watene and the assaulting and stabbing of GF.

19 The circumstances in which Tremain Watene was killed and GF assaulted and stabbed were the subject of a considerable body of evidence. Much of the evidence was confused, as one would expect the evidence of bystanders who are put in peril by the events in question to be. It was unclear as to detail, but conveyed the basic story. As was his right, neither accused gave any evidence at the trial. Again, as was his right, each of the accused exercised his right to remain silent rather than make a statement to the investigating police. Thus, in the case of the prisoner MTN, who pleaded guilty to two of the charges laid against him, no assistance is to be obtained from the ameliorating provisions of s 23 of the Crimes (Sentencing Procedure) Act 1999 in relation to assistance. As a consequence of the exercise by each accused of his rights, no direct evidence of their respective intents was available at the trial, except to the extent that an admission is said to have been made by both of them on the evening of the day on which the crimes were committed.

20 Central to the Crown case against the accused was the evidence of JD an associate of the Sing Wa gang, of which the two prisoners were said also to be either members or associates. It was JD who had wrongly identified the two victims as members of the Sing Ma gang. He also took part in the attack which occurred on the afternoon of 10 November 1997. He had originally been charged, inter alia, with murder, but he subsequently decided to assist the authorities by turning Queen's evidence, and his evidence inculpated both prisoners in the attack of GF and in the fatal attack on Tremain Watene.

21 I am conscious of the need under the common law for care and caution in relation to evidence from a source of the kind which I have just described. I am conscious also of the provisions of s 165 (1) of the Evidence Act 1995 in relation to evidence of such a kind. Moreover, the fact that, as a result of the witness JD cooperating with the authorities and undertaking to assist them by giving evidence in accordance with particular statements he had made in inculpating the two prisoners, the murder charge against him was withdrawn and, on his pleading guilty to other lesser offences, he was treated more leniently by the Court than would otherwise have been the case. This accords with the policy underlying s 23 of the Crimes (Sentencing Procedure) Act 1999.

22 Group or gang type crimes such as those committed on Tremain Watene and GF are often difficult to prove unless a member of the group or gang is prepared to give evidence against his or her former associates. There can be, not infrequently, a prospect of personal danger involved in a former associate of a group or gang giving adverse evidence. The witness JD was concerned about such prospect and gave his evidence from a remote location by video link pursuant to the provisions of the Evidence (Audio and Audiovisual Links) Act 1998. The arrangements worked well and there were no difficulties in viewing and assessing the witness and his evidence. I found him to be a convincing witness. I have no doubt that he attempted, to the best of his ability, to recount the facts as he had seen them and remembered them. He was an intelligent young man, able to express himself clearly and concisely in English. He displayed an acuteness of mind and manifest a desire to understand what it was that he was being asked. Furthermore, his explanation as to why his initial statement had been untrue was understandable. I found it acceptable and convincing. I am satisfied beyond reasonable doubt that the version given by the witness JD in relation to the events leading up to and involved in the attacks on the two victims is truthful and accurate. Furthermore, I accept the evidence of JD concerning a meeting at the house of a friend (Veejay) on the evening of 10 November 1997. The meeting was the very kind of event that could be expected in the light of what had transpired on the afternoon in question. Some of the group and their associates met, and there was discussion about what had occurred. I accept that both of the accused recounted their roles in the attack on the deceased. Although characterised in law as admissions, I am satisfied that on the night in question they were more in the nature of braggadocio, than expressions of concern or remorse.

23 Another member of the group associated with the attacks on the two victims was Andre Nasr. He claimed not to be a member of the Sing Wa gang, but I did not find his disavowal of membership convincing. However, for the purposes of my decision it suffices that he was clearly associated with the Sing Wa gang and its members and was anxious to show off before the assembled group in an endeavour to demonstrate that he had some leadership role. His leadership role consisted of acting in a most thuggish manner, using his height and extreme weight to stand over and inflict blows on a relatively diminutive victim. He too had been charged with murder. He had made an untrue exculpatory statement to police. However, in the light of the evidence which had apparently been gathered against him, he thought better of the lies he had told initially and agreed to turn Queens' evidence. As a consequence, he made statements which contained material inculpating the prisoners in the relevant attacks. The murder charge against him was withdrawn and he later pleaded guilty to assault occasioning actual bodily harm and to affray. As a result of an undertaking to give truthful evidence of the trial of the two prisoners, and to assist the authorities in prosecuting them, he was dealt with leniently by the Court before which he pleaded guilty.

24 The statements made by Andre Nasr included the following:

"7....Where it says I stood in the doorway of the centre, that is where I saw JD walked (sic) up to MTN and CVH who were also near the doorway. JD had in his hands something wrapped up in like a thin white shirt or singlet.
8. I could see that the item wrapped up in the singlet was long and sharp. At that time I formed an opinion in relation to what the item in the singlet was.
9. JD handed the wrapped item to MTN who took it. MTN put the item inside his jacket and walked back with CVH (sic) to where MT and HDN were still standing...I looked over to where they were standing. I could see them talking but I could not hear them.
10. "I saw HDN ask MTN something and MTN responded by patting the side of his jacket where he had the wrapped sharp object. The five Asians stood on the footpath talking for a short time." (3 October 1999).

25 He had previously made a statement in which he said:

“I then saw CVH punch GF in the stomach ... I saw MTN stick a knife into GF. I just saw that the knife had a thin silver/steel blade about 10 or 12 centremetres long. I saw the knife go into the right side of GF's body ... the Asians around GF were rumbling him and kicking him and punching him." (3 December 1997)

26 When he was called to give evidence in the Crown case Andre Nasr presented as truculent and somewhat arrogant. He displayed a reticence to answer a number of questions asked on behalf of the Crown, but was quick to give helpful answers in the cross-examination undertaken on behalf of the prisoner CVH. His attitude to the Court and his approach to the giving of evidence according with what he had told police was affected by statements made in respect of him by a person who was described. The description of that person matched that of a person who had been in court while Andre Nasr was giving evidence. During such evidence there was a good deal of eye contact between him and the named person.

27 I am satisfied that the attitude of the witness Andre Nasr and the evidence he gave in the witness box in contradiction of his statement were at least in part related to fear, which he described as fear of having to look over his shoulder for the rest of his life. As a consequence leave to cross-examine was given on two occasions.

28 The effect of the foregoing is that the effect of the evidence of Andre Nasr is far from easy to assess. Furthermore, he manifested a tendency to minimise the extent of his observation of and involvement in the events of 10 November 1997. However, when his evidence is put alongside that of other witness, including but not limited to the evidence of JD, I am satisfied to the relevant standard that I should accept the essence of the version of events that he gave in the statements to which reference has been made above. Furthermore, I do not accept his assertion that relevant parts of his statement were fabrications inserted by one of the investigating police officers, rather than being a product of his own observation and recounting.

29 From such of the evidence that I accept I am satisfied to the requisite standard that the circumstances surrounding, and sequence of events involved in, the two attacks by the prisoners emerge quite clearly. There had been an attack on a member or an associate of the Sing Wa gang by a person who was believed to be a member of the Sing Ma gang. The members of the Sing Wa gang and their associates (who relevantly included both MTN and CVH) were anxious to avenge that attack. The two victims, GF and Tremain Watene, were identified to the prisoners and others present at or near Lahood's on 10 November 1997 as members of the Sing Ma gang. This identification was wrong. Neither of the victims was a member or associate of the Sing Ma gang. Each protested that he was not a member. The deceased continued to do so virtually to his last words, which were: "I am not Sing Ma, I am not Sing Ma". This is what he said as he was brutally attacked by the group, which included the two prisoners.

30 Before the attacks commenced HDN sent the witness JD to get a knife after a decision had been made to attack both Tremain Watene and GF. JD knew where there was a stash of weapons not far removed from Lahood's. He went to this place and found a long, sharp and dangerous looking knife which he brought back and gave to MTN in the presence of a number of the group including CVH. MTN and CVH entered Lahood's, accosted GF and attacked him in concert. CVH punched him in the stomach. MTN stabbed him in the shoulder. GF was naturally terrified. He broke away and ran into, and was pursued into, the pool room.

31 The two prisoners then turned their attention to Tremain Watene. He was then under attack from Andre Nasr and other members of the group of which MTN was undoubtedly the leader. Andrew Nasr held Tremain Watene from behind. Others of the group attacked him by throwing bottles at him, hitting him with pool cues, punching him and kicking him. Whilst this was proceeding, the two prisoners themselves entered the attack on Tremain Watene. CVH stabbed him in the back with a small pocket knife which had been given to him by the prisoner MTN. The fatal blow was struck by MTN. The verdict of the jury clearly establishes that they were satisfied beyond reasonable doubt that such blow was struck with an intention to kill or inflict grievous bodily harm.

32 The case made on behalf of MTN was that the wound occurred in the course of a melee in which the knife, which happened to be in his hand, entered the body of Tremain Watene, not accidentally, but in circumstances where there was no intention of killing or inflicting grievous bodily harm on his victim. This version of the events is inconsistent with the verdict of jury. It also flies in the face of the nature and position of the fatal wound.

33 The injury which killed Tremain Watene consisted of a stab wound 130 millimetres deep which penetrated into his heart and punctured his lung. It was inflicted at a position close to the right nipple, some 24 millimetres removed from the nipple towards the centre of the body. It was thus a wound inflicted at heart level. Measured from the heel of the victim the wound was at a height of 1.24 metres. It was essentially horizontal and clearly related to the shape of the knife which was used to inflict it. Like the jury, I have no doubt that the blow was a deliberate blow, intended at very least to inflict grievous bodily harm on a hapless young man who had wrongly been identified as a member of a rival gang.

34 CVH not only participated in the attack but did so at a time when he was undoubtedly aware of the existence of the knife in his confederate MTN possession, and after he was undoubtedly aware that it had been used to stab GF. I am further satisfied that in the circumstances that existed CVH saw himself as the associate of MTN in furthering an act of retribution against a person who had been identified (wrongly) as a member of a rival gang against which there was then a strong animus.

35 I am satisfied that the attack on Tremain Watene should be characterised as a deliberate intended group crime of a serious kind. The killing, the attack on GF, and the general circumstances of affray are such as not to be excused or played down. Innocent members of the community should not have to be subjected to such behaviour, and a clear message needs to be sent that such behaviour will be viewed by the courts in a most serious manner. Such a message should be reflected in the penalty imposed, notwithstanding that each of the prisoners was young at the time of the offences and both are still quite young.

PRIOR CRIMINAL HISTORY OF EACH PRISONER

36 The prisoner MTN has one previous conviction. This is for assault occasioning actual bodily harm. The offence was committed in 25 September 1997, some six weeks before the present offences. His punishment was 12 months probation which was imposed in the District Court on 30 October 1998.

37 The prisoner CVH has two previous convictions. The first is for shoplifting on 18 April 2000. He was fined $100 for this offence in the Local Court in Newcastle on 8 May 2000. His second offence is for supplying prohibited drugs on an ongoing basis on 22 November 2000. He was sentenced in the Sydney District Court on 22 June 2001 to imprisonment for three years with a non-parole period of two years.

38 In sentencing each of the prisoners I had not taken into account their prior criminal history. They are set out in these remarks merely for the purpose of completeness.

AS AT PRISONER CVH

39 CVH was born in Vietnam, and is the youngest of four children. He emigrated to Australia at the age of 8 and lived with his parents until they separated when he was aged 14.

40 Since his parents separated he has had little contact with his father and when interview was unaware of his father's whereabouts. At the time of the offences presently before the court CVH was residing with his family in Sydney.

41 In 1998, following his release from a juvenile institution he returned to Vietnam to visit his grandparents. His mother said that CVH's journey to Vietnam was designed to remove him from negative peer influences then operating upon him, and in an endeavour to address his drug problem.

42 CVH initially attended school on a regular basis but dropped out of school at the age of 15 when he was in Year 9, following a period of poor attendance record and as a result of his drug dependence. It appears that at no time since leaving school has he been engaged in gainful employment.

43 The Probation and Parole Service Pre-sentence Report in relation to CVH describes him as "a very quiet inmate" who had "no custodial misconducts noted against him". However, in early 2002 he was allegedly involved in an assault on Vietnamese inmates, but no charges were laid in respect of these matters.

44 The Pre-sentence Report (the report) notes that the prisoner's drug dependence dates from the age of 15. His drug taking consisted of smoking marijuana and heroin and using rohypnol tablets. His heroin use is said to have been on a daily basis. However, following a drug detoxification programme at the Minda Juvenile Justice Centre, he abstained from drugs for a period but began using heroin again following his return to Australia from Vietnam. Whilst in custody the prisoner has not sought assistance from a drug and alcohol counsellor and the report is uncertain about his future in this regard.

45 The report states that CVH claimed to have limited recall of the events for which he is now to be sentenced, that he denied any gang involvement and asserted that he did not have a knife at the time of the offences. This last assertion is inconsistent with the jury's verdict and my own conclusion that he was an armed and willing participant in the events involving GF and Tremain Watene. However, I am satisfied that although he was involved in the attacks on both victims he was not the leader, rather he was lead by the prisoner MTN.

46 The report further notes that CVH "would appear to have limited motivation to address his (drug) use", and that in prison he "continues to be involved with negative peers". As a consequence his prospects of rehabilitation do not appear bright.

47 CVH was also seen by a consultant psychologist, Mr Anthony Diment, on 10 April 2002. A number of standard psychological tests were administered to him. These revealed that he was "in the mild range" for clinical anxiety "the moderate range for clinical depression" and that in the field of cognitive functioning he was in the "borderline average range". However, there was no evidence of any psychoses, delusions, or serious personality disorder.

48 The report by Mr Diment reveals CVH as having little or no formal education and below average memory function, whilst his memory and decision making behaviour are said to be negatively influenced by his drug usage. Furthermore, in his report Mr Diment says that CVH, now aged 20 years, is "at important cyclical cross roads".

49 CVH was born on 9 April 1982, so that at the time of the offences for which he is to be sentenced he was 15 years and 7 months. At the date of his conviction he was almost 20. His counsel argued that the court should have regard to the provisions of the Children (Criminal Proceedings) Act 1987, including s6, in fixing a sentence. However, because of the nature of the principal offence of which he has been convicted he must be dealt with in accordance with law, but in doing so it is appropriate to have regard to his youth at the time of committing such offences.

50 The factors relied upon in mitigation of his sentence are that:

1. CVH was only a little over 15 years of age at the time of the commission of the offences. This is correct and is a significant factor in his favour in mitigation of the sentence.

2. He was impressionable and this led him to the commission of the offences presently before the court. That is also correct, but whilst he was not the leader he was a willing, active and persistent participant in the acts on GF and Tremain Watene.

3. The commission of the offences was influenced by his heavy drug use over an extended period. This too is correct, but he was, and still appears to be unwilling to take steps to rid himself of his drug habit. Furthermore, the taking of narcotics and other drugs of addiction does not operate as an excuse for the actions engaged in by CVH.

4. It was not he who struck the fatal below. This is evidenced by the jury's verdicts. He did, however, participate in the attacks on Tremain Watene which eventuated in his death.

5. He has expressed remorse. He did so to the professionals who interviewed him but he did not do so directly to the Court, and I am not satisfied that he is genuinely remorseful for his part in the affair, as opposed to being sorry for the consequences that his acts have visited upon him.

6. His real fault was that he did not withdraw from affray. In my opinion this submission significantly understates CVH's role in the attacks.

7. The statistics produced by the Crown did not assist in fixing the sentence and he should be sentenced on the basis that he was involved in a stupid act which had consequences beyond those ever contemplated when he embarked on the course of conduct which led to the injury of GF and the death of Tremain Watene.

51 The range of sentences which may be imposed in respect of the crime of manslaughter is wide. The statistics produced by the Judicial Commission of New South Wales show that range effectively to be from 18 months to 20 years. This is a reflection of the diversity of the circumstances in which a verdict of manslaughter can be arrived at. In Regina v Hill (1980-1981) 3 A Crim R397, Street CJ pointed out the difficulty that is posed for a court in relation for the imposition of a sentence for the crime of manslaughter. He said:

“It has been said that manslaughter, perhaps, beyond any other crime is protean. The circumstances leading to the felonious taking of human life being regarded as manslaughter rather than murder can very infinitely, and it is not always easy to determine in any given case what should be done in the matter of sentence" (supra at 402.)

52 There are competing considerations to be taken into account when determining the appropriate sentence in a case of manslaughter. One is the fact that there has been a felonious taking of human life. The felonious taking of human life is recognised by the legislature, the courts, and the community as a serious crime. That consideration must be addressed in the sentence imposed. On the other hand, the fact of the youth of the offender may operate to reduce the penalty to be imposed is another such contribution. These two considerations are in tension and the task of the sentencing judge is to resolve that tension. Doing so involves a balancing of the demands of the criminal justice system and community expectations in relation to the protection of the lives of members of the community and the punishing of the person who has taken a life feloniously on the one hand, against the subjective circumstances of the person responsible for the taking of the life in the circumstances of a particular case on the other.

53 The resolution of the tension between the competing factors to which I have referred must involve a reasonable proportionality between the sentence imposed and the circumstances of the particular manslaughter. This in turn involves the sentencing judge in the first instance having regard to the gravity of the offence viewed objectively and then to the subjective features involved in the case. The need to have adequate regard to the former was expressed in Regina v Dodd (1991-1992) 57 A Crim R 349 as follows:

“There ought to be a reasonable proportionality between a sentence and the circumstances of the crime and we consider that it is always important in seeking to determine the sentence appropriate to a particular crime to have regard to the gravity of the offence viewed objectively. For without this assessment the other factors requiring consideration in order to arrive at the proper sentence to be imposed cannot properly be given their place. Each crime has its own objective gravity meriting at the most a sentence proportionate to that gravity, the maximum sentence fixed by the legislature defining the limits of sentence for cases in the most grave category. The relative importance of the objective facts and subjective factors of a case will vary. Even so, there is sometimes a risk that attention to persuasive subjective considerations may cause inadequate weight to be given to the objective circumstances of the case." (supra at 354)

54 To a like effect is the decision in Regina v Blacklidge (NSWCCA 12 December 1995 unreported) in which Gleeson CJ said:

“It has long been recognised that the circumstances which may give rise to a conviction for manslaughter are so various, and the range of culpabilities so wide, that it is not possible to point to any established sentencing tariff which can be applied to such cases. Of all crimes, manslaughter throws up the greatest variety of circumstances affecting culpability.”

And:

“The courts have repeatedly stressed that what is involved in every case of manslaughter is the felonious taking of a human life. That is the starting point for consideration of the appropriate penalty and the key element in the assessment of the gravity of the objective circumstances of the case.”

55 Similarity in Regina v Hill (1980-1981) 3 A Crim R 397 it was said:

“At the start it should be recognised that the felonious taking of a human life is recognised in both the Crimes Act 1900 and in the community at large as one of the most dreadful crimes in the criminal calendar. The courts have, however, over decades gradually manifested a willingness to recognise factual contexts which provide some basis for understanding the human tragedies that can lead to the taking of a life. The manifestation of this humanitarian tendency is necessarily attended by the utmost caution. It can be seen to be constantly written in the decisions of the courts and in the enactments of the legislature that the taking of a human life is a grave action calling for a correspondingly grave measure of criminal justice being meted out to the guilty party.”

56 Objectively, the manslaughter of which the prisoner CVH was convicted is not in the lower levels of culpability.

57 His counsel further submitted that there were special circumstances which apply in CVH's case, and that those special circumstances should be reflected in the non-parole periods fixed in respect of the offences.

58 The verdicts rendered by the jury clearly establish, and I am satisfied to the appropriate standard, that CVH was a party to a serious attack on two innocent victims. I am also satisfied that he was well aware of the events in which he was involved and that he was a willing participant in such events, albeit that he was led by his co-offender, MTN.

59 In finding the prisoner guilty of manslaughter rather than murder the jury clearly regarded his role as less culpable then that of his fellow offender. In all the circumstances having regard to the objective seriousness of the offences but also to the subjective factors relevant to CVH and applying the principle of totality I am of the opinion that a sentence of imprisonment for 10 years would be an appropriate recognition of the criminality involved in the offences for which he is to be sentenced. But in view of the special circumstances which I am satisfied exist a non-parole period should be fixed at six years with credit to be given for the time which the prisoner spent in custody as a consequence of the offences of which he had been convicted.

60 The prisoner was in custody for a period of 9 months and 28 days between 29 December 1997 and 23 October 1997 on which date he was discharged at committal. An ex officio indictment was later filed against him. But the time which he spent in custody up to the time of his trial for the present offences was for another offence. The non-parole period of two years in respect of such offence is due to expire on 21 November 2002. As a consequence the sentences to be imposed on CVH should commence 9 months and 28 days prior to that date.

AS TO THE PRISONER MTN

61 MTN gave evidence at his sentence hearing. His evidence traversed the offence of assault occasioning actual bodily harm for which he was convicted in 1998. This offence was committed in September 1997. That is less than two months before the events which resulted in the death of Tremain Watene and the wounding of GF. The assault involved in that offence also involved the use of a knife. The Judge who imposed the sentence rightly described such action as "aberrant in our society". For this offence he have released on probation for a period of 12 months pursuant to s33(10)(e) of the Children (Criminal Proceedings) Act 1987.

62 I am satisfied that MTN was the leader in the attacks on GF and Tremain Watene. Those attacks involved the prisoner MTN sending the witness JD to get a knife. It was larger then the knife he was carrying at the time, a knife which he gave to CVH. The attacks on both victims were cowardly and unprovoked. They were committed as acts of revenge for a supposed wrong done to an associate. MTN said that he did what he had done "for my friend". Such misguided loyalty should not be regarded as an excuse. The taking of the law into one's hands in such a way and with the consequences that transpired in this case must be discouraged by the imposition of a salutary sentence, even in the case of a young offender.

63 At his sentence hearing the prisoner claimed that he did not intend to inflict injury on GF and that he did not intend to kill Tremain Watene. The finding of the jury is inconsistent with the thrust of his evidence in this regard and I am satisfied that he did intend to inflict injury with a knife on GF. In addition, whilst I am prepared to accept that he did not have an actual intention to kill Tremain Watene, I am satisfied that he did intend to inflict grievous bodily harm on him.

64 In the course of his evidence MTN said he was deeply sorry for what he had done and realised that words could not compensate for the death and injuries for which he had been responsible. He said that now he was a father himself he recognised that what he had done was wrong and that he was "deeply regretful" for his actions. I accept his evidence in this regard. Such acceptance taken in conjunction with the assessment of Associate Professor Hayes, to which I shall refer, militates against imposing a sentence at the higher end of the range of sentences for murder. Furthermore, the fact that he pleaded guilty to the charge in respect of GF and the charge of affray entitles him to a significant discount on the sentences that would otherwise have been imposed in respect of those offences.

VICTIMS IMPACT STATEMENT

65 Mr Michael Watene and Mrs Barbara Watene, the mother and father of Tremain Watene made a joint victim impact statement dated 26 April 2002. In it they detail the pain and anguish they have experienced in the four and a half years that have passed since the death of their only son at the age of 16. They rightly point out that his life was just beginning. Their statement reveals their son Tremain Watene was a New Zealand champion tennis player who had played for the top national squad and had the potential to become a great tennis player. Their son is revealed as a kind hearted, considerate, gentle and loving person who had brought great happiness to them and touched the hearts of many. His death means they no longer have a chance of being grandparents. Losing their only son has brought grief, anger, pain, and sadness and emptiness into their lives. Their grief has been compounded by the delay in bringing the persons responsible for his death to trial. They said they felt a sense of hatred and prejudice to those responsible for their son's death.

66 In their joint statement they also said:

"We are just normal human beings expressing our emotions and in respect of what judgment is passed it would not be equal to the loss of a loved one. We can not bring Tremaine back therefore justice is not enough".

67 The great sadness and sense of loss which Mr and Mrs Watene have expressed is understandable. So too is their sense of grievance against those responsible for their son's death. Their lives have been diminished by the tragic loss they have experienced. The community has also been diminished by the loss of a young life, a life that had real potential.

68 The sense of loss, the sadness, and other effects on Mr and Mrs Watene that spring from the death of their only son can never be compensated by any sentence which the court may impose and those responsible for their son's death. Their responses to his death, to an extent, mirror the responses of ordinary members of the community to a death such as occurred in this case. However, because of the intimate connection between the makers of the statement and Tremain Watene the effects are more profound on them. The sympathy of the court goes out to Mr and Mrs Watene.

69 I have considered the victim impact statement but conformably with authority (Regina v Previtera (1997) 94 A Crim R 76; Bollen v Regina (1997-1998) 99 A Crim R 510) have not made use of it so as to increase the penalties which should otherwise be imposed.

PSYCHOLOGICAL ASSESSMENT

70 MTN was the subject of a psychological assessment of 10 May 2002 prepared by Dr Susan Hayes, Associate Professor and Head of Behaviour Science in the Department of Medicine at the University of Sydney. She had the assistance of a Vietnamese interpreter. At the time of her assessment MTN as 21 years and 9 months old. He gave a history of being born in Vietnam as the older of two children. The history given reveals that his family were poor farmers and that as a result he had poor nutrition as a child. His history is to the effect that he was a victim of oppression under the Communist regime and after unsuccessful attempts to escape from Vietnam eventually did so with his family when he was aged 8 or 9. For a period of about a year he remained in a refugee camp on the coast of Malaysia, finally arriving in Australia when he was about 9 or 10 years old. After a period in a hostel he stayed with an uncle, during which time both of his parents obtained work in the clothing industry but for poor pay. The family lived in Sydney and he attended school at Dulwich Hill and at Burwood, where he remained until the beginning of year 11. However, from about year 10 he became a truant, going out and playing games with his friends rather than attending school.

71 The history he gave indicates that he began smoking marijuana and heroin at about the age of 15 and was eventually expelled from school. He said he was unable to obtain work and lived off his dole money, which he claims also to have used to purchase heroin. He got into trouble but after he was discharged from the juvenile justice system he went back to Vietnam where he met a girl who is now his wife. They lost their first child but had another who, at the time of the psychological assessment by Associate Professor Hayes, was approximately 1 year old.

72 Prior to the commencement of his trial the prisoner was on bail, lived in Melbourne with his wife and family, and appears to have complied which is bail conditions. There is no evidence to suggest he was in any trouble with the law during this time.

73 As his family had moved to Melbourne his wife and son how live with his parents in Melbourne, as a result of which he does not have the benefit of prison visits.

74 He told Associate Professor Hayes that in prison he was taking English lessons, had enrolled for school, had put his name down to attend drug and alcohol education and had not used drugs since he was first in prison. He stated to her he was sorry for what he had done and expressed sorrow for the victims' famiies. He said that now he was married and a father he understood what the family of Tremain Watene had gone through and that he wanted now to be given an opportunity to be a caring father and have a family like other people.

75 A Kaufman Short Neurological Assessment Procedure, which is designed to demonstrate mental functions at three levels of cognitive complexity, was administered to enable an evaluation to be made of him. However, because of his limited English one of the sub-tests was not able to be administered.

76 The findings of the test showed that his mental status was below average and indicated some minor problems with orientation and awareness of current events. He was below average on one of the sub-tests, the result of which indicated that 91 per cent of the population is functioning better than he is. A third sub-test concerned with numbers showed him to be well below average. Overall his score put him well below average. Associate Professor Hayes concluded that the prisoner's functioning had been well below average for most of his life.

77 A second test known as the Kaufman Brief Intelligence Test was also administered. The purpose of this test is to measure a person's ability to perceive relationships and complete analogies. Again, because of his limited English those parts of the test which were concerned with vocabulary were not administered to MTN. From the tests undertaken Associate Professor Hayes concluded that MTN was "in the category of borderline intellectual disability, functioning at a level lower than 97 per cent of the population". Furthermore, despite his lengthy exposure to English and his education within an English speaking system, his grasp of English was very basic, consistent with a person "who functions in the category of borderline intellectual disability".

78 In the section of her report in which she summarises the outcomes of her examination and expresses her opinion in relation to HDN Associate Professor Hayes says that he "has probably been borderline intellectually disabled all his life" and that in combination with his lack of English this "no doubt gave rise to feelings of low self esteem". Significantly she was of the view that his expressions of remorse and contrition and ability to emphathise with the deceased Tremain Watene, were "factors which auger well for his long term rehabilitation".

79 Associate Professor Hayes is a highly skilled professional in the field of behavioural sciences. Her assessment of MTN is one that commands respect. The clinical tests she conducted are objective and the results are not such as to have been falsified by MTN. Her opinion that MTN is in the category of "borderline intellectually disability" and that the indications "auger well for his long term rehabilitation" are highly relevant to the sentence to be imposed on him. So too is his youth at the time of committing the offences to which he pleaded guilty or of which he was convicted.

STATISTICS

80 The statistics produced by the Judicial Commission of NSW show that all persons who have been convicted of murder have had sentences of imprisonment imposed on them. Ninety-eight percent of such sentences range between 12 years and life, with fifty per cent of all persons sentenced for murder receiving prison sentences of between 16 and 20 years. The majority (fifty-seven per cent) of non-parole periods or minimum terms range between 12 and 16 years, with twenty-one per cent being between 5 and 10 years.

81 When considering the statistics it is necessary to bear in mind that there is no material available to the court as to the circumstances in which the individual sentences that go to make up the statistics were imposed. However, they are an indicator of spectrum of sentences.

SUBMISSIONS ON BEHALF OF HDN

82 Senior counsel for HDN stressed that at the time of the killing and other offences he was aged just over 17 years. His previous offence was committed shortly before the offences for which the prisoner is now to be sentenced. His counsel pointed to his disturbed and difficult childhood which, whilst not advanced as excuses for the offences, was said to go a long way to explaining his lack of sophistication and resort to violence.

83 The fact that he had married, produced a family, not offended again despite a large lengthy period at large, were factors advanced in his favour, as was the fact that in his new life he had not been involved in drug taking either whilst at large or during the time that he had been in prison. In effect, it was submitted on behalf of HDN that he had made a new life, and was different now from the way he had been at the time of committing the offences.

84 The plea made on behalf of HDN was that whilst the objective criminality involved in the totality of the offences to which he had pleaded guilty or of which he had been convicted by the jury called for a substantial head sentence, the subjective factors of the prisoner should bespeak a lower non-parole than the norm in the special circumstances of the case.

85 In fixing the total sentence it is necessary to take into account the principle of totality. As in the case of CVH all events took place within a very short period of time. All were related. All formed part of the revenge that was misguidedly exacted on victims who were wholly innocent. In fixing the total sentence it is also appropriate to take into account the need for the court to have regard to the principles of deterrence for others who might be minded to act as MTN did. At the same time what said by the Court of Criminal Appeal in Regina v Webster, (NSWCCA 15 July 1991, unreported) should be borne in mind. Namely:

“In the case of a young offender with good prospects of rehabilitation the element of rehabilitation will weigh heavily with the relative decreasing of the effective weight of the element of the need to deter others.”

86 I am satisfied there are special circumstances that apply to HDN. They include his youth at the time of the commission of the offences. MTN's disturbed background, his lack of education, limited intelligence and lack of social skills are also material to the sentence to be imposed upon him as are his pleas of guilty to the wounding of GF and his offer of a plea to manslaughter in respect of the death Tremain Watene. This latter plea is relevant as indicating some degree of remorse.

87 Those matters are relevant to the head sentence to be imposed and the non-parole period that should be fixed.

88 Having regard to the foregoing factors the change which I am satisfied that he has undergone, his pleas of guilty to the charge regarding GF and to the charge of affray; his proffered plea of guilty to the manslaughter of Tremain Watene as indicative of his remorse; his genuine expressions of remorse at the sentence hearing and his prospects of rehabilitation, I am of opinion that the total sentence of imprisonment of 17 years and 6 months with a non-parole period of 12 years would be appropriate for the offences for which he is to be sentenced.

89 In respect of the murder of Tremain Watene I am of opinion that the sentence of imprisonment should be 16 years and 6 months. In respect of the wounding of GF I am of opinion that the sentence should be 3 years and in respect of the charge of affray should be a fixed term of one year. There should be partial concurrence applicable in the offences of malicious wounding and total concurrence in respect of the conviction for affray.

SENTENCE

A. CVH

90 CVH, for the manslaughter of Tremain Watene on 10 November 1997 I sentence you to imprisonment for 10 years to commence on 25 January 2002 and to expire on 24 January 2012. I find special circumstances and I fix your non-parole period in respect of this offence to commence on 25 January 2002 and to expire on 24 January 2008, on which date you will become eligible for parole.

91 For the assault on GF on 10 November 1997 I sentence you to a fixed term of imprisonment to 2 years to commence on 25 January 2002 and to expire on 24 January 2004. This sentence will thus be served concurrently with your sentence for manslaughter.

92 For the offence of affray on 10 November 1997 I sentence you to a fixed term of imprisonment of one year to commence on 25 January 2002 and to expire on 24 January 2003. This sentence will thus be served concurrently with your sentence for manslaughter.

B. MTN

93 Although not addressed on at the sentence hearing, I was conscious that there was a probability that MTN had spent some time in custody between the date of his arrest in early 1998 and the date of his discharge at the committal held in October 1998.

94 This matter has now been checked by counsel for MTN and the Crown and it is common ground that prior to the date of commencement of the trial in these matters on 29 January 2002, MTN had spent a total of eleven months and two days in custody in respect of the offences to which he has either pleaded guilty or of which he has been found guilty by the jury. He is, accordingly, entitled to credit in respect of this time.

95 Moving back from the date on which he went back into custody at the commencement of the trial, this would mean that his sentence should be made to commence on 26 February 2001 and that the duration of his sentences and his non-parole periods should reflect this period in custody.

96 MTN, you have pleaded guilty to two offences and been found guilty of murder by a jury of your peers. I sentence you to imprisonment for three years in respect of having maliciously wounded GF on 10 November 1997. Such sentence is to commence on 26 February 2001 and to expire on 25 February 2004. I have already found special circumstances and, in the light of those special circumstances, I fix the non-parole period in respect of this offence at two years, to commence on 26 February 2001 and to expire on 25 February 2003.

97 In respect of the conviction for affray, I sentence you to a fixed term of imprisonment of one year to commence on 26 February 2001 and to expire on 25 February 2002. This sentence will thus have been served concurrently with the sentence imposed on you in respect of your conviction for malicious wounding.

98 In respect of the murder of Tremain Watene on 10 November 1997, I sentence you to imprisonment for 16 years and six months to commence on 26 February 2002 and to expire on 25 August 2018. As I have indicated I find special circumstances and, as a consequence, I fix the non-parole period in respect of this offence at 11 years to commence on 26 February 2002 and to expire on 25 February 2013, on which date you will become eligible for parole. The sentence imposed on you in respect of the murder of Tremain Watene is thus partially concurrent with the other sentences already imposed upon you.

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Last Modified: 10/30/2009