The Queen v El

[2014] ACTSC 57

THE QUEEN v EL
[2014] ACTSC 57 (20 February 2014)

CRIMINAL LAW – Judgment and Punishment – Sentencing – Aiding and abetting in the commission of the offence of intentionally inflicting grievous bodily harm – Young offender

Crimes Act 1900 (ACT), s 19
Crimes (Sentence Administration) Act 2005 (ACT), s 64, Pt 8A

Criminal Code 2002 (ACT), s 45

GAS v The Queen (2004) 212 CLR 198
Muldrock v The Queen (2011) 244 CLR 120
R v C V [2013] ACTCA 22
R v Govinden (2001) 127 A Crim R 331
R v J W [2010] NSWCA 49
R v Pham and Lee (1991) 55 A Crim R 128

EX TEMPORE JUDGMENT

No. SCC 321 of 2011

Judge:             Refshauge J
Supreme Court of the ACT

Date:              20 February 2014

IN THE SUPREME COURT OF THE     )
  )          No. SCC 321 of 2011
AUSTRALIAN CAPITAL TERRITORY )          

R

V

E L

ORDER

Judge:  Refshauge J
Date:  20 February 2014
Place:  Canberra

THE COURT ORDERS THAT:

1. EL be convicted of aiding and abetting GM in the commission of the offence of intentionally inflicting grievous bodily harm on Taylor Hazell on 1 June 2011.

1. EL be sentenced to twenty months’ imprisonment.

1. The sentence be suspended for two years from 20 February 2014.

1. EL sign an undertaking to comply with the offenders good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of two years with a condition that he perform 100 hours of community service work within twelve months.

1. On 1 June 2011, Taylor Hazell was set upon and bashed and stabbed fifteen times, necessitating two immediate operations and two further operations later in June.  He was left with permanent scarring.  A number of young men were at the premises when the attack occurred, including the accused, EL, who was charged with a very serious offence of attempted murder.

1. On this charge, he was committed for trial to this court on 29 September 2011.  On 8 November 2013, however, a further indictment was presented, charging EL with aiding and abetting GM in the commission of the offence of intentionally inflicting grievous bodily harm on Mr Hazell.  He pleaded guilty to that charge on 11 November 2013, a very early plea to the offence.

1. Intentionally inflicting grievous bodily harm is an offence under s 19 of the Crimes Act 1900 (ACT) (the Crimes Act), for which the maximum penalty is fifteen years’ imprisonment. Under s 45 of the Criminal Code 2002 (ACT) (the Criminal Code), a person who aids and abets the commission of an offence by someone else is taken to have committed the offence and is punishable as if he or she had the committed the offence.  Thus, EL is liable to a maximum penalty of fifteen years’ imprisonment.  As can be seen from the maximum penalty prescribed the legislature, this is to be regarded as a very serious offence.  See Muldrock v The Queen (2011) 244 CLR 120 at 133; [31].

The facts

1. The events have their beginning in the relationship between Mr Hazell and a co-offender, Hayden Tuck, who had been friends since about 2006.  Mr Hazell was staying temporarily at Mr Tuck’s unit in Scullin as he did not have a permanent residence.  On about 28 May 2011, Mr Tuck and his girlfriend, and Mr Hazell and his girlfriend, were at the unit when Mr Tuck told his girlfriend that their relationship was over.  She became quite upset and Mr Hazell remonstrated with Mr Tuck, and they had a fight, ending when Mr Hazell and the two girls left the unit.

1. On or about 31 May 2011, the two girls and Mr Hazell returned to the unit and Mr Hazell apologised to Mr Tuck for fighting with him.  Mr Tuck accepted the apology, saying words to the effect of, “Nah, it’s all good, people do stupid things when they drink alcohol”.

1. On the afternoon of 1 June 2011, Mr Tuck was at his unit with two friends, Darrell Crawley and Leanne Phillips.  Mr Crawley left to buy some alcohol.  Later, GM, EL and co-accused, ML, arrived at the unit, GM holding a ten to fifteen centimetre long black-handled flick knife, which he flicked open and closed several times.

1. All those present were talking and, except for GM and EL, drinking alcohol.  Mr Tuck, GM, EL and ML talked about Mr Hazell and GM said words to the effect, “Let’s get this over and done with.  Let’s get Taylor here so we can bash him”.  ML and EL said words to the effect of, “We’ll help you”.  Mr Tuck then said words to the following effect, “I want to bash Taylor.  One of you can hide in the cupboard of my bedroom until Taylor goes to the toilet.  When Taylor gets into the bathroom, you can bash him”.  GM said words to the effect of, “When Taylor gets into the bedroom”.

1. Mr Tuck then sent an SMS message to his former girlfriend who was with Mr Hazell and his girlfriend, and invited them over to his unit for a party.  GM then asked about gloves and Mr Tuck rang Mr Crawley asking him to get three pairs of kitchen gloves.  Mr Crawley later returned with some alcohol and three pairs of gloves.  Mr Tuck gave one pair each to GM, EL and ML, and they put them on.  Mr Tuck received a text message that Mr Hazell and the two girls were on their way and would arrive in half an hour to an hour.

1. Shortly after, GM, EL and ML hid in the bedroom and bathroom.  GM had his flick knife with him, though it is not clear from the agreed Statement of Facts that ML knew that, or that he was going to use it, the words “bash” having only relevantly been used.  Mr Hazell and the two girls arrived at about 6:50 pm.  GM was standing in the bedroom but turned the light off.  A little later, Mr Crawley left to buy some more alcohol. 

1. Sometime after that, Mr Hazell got up to go to the toilet, which had to be accessed through the bedroom.  Mr Tuck opened the bedroom door and GM pulled Mr Hazell into the bedroom.  Mr Tuck closed the door, pulling the handle to prevent it from being opened from the inside.  GM then punched Mr Hazell in the right temple and kicked him in the leg, and he fell to the floor.  EL came out of the bathroom and saw GM striking Mr Hazell, who fell to the floor bleeding.  EL then ran back into the bathroom and he and ML took off their gloves and climbed out of the bathroom window, and ran from the scene.

1. Mr Hazell screamed and tried and tried to open the door but Mr Tuck made sure he could not do so.  In the struggle, GM stabbed Mr Hazell about fifteen times.  At about this time, Mr Hazell’s girlfriend rushed to the bedroom door and managed to push Mr Tuck out of the way and opened the door.  She saw Mr Hazell covered in blood and GM with his sleeves rolled up and wearing white rubber gloves.  Mr Hazell, bleeding profusely, ran out of the bedroom screaming, “Help me, please”, followed by GM still holding the flick knife.  Mr Hazell ran out of the unit followed by GM.

1. Mr Hazell ran to a supermarket across the road where a worker made a triple zero call and police and ambulance arrived.  In the meantime, the two girls tried to help Mr Hazell.  He was later taken to Canberra Hospital where he was found to have multiple stab wounds in his chest, back, abdomen, both arms and left groin.  He suffered lacerations to one kidney, his spleen, both lungs and his lower stomach.  As I have noted, Mr Hazell underwent two operations that night and two further operations later that month.  EL was arrested later that evening.  He does not appear to have spent any period of time in custody. 

Subjective circumstances

1. EL was born in 1993 and was, at the time of the offence, seventeen years old.  He was born in Canberra and lived with his mother and sister until May 2013.  He remains on good terms with them.  His childhood was largely positive, though his father’s offending behaviour made for some difficulties until he eventually left the family when EL was seven.  EL did make contact with his father in 2011, but this did not work out.  He formed a positive relationship with his stepfather initially, though EL described his stepfather as “headstrong” and they clashed, leading to a breakdown in that relationship such that there has been no contact since 2011.  Nevertheless, EL’s mother remains committed to her son and is attempting to re-establish a relationship between him and his stepfather.

1. EL completed Year 10 but was expelled from school.  He attended another school for six months before deciding he was better off in employment.  He completed a hairdressing apprenticeship and then worked for his stepfather’s removalist company for eighteen months before taking up employment as a painter and decorator, where his employer describes him as “one of the best apprentices that he has employed”.  Indeed, I had a reference from his employer;  it is a glowing reference, it makes reference to his “sheer hard work and determination to succeed … He is always the first one on the job site and the last one to leave”.  He also made reference to clients and colleagues providing positive feedback about “his great work ethic, politeness and quality of his work”.  He described him as “a great role model for [his] other apprentices as he leads them by example”.  EL has discussed the offences with his employer.

1. EL has been in a stable relationship for three years and currently lives with his partner and her father.  His partner is committed to the relationship.  EL also supports his elderly maternal grandparent whom he visits twice a week or so to help with household tasks such as gardening.  EL has not contacted the offenders since he was granted bail.  He has a small group of friends.  It is said that he has “denied any issues with substance abuse” and the author of the helpful Pre-Sentence Report stated that there was no evidence of any such issues, conclusions supported by drug screening results.  He has no physical or mental health issues.

1. EL has accepted responsibility for his role in the offence and has expressed insight into the offending and a recognition of the serious injuries suffered by Mr Hazell and the ongoing disabilities he has.  He expressed to me how wrong the offending was and that it should never have happened.  He expressed sorrow for the injuries inflicted, saying, “No one deserves that to happen to them”.

1. The author of the Pre-Sentence Report refers to his stable employment, financial status and accommodation since the offence and the positive support he provides to his family.  The author confirmed that EL acknowledges the seriousness of the offence, expressed regret for his actions and showed insight into the injuries to Mr Hazell.  He was assessed as at a low risk of re-offending. 

1. EL has no criminal history either prior to, or since, the offence was committed.  I have character references also from his maternal grandparents, his aunt and a family friend; they all attest to his good character.  He is clearly regarded very highly by his grandparents, who describe him as “a wonderful boy” and are hoping that he and his “wonderful partner” will move into a flat that is under their house.  EL visits them regularly, and, as I have noted above, helps with jobs around their house.  EL is described as kind with a generosity of spirit and a gentle nature, which may explain his reaction on actually seeing the attack on Mr Hazell where he just immediately decamped.  The support of his partner is particularly mentioned.  His remorse for his part in the events is also mentioned.

Victim impact statement

1. Mr M Fernandez, who appeared for the Crown, expressly stated that he had no victim impact statement.  Even without it, the Court can accept that the events of the evening must have had a profound effect on Mr Hazell, both physically and mentally.  He must have been terrified at the obvious ferocity of the attack and the pain and suffering where he may well have thought he would die would be of a high order.  The agreed Statement of Facts refers to the permanent scarring Mr Hazell now has, and no doubt he also suffers ongoing psychological trauma. 

1. I note that the Crown handed up the sentencing remarks of Higgins CJ when sentencing Mr Tuck and of Burns J when sentencing GM.  In that latter, his Honour quotes an extract from a victim impact statement of Mr Hazell.  Given, however, the expressed statement of Mr Fernandez and that the sentencing remarks were not received in evidence but simply handed up, as would be expected, I have no regard to the extract quoted by his Honour.

The offence

1. The Crown referred to the objective seriousness of the principal offence, which was clear from the degree of violence inflicted and the injuries sustained.  It was, it was submitted, high in the range of such offences.  Indeed, Mr Fernandez described it as at “the top of the range”.  It was accepted that the plea of guilty was entered at the earliest opportunity and justified a significant discount.  Nevertheless, it was submitted that the ferocity of the attack and its consequences required general deterrence to play a significant role in sentencing.

1. The objective seriousness was somewhat increased, though, through a degree of pre-planning for the offence, and the fact that Mr Hazell was lured into Mr Tuck’s apartment so that the offence could be committed.  EL knew that GM had a knife, although, it was not entirely clear that he understood that it was likely to be used;  so much may be accepted.  Mr Fernandez referred me to what had been said by Lee CJ at CL, speaking for the Court in R v Pham and Lee (1991) 55 A Crim R 128 at 135

It is true that courts must refrain from sending young persons to prison unless the course is necessary, but the gravity of the crime, and the fact that it is a crime of violence frequently committed by persons even in their teens, must be kept steadfastly in mind otherwise the protective aspect of the criminal court’s function will cease to operate.  In short, deterrence and retribution do not cease to be significant merely because persons in their late teens are the persons committing grave crimes, particularly crimes involving physical violence to persons in their own homes.

1. I will refer to this later.

1. The Crown, however, acknowledged that this was an unusual case where EL had made what was described as “a remarkable turnaround” and seized the opportunity that the relatively long period between the commission of the offence and sentencing provided to show how he could reject the criminality in which he had engaged. 

Submissions

1. Ms L McDade, who appeared for EL, acknowledged the seriousness of the offence;  she noted that his actual involvement was not as an active participant in the offence and that he withdrew from the offending as soon as he saw the ferocity of the violence.  In terms of parity of involvement, EL’s participation was, she submitted, well below that of GM, and less than that of Mr Tuck who lured Mr Hazell to his flat and actively participated that the attack continued by holding the door closed to prevent Mr Hazell’s escape.  I accept those submissions.

1. EL was, she noted, a young offender at the time of the offending and thus subject to the provisions of Pt 8A of the Crimes (Sentence Administration) Act 2005 (ACT). Ms McDade submitted that, as EL could not explain why he participated in the offence, it could be found that young people find themselves in difficult situations where they cannot see how to withdraw, especially from what their older mates are doing, though, I note that GM was also a young person.

1. It was further submitted that the delay in reaching sentencing is relevant for not only has the threat of severe punishment been hanging over EL’s head for a long time, he has not committed any further offences and, indeed, has established himself within the community in a way that is very conducive to a crime-free life.  He had significant and restrictive bail conditions with which he has complied.  This included, for example, a restriction on his consumption of alcohol. 

1. The subjective features I have already described were emphasised, as was his remorse and insight.  Ms McDade submitted that, in this case, there was no role for specific deterrence and that properly I could reduce the effect of general deterrence because of the specific features of the circumstances.  I could, she submitted, accept that EL will be a productive member of the community.  I do accept that.

Parity

1. The evidence before me showed how the other offenders had been punished.  As to GM, he had no prior convictions when he was sentenced.  He was, however, sentenced for other offences, including two offences of wounding committed on 2 April 2011, and a charge of theft for the same day.  Two offences of assault were also taken into account.  For the offence of intentionally inflicting grievous bodily harm on Mr Hazell, GM was sentenced to six years’ imprisonment, of which five years was to be served consecutively upon concurrent sentence of twelve months’ imprisonment and two years’ imprisonment for the earlier offences, making a head sentence of seven years.

1. Since a non-parole period could not be set for a young offender by virtue of s 64(3)(f) of the Crimes (Sentence Administration) Act (ACT), the sentence was suspended after four years. His Honour expressed particular concern that GM was on bail from the earlier offences when he committed this offence shortly after those earlier offences.

1. As to Mr Tuck, he had three relatively minor offences on his criminal record, though, one involved the possession of a knife without reasonable excuse.  He had also failed to comply with a good behaviour order.

1. He was regarded by the learned Sentencing Judge as the initiator of the offence and played the part of luring Mr Hazell to the apartment where the offence was committed.  His Honour found, which is somewhat different from the facts with which I am concerned, that Mr Tuck did not know that GM had a knife.  His Honour imposed a sentence of three years’ imprisonment, releasing Mr Tuck on the date of sentencing by which he had served nineteen months and eight days in custody.

Youth of EL

1. There is no doubt that the fact that EL was seventeen years old at the time of the offence is very relevant.  The Court of Appeal has accepted as much in R v C V [2013] ACTCA 22 at [40]. The Court there said, at [42]-[44]

42.In R v PM [2009] ACTSC 24 at [52]-[54] Refshauge J pointed out that the Sentencing Act reflects the position at common law. His Honour cited the remarks of Matthews J, with whom Gleeson CJ and Samuels JA agreed, in R v P (1991) 53 A Crim R 112 at 116:

The approach to be adopted in the sentencing of young offenders has been discussed in a number of cases.  In Wilcox (unreported, Supreme Court of NSW, 15 August 1979), Yeldham J remarked during the course of sentencing a young offender that ‘in the case of a youthful offender ... considerations of punishment and of general deterrence of others may properly be largely discarded in favour of individualised treatment of the offender directed towards his rehabilitation’.  His Honour relied upon Smith [1964] Crim LR 70, where it was said: ‘In the case of a young offender, there can rarely be any conflict between his interests and the public’s.  The public have no greater interest than that he should become a good citizen’ ...

43.The weight to be given to the youth of the offender does not vary with the seriousness of the offence:  R v Hearne (2001) 124 A Crim R 451 at [24].

44.It is true that CV was close to the legal age of majority at the time of the offence. In such cases, the court may make ‘little allowance’ for these considerations (R v SDM (2001) 51 NSWLR 530 at [16] per Wood CJ at CL (Giles JA agreeing)), but we do not think it is necessarily such a case as the evidence suggested that CV’s legal age did not coincide with his level of emotional maturity (cf R v Karma (2000) 110 A Crim R 47). Accordingly, we are not persuaded that his Honour erred in giving less weight to deterrence and punishment than to rehabilitation.

1. I shall take this approach into account.

Consideration

1. I take into account EL’s plea of guilty and the submissions of both the Crown and defence that it was entered at the earliest opportunity.  The offence was a very serious one and certainly at the high end of objective seriousness.  I take that into account. 

1. As an aider and abettor, EL remains liable to the maximum penalty for the offence, but his precise culpability must be assessed.  As the High Court said in GAS v The Queen (2004) 212 CLR 198 at 209; [23]

It is not a universal principle that the culpability of an aider and abettor is less than that of a principal offender ...  A manipulative or dominant aider and abettor may be more culpable than a principal, and even when aiders and abettors are less culpable the degree of difference will depend upon the circumstances of the particular case.

1. In R v Govinden (2001) 127 A Crim R 331 at 335; [31]-[33], Wood CJ at CL, with whom Powell and Sully JJ said:

This court approved the observation of the sentencing judge when assessing the objective criminality of the offenders as ‘being in the same quality’ upon the basis that they have involved themselves ‘in a course of criminal conduct which could be described as a joint criminal enterprise’.

This does not automatically mean that every participant in such an enterprise shares the same degree of objective criminality.  The assessment does, however, begin or should begin with the proposition that each intended the crime and each set out to carry it into effect.

On some occasions, cause will arise for differentiation between them, for example, if one offender stands out as the obvious ring leader or abuser, some inside knowledge or connection with the premises to carry the crime into effect, or is the person who actually elects to carry out the threat of violence by using the weapon offensively to cause injury to the victim.

1. As the New South Wales Court of Criminal Appeal said in R v J W [2010] NSWCA 49 at [161], it is always relevant to refer to the particular conduct of each participant with a view to identifying the level of culpability for which each must be sentenced. In my view, the culpability of EL is very much less than that of GM and less still than that of Mr Tuck. It is also relevant that when he saw the actual violence that was being inflicted he withdrew, though, he did not attempt to prevent further violence or to assist Mr Hazell or to contact police.

1. Thus while the offence was a very serious one, EL’s personal culpability is much less than that of the principal participants, GM and Mr Tuck, and this must be reflected in the differences in sentences to be imposed.  I take into account EL’s age and personal circumstances, to which I referred above.  I take into account that he has no prior convictions and though the stress must have been significant, he has not committed any offences since then that have come to the attention of the authorities.  I accept that he is remorseful and I take into account his good character, as attested to by his referees.

1. I take into account his financial circumstances.  I consider also current sentencing practice, though, no comparable cases have been referred to me by either counsel.  Nevertheless, the seriousness of the offence and the injuries to Mr Hazell requires, in my view, a real response.  I consider that no sentence but a sentence of imprisonment is appropriate.  Due to all the factors I have mentioned, however, I do not require EL to serve any part of it in full‑time custody.  I have carefully taken into account the sentences imposed on GM and Mr Tuck.

1. EL, please stand:

1.          I convict you of aiding and abetting GM in the commission of the offence of intentionally inflicting grievous bodily harm on Taylor Hazell on 1 June 2011. 

2.          I sentence you to twenty months’ imprisonment.  Had you not pleaded guilty, I would have sentenced you to two years and four months’ imprisonment. 

3.          I suspend that sentence today for two years. 

4.          I require that you sign an undertaking to comply with the offenders good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of two years with a condition that you perform 100 hours of community service work within twelve months.

1. [HH then spoke directly to EL]

1. EL, that is the formal order that I have made.  I accept that this was entirely out of character and, although it was a very serious offence, your participation in it at the lower end of culpability.  Nevertheless, the community is entitled to express its denunciation of this offence, and I have sentenced you to imprisonment.  That imprisonment will not be served by you unless you commit any further offences punishable by imprisonment within the next two years, in which case you can be brought back before me and be dealt with by me for that offence, or those offences.

1. I have also required you to pay back to the community by serving 100 hours of community service work, which is unpaid work for the community, and you will be contacted by, or you will make contact with, Corrective Services to arrange for that to be undertaken.  You have made substantial progress in getting your life in order since this offence, and that needs to be taken into account, and I have done so.  I expect that if you continue in that way, you will not come before the courts again and I certainly hope that is so.  This was a terrible offence that will be hanging over you, as it is hanging over Mr Hazell, but you must understand that the courts give you some leniency but that will be much reduced if you fall back into criminality and the kind of behaviour that was exercised on this occasion.  You may be seated.

   I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

   Associate:

   Date: 28 April 2014

Counsel for the Crown:  Mr M Fernandez
Solicitor for the Crown:  ACT Director of Public Prosecutions
Counsel for the defendant:  Ms L McDade
Solicitor for the defendant:  Jeffrey Silk
Date of hearing:  7 February 2014
Date of judgment:  20 February 2014