New South Wales Court of Criminal Appeal CITATION : Regina v K [2000] NSWCCA 24 FILE NUMBER(S) : CCA 60597/99 HEARING DATE(S) : 9/2/2000 JUDGMENT DATE : 24 February 2000 PARTIES : Regina K JUDGMENT OF : Grove J at 1; Sully J at 2; Simpson J at 31 LOWER COURT JURISDICTION : Supreme Court LOWER COURT FILE NUMBER(S) : 70076/97 LOWER COURT JUDICIAL Hulme J OFFICER : COUNSEL : L.M.B. Lamprati - Crown M. Ierace SC - Respondent SOLICITORS : S. E. O'Connor - Crown Muggenthaler & Assoc. - Respondent LEGISLATION CITED : Crimes Act (1900) NSW Reg v Isaacs (1997) 41 NSWLR 374 CASES CITED: Ex parte Corbishley; Re Locke [1967] 2 NSWR 547 at 549 Reg v Astill (No. 2) [1992] 64 A Crim R 289 at 303,304 DECISION : Crown appeal dismissed. IN THE COURT OF CRIMINAL APPEAL 60597/99 GROVE J SULLY J SIMPSON J 24 February 2000 REGINA v K JUDGMENT 1 GROVE J: I agree with Sully J. IN THE COURT OF CRIMINAL APPEAL 60597/99 GROVE J SULLY J SIMPSON J 24 February 2000 REGINA v K JUDGMENT 2 SULLY J: This is a Crown appeal from a penalty imposed by Hulme J. The respondent to the appeal is a young man as to whom Hulme J ordered that there be entification other than by the pseudonym 'K' in any report of the proceedings before his Honour, including the proceedings on sentence. His Honour ordered, in addition, that there be no publication of persons named in the relevant files of the Department of Community Services as persons to whose care 'K' was entrusted in past years, otherwise than by their respective initials. In my opinion this Court should continue those orders. In what follows, I shall refer to 'K' either by that pseudonym, or as "the respondent". 3 On 17 May 1999 the respondent was presented for trial upon an indictment charging that he had murdered, on or about 24 October 1996, one Geoffrey Boyson. I shall refer in what follows to Mr. Boyson either by name or as "the deceased". 4 To that indictment the prisoner pleaded not guilty. He was put, accordingly, upon his trial by jury. The trial continued until 8 June 1999, on which day the jury found the respondent not guilty of murder but guilty of manslaughter. On 15 September 1999 the respondent stood for sentence. Hulme J deferred, pursuant to s.558 of the Crimes Act 1900 (NSW), the passing of sentence, and ordered the release of the respondent upon his entering into a recognisance, without surety, in the sum of $500, for a period of 4 years, such recognisance to include the following conditions: [1] That the respondent be of good behaviour; [2] That the respondent not partake of illegal drugs; [3] That the respondent not partake of alcohol for a period of 12 months; [4] That the respondent reside only at such places as may be approved of by Father Riley or other the Director for the time being of Youth Off the Streets Inc; [5] That the respondent participate in such educational, vocational, drug and alcohol, and other programmes as may be directed by Father Riley or other the Director for the time being of Youth Off the Streets Inc; [6] That the respondent undertake such employment and only such employment as may be approved of by Father Riley or other the Director for the time being of Youth Off the Streets Inc; [7] That the respondent obey all reasonable directions of Father Riley or other the director for the time being of Youth Off the Streets Inc, including directions concerning the ingestion of alcohol at the expiration of the 12 months referred to in condition [3]. 5 The respondent and the deceased initially became acquainted, as it would seem, as the result of a casual meeting at Central Railway Station. There was some evidence that, by November 1995, the respondent was living with the deceased in the latter's home, which was a small one-bedroom unit. That arrangement came to an end at some time before August 1996. At some time in about late August 1996 the respondent resumed living with the deceased in the latter's home unit. Thereafter, and for a period of about 2 months, the respondent used the deceased's home unit as, in effect, a place of convenient abode when he was not roaming the streets; committing criminal offences of various kinds; and abusing drugs. It would seem that the deceased had access to drugs at his place of employment; and that he regularly used that access in order to procure drugs which he passed on to the respondent. 6 According to the respondent, who was consistent in this version of events from the time he first spoke to the police about his involvement in the killing, the deceased had sodomised him on an occasion which could not be dated more precisely than as having been about a week or two prior to the date of the killing. According to the respondent, he had returned to the home unit in order to collect such of his personal belongings as were still there. The respondent claimed that, upon his return to the home unit, he encountered the deceased. There was evidence that the deceased was accustomed to go about unclothed when inside his home unit. It is not clear from the available evidence whether the deceased was in that state of undress when he first encountered the respondent on 24 October; but either he was then unclad, or he subsequently removed his clothing. According to the respondent, the deceased, being then wholly unclothed, made towards him advances which had clearly sexual overtones. The respondent's consistent version was that, apprehensive that he was about to be attacked sexually, he retreated to the kitchen, took hold of a kitchen knife, and attacked the deceased, inflicting upon him very significant stab wounds which brought about the death of the deceased. The wounds inflicted included a 135 mm cut to the deceased's throat; a stab wound to his head, the wound penetrating the skull though not the underlying membrane; and four stab wounds to the upper right part of the deceased's back, these wounds varying in depth between 90 and 100 mm; and three of them penetrating bones in the deceased's body. All four of those wounds to the deceased's back penetrated one of the deceased's lungs thereby causing his death from loss of blood. There was a great deal of blood located at various points of the crime scene. All the objective indications were of a sustained, ferocious, indeed frenzied, attack by the respondent upon the deceased. 7 The respondent did not deny at his trial that he had stabbed the deceased to death. He put in issue provocation and diminished responsibility. 8 Hulme J was required to decide in connection with the sentencing of the respondent, and in conformity with the relevant onus and standard of proof, these same two issues: Reg v Isaacs (1997) 41 NSWLR 374. 9 Hulme J was not prepared to infer that the respondent had returned to the deceased's unit on 24 October with any premeditated intention of harming, let alone of killing, the deceased. This finding was, in my opinion, clearly open to his Honour; and the contrary was not contended at the hearing of the appeal. 10 On the issue of provocation, Hulme J, having canvassed the issue carefully at paragraphs 28-34 inclusive of his Honour's remarks on sentence, expressed as follows his Honour's conclusions on the issue: "The myriad of circumstances to be considered in any case of provocation mean that it is difficult to compare quantitatively one case with another. However it is appropriate to say that, while I do not regard this case as in a worst category so far as the victim's conduct is concerned, I put it high on that scale and, when one has regard to the position of ……….. (the respondent) ………. . faced with that provocation, one where the provocation was very high. Furthermore, his history summarised in some detail below, makes his loss of self control much more easily understood and more excusable than in the case of the vast majority of the community who have far greater reserves of emotional stability to draw upon." 11 Hulme J canvasses at paragraphs 35-49 inclusive of his Honour's remarks on sentence, the issue of diminished responsibility. His Honour makes a careful canvass of the evidence that had been placed before him in connection with that issue; and it is not necessary, in my opinion, to traverse the whole of his Honour's discussion of the issue. It is sufficient for present purposes to note the conclusion to which his Honour came, which conclusion his Honour expresses as follows: "The conclusion at which I have arrived is that ……….. [the respondent's] ……… abnormality of mind did substantially impair his mental responsibility for the acts causing death. …………………………………… (I)t seems to me probable that not only did ……….. [the respondent's] ……….. abnormality of mind contribute to the acts causing death but did so to such an extent as to substantially impair his mental responsibility for the acts causing death." 12 In my opinion, the conclusions reached by Hulme J on the issues of provocation and of diminished responsibility were conclusions well open to his Honour on the evidence before him. 13 The respondent was born on 2 January 1980. He was aged, therefore, 16 years and a little more than 9 months at the date of the killing; 19 years and a little more than 8 months at the time he stood for sentence; and he is now aged 20 years and not quite 2 months. He had, when he stood for sentence, some criminal antecedents; but Hulme J did not consider that they were, in any particular way, significant. This view was, in my respectful opinion, open to his Honour; and the contrary was not argued at the hearing of the appeal. 14 His Honour made a positive finding, favourable to the respondent, on the matter of remorse. This finding, too, was in my respectful opinion open to his Honour. 15 The greater part of Hulme J's remarks on sentence is devoted to a precise canvass of the evidence concerning the respondent's subjective circumstances. It is, indeed, the essential point of the present Crown appeal that his Honour was so deeply affected by these subjective circumstances as to have given them a weight impermissibly disproportionate to the objective gravity of the killing in question. 16 It is clear enough from a reading of the remarks on sentence that Hulme J was, indeed, profoundly moved by the subjective picture of the respondent as established by the evidence before his Honour. That was, in my respectful opinion, entirely understandable given the detail of that evidence. The respondent's personal history was, by any reasonable reckoning, appalling. It was a history of cruelty, of gross neglect; of every kind of personal, social and familial dysfunction. One is reminded of the stinging observation of Holmes JA in Ex parte Corbishley; Re Locke [1967] 2 NSWR 547 at 549: "The picture is one which shows how the poor, sick and friendless are still oppressed by the machinery of justice in ways which need a Fielding or a Dickens to describe in words and a Hogarth to portray pictorially." 17 If one deletes the words "machinery of justice" and inserts the words "inadequacies of the machinery of child welfare", then what Holmes JA had to say about Mr. Corbishley is entirely appropriate to be said about the present respondent. 18 Hulme J made, as I have said, a careful and detailed canvass of the large body of evidence that was before his Honour on the question of the respondent's relevant subjective circumstances. His Honour took note, in express terms, of the gravity of the killing in question; and of the need to ensure that a proper weighing-up of the objective gravity of the killing was not simply overwhelmed by the moving and compelling subjective material. Paragraphs 119 - 122 inclusive of his Honour's remarks on sentence deal with these particular considerations of principle. 19 It is, of course, clear from the course ultimately taken by Hulme J that his Honour concluded that the respondent's case was a wholly exceptional one. There is, in my respectful opinion, no need now to gloss the following summary by Hulme J of the process of reasoning that led his Honour to that conclusion: "124 Developmentally delayed in his first year of life due to the lack of care by his alcoholic mother he was removed from her. Exhibiting "gross behavioural, emotional, educational and cognitive problems" by the time he was nearly 6 - caused or contributed to by inadequacies in the persons with whom he was fostered - he was removed from them. After 2 years in Bernardos and in another foster care, both of which placements seem to have progressed well in the circumstances - he and his sister were again moved - back to his mother. Although by then she had apparently overcome her alcoholism, given that history and the "very difficult management problems" which the Prisoner and his sister were, not surprisingly his mother could not cope and in December 1990 he was once again removed. 125. Nearly 11, and diagnosed as unable to trust adults, viewing the world as a rather threatening place and lacking the personal resources to deal with emotional pressures, there cannot have been much, if any, time since he was born that he had the benefit of love, self esteem, or self-confidence. Institutionalised during 1991 he was rejected again by his mother at Christmas time of that year. His subsequent placement with Mr. W may have been of a steadying nature, but a consideration of what happened after December 1991 leads to the conclusion that the die was cast. Certainly, the Prisoner's history reminds one of the maxim, attributed to the Jesuits, to the effect, "Give me a child till the age of seven, and I will give you the man". 126. Although the Prisoner's past does not entitle him to ignore or disobey the laws essential to the operation of a civilised society, his upbringing was so different from the norm that it seems to me it would be wrong simply to judge his actions by the standards one would apply to a person who had enjoyed a normal, loving and reasonably emotionally stable upbringing. In my view the circumstances of the case are such that, notwithstanding the Prisoner's offence was manslaughter, (and alcohol and possibly drugs were involved) a custodial sentence should not be imposed. 127. In reaching this conclusion I have not ignored the possibility that the Prisoner's past may render him more likely than others to again indulge in anti-social and criminal behaviour. However, on this topic, the Prisoner has the advantage of the good reports as to his behaviour while he has been with YOTS and the favourable opinion of Professor Hayes which I accept. Furthermore, the course I propose to adopt is calculated to provide the Prisoner with continued guidance and instruction for some time to come. It is also unlikely that the strain which the Prisoner must have experienced in awaiting for some 2-1/2 years his trial for murder will not have had a salutary effect on him." [See paragraphs 14-127 inclusive of the Remarks on Sentence.] 20 This Court must now decide whether Hulme J erred in his Honour's conclusion that it was permissible to deal with the present respondent otherwise than by imposing a custodial sentence of some kind. Given the unusual features of the present particular case, it is useful, in my opinion, to recall the following statements of principle which appear in the judgment of Lee AJ in Reg v Astill (No. 2) [1992] 64 A Crim R 289 at 303, 304: "Section 6(3) of the Criminal Appeal Act 1912 (NSW) provides as follows: "On an appeal under s 5(1) against a sentence, the court, if it is of the opinion that some other sentence whether more or less severe is warranted in law and should have been passed shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal." The fundamental function of the Court in an appeal under s 5(1) is to determine whether the sentence imposed by the sentencing judge is excessive or whether some other sentence is "warranted in law". It is not I mention the practice of the Court to increase sentences. A proper sentence is one which takes into account the objective seriousness of the crime and any aggravating features and then the circumstances subjective to the applicant or extraneous to the crime itself which permit leniency. It is that mix of circumstances which the sentencing judge must evaluate and there is usually considerable scope for disagreement as to the weight or significance to be given to the factors which make up the total mix. When an appeal is brought to the court under s 5(1) it may well be that the court will consider the sentence passed to be "warranted in law" even though the court may not be in agreement with the weight assigned by the sentencing judge to particular features, or his selection of the substantial matters which guide him to his conclusion. In such a case the appeal fails. Even where the court concludes that the judge has made a mistake of law, the court may still hold that the sentence is not excessive and should stand." 21 Having read and considered the remarks on sentence, I am unpersuaded that Hulme J's process of reasoning has been shown to have been erroneous either in law or in fact. 22 Two further matters were raised during the argument of the Crown case on appeal, and it is necessary to say something about each of them. 23 The first matter arises from certain comments made by Hulme J concerning the history of the dealings of the Department of Community Services with the respondent. It is not, I think, useful to re-state what his Honour said. It is sufficient to note that the terms of what his Honour said were scathing in their criticism of the way in which the relevant child welfare authorities had, in the past, handled the supervision, care and welfare of the present respondent. It does not seem to me to be useful for this Court now to embark upon any extended consideration of the question whether it was really necessary for Hulme J to go as far as his Honour did in the relevant portions of the remarks on sentence. I prefer to say that, for my own part, I do not see that this Court is called upon to investigate, as though it were a Royal Commission or some other form of public Inquiry, why it is that the respondent never seems to have been caught by the social welfare safety nets that one would have hoped to find in place for him. The point to be borne in mind is, rather, that the respondent, for whatever particular reason, did in fact fall through any such safety nets. His case is, in my opinion, by reason of that fact alone, an exceptional case in the context of his proper sentencing for his offence. 24 The second matter calling for present attention has to do with Hulme J's framing of the recognisance in a way that excluded the Department of Juvenile Justice, or indeed any other public authority, from direct involvement in the monitoring of the compliance by the respondent with the conditions of the recognisance. His Honour preferred to frame the recognisance in a way that entrusted to Father Riley and to his particular welfare organisation the duty and the responsibility of so monitoring the respondent's compliance with the conditions of his recognisance. 25 A reading of the relevant portions of Hulme J's remarks on sentence makes it clear, in my opinion, that his Honour's approach to the framing of the recognisance was influenced greatly by a very unfavourable view that his Honour had formed about what was likely to be the effect upon the respondent of any order that sent the respondent, on any basis, into a Detention Centre. It was submitted to this Court that Detention Centres are established with the authority of the Parliament; and that, whatever might be their deficiencies in practice, they, and those who are responsible for controlling them, have a public standing and interest, in such a case as that of the respondent, which should not be simply by-passed by any Court. 26 In my opinion there is much force in this submission now put by the Crown. For my own part, I would not accept a simple and sweeping proposition that all existing Detention Centres are, simply and comprehensively, evil places into which no young offender should ever be sent. It is sufficient to note, in that connection, that there is no evidence before this Court, as indeed there was none before Hulme J, to justify so broad a condemnation. 27 But there was before Hulme J evidence from Father Riley that the rehabilitation of the present respondent, now apparently progressing well, would be jeopardised by up-rooting him from his present custody and sending him back to such an institution as a Detention Centre. Hulme J expressly accepted that evidence. I do not see any basis upon which it could now be argued properly that it was not open to his Honour to accept that evidence. I think, indeed, that the thrust of the other professionally qualified opinion evidence that was put before his Honour tended to support the conclusion to which his Honour came about the undesirability of sending the present respondent into a Detention Centre. 28 It was submitted by the Crown that, at the very least, the recognisance should be amended by this Court so as to include in it some condition(s) appropriate to involve the Department of Juvenile Justice, or some other appropriate public authority, in a formal way in the supervision of the respondent's ongoing rehabilitation. 29 I have not been persuaded that, in the present particular case, this Court should intervene in that way. In saying so, I wish to make it clear that I am not conveying a view that it would be proper, as a matter of general practice, for sentencing Judges to frame recognisances so as to exclude any formally recognised involvement of the Department of Juvenile Justice or some other appropriate public authority in the ongoing rehabilitation of such a prisoner as the present respondent. I think, however, that it is necessary to bear in mind, yet again, that Hulme J took a very particular view about a very particular case, and based that view upon very particular evidence. The question for this Court, it must always be remembered, is not whether it might have been better or wiser to have made some formal provision for the involvement of the relevant public authority. The question is a more particular one: namely, whether Hulme J erred in not making such provision. I have not been persuaded that he did. 30 For the whole of the foregoing reasons, I am of the opinion that the Crown appeal should be dismissed. IN THE COURT OF CRIMINAL APPEAL 60597/99 GROVE J SULLY J SIMPSON J 24 February 2000 REGINA v K JUDGMENT 31 SIMPSON J: I agree with Sully J. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.