R v Holmes & Ratu [2001] NSWSC 1183

New South Wales Supreme Court

CITATION : R v Holmes & Ratu [2001] NSWSC 1183 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 70052 of 2001; 70208 of 2001 HEARING DATE(S) : 5 & 7 November 2001 18 December 2001 JUDGMENT DATE : 18 December 2001

PARTIES : REGINA v BARNEY BERNARD HOLMES REGINA v JEREMAIA RATU JUDGMENT OF : Levine J

J Kiely S.C. (Crown)

COUNSEL : W Terracini S.C. (Offender - Holmes)

L Flannery (Offender - Ratu) Office of the Director of Public Prosecutions (Crown)

SOLICITORS : Ross Hill & Associates (Offender - Holmes)

George Sten & Co. (Offender - Ratu) CATCHWORDS : Murder - intent to cause grievous bodily harm - taxi driver victim - plea of guilty CASES CITED : R v Hearn [2001] NSWCCA 37 DECISION : See paragraphs 22-25

DLJ: 1 [2001] NSWSC 1183 IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION JUSTICE DAVID LEVINE

TUESDAY 18 DECEMBER 2001

70052 of 2001 70208 of 2001 REGINA v BARNEY BERNARD HOLMES REGINA v JEREMAIA RATU

SENTENCE (Murder – intent to cause grievous bodily harm – taxi driver victim – plea of guilty) 1 HIS HONOUR: On 5 November this year the offenders, Barney Bernard Holmes and Jeremaia Ratu, pleaded guilty to the charge in the indictment; namely, that on 26 February 2000 at Granville each did murder Satpall Singh Suri. 2 At about 3am on that morning Mr Singh, a taxi driver, was hailed at Dulwich Hill by four persons, two of whom are the present offenders, who had been at a twenty-first birthday party. Mr Singh was directed to Granville where he stopped in Prince Street. Thereupon I am satisfied his passengers, and in particular these offenders, were prepared to do a "runner". The offenders alighted. The driver, Mr Singh, alighted. The driver challenged Mr Ratu with a punch and was then set upon with kicking and punching by both offenders. Indicative of the kind of action used by Mr Ratu was stomping, as disclosed in Mr Ratu's second ERISP, part of the Crown material. 3 These acts of kicking and punching were perpetuated over a lengthy period, at least ten minutes, at one point of which of course Mr Singh became helpless on the road. Mr Singh died about twelve hours later. The cause of death was head injuries and blood loss from stabbing. 4 It is unquestionably the case that Mr Singh was stabbed. It is equally unquestionably the situation that the Crown has no case against these offenders in relation to that stabbing. Both denied it. The stabbing is, therefore, a factor to be set to one side completely. 5 The Crown case acknowledges the requisite intent for the murder to have been intent to cause grievous bodily harm and not intent to kill. This was not a case of premeditation. There was no intention to rob. Both offenders were drunk. Mr Singh died as a result of a drunken, cowardly, vicious physical attack which exploded suddenly when he sought to prevent fare evasion. That starkly states the human tragedy as well as of the gravity of the crime. 6 As has often been said by this Court, assaults on taxi drivers, be they serious or minor, will not lightly be tolerated by the courts. The convenience of the taxi service to members of the public needs no emphasis and taxi drivers are entitled to the benefit of the full weight of the law in protecting their safety. Thus it is that I am concerned with a homicide of a taxi driver in an explosion of drunken violence, conduct which requires punishment and punishment which requires that due weight be given to general deterrence. 7 By whom was this crime committed? Jeremaia Ratu was eighteen at the time of the offence. He has no relevant antecedents and comes from a stable family background. He appears to have departed from the tenets and principles that his parents sought to imbue in him by embarking upon a career of drinking and drug-taking but not without the realisation of the peril of that path, a short time before 26 February 2000. 8 Mr Ratu pleaded guilty. A plea of guilty to a charge of murder, as has been said, is a matter of much significance and due weight should be given to it. He pleaded guilty just over a month ago. Nothing turns on that because he was entitled to know with precision the Crown case against him, a critical element of which, namely the cause of death, in the end was not exposed by documentation until the beginning of November. No question, therefore, turns on any lateness of his plea. 9 The Crown case to which he pleaded in the end, bearing in mind those features to which I referred at the beginning of these remarks, rested upon admissions made by him to the police and to his brother. Utilitarian considerations must be taken into account. 10 Remorse and contrition I find to have been evident from his second record of interview which he volunteered to participate in upon being informed of the death of Mr Singh. That remorse and contrition, I am satisfied, has continued in a genuine sense to this time and has been confirmed by the material contained in Miss Devlin's report of 1 August this year, the forensic psychologist. 11 Mr Ratu is entitled to a discount in the order of twenty-five per cent by reason of this plea to the charge of murder and the total sentence in due course to be imposed will reflect that as having been taken into account. 12 Mr Ratu's prospects for rehabilitation are good. He has embarked upon drug and alcohol rehabilitation regimes whilst in custody. He has embarked upon educational courses whilst in custody. He has evinced the continuing remorse and contrition with those who have visited him whilst in custody. He was eighteen at the time: immature but not a child. He was, and is, young and has evidenced a self-awareness of his wrongdoing, if not at times despair, at what befell the family of Mr Singh. 13 In Mr Ratu's case I have reflected upon submissions as to what are called "special circumstances" and, in the end, am not persuaded that, additional to the lengthy non-parole period that will by statute apply to the sentence to be imposed, there are any special circumstances requiring further extension. That Mr Ratu was severely affected by alcohol is confirmed in the report of Dr Starmer. The combination of alcohol and cannabis consumption was volatile. The price paid was mortal in one case and will be a lengthy term of imprisonment in the case of the offender. 14 Mr Holmes was born on 21 July 1978 and was thus twenty-one years of age. He too comes from a stable family and community background. His antecedents are not such, in the scheme of things, as could play a role in the disposition of punishment for this crime. 15 Mr Holmes was dangerously drunk, according to the same expert, Dr Starmer, to the point where his memory was so affected that detail could not be recalled when confronted with Mr Ratu's account given after the disclosure of the death of the deceased. Mr Holmes, like Mr Ratu, prior to the provision of that information, was less than cooperative, an attitude that, with the benefit of hindsight, no doubt can be explained by reference to both young men's sense of fear and panic. When the truth was made known to them each took the course I have referred to. 16 In relation to Mr Holmes the same considerations apply as to the timing of the plea. In relation to contrition and remorse, as it affects the grave criminality, the testimonial material and the report of Mr Terry Smith, psychologist, evidence a genuine continuation of those sentiments. I have been handed today, as part of Ex 3, a letter from Mr Holmes reaffirming his remorse and contrition. 17 Each offender clearly appreciates that nothing that they can do, nothing that they can say, nothing that I could do or say, will bring back Mr Singh. 18 In the course of submissions by counsel I was referred to a decision of the Court of Criminal Appeal in the case of R v Hearn [2001] NSW CCA 37, a case involving murder and another charge, the victims of which were police officers. Their Honours in that court examined cognate or similar cases which provide some guidance only because each case depends upon its own facts. Each case depends upon the crime as found and upon the persons who commit it. 19 I have remarked upon the remorse and contrition of each of the offenders and it usually follows that in that case there is less need for that element of punishment, namely, personal deterrence. But one must return to the crime and to the need for general deterrence as a factor that must be given due weight. 20 The sentence I am about to impose I have sought as best as humanly possible to weigh all those factors, the crime and who committed it. I hasten to say that whilst the maximum penalty for the offence to which the offenders pleaded guilty is imprisonment for life, the Crown did not submit that this was a case calling for such a penalty and on no rational fair view could it be said that such a penalty was called for as a matter of law or principle. 21 The sentencing exercise is a difficult one because of the variety of the factors that the judge has to take into account. With two young offenders such as these - and I draw no distinction between them in that regard - this is not a case in a principled way that calls for the throwing away of the key nor is it a case where a court should be unduly influenced by considerations personal to the offenders to the point where the sentence ultimately imposed in fact is, and is seen to be, lenient at the expense of the recognition of the gravity of a crime such as this. 22 Barney Bernard Holmes and Jeremaia Ratu, you are each convicted of murder. You are sentenced to a term of imprisonment of sixteen years to commence from 26 February 2000. 23 I fix a non-parole period of twelve years to commence on 26 February 2000 and to expire on 25 February 2012 on which date each of you will be eligible for release to parole. 24 The head sentence expires on 25 February 2016. 25 I recommend in each case the continuation of the drug and alcohol counselling and educational courses being provided whilst you are in custody and upon the release to parole the application of such terms and conditions as to the authorities are appropriate. **********