New South Wales Supreme Court CITATION : R v Young [2001] NSWSC 942 CURRENT JURISDICTION: Criminal FILE NUMBER(S) : SC SC 70203/01 HEARING DATE(S) : 27/08/01 JUDGMENT DATE : 3 September 2001 PARTIES : Regina v Jason Raymond Young JUDGMENT OF : Taylor AJ at 1 COUNSEL : Mr B Newport QC (Crown) Mr A P Cook ( Offender) SOLICITORS : DPP - Mr B Royce ( Crown) F D Hammond & Associates ( Offender) CATCHWORDS : Sentence - guilty plea - manslaughter - joint criminal enterprise - co-operation with authorities - youth - special circumstances LEGISLATION CITED : Sections 5,23, 44 Crimes (Sentencting Procedure) Act Section 24 Crimes Act R v Veech [2001] NSWSC 68 R v Blacklidge NSWCCA December 1995 R v Dodd (1991) 57 A Crim R 349 R v Hill (1981) 3 A Crim R 397 at 402 R v Gallagher (1991) 23 NSWLR 220 CASES CITED : R v Cartwright (1989) 17 NSWLR 243 R v Thomson (2000) 49 NSWLR 383 R v S [2000] NSWCCA 13; (2000) 7 Crim LN 10 R v C 18 February 1993 Hunt CJ R v Lewis (1998) 100 A Crim R 361 R v Wilkie NSWCCA 2 July 1992 Badgerry-Parker J R v Henry [1999] NSWCCA 107 DECISION : Offender sentenced to imprisonment for six years. I set a non-parole period of four years to commence on 1 September 2000 and to conclude on 31 August 2004 when the offender is eligible to be considered for release to parole - 16 - THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION TAYLOR A J 3 September 2001 70203/01 REGINA v JASON RAYMOND YOUNG NON-PUBLICATION ORDER IN EFFECT (UNTIL THE CONCLUSION OF THE TRIAL OF MR MAMAE) SENTENCE Introduction 1 HIS HONOUR: On 27 August 2001 Jason Raymond Young was arraigned on indictment before this Court on one count of murder. He was charged that on 15 July 2000 at St Marys he murdered Pieter Izak Hage. He pleaded not guilty to the charge but guilty to the offence of manslaughter. The Crown accepted that plea in full discharge of the indictment. The offence is a contravention of s 24 of the Crimes Act and carries a maximum penalty of 25 years imprisonment. 2 The Crown alleges the assault, which resulted in the death of Mr Hage, was part of an attempted robbery of the deceased. The offender has at all times maintained that the assault arose in circumstances other than attempted robbery; namely that he thought the deceased (then victim) said something to which he took exception. He then punched and kicked the victim who, shortly afterwards, died. The offender says he was in company with Junior Vaa Mamae who also kicked the victim. 3 The Court is required to resolve this factual dispute and determine the circumstances in which the assault took place. That finding is of particular importance because the unlawful and dangerous act amounting to manslaughter, upon which the Crown alleges, is one of an assault with intent to rob. 4 Before turning to the evidence in respect of the factual dispute the I will record the non-controversial facts and circumstances of the case set out in the statement of facts tendered in evidence. 5 At about 1.20am on Saturday 15 July 2000 Ms Linda Reid, a resident in Edgar Street, St Marys, noticed the body of a person lying on the footpath near the corner of Edgar Street and Mamre Road. She telephoned the St Marys Police. 6 The first police officers arrived at about 2am. They were Constables Flood and Astridge. The person seen by Ms Reid, and who was later identified as Pieter Izak Hage, 46 years of age, a resident of 18 Edgar Street, St Marys. He was examined and found to be deceased. He had sustained a number of head injuries, including a laceration to the left eye. Some of his pockets had been turned out and nearby four TAB tickets were located. The deceased's wallet, containing $25 in notes, credit and other personal cards, was located in his rear right trousers pocket. It was established that the TAB tickets were purchased earlier in the evening at the St Marys Band Club, where the deceased had spent the evening before walking home. 7 The post-mortem examination established that the deceased died from head injuries; the effects of alcohol- his reading was .285; a coronary atherosclerosis, and enlargement of the heart. The deceased had sustained a number of recent head and bodily injuries which, on their own, in the opinion of the Forensic Pathologist, Dr Little, would not have been sufficient to cause death. Dr Little is able to give evidence also that the injuries, in her opinion, did not amount to grievous bodily harm.Dr Little's opinion is that the trauma, associated with the injuries, caused stress upon the diseased heart and, with the high blood alcohol reading, brought about the death of the deceased. 8 In response to a television news report of Mr Hage's death two young men, Paul Hommel and Timothy Eisenhuth, reported that they had seen and heard of an assault upon a man near the intersection of Edgar Street and Mamre Road at about 1am on Saturday 15 July 2000. They were walking in a southerly direction on the eastern side of Mamre Road when they noticed a middle aged man, who appeared to be drunk, also walking in a southerly direction but on the western side of Mamre Road. 9 Mr Hommel heard the sound of punches and turned his head to see a young tall skinny blonde male (the offender) punch the middle-aged man (the deceased) to the head three times. The middle-aged man then tumbled backwards. He heard the blonde male say, "Give me your wallet". In evidence Mr Hommel stated he was not sure if this was said by the blonde male or the dark-skinned small male with him. Mr Hommel stated that while this was occurring the dark-skinned male (Junior Mamae) was facing away from the incident and looking around. Mr Hommel and Mr Eisenhuth did not stop and continued walking to their homes. 10 Mr Eisenhuth heard a sound and turned his head to see the blonde male standing very close to the middle-aged man. He heard the blonde male say, "Give me your wallet" and the middle aged man say something which he could not make out. He saw the blonde male push the middle aged man with open hands to his chest causing him to fall, while standing, into a wire fence. He saw the blonde male slip over backwards and, at this stage, saw the dark-skinned male step towards the middle-aged man. He then saw the blonde male get up and, as he did, the middle-aged man took a step forward away from the fence. He then saw the blonde male punch the middle-aged man in the mouth which caused him to move backwards but not fall to the ground. He and Mr Hommel continued on their way home. 11 Police investigating the death of Mr Hage took possession of a security video from the Quix Service Station at the corner of Wilson Street and Mamre Road, St Marys, two blocks from where Mr Hage was assaulted. Mr Hommel viewed the video and identified two young men appearing in it between 12.16 and 12.20am, 15 July 2000, as the two men he had seen when the middle aged man was assaulted. Even though Mr Hommel was able to identify the two men at the assault of Mr Hage, police could not establish their identity until 1 September 2000, when information was received that the offender and Junior Mamae were the two in question. Both were arrested that day and interviewed on ERISP. 12 The offender admitted punching the deceased twice to the head and, when the deceased fell to the ground, kicking him twice, once to the stomach and once to the right thigh. He said that Mamae then kicked the deceased two or three times from the shoulders upwards. They then walked off to the Band Club. 13 The offender denied saying, "Give me your wallet", and denied knowledge of the deceased's pockets being turned out or of any robbery or attempted robbery. 14 The offender explained that he and Mamae, with two girls, attended the St Marys RSL Club during the evening. The offender and Mamae left the RSL Club and walked to the nearby Quix Service Station, on their way to the St Marys Band Club, where they expected to meet up with the two girls. From the Quix Service Station the offender and Mamae walked north along Mamre Road, in the direction of the Band Club, when they came upon the deceased, who was walking towards them, on his way home. The offender claims he thought the deceased said something to him (Q 268): "Just mouthing off, I thought he was like being smart", and punched and kicked the deceased because he was angry and annoyed that the deceased had spoken to him. 15 The offender said the assault took place near the corner of Mamre Road and Edgar Street and the last he saw of the deceased he was crawling down Edgar Street. 16 Junior Mamae admitted he had attended the RSL with the offender and two girls that evening and walked to the Quix Service Station. He denied participating in, or being present, when the deceased was assaulted. He claims that a friend picked him and the offender up from the Quix Service Station and drove them to the Band Club. 17 The Court will now turn to the disputed issues of fact. The evidence before the Court touched on some of the matters that I have recited from the statement of facts. 18 Detective Senior Constable Seymour from the St Marys Local Area Command gave evidence. He was the senior investigator in this matter. He conducted the record of interview with the offender, which was tendered in evidence. He agreed that the offender told him that he made a confession to a co-worker, Mr Vella, to the effect that he was responsible for the death of Mr Hage. The offender was then 18 years of age. He denied any motive to rob the deceased. He freely admitted to kicking him and causing his death. There was no evidence that anyone saw the offender go through the pockets of Mr Hage during or after the assault. 19 The detective acknowledged there was a period of about 20 minutes before a local resident first saw Mr Hage's body. About 40 minutes after that police arrived on the scene. 20 Detective Seymour said that in his opinion any evidence that the offender would give at the trial of Junior Mamae, based on the record of interview, would be an important part of the prosecution case against Mr Mamae. It is evidence that places Mr Mamae at the scene of the crime. 21 Paul Hommel gave evidence. He told the Court that the voice saying, "Give me your wallet", was fairly loud and he heard it from across the road. He did not hear any other words. He thought that the voice was a "normal voice of an Australian person". The two young men were about 20 metres away from him when he heard the words spoken. He was on the opposite side of the road and he was pretty sure that he was looking backwards towards the two young men. After he heard the words he and his friend kept on walking towards their respective homes. They did not talk about what was said because they were considering whether they should offer the victim some help. Mr Hommel said he thought the victim would be all right and he said that, "We just thought he would get up and go home, just rolled him for his wallet". He saw the man being punched. He decided not to report the matter to the police at that stage and went home. He telephoned his friend the next day when he heard that Mr Hage had died. It was then that he decided to inform the police. He did not have any conversation with his friend about the words spoken by one of the men at the scene. He has not read Mr Eisenhuth's statement and has not discussed with him the circumstances that he heard the words, "Give me your wallet". 22 Mr Eisenhuth gave evidence. He told the Court he was walking away from the scene and looking back towards the scene. He was walking quite close to his friend when he heard the words, "Give me your wallet". He did hear the man being assaulted say something but he was unable to say what it was. He attributed the words, "Give me your wallet", to the offender on the basis that the offender was standing and facing the victim and, what he described as the "shorter guy", was further back. In these circumstances he thought it more likely that it was the offender who spoke. 23 He said that he and Mr Hommel decided that the victim was being robbed and that they did not want to become involved, so they walked home. He confirmed that the next day he learnt from Mr Hommel that the victim had died and it was decided to contact the police. He said that he and Mr Hommel did not have any discussion before he made his statement about the fact that they had both heard the words, "Give me your wear wallet". He has not subsequently read Mr Hommel's statement. When pressed he was firm in his view that he had heard the words spoken. 24 The offender gave evidence. He told the Court that he said to Mr Vella, in substance, he thought he had killed someone. He felt ashamed of what he had done and that was part of the reason for telling Mr Vella. He said that he told the police that he thought Mr Hage said something which made him angry and that was the reason for attacking him. He said that he had no intention of stealing money from the deceased and did not in fact steal anything from him. 25 The offender left school when halfway through Year 10. He started working straight away and was regularly employed between leaving school and his arrest. 26 He said that he has had a problem with alcohol. He began drinking heavily when he was about sixteen. He said that he was unhappy because of what he had done. He said he told Mr Vella that after the man mumbled something to him he hit him and then started kicking him. When he was on the ground Junior Mamae joined in. He gave the police the same version of events as he gave to Mr Vella. He said that neither he nor Mr Mamae said to Mr Hage, "Give me your wallet". Further, he said that neither of them turned out Mr Hage's pockets. He told the Court of the movements of himself and Junior Mamae during the evening, from the time Mr Mamae picked him up in his car to their time at St Marys RSL Club, following their visit to the Quix Service Station, and the fact as they walked along Mamre Road they came across the victim. At that time it was their intention to walk to the St Marys Band Club. After the assault they went to the Band Club and left in the early hours of Saturday morning. They went to the house of a young woman they knew. 27 The offender's mother gave evidence. She confirmed that at the time of her son's arrest he was living at home and had commenced to drink alcohol when he was about 16 or 17. 28 The Court was impressed with the evidence from both Mr Hommel and Mr Eisenhuth. It accepts the two young men did not discuss their evidence with each other before making their statements to police officers. Further, they have not done so since. Both had a very clear recollection of what they heard. In these circumstances, the fact they both had the same recollection of the words used by either the offender or Mr Mamae, "Give me your wallet", points to it being the fact rather than a concoction. 29 The Court is satisfied beyond reasonable doubt that the words were said by one or other; the offender or Mr Mamae. The evidence was compelling and cogent from two witnesses who clearly were doing their best to tell the truth. There was nothing in their evidence to suggest they might be mistaken. Consistent with what Mr Hommel and Mr Eisenhuth heard is the circumstance that the victim's body was found at 2 o'clock with his pockets turned out. Some betting tickets were found nearby which, most likely, came from the deceased's pockets. The Court considers it extremely unlikely some other persons came along and turned out the deceased's pockets. 30 The Court is satisfied that this offence was a joint criminal enterprise between the offender and Junior Mamae. The assault was for the purpose of robbery. Both the offender and Junior Mamae participated in the attack. The offender struck the victim to the head and kicked him. Junior Mamae kicked the victim in the area above the shoulders and demanded the victim hand over this wallet. THE OFFENCE 31 The Court finds that the injuries the victim received do not amount to grievous bodily harm. They, by themselves, did not result in serious injury. So much is clear from Dr Little's findings. The victim was an unhealthy man who was intoxicated at the time he was assaulted by the offender and Mr Mamae. The blows to him, from the offender and Mr Mamae, resulted in his death. 32 The offence of manslaughter is a particularly serious crime, since it involves the taking of a human life, the protection of which is the primary objective of the criminal justice system (R v Veech [2001] NSWSC 68). In R v Blacklidge NSWCCA December 1995 Gleeson CJ at 4 said: "It has long been recognised the circumstances which may give rise to a conviction for manslaughter are so various, and the range of degrees of culpability are so wide, that it is not possible to point to any established sentencing tariff which can be applied to such cases. Of all crimes common manslaughter throws up the greatest variety of circumstances affecting culpability. At the same time, the courts have repeatedly stressed that what is involved in every case of manslaughter is the felonious taking of human life, and a key element is the assessment of the objective circumstances of the case (R v Dodd (1991) 57 A Crim R 349; R v Hill (1981) 3 A Crim R 397 at 402.)" 33 The fact that the offence carries a maximum sentence of imprisonment for 25 years provides a powerful indicator as to the seriousness with which it is regarded and to ensure that the sentence is commensurate with the seriousness of the crime, in the sense that, having regard to all the proved circumstances of the case, it accords with the general moral sense of the community. 34 This is a case where the offender did not have in mind occasioning serious harm to the victim by beating. The object was to rob the victim. It was, however, a serious assault. An innocent member of the community was punched and kicked while on the ground. He was intoxicated and simply walking to his home. THE GUILTY PLEA 35 The Court takes into account the offender's plea of guilty. In this case the recognition by the offender of what he has done amounts to a degree of contrition on his part. His plea of guilty also has significant utilitarian value. 36 From the outset he has placed himself at the scene of the crime. He has made significant admissions as to the assault upon the deceased. He has not, however, conceded the purpose of the assault. 37 The nature of the admissions by the offender made at a very early time do entitle him to be treated on the same basis as an early plea. CO-OPERATION WITH AUTHORITIES 38 The offender is entitled, pursuant to section 23 of Crimes (Sentencing Procedure) Act, to a reduction in penalty for assistance provided to law enforcement authorities. 39 The Court notes that, although the assistance to authorities should be seen to result in a substantial discount, there is no fixed amount and it need not be quantified separately; R v Gallagher (1991) 23 NSWLR 220, where the matter is discussed generally, and where R v Cartwright (1989) 17 NSWLR 243 is considered. 40 In deciding to impose a lesser penalty for the offence, in considering the matters set out in s 23, the Court records, in particular, that it regards the admissions made by the offender as reliable but not his statements concerning the demand for the victim's wallet. 41 Applying R v Thomson (2000) 49 NSWLR 383 the Court is also of opinion that this is a case where a single combined quantification for the plea and co-operation to the authorities is appropriate for these reasons. The information the offender gave during his record of interview places Junior Mamae at the scene of the crime. This is of significant assistance to the Crown in Mamae's trial. In this way the offender's record of interview links his concessions to his co-operation with the authorities . 42 However, the Court notes that from the outset it has been made clear to the offender that he would be called to give evidence in any trial of Junior Vaa Mamae. In the result he has chosen to do this voluntarily. 43 The Court is mindful that leniency under s 23 will generally be recognised by a reduction of the total sentence and the sentencing Court would be expected to indicate why it is to be reflected in a decrease in the minimum term where special circumstances are found. (R v S [2000] NSWCCA 13; (2000) 7 Crim LN 10. There are common elements in considering the combined discount discussed above and special circumstances. 44 The offender's contrition, repentance and remorse are mitigating factors. Such remorse is taken into account in mitigation quite independently of any discount to be given for assistance to authorities ("C" 18 February 1993 Hunt CJ at Cl.) 45 The Court takes into account the offender's sentence is likely to be more harsh because there will be a need for it to be served in protection. This was recognised in R v Darrel Bruce Lewis 100 A Crim R 361. SPECIAL CIRCUMSTANCES 46 The Court finds that there are special circumstances in this case that require it to adjust the relationship between the non-parole period and the total term as governed by s 44 of the Crimes (Sentencing Procedure) Act. The offender was 18 at the time of the offence. He is now 19. The youth of an offender will generally mean less weight is to be given to deterrence and more to rehabilitation (See R v Wilkie NSWCCA 2 July 1992 Badgery-Parker J) 47 The offender has identified his violent conduct with alcohol abuse and taken steps to undertake drug and alcohol counselling. He gave the impression when giving evidence that he wants to adjust his behaviour and not become involved with offences of violence again. He has some criminal history but it does not indicate that he has a previous history of significant violence. This is a positive sign for rehabilitation. 48 In setting the appropriate relationship between the head sentence and the non-parole period the Court bears in mind the remarks of Hulme J, R v S [2000] NSWCCA 13, where his Honour held: "However, that is not to say that there were not errors in what his Honour did. There were, in my view, two. The first was in not recognising that the disadvantages of strict protection and indeed all aspects of assistance to the authorities had already been allowed for in the discount given on this account or in failing to explain why his Honour thought he was entitled to give both the discount he thought 'generally regarded as the upper limit of the discount to be applied' and also to exhibit leniency by way of variation of the normal proportion between the minimum and additional terms. Although it seems to me leniency, which assistance to the authorities commonly attracts, may properly find expression in an increase in an additional term (presumably at the expense of a minimum term) it is at least necessary for a judge adopting this course to provide some explanation why this has occurred rather than the leniency being reflected in the more usual reduction in the total term - a fortiori when such a reduction has already been given." 49 His Honour also referred to what was said in R v Henry [1999] NSWCCA 107: "The sentencing judge, having found special circumstances, has a good deal of room to move in the structure of the sentence to be imposed. However, the discretion conferred by s 5(2) should always be exercised with one eye to the relevant minimum term which must be such as to reflect the objective gravity of the crime for which it is imposed, taking into account the subjective features ... A sentencing judge who varies the statutory proportions in favour of a lengthier additional term needs to take care to ensure that the minimum term is no lower than that which is commensurate with the objective gravity of the crime." 50 The Court is of opinion that the combined discount for the plea of guilty and the co-operation with authorities should be 25 per cent. The Court also considers that in balancing the objective seriousness of the offence causing the death of the victim, with the subjective factors discussed, that the appropriate sentence in this matter is six years. Adjusting the non-parole period, to take into account the special circumstances, the Court sets a non-parole period of four years to be backdated to 1 September 2000 when the offender first entered custody in relation to this matter. 51 Convicted. The offender is sentenced to imprisonment for six years. I set a non-parole period of four years to commence on 1 September 2000 and to conclude on 31 August 2004 when the offender is eligible to be considered for release to parole. oOo Last Modified: 10/25/2001 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.