New South Wales Supreme Court CITATION : Regina v M.B. [2006] NSWSC 1164 HEARING DATE(S) : 16/10/2006 JUDGMENT DATE : 10 November 2006 JUDGMENT OF : Howie J at 1 DECISION : The offender is sentenced to a term of imprisonment comprising a non-parole period of 15 years and 6 months and a balance of term of 6 years and 6 months. The sentence is to commence from 8 July 2005 and the non-parole period expires on 7 January 2021 the date upon which the offender is eligible to be released to parole. The offender is directed to serve that part of his sentence until he turns 21 years of age as a juvenile offender. CATCHWORDS : Criminal Law - Sentence after conviction of murder. LEGISLATION CITED : Crimes (Sentencing (Procedure) Act 1999 - ss 21A, 54B Children (Criminal Proceedings) Act 1987 - ss 6, 19 CASES CITED : Apps v R [2006] NSWCCA 290 PARTIES : Regina v M.B. FILE NUMBER(S) : SC 2005/2014 COUNSEL : W. Creasey - Crown G. Grogin - Offender SOLICITORS : S. Kavanagh - Crown Nyman Gibson Stewart - Offender IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST HOWIE J FRIDAY 10 NOVEMBER 2006 2005/2014 REGINA v M.B. REMARKS ON SENTENCE 1 HIS HONOUR: The offender, a juvenile, was convicted by a jury of the charge of murdering the deceased, Zane McCready, at Mayfield on 6 July 2005. It now falls to the Court to sentence him for that crime. The maximum penalty for the offence is life imprisonment and there is a standard non-parole period prescribed under s 54B of the Crimes (Sentencing Procedure) Act of 20 years. 2 It is not difficult to identify the facts that must have been found by the jury having regard to the issues raised before them. The substantial question ventilated at the trial was whether the jury were satisfied beyond reasonable doubt that it was the offender who caused the death of the deceased. By their verdict it is clear that they were so satisfied. The full circumstances in which the deceased came to be killed were not revealed to the jury nor are they before me. This is because some of the Crown witnesses did not tell the whole truth about the circumstances in which they confronted the deceased and his friend or how the deceased was injured before his death. However I have sufficient of the relevant facts to be able to sentence the offender for his crime. 3 On the date of his death the deceased was a resident of Mayfield and a member of the Australian Air Force. He was aged 20 years. On 7 July last year he and a long-standing friend, Joe Stevenson, who was at the time resident in Victoria, decided to go out and get drunk together in Mayfield. Because they were intending to consume alcohol, the two decided to walk between the various establishments they intended to visit. 4 At the same time the offender and a number of young persons from a local football team, the Cheetahs, met together in a shed at the back of a house in Waratah Street, Mayfield for the purposes of a house warming. About a dozen young men aged between 15 and 17 years arrived at the premises some bringing alcohol. At about 10.30 pm the group moved into Waratah Street because it was getting too crowded and noisy. They headed in a dispersed group towards a park at the corner of Waratah and Hanbury Streets. 5 As the first members of the group reached the park, the deceased and Mr Stevenson were walking down Hanbury Street in the direction of Waratah railway station toward the Ex-Servicemen's Club. They were both intoxicated as they had been drinking beer with spirit chasers at a hotel a short distance away. They were in high spirits as they walked along the footpath on the opposite side of the road from the park. However something about their behaviour attracted the attention of some of the young men who were in the close vicinity. I am unable to say what it was that occurred between them but it resulted in some of the group, including the offender, running into Hanbury Street to confront the deceased and Mr Stevenson. A short time later, someone yelled out the word "Cheetahs" and others of the group joined those who were at this stage challenging the deceased and his friend. 6 Once again I do not know what immediately transpired but I have no doubt that the aggressors were the offender and his group and that they were surrounding the other two in a threatening manner. Although some of the young men from Waratah Street suggested in evidence that they were not close to what was happening, I have little doubt that all but two of the persons who had been in the shed were in the group confronting the deceased and Mr Stevenson. Obviously feeling himself and the deceased threatened, Mr Stevenson withdrew two shot glasses that he had in his pocket, having taken them from the hotel where he and the deceased had been drinking. He held them out towards those near him and told them to "Fuck off". However, he never seriously tried to injure any one in the group. 7 At about this time the deceased and the offender began fighting. Although I am not sure of the exact order of events, I have no doubt that it was the offender who was the first to be physically violent. I do not know what it was that provoked this attack. The accused did not give evidence at the trial nor did he participate in an interview with police. He refused to discuss the matter with those preparing the juvenile justice report except to deny that he was responsible, alleging that he had been "set up". Therefore, there has never been an account given by him of the events leading up to the death of the deceased. 8 While Mr Stevenson was engaged with the other youths, one of whom punched him in the face fracturing his jaw, the deceased and the offender were involved in what could be described as fisticuffs. On the evidence before me there was some pushing and shoving between them, punches thrown on both sides and at some stage one or other was on the ground. As might be expected the descriptions of what was happening between the offender and the deceased were somewhat confused. However, it seems that the deceased generally got the better of the encounter although there was no real risk of either of them inflicting any serious injury on the other. 9 I have already noted that the whole of the circumstances leading up to the death of the deceased is not before the Court because some of the Crown witnesses withheld information both from the police and when giving evidence at the trial. Some of them must have been positively untruthful because on no account did the deceased ever receive any injuries apart from those inflicted upon him by the offender. On the evidence of these witnesses only two other persons laid hands upon the deceased. One was a member of the group who admitted to having punched the deceased at some stage during a lull in his fight with the offender. The other was another of the group who pushed him at about the same time. Yet it is clear that the deceased was at some stage struck twice to the head with a bike chain that had been seen earlier in the possession of the offender. Further the deceased received a large amount of bruising to one leg near the buttocks and this was consistent with him having been stamped upon. Yet all the witnesses denied ever having seen such injuries inflicted. 10 There were, however, a number of witnesses who gave evidence of the attack upon the deceased that caused his fatal injuries. At some stage the fight between the deceased and the offender moved across the road to be directly outside the Ex Servicemen's Club. At the same time Mr Stevenson and the group around him moved into the middle of the road towards the club. The fight between the offender and the deceased appeared to come to an end, with the deceased apparently victorious because he approached some members of the group standing nearby. It was then that he was struck in the face by one of the youths and the deceased moved back as a result. Meanwhile the offender had run to where one of his group was standing with a bottle in his hand. He grabbed the bottle, bent down to break it on the road and then ran at the deceased striking him with the broken bottle in the neck. The blow was downward in a stabbing motion and with such force that it chipped one of the deceased's bones in his face. It severed his throat and he bled to death while his friend tried vainly to administer aid to him to stem the loss of blood. 11 As soon as the offender had struck the deceased, he and his group fled from the scene back towards Waratah Street and the park. The offender shortly after met up with two of the group in a laneway at the far end of the park. There he said, "I got him". Eventually a number of the group, including the offender, returned to the shed where they had earlier been drinking. At this time it was seen that the offender had a badly cut hand. There was some consternation about the events and the offender was crying. Two of the youths attempted to clean up the wound, stop the bleeding and make sure that there was no glass in it. At some stage the offender said, "I didn't mean to do it. I hope he doesn't die". 12 Eventually the group split up. The mother of one of the youths picked up her son, another of the group and the offender and drove them to her home. There her husband saw the offender's wound and tended to it. The offender told him that he had cut his hand scooping up a bottle that had been dropped by one of the youths. The next morning police went to the Waratah Street premises where a number of the group were sleeping and commenced their investigations. 13 The Crown case against the offender was in my view overwhelming. Not only were there eyewitnesses from the group of youths who implicated the offender in the stabbing of the deceased, but there was also a witness in the club who saw a person, whom the jury could only reasonably have found to be the offender, strike the deceased in the throat. There was evidence of admissions by the offender to members of his group after he fled from Hanbury Street. Further there was a very strong circumstantial case based upon DNA and scene of crime evidence. As I have indicated, the offender gave no account to the police or the jury of his involvement in the events surrounding the attack upon the deceased in answer to the case presented against him. 14 The offender is a young man born on 26 June 1989. He was aged 16 at the time of the offence. He was born in Papua New Guinea and has three siblings, two younger who reside with their parents in the Newcastle area and one older brother who is in PNG. The offender's father describes his family as being within the middle to upper class in PNG. He is a person of some status and authority in his homeland. The family first came to Newcastle in 2000, when the offender was aged 11 years, so that his father could pursue a course of study. They returned to PNG in 2002 but returned again to Australia in 2004. The father saw their time in Australia as a good opportunity for the children to further their education. He hopes that eventually the family might obtain Australian citizenship. They are presently in Australia on visas that are valid until the end of this year. 15 The offender's upbringing was uneventful and he has a strong supportive extended family in PNG. He has been described as an average student with no behavioural problems although he was suspended in Year 7 for fighting. He says that this was a response to racial taunts. He has continued his education while in custody and attained his Year 10 certificate. He appears motivated to continue with studies and self-improvement courses. A large number of certificates and reports were tendered on his behalf. His behaviour while in custody has been good. 16 A psychiatric report indicates that he has a stable mental state with no evidence of any disorders. He has been coping in custody and is supported by his parents. He has been attending psychological counselling on a weekly basis and has participated in AA meetings. Psychological testing did not display any anti-social attitudes or matters of concern. 17 A number of testimonials relating to the offender and his family were placed before the Court. Most of them were prepared for the Children's Court in respect of a bail application but I am prepared to accept that what is said is still applicable. They speak of the high regard in which persons in the community both here and in PNG hold the offender and his family. The offender wrote a letter to the Court. It should be noted that material in such a letter could be given little weight when the writer does not give evidence. However, apart from acknowledging the effect of the death of the deceased upon the deceased's family and containing an expression of sympathy for them, the letter is little more than an assertion of his innocence and the guilt of others who are still at liberty. 18 The family has a strong religious background. The offender's father gave evidence before the Court, as did the pastor of the church that the family attends. It seems that when they first came to the Newcastle area the whole family regularly attended services and the offender was a participant in a children's programme organised by the church. At that time he was considered by the pastor to have been a "very well behaved young man". When the family returned to Australia on the second occasion, the family attended the same church but not the offender. It seems that he formed a strong relationship with a group of friends who were not part of the congregation but were members of the rugby league team for which he played. At the age of 15 the offender began drinking alcohol because of this association notwithstanding that he was encouraged not to do so by his father. He also started to go out at night with these friends. His father was concerned about this behaviour but considered that it was for the offender to decide what he did with his life. 19 Since the commission of the offence and his incarceration the offender has conceded to the pastor that he "strayed away from his values" at the time of the offending. He has, however, expressed a recommitment to his church and his faith. He has encouraged his younger brother to remain associated with the church notwithstanding that he is playing with a local rugby league team. The offender's parents remain committed to him and visit him every week. 20 The offender has no prior criminal record. However, there is evidence before me of other acts of violence by the offender to young persons apparently when he was in a rage about some perceived wrongdoing committed by them against him. One of those allegations is that the offender broke a bottle and chased a youth who was trying to escape him on a bicycle. Some of the persons named in these incidents as associates of the offender were members of the Cheetah club and present at the time of the deceased's death. I have not heard from the persons who made the statements containing these allegations but on its face the material appears to me to be credible. I am not prepared to find that he was of good character so far as his use of violence is concerned. I am not prepared to find that the present offence was totally out of character for the offender at that time. I do accept, however, that his behaviour was to some extent a result of the company he was then keeping and that he had, in his words "moved away from the values" that had been instilled in him by his parents and through the church. This was aberrant behaviour that, for whatever reason, arose because of his involvement with members of the Cheetah Rugby League Club. 21 Insofar as the offender has now broken with those associates and re-established connections with his family and church I believe that it is conduct that is unlikely to reoccur. But it is still a matter of concern that the offender could, for some reason that I do not fully understand, act with such violence as he displayed to the deceased. I do accept that there was an element of peer group pressures arising from his involvement with the other youths and I do not believe that the offender was the only person responsible for all the injuries suffered by the deceased. It may well be the case that the fatal injuries were inflicted because the offender lost face in the presence of his companions by being bested by the deceased. 22 On this night the offender was part of a group who believed that in some way they were acting from a sense of solidarity as a team of sportsmen as they answered to the call of "Cheetahs". In reality they were nothing better than a gang of young thugs most of whom were under the influence of alcohol. There is nothing to suggest that in any way either the deceased or Mr Stevenson incited or provoked the confrontation that occurred or the resulting violence other than they were probably somewhat noisy, as they unfortunately happened to pass the group. As is not unusual, the group pretended to have some justification for taking umbrage at the behaviour of the two men. There was some suggestion that the two had requested or demanded beer or that they had disturbed the mother of one of the group by making too much noise. The simple fact is that the group wanted to pick a fight. I have no doubt that the deceased and Mr Stevenson simply wanted to be left alone to further enjoy their night together. 23 This Court should make it perfectly clear that every member of that group should be thoroughly ashamed of his conduct and appalled at the outcome of their loutish behaviour. They disgraced themselves and the football team for whom they played. Although only the offender was charged and stood trial, all the persons who went into Hanbury Street are to some degree morally responsible for the death of the deceased. It should be of considerable concern to this community that supposedly worthwhile young men, members of a local football team, under the legal drinking age can be out at night in a group consuming alcohol in a public place and acting aggressively to some perfectly innocent citizens who they happen to come across. Unfortunately this type of behaviour is not uncommon and the sentence imposed upon the offender must to a significant degree denounce public violence by drunken youths and act as a deterrent to others who might think it appropriate to act in a similar way. 24 As this is an offence to which a standard non-parole period applies, it is necessary to determine where in the range of seriousness the offence committed by the offender falls taking into account those matters in s 21A of the Crimes (Sentencing Procedure) Act that affect the objective seriousness of the offence. The Crown submitted that the Court should find that it was at least in the mid-range of seriousness although conceding that the injury was not inflicted with an intent to kill. In Apps v R [2006] NSWCCA 290 it was held that the standard non-parole was to apply to an offence of the middle range of seriousness across the spectrum of offences giving rise to a conviction for murder, the state of mind being merely one of the relevant considerations in determining the objective seriousness of the offence. 25 The offence is a serious example of homicide notwithstanding the Crown's concession. The offender must at least have intended to inflict grievous bodily harm of a very severe kind. He might not have intended to strike the deceased in the throat, but he armed himself with what was a very dangerous weapon and struck at the deceased with a forceful blow in the direction of his torso. The consequences of such a blow could have only been very serious injury indeed and the offender must have intended this result when he deliberately broke the bottle. This was an unprovoked attack on an unarmed person. The offender was one of the first persons into Hanbury Street, he was the first to use violence and, whatever else may have occurred, I have no doubt that the offender was the instigator and the principal in the attack upon the deceased. 26 I accept that the offence was not planned and, therefore, it is not in the most serious category of killing. However, there are aggravating factors present. Although the offender was not going about in public armed, he did obtain a very dangerous weapon intending to attack the deceased when the deceased was unprepared and unable to defend himself. It was an act that was as cowardly as it was brutal. The offence was in company, and it was committed in circumstances giving rise to a considerable affront to public order in general and to the ordinary members of the public who were lawfully in the vicinity of the club. 27 I know nothing of the offender's mental state at the time except what is disclosed from his actions. There is no evidence that he was intoxicated to any significant degree. There is nothing in the psychological or psychiatric reports that is relevant in the determination of the objective seriousness of the offence. The offence was not an aberration at the time although, as I have indicated, he was behaving around this period in a way that was contrary to the values that had been instilled in him by his family and church because of his association with the persons from the football club. 28 In my opinion the offence falls within the midrange of objective seriousness and, therefore, prima facie the standard non-parole period applies except so far as it should be varied by reason of subjective factors and the presence or otherwise of special circumstances. Clearly the most significant factor is the offender's age both at the time of the commission of the offence and now at the time of sentencing. Section 6 of the Children (Criminal Proceedings) Act applies but there is little in the stated principles that has particular significance in the sentencing task before me so serious is the offence for which the offender is to be sentenced. 29 Generally when sentencing a person of the offender's age a court gives predominance to rehabilitation so far as it can do so consistently with the other purposes of punishment. General deterrence may play a lesser role because of the need to encourage and assist the young offender. But where the offence is one that arises from conduct frequently committed by young persons and is of grave seriousness, general deterrence may have to be appropriately reflected in the sentence. I have already indicated my opinion that general deterrence is important in dealing with offences of public violence committed by groups of young males. Further the use of bottles or glasses to inflict serious injuries on other persons in places where alcohol is being consumed is itself all too common. Therefore the court should clearly denounce such conduct and seek to deter it by the imposition of severe sentences where the injuries inflicted are grave. 30 There is positive evidence of the rehabilitation of the offender by his commitment to return to the church and readopt his family's values. He has been working positively in custody to address personal issues and continue his education. It is of concern that he refuses to acknowledge his guilt. Even though there is evidence of compassion for the deceased's family, there is no evidence of contrition or remorse for any of his conduct. It may simply be the fact that he cannot bring himself to accept what he has done. Yet this is not a case where there is any need for specific deterrence to play a significant role in determining the appropriate sentence. I have indicated that, although he has no criminal record, I am not prepared to accept that at the time of the offence he was of good character so far as his use of violence is concerned. 31 It is clear that the offence is so serious and in light of the standard non-parole period that a very lengthy sentence must be imposed upon the offender notwithstanding his youth and prospects for rehabilitation. He will not be released from custody until he is middle aged. However, it seems to me that I should depart from the standard non-parole period in this case by reason of the offender's youth and to pay more regard to his rehabilitation than I might have done had he been an adult. Further, it seems to me that I should take into account, that although he was not of good character at the time of the offence because of his other acts of violence, that this was a period of his life in which he was under peer pressure that is not likely to reoccur so that he is unlikely to offend again. 32 This is a case where special circumstances should be found by reason of the offender's age and in order to promote his rehabilitation. However, I must keep in mind the standard non-parole period as a guidepost to the appropriate sentence. I cannot reduce the non-parole period by factors personal to the offender such that it does not truly reflect the objective seriousness of the offending or bear a proper relationship with the standard non-parole period fixed by Parliament for the offence of murder, even where the offence is committed by a juvenile. I think that it is fair to note that the non-parole period is longer than I would have imposed but for the standard non-parole period provisions. 33 I have received a victim impact statement that was read aloud by the Crown Prosecutor. It should be understood that I have not used the contents of that statement to increase the sentence that I believe is otherwise appropriate. However, I appreciate the terrible consequences for the family of the deceased as a result of the loss of his life in such brutal and wholly unnecessary circumstances. They have the Court's sympathy. 34 Before I pronounce the sentence, I should indicate that a question has arisen as to whether the Court should order that any part of the offender's sentence should be served as a juvenile offender pursuant to s 19 of the Children (Criminal Proceedings) Act. By reason of s 19(2) the offender shall not be eligible to serve his sentence as a juvenile offender after he has attained the age of 21 years. Section 19(3) relevantly provides that a person who is sentenced to imprisonment in respect of a serious children's indictable offence is not eligible to serve a sentence of imprisonment as a juvenile offender after the person has attained the age of 18 years, unless the sentencing court is satisfied that there are special circumstances justifying detention of the person as a juvenile offender after that age. 35 The offence of murder is a serious children's indictable offence and, therefore, unless the Court is satisfied that there are special circumstances the offender cannot remain as a juvenile offender once he has attained the age of 18 years on 27 June next. Section 11(4) provides that in determining whether there are special circumstances for the purposes of subsection (3), the court may have regard to the degree of vulnerability of the person, the availability of appropriate services or programs at the place the person will serve the sentence of imprisonment, and any other matter that the court thinks fit. 36 There is nothing in the reports to show that the offender is particularly vulnerable: he is a fit, strong young man without any personality defects or disorders. As I have already indicated, he has been behaving himself well in the juvenile detention centre and has been participating in educational and personal development courses. It is in the need for the offender to maintain the relationships he has forged with counsellors and others that seems to me to amount to special circumstances in the present case particularly in light of the very lengthy term of imprisonment he must serve before he can be released. The next few years are important for him developmentally. He needs the time to secure a reasonable education and some goals that will assist him throughout his period of custody and later life. He is not a threat to any person at the centre, either staff or other inmates. 37 The offender is sentenced to a term of imprisonment comprising a non-parole period of 15 years and 6 months and a balance of term of 6 years and 6 months. The sentence is to commence from 8 July 2005 and the non-parole period expires on 7 January 2021, the date upon which the offender is eligible to be released to parole. 38 I direct that the offender serve that part of his sentence until he turns 21 years of age as a juvenile offender. 39 For those who do not understand that, it means that, in effect, the offender cannot be released to parole until 7 January 2021, thereafter he will serve a term of 6 years and 6 months on parole. 40 The Crown made an application that I make an order authorising the publication or broadcasting of the offender's name. That application is refused and I publish my reasons. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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