New South Wales Supreme Court CITATION : Regina v APT [2008] NSWSC 302 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S) : 22 February 2008 JUDGMENT DATE : 4 April 2008 JURISDICTION : Common Law Division Criminal List JUDGMENT OF : Studdert AJ DECISION : Sentenced to imprisonment with a non-parole period of 5 years 6 months, less 6 weeks, commencing on 10 December 2007 and expiring on 28 April 2013 and a balance of term of 2 years 6 months expiring on 27 October 2015. The first date upon which Offender will become eligible for release on parole will be 28 April 2013. Order that Offender serve part of non-parole period as a juvenile offender namely the period to be served until Offender attains the age of 21 years on 21 March 2009. Order that the balance of the non-parole period thereafter to be served in an adult correctional centre. LEGISLATION CITED : Children (Criminal Proceedings) Act 1987 Crimes (Sentencing Procedure ) Act 1999 CATEGORY : Sentence Lal v R [2007] NSWSC 445 Lupoi (1984) 15 A Crim R 183 Maxwell v The Queen (1996) 184 CLR 501 R v Blacklidge (unreported, Court of Criminal Appeal, 12 December 1995) R v Bus (Court of Criminal Appeal, 3 November 1995, unreported) CASES CITED : R v Forbes [2005] NSWCCA 377 R v Hoerler (2004) 147 A Crim R 520 R v Isaacs (1997) A Crim R 587 R v MD, BM, NA, JT [2005] NSWCCA 342 R v Previtera (1997) 94 A Crim R 76 R v Weinman (1987) 49 SASR 248 Savvas v The Queen (1995) 183 CLR 1 PARTIES : Regina (Crown) APT (Accused) FILE NUMBER(S) : SC 657/2007 COUNSEL : W Creasey (Crown) G Drake (Accused) SOLICITORS : Director of Public Prosecutions William O'Brien Solicitors IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST STUDDERT AJ 4 APRIL 2008 2007/2185 R v APT SENTENCE 1 HIS HONOUR: The offender APT stood trial in this Court at East Maitland charged with the murder of Daniel John Collins on 12 March 2006. On 10 December 2007 the jury found him guilty of manslaughter and the offender is today before the Court to be sentenced for this crime. 2 The deceased Daniel John Collins was the victim of a savage attack that took place on the footpath beside Wyong Road, Killarney Vale early on the morning of 12 March 2006. From the scene of the attack the deceased was taken to hospital by ambulance and life was pronounced extinct on his arrival at the hospital at 1.22 am. 3 Evidence was given at the trial by Dr Nadesan who had supervised at the post mortem examination. He described the extensive injuries that the deceased had suffered. Most of the many injuries were sustained to the face and the head. There were blood trails around the nose and the right side of the face, there were petechiae over the centre of the forehead and around the right eye, there were extensive contusions around the eyes and eyelids and extensive sub-conjunctival haemorrhages around the eyes and eyelids. There were contusions to the nose and the upper lip and Dr Nadesan described the facial injuries as being consistent with being caused by punches, kicks and stomping. There was a fracture of the hyoid bone and, in the doctor's opinion, there had been substantial force applied to the chin and neck area associated with this fracture. The compression injury in this area was considered by Dr Nadesan to have been causative of death. There were contusions to the trunk, to the back of the left shoulder and to both arms. There was also an abrasion to the right knee. 4 On internal examination extensive and generalised contusion in the scalp area was observed as well as extensive leakage of blood all around the head. There was swelling in the brain covering and some subarachnoid haemorrhage. Clotted blood in the nasal cavity was observed and the lungs evidenced aspirated blood. 5 Dr Nadesan opined that the chief mechanism causing death was mechanical asphyxia but this was aggravated by the effect of aspirated blood. 6 It was the prosecution case at trial that the offender was one of three participants in the attack upon the deceased. One of these participants was Wade John Willmot who pleaded guilty to the crime of murder for his participation in the attack. Willmot was sentenced by Barr J on 16 November 2007, having given a written undertaking that he would give evidence at the trial of the offender and his co-accused (the alleged third participant), to whom I shall refer simply as BT. Willmot was sentenced to imprisonment with a non-parole period of ten years and a balance of term of four years. He was one of a number of witnesses relied upon by the Crown against the offender APT. 7 BT was acquitted by the jury. Plainly, the prosecution did not prove his participation in the attack. 8 It was open to the jury to find that the offender APT was not guilty of murder but guilty of manslaughter in one of two ways: (a) on the basis that the Crown failed to prove the offender acted with the requisite intent to establish the crime of murder; or (b) on the basis that the offender used excessive self-defence. Since the verdict of the jury does not define on which basis it reached its conclusion it is for the Court to determine whether he is to be sentenced on the basis of manslaughter by unlawful and dangerous act or manslaughter on the basis of excessive self-defence. 9 In approaching this task I must recognise the constraints identified in R v Isaacs (1997) 90 A Crim R 587 at 591-592:- "2. Subject to certain constraints, it is the duty of the judge to determine the facts relevant to sentencing. Some of these facts will have emerged in evidence at the trial; others may only emerge in the course of the sentencing proceedings. The fixing of an appropriate sentence ordinarily involves an exercise of judicial discretion, and it is for the judge to find the facts which are material to that exercise of discretion: Savvas (1995) 183 CLR 1; 78 A Crim R 538. 3. The primary constraint upon the power and duty of decision- making referred to above is that the view of the facts adopted by the judge for purposes of sentencing must be consistent with the verdict of the jury. This may produce the result that, in a particular case, the view of the facts which the judge is obliged to take is different from the view which the judge would have taken if unconstrained by the verdict: cf Maxwell (1996) 184 CLR 501; 87 A Crim R 180. In the present case, for example, a trial judge might have considered that the facts supported a verdict of murder, not manslaughter; nevertheless, the judge would be obliged to sentence on the basis that the case was one of manslaughter. The fact that a judge may not agree with a jury's verdict, and thus may be required to sentence on a basis different from the judge's personal view of the case, is an inevitable consequence of the division of functions inherent in trial by jury. 4. A second constraint is that findings of fact made against an offender by a sentencing judge must be arrived at beyond reasonable doubt. 5. There is no general requirement that a sentencing judge must sentence an offender upon the basis of the view of the facts, consistent with the verdict, which is most favourable to the offender: Harris. However, the practical effect of 4 above, in a given case, may be that, because the judge is required to resolve any reasonable doubt in favour of the accused, then the judge will be obliged, for that reason, to sentence upon a view of the facts which is most favourable to the offender. When that occurs, it will be because of the application of the principle referred to in 4 to the facts of the particular case, and not because of some principle requiring sentencing on the basis of leniency: Lupoi (1984) 15 A Crim R 183 at 184." 10 Before a verdict of guilty of manslaughter by excessive self-defence could be arrived at, it became necessary that findings to the following effect be made: (a) that the Crown had not ruled out the reasonable possibility that the offender believed that what he did was necessary to defend himself or another person from the threat of physical harm; and (b) that what the offender did was not a reasonable response in the circumstances as he perceived them. 11 The offender APT admitted using force against the deceased at a time when the deceased was already on the ground, being kicked by Willmot. The offender observed that the deceased had his hands up "protecting his face" (T 995). APT's explanation for kicking the deceased as he lay on the ground was that he thought the deceased "was going to pull out a knife" (T 997; and see also T 1020). 12 Was there a reasonable possibility that APT entertained the belief he expressed and, if so, was APT's behaviour a reasonable response in the circumstances as he perceived them? 13 In order to address these questions it is necessary to analyse the evidence of those who saw something of the central events. 14 By way of background, APT and Willmot were two of many young people who had been attending a party at the home of Stephanie McPhail, located in Wyong Road a relatively short distance from where the deceased was assaulted. APT, BT, Jai Moore, Jaimie Lang Reece, and Keryn McPhail first saw the deceased at the Shell service station located in Wyong Road. This facility was within easy walking distance from Stephanie McPhail's house. APT, BT and Jai Moore entered the service station to make purchases there. The deceased, who had been a back seat passenger in his sister's car, also entered the service station, the sister Leigh Collins herself having driven into the service station to purchase cigarettes. The evidence established that there was some exchange of words between Jai Moore and the deceased and that thereafter the deceased chased Jai Moore across the apron of the service station and along the footpath in Wyong Road in the direction of Stephanie McPhail's house. They encountered Willmot, who was walking along the footpath in the opposite direction. According to Moore, he complained to Willmot that the deceased was chasing him. According to Willmot, Moore sought his assistance because the deceased was chasing him. What is clear is that Willmot assaulted the deceased and when the deceased fell to the ground, Willmot kicked him. 15 APT and BT saw the chase from the service station and they followed with their friends, Jaimie Lang Reece and Keryn McPhail. 16 Jaimie Lang Reece said she observed the deceased on the ground and Willmot holding onto the fence stomping the deceased on the head (T 351). This witness said she saw APT standing on the other side of the deceased, kicking him hard with the point of his shoes, probably four times (T 352). According to her, there were only the two men who attacked the deceased. At no time did this witness hear anything said about a knife (T 346, 348). 17 Keryn McPhail, who the evidence established to have been alongside Jaimie Lang Reece, described Willmot as kicking the deceased "like a soccer ball" (T 593), and this witness said APT came along and started kicking too (T 594). Willmot was kicking whilst APT was kicking, and they were kicking hard (T 595). The witness did not hear the deceased say anything nor did she see him do anything to protect himself. At one point however the witness did see the deceased reach down towards his hip, trying to get up (T 626), and APT kicked him then. The witness did not hear either APT or BT say "I think he has a knife" (T 653). 18 When the deceased chased Jai Moore, his sister and her companion, Todd Smith, sought to follow, but it was necessary for Ms Collins to drive around the block and by the time she reached where her brother lay the attack had already taken place. Her unchallenged evidence was that the deceased had no knife in his possession and there was no knife in her car (T 154). 19 Jai Moore gave no evidence that he was threatened with a knife by the deceased; he heard no mention of a knife (T 194). 20 Willmot did not see a knife where the attack took place (T 257), but he said that BT checked the pocket of the deceased to see if he had a knife (T 257). He also said that he heard someone say "He's got a knife" at a time "while we were kicking him" (T 257). 21 APT and BT consulted a solicitor two days after the death of the deceased. Each made a statement in the company of the other to that solicitor. As the Crown submitted, it was on this occasion that a knife was first mentioned by APT. 22 Two days earlier, that is to say on the same morning that the deceased had earlier met his death, there was a gathering at the home of Shane Moore, attended amongst others by Jai Moore, his mother Karen New, APT and BT. The purpose of the meeting was to discuss the events that had occurred earlier that day. Neither APT nor BT made any mention at the Moore house of the deceased being equipped with a knife, nor did APT express a belief that the deceased was so armed. 23 I have not attempted to record here an extensive review of the evidence of all those who observed what took place on the footpath on Wyong Road. However, my assessment of the eye witnesses Keryn McPhail and Jaimie Lang Reece is that each was honest and that each gave generally reliable evidence. 24 Having considered all the relevant evidence, I am satisfied beyond reasonable doubt that the deceased had no knife in his possession either in the car at the time that it arrived at the Shell service station or later at the scene of the attack upon him. I do not accept Willmot's evidence that BT checked the deceased's pockets. This assertion is contrary to the evidence of Ms McPhail and Ms Lang Reece. Nor do I accept the evidence that APT gave as to his belief that the deceased was equipped with a knife when he kicked him. 25 I consider that the Crown effectively negatived the issue of self defence. I am satisfied beyond reasonable doubt that APT was not acting in self defence when he kicked the deceased. I do not accept that APT believed that the deceased was armed. I add that even if, contrary to the finding I have expressed, it was APT's perception that the deceased had a knife in his pocket, it would not have been a reasonable response by APT to have kicked him as he lay helpless upon the footpath. 26 I conclude therefore that APT should be sentenced for the crime of manslaughter upon the basis of manslaughter by unlawful and dangerous act. Indeed, in his thorough oral submissions, Mr Drake acknowledged that this was the appropriate approach. 27 I described earlier the post mortem findings. The Crown made no attempt to establish which particular injuries resulted from blows inflicted by APT and which particular injuries were inflicted directly by Willmot. According to Willmot, he kicked the deceased four or five times to the head (T 252) and APT also stomped upon the deceased's head (T 252). Neither Ms McPhail nor Ms Lang Reece saw APT stomp on the deceased's head and I do not find that he did. The acts of stomping are to be attributed to Willmot directly and I find that the attack by Willmot began before APT joined in and that Willmot persisted in the attack after APT responded to Ms McPhail's exhortation to stop (T 654). 28 The evidence of Dr Nadesan reveals that the deceased was 172 cm tall and weighed 85 kg. APT joined in what was a cowardly attack on a victim who, I am satisfied on the evidence, put up no resistance during APT's participation or, indeed, thereafter. I am satisfied beyond reasonable doubt that APT personally kicked the deceased hard on a number of occasions. APT gave evidence, directed to the issue of withdrawal, that he grabbed Willmot by the shoulder and said "Enough is enough". Earlier, in cross examination (at T 1041), APT acknowledged that when he said these words to Willmot, although he was standing beside him, he did not take hold of his shirt and pull him, and that he did no more than touch him on the shoulder. I consider that the Crown proved beyond reasonable doubt that there was no effective withdrawal and that APT did not take such action as was reasonable in the circumstances to prevent Willmot from continuing the assault. 29 APT's joinder in the attack upon the deceased was not only cowardly but it was also needless and altogether unreasonable. A human life has been taken in circumstances in which I must conclude that from an objective point of view the crime committed by this offender was extremely serious. 30 The deceased's sister, Leigh Collins, read to the Court a statement, being a victim impact statement, as contemplated by the Crimes (Sentencing Procedure) Act. Her grief was manifest. However, I must heed in considering it the principles to be found in R v Previtera (1997) 94 A Crim R 76 and in R v Bollen (1998) 99 A Crim R 510. 31 APT was born on 21 March 1988 so that he was nine days short of his 18th birthday when this crime was committed. It follows nevertheless that the provisions of the Children (Criminal Proceedings) Act 1987 are enlivened. 32 The Crown has referred to R v Bus (Court of Criminal Appeal, 3 November 1995, unreported) in addressing considerations arising under that Act, and in particular s 6. One of the offenders to be sentenced in that case was 17 years and 3 months at a time when he committed serious sexual offences. In the context of that case, Hunt CJ at CL, with whom the other members of the court agreed, said in relation to s 6 (at pp 10-11)" "In any event, it is obvious that the relevance of the principles stated in s 6 to each individual case depends to a very large extent upon the age of the particular offender and the nature of the particular offence committed. An offender almost eighteen years of age cannot expect to be treated according to law substantially differently to an offender just over eighteen years of age. In both cases, the youth of the offender remains very relevant. Rehabilitation plays a more important role and general deterrence a lesser role. But that principle is subject to the qualification that, where a youth conducts himself in the way an adult might conduct himself and commits a crime of considerable gravity, the function of the courts to protect the community requires deterrence and retribution to remain significant elements in sentencing him ." (Emphasis added) 33 Manslaughter is by definition under s 3 of the Children (Criminal Proceedings) Act a serious children's indictable offence and hence ss 16 and 17 of the Act require that the offender be dealt with according to law. 34 The mandatory background report called for by s 25 of the Act has been received. It bears date 22 February 2008. The relevant family background is addressed. It is reported that the offender was raised in a stable and supportive family environment. The offender has no drug abuse history and it is reported that the offender has demonstrated "a high level of remorse and distress when discussing the impact of the offence upon the victim's family and his subsequent arrest upon his own family". 35 The author of the report wrote (at p 2): "[APT] presents as an intelligent and somewhat shy young man who was cooperative and forthright during the preparation of this report. He acknowledges the seriousness of the offence and the significant impact it has had on the victim's family and friends. He does not have a history of significant behavioural problems nor does he have a history of drug and alcohol abuse and up until the offence he had maintained a stable and pro social lifestyle. He has the benefit of close family ties and a loyal circle of friends and when given the opportunity would appear to have good prospects of successful reintegration into the community." 36 The above assessment is borne out by other evidence in the case. 37 The offender's mother gave evidence on the hearing as to sentence. This witness said she was engaged in employment giving respite care for carers of disabled persons or their parents. The witness said that APT had from time to time voluntarily provided his services in that work. The witness gave evidence as to APT adhering to rigid bail conditions that were set before his trial. APT's mother also spoke of the offender's remorse for what had occurred, including distress for the family of the deceased and for his own family. 38 The offender himself gave evidence. After leaving school he began but did not complete an apprenticeship as a mechanical engineer. He then commenced an apprenticeship as a chef, but again did not complete that. He joined the Army and was progressing reasonably well it would seem until his service was brought to an end at the time of his arrest for the commission of the offence for which he is now to be sentenced. After his arrest he was refused bail for a period of six weeks. Following the grant of bail, he obtained a position with RFID N-Print Pty Ltd. He continued in his employment with that company until his trial. Mr Hegan, who conducted the employer company, gave evidence before me and was extremely supportive of the offender. He regards the offender as a good and conscientious worker and he is prepared to re-engage the offender when he is released from prison. 39 The offender then has the support of this possible employer and he also has the support of his parents. I accept the evidence that his mother gave as to her willingness to support her son not only through his period of imprisonment but following his release. 40 APT gave evidence as to his remorse and contrition. I accept his evidence as to this as being genuine. 41 One feature of the offender's evidence which troubled me was that he continued to assert in evidence that his reason for joining in the attack was that he thought the deceased had a knife. Not only did he say this in his evidence on sentence, but he had earlier given the like explanation to Dr Lennings, the psychologist who made an assessment of him. The explanation for the offender's conduct I do not accept. I do nevertheless accept that the offender is now contrite. 42 The offender has no previous convictions and no previous criminal history at all. 43 Dr Lennings carried out his assessment of the offender on 22 January 2008. Dr Lennings' assessment was favourable from the offender's point of view. Dr Lennings wrote in part: "In terms of risk assessment for violence [APT] appears to have a very low risk of violence. On conventional measures of risk of recidivism he scores on no significant items other than harm to the victim. I note that he has no prior history of violence. He has no impulse disorder, and no substance use disorder. He does not present as having a personality disorder or a severe mental illness and does not present as living in or having come from an environment in which violence was condoned. Indeed he appears to have come from an environment in which the prosocial community based relationships were strongly emphasised. He has a strong orientation to community values, to work and enjoys strong family and friendship supports with no history of anti-social peer involvements. As such [APT] has a low risk of recidivism and a correspondingly high likelihood of response to rehabilitative strategies." 44 Since being taken into custody at the conclusion of the trial, the offender has been held at Kariong. Since 10 January this year he has been a Level 2 detainee. This allows him to go to school. He has undertaken several courses, including a TAFE course in computer skills. He appears to be progressing favourably and the teacher has written concerning him: "[APT] is a hard working student who is doing well in his studies. He accepts all work tasks with enthusiasm and initiative and is always compliant and polite." 45 Whatever the motive behind the offender's participation, the serious offence committed by him was not premeditated and the evidence introduced in the sentencing proceedings satisfies me that the offender is unlikely to reoffend and that he has good prospects of rehabilitation. 46 The offender has not been in prison before and I consider there are special circumstances calling for a longer period under supervision once he is released on parole than I would otherwise have set. 47 The sentence I am shortly to set will commence on 10 December 2007. In addition I will allow for the period of six weeks when he was in custody before bail was granted. I also take into account the rigid requirements as to his bail conditions, including the curfew imposed, for such time as the offender was on bail. 48 In sentencing young offenders rehabilitation is generally of primary importance. In a case such as the present where the offender has conducted himself like an adult in committing a crime of violence, the need to protect the community requires that deterrence and retribution be given greater weight than might otherwise have been called for and, of course, in the present case, as previously observed, the offender was almost 18 years of age when he committed this crime: see Lal v R [2007] NSWSC 445 and in particular the judgment of McClellan CJ at CL at [33]; and see also R v Bus (supra). 49 I referred earlier to the sentence imposed on Willmot. No question of parity arises in this case because there are a number of significant points of distinction, the first of which being that Willmot was sentenced for the crime of murder. He was older than the offender. Willmot's personal participation in the attack was greater than that of APT and I do not find that APT stomped on the deceased's head (see [27] above). He received a discount for his offer of assistance. On the other hand, he had a criminal history involving matters of violence, and there are very significant differences when one heeds the subjective features concerning the two offenders. 50 In Lal McClellan CJ at CL considered sentencing outcomes in other manslaughter cases and in doing so referred to R v MD, BM, NA, JT [2005] NSWCCA 342 in which the Court of Criminal Appeal considered sentencing statistics of the Judicial Commission for manslaughter sentences for the period from January 1998 to December 2004. In cases where custodial sentences were imposed, the sentences ranged from 18 months to more than 20 years. The middle 80 percent of cases fell in the range of two years to eight years. 51 McClellan CJ at CL also referred in Lal to R v Forbes [2005] NSWCCA 377. The difficulty of drawing on sentences in other cases of manslaughter was again stressed. In Forbes the Chief Justice said (at [133]-[134]): "As has frequently been stated, manslaughter is almost unique in its protean character as an offence. (See in particular the observations of Gleeson CJ in R v Blacklidge (unreported, Court of Criminal Appeal, 12 December 1995 esp pp 2-3.) In its objective gravity it may vary, as has been pointed out, from a joke gone wrong to facts just short of murder ( R v Weinman (1987) 49 SASR 248 at 252; R v Hoerler (2004) 147 A Crim R 520 at [39]). It is also relevant to recognise that, although manslaughters can be characterised in different ways, particularly in the various contexts which reduce what would otherwise be a murder to manslaughter, the degree of variation within any such category is generally also over a wide range. Matters of fact and degree arise in all categories of manslaughter." 52 Because APT is not 21 years of age, s 19(1) of the Children (Criminal Proceedings) Act enables the Court to make an order directing that part of the term of the sentence of imprisonment about to be imposed be served as a juvenile offender. However, because the sentence relates to a serious children's indictable offence, s 19(3) requires that I be satisfied there are special circumstances justifying the detention of the offender as a juvenile offender beyond the age of 18 years. 53 I consider there are special circumstances here that warrant the detention of the offender in a juvenile detention centre until he attains the age of 21 years. His ongoing rehabilitation warrants this course in order that he may be permitted to carry on with his current courses of education. In addition I am mindful of the offender's vulnerability at his present age if he was now to be admitted to an adult prison. If the offender remains at Kariong until he is 21 years of age this, as I understand it, will permit him to be classified within the adult Corrective Services classification system before he is transferred to an adult institution. These considerations lead me to conclude that there are special circumstances justifying the detention of the offender as a juvenile offender until he attains the age of 21 years. Thereafter, he must, of course, serve the balance of the non parole period of the sentence I am about to impose in an adult prison. 54 I now pass sentence as follows: APT, for the manslaughter of the deceased, I sentence you to imprisonment with a non parole period of five years six months, less six weeks, commencing on 10 December 2007 and expiring on 28 April 2013 and a balance of term of two years six months expiring on 27 October 2015. The first date upon which you will become eligible for release on parole will be 28 April 2013. 55 For the reasons expressed, I order that you serve part of the non parole period as a juvenile offender, namely the period to be served until you attain the age of 21 years on 21 March 2009, and I order that the balance of the non parole period thereafter to be served be served in an adult correctional centre. ********** 07/04/2008 - Correction of typographical error in R v Blacklidge - Paragraph(s) Coversheet 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.