New South Wales Supreme Court CITATION : R v BH [2009] NSWSC 358 HEARING DATE(S) : 3 April 2009 JUDGMENT DATE : 7 May 2009 JUDGMENT OF : Hidden J DECISION : Imprisonment for 17 years, NPP 13 years, from 9 October 2007. CATCHWORDS : CRIMINAL LAW - sentence - plea of guilty - felony murder - juvenile offender LEGISLATION CITED : Children (Criminal Proceedings) Act 1987 CATEGORY : Principal judgment PARTIES : Regina BH FILE NUMBER(S) : SC 2008/20206 COUNSEL : K McKay (Crown) N Steel (BH) SOLICITORS : N Simonsen (ODPP) J Boulos (LAC) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION HIDDEN J 7 May 2009 2008/20206 Regina v BH REMARKS ON SENTENCE 1 HIS HONOUR: The offender who stands for sentence was a juvenile at the time of the offence and, accordingly, his name must not be published. He has pleaded guilty to the murder of Mitchell Moseley in the Sydney CBD in the early hours of Wednesday, 6 December 2006. He entered that plea in the Local Court and maintained it on arraignment in this Court. Facts 2 The agreed facts, which need not be recited in all their detail, are these. The deceased, Mr Moseley, was a 23 year old homeless man, who frequently slept in Town Hall Square outside what was then the auditorium of Saint Andrew's Cathedral School. It was there that his body was found in the morning of 6 December 2006. Police who attended the scene observed him to have a severe wound to the left side of his face, which had bled profusely. Lying near the body was a large wooden garden stake, which was blood stained. Police inquiries, including the examination of CCTV and security surveillance footage from the school and the surrounding area, established the events leading to the killing. 3 At about 8 pm on the Tuesday, 5 December, Mr Moseley had attended Bar Ace in George Street, where he remained for some time playing poker machines. He received two payouts, totalling over $900. At about 11pm he was escorted from the bar because he was intoxicated. 4 He then went to the nearby Maloney's Hotel, also in George Street. He remained there until close to 4am, again playing poker machines. The offender entered the hotel during that period, leaving and returning on several occasions. On two of those occasions he spoke to Mr Moseley, whose success on the poker machines was continuing. While the offender was present at the hotel, he received two payouts totalling $1100. 5 A little before 4am, the offender left the hotel and went to the entrance of a nearby McDonalds restaurant. Mr Moseley also left the hotel and began to walk towards his usual sleeping place outside the Cathedral school. The offender followed him. 6 There is no eyewitness account of the killing. Nor did the offender make any admissions to investigating police, and what occurred was not caught by any security camera. What is clear, however, is that the offender obtained the garden stake from a tree in Bathurst Street near the school. He struck Mr Moseley with it, wounding him fatally, and robbed him of an unspecified amount of money. Another homeless man who had been sleeping in the area told police that Mr Moseley woke him in the small hours of 6 December and told him that he had won $900 on the poker machines. He said that he saw Mr Moseley fall asleep, that he also went to sleep, and that when he awoke Mr Moseley was dead. 7 After the incident the offender walked south in George Street, eventually boarding a train at Central railway station. On 14 February 2007 he was arrested and charged with other matters, and bail was refused. On 21 March 2007 he was arrested for the murder at a juvenile detention centre. He was taken to City Central police station where, in the presence of his mother, he gave a brief account of his movements on 6 December but said nothing about the offence. After receiving legal advice, he declined to be interviewed or to take part in an identification procedure. 8 Upon post mortem examination, a forensic pathologist found that Mr Moseley's skull had been fractured and there was subdural and sub-arachnoid haemorrhaging. The doctor told police that the wound to his face was consistent with his having been struck by the garden stake and that a moderate to severe degree of force was used. The cause of death was reported as blunt force head injury, with alcohol and benzodiazepine intoxication as a significant contributing factor. Forensic biological examination of blood samples taken from Mr Moseley disclosed the presence of diazepam and nordiazepam, together with a high concentration of alcohol. 9 The offender told Ms Elizabeth Leafe, the author of a pre-sentence report, that he had intended to rob Mr Moseley, that he remembered fighting with him, but had no memory of assaulting him with the wooden stake. He told a reporting psychologist, Dr Katie Seidler, that the killing occurred in the course of an altercation with Mr Moseley during an attempt to rob him. He told both of them that he was affected by drugs at the time, although to Ms Leafe he did not offer that as an explanation for his asserted loss of memory. In an affidavit read before me he accepted his responsibility for the killing of Mr Moseley, acknowledging that his purpose was to rob him, and that he had obtained the wooden stake shortly before doing so. He provided no further detail in that affidavit, and he did not assert any loss of memory or suggest that he had fought or struggled with Mr Moseley. 10 In any event, I do not accept that the killing occurred in the course of an altercation or a struggle. From the times recorded on the CCTV footage at the school it appears that the offender was in that vicinity for a little over 15 minutes. This, together with the statement of the other homeless man to whom I have referred, could convey that he had waited until Mr Moseley was asleep before he robbed him and that he struck him when he was barely awake. However, I would hesitate to draw that conclusion on the limited material I have. On the other hand, I am satisfied that Mr Moseley's intoxication was such that he was unable to put up any significant resistance to the offender's attack upon him. 11 The plea of guilty is upon the basis that the offender is guilty of what is still loosely termed "felony murder." What he has admitted by that plea is that he killed Mr Moseley by a deliberate act in the course of committing a crime punishable by a maximum sentence of imprisonment for 25 years. The robbery was such an offence because it was accompanied by a wounding or the infliction of grievous bodily harm: s96 of the Crimes Act 1900. Subjective case 12 The offender was 17 years old at the time of the offence and is now 19. His criminal history is disturbing for a person of his age. In Melbourne Children's Court on 30 March 2006 he was placed on probation for 12 months for robbery and a number of other related offences. That probation order was still in force at the time of the murder. The offences for which he was arrested on 14 February 2007 were three charges of armed robbery and a charge of goods in custody. On 31 July 2007, while in custody in respect of those matters (and the present matter), he was charged with six counts of robbery in company. On 9 October 2007 he was dealt with for all of those offences by concurrent control orders of 6 months, dating from the day on which they were imposed. I have no information about the facts of those offences. 13 As I have said, he was charged with the murder on 21 March 2007, while he was in custody in respect of the charges of armed robbery and goods in custody. Accordingly, the period of custody from then until 9 October 2007 was partly referable to those other offences, and for the period of 6 months thereafter he was serving the control orders. 14 His background is to be found in the pre-sentence report and the lengthy psychological report. He has two younger sisters. His parents separated when he was nine years old. Both of them remarried and he has several even younger stepsiblings. His mother's second marriage broke down when he was about 14, and he told the Probation and Parole officer, Ms Leafe, that this was a difficult time for him and that it contributed to his deteriorating behaviour. 15 More importantly, when he was ten years old he was the victim of sexual abuse by an adult man over a period of several months. This, in particular, affected his behaviour. He told the psychologist, Dr Seidler, that he became short tempered and aggressive, and resistant to parental discipline. He began to drink alcohol when he was twelve, and to use cannabis when he was thirteen. When he was fifteen his drug abuse escalated to ecstasy and cocaine. 16 He left school before completing year ten. Thereafter he worked in various unskilled jobs, but he was unemployed at the time of his arrest. From his mid teens his lifestyle was generally itinerant. At times he lived with his family, but at other times he stayed with friends or lived on the street. At one stage he became involved in a gang in the Sydney area which, he told Ms Leafe, gave him "a sense of belonging and power…". He became a problem gambler on poker machines, and the robbery of Mr Moseley was to obtain funds for gambling and drugs. It would seem that this was also the purpose of his prior offences which, no doubt, were the product of his debased lifestyle. 17 As sometimes happens in tragic cases such as this, he has matured significantly while in custody and has developed a positive outlook on life. He has undertaken a number of training courses in a variety of skills and has furthered his general education. He has been studying for his school certificate, and hopes in due course to obtain the higher school certificate. He enjoys the support of his family, noting in his affidavit that his mother visits him regularly and is frequently accompanied by his siblings. 18 He has acknowledged a significant anger management problem, and Ms Leafe reported that he is to participate in a violent offender treatment program. She also noted the importance of completing "significant drug and alcohol intervention" prior to his release on parole. She reported that he had participated in a behaviour management program, attaining the highest stage, and was considered "a compliant and trusted inmate" who had been given "various responsibilities within the centre due to this status." 19 In his affidavit he expressed remorse for his crime, and annexed to it is a letter of apology directed to Mr Moseley's family in which he acknowledged the devastating effect of his conduct upon them. Those expressions of contrition are consistent with his early plea of guilty. I accept that he is remorseful and has insight into the gravity of his crime. That insight, his family support and his progress while in custody augur well for his rehabilitation. Sentencing 20 Of course, none of this is to deny that the offence to which he has pleaded guilty is serious indeed. This being a case of felony murder, no question of an intent to kill or to inflict really serious bodily injury arises, although felony murder is not necessarily less serious than other forms of that crime. That said, I should record that I accept that the offender did not intend to kill Mr Moseley or to cause him really serious bodily harm. The purpose of the offence was robbery and, while the garden stake was a large and fairly heavy object, he struck one blow only. 21 Moreover, unlike many offences of this kind, he was not armed with what would be normally seen as a lethal weapon, such as a loaded gun or a knife. There was some limited planning in the commission of the offence, to the extent that at the hotel he saw Mr Moseley as a potential robbery victim and followed him for that purpose. However, the killing itself was clearly the result of a spontaneous act. That said, the offence was committed upon a man whose intoxicated state and homeless lifestyle left him vulnerable to an attack of that kind. 22 Having regard to all these circumstances, I find that this offence falls below the mid-range of objective gravity. For that reason, together with the offender's plea of guilty, his youth and his troubled background, I shall not impose the standard non-parole period of 20 years. Nevertheless, that period takes its place as a guidepost in the determination of the appropriate sentence. 23 The sentence I pass must reflect considerations of retribution and of deterrence, both personal and general. Not only is the offence itself very serious, it was committed by a young man with a criminal history including prior offences of robbery and, even more significantly, while he was on probation. However, in accordance with well established authority, these considerations must be tempered by his age and immaturity at the time and the desirability of fostering the reform of a juvenile offender. 24 Otherwise, I take into account in his favour his remorse and his early plea of guilty. That plea is of considerable utilitarian value, and will earn him a reduction of sentence of roughly 25 per cent. I think that his prospects of rehabilitation are at least reasonable, although the effect of the reports of both Ms Leafe and Dr Seidler is that he needs more support and guidance while in custody and, in due course, while at liberty. I have considered whether I should find special circumstances warranting a departure from the usual proportion between sentence and non-parole period. However, given the length of the sentence which must be imposed, I am satisfied that a non-parole period within the statutory proportion would leave a period of parole eligibility adequate to foster his rehabilitation. Moreover, I do not think that a non-parole period any shorter than that which I propose would be adequate to reflect his criminality. 25 The sentence I have arrived at, allowing for the plea of guilty, is imprisonment for 17 years with a non-parole period of 13 years. It is only since the expiry of the control orders on 8 April 2008 that the offender's custody is exclusively referable to the murder. Those orders, imposed on 9 October 2007, were not backdated to take account of his prior period of custody. There are a number of reasons why the magistrate might have taken that course. However that may be, I think that the principle of totality requires that the sentence which I impose commence before 8 April 2008. I propose to direct that it commence 6 months earlier, so as to embrace the period during which he was subject to the control orders. 26 Accordingly, the offender is sentenced to a non-parole period of 13 years, commencing on 9 October 2007 and expiring on 8 October 2020, and a balance of term of 4 years, commencing on 9 October 2020 and expiring on 8 October 2024. In his affidavit he said that he did not wish to remain in juvenile detention as he believed that there would be more beneficial programs for him within the adult correctional system. I have this morning heard further from his counsel in relation to that matter. He does now seek an order that part of his sentence be served as a juvenile offender. However, I have the benefit of written submissions upon that matter supplied by the Crown prosecutor. It is clear that he does not meet the requirements under s 19 of the Children (Criminal Proceedings) Act 1987 for such an order and I do not propose to make that order. 27 Members of Mr Moseley's family were present during the sentence proceedings. I have received no victim impact statement, but at the hearing I expressed my deepest sympathy to them in their tragic loss and I do so again now. ********** 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.