Supreme Court New South Wales Medium Neutral Citation: R v HT [2012] NSWSC 656 Hearing dates: 10.02.12 & 04.04.12 Decision date: 11 April 2012 Jurisdiction: Common Law - Criminal Before: Hidden J Decision: On manslaughter, offender sentenced to imprisonment for 6 ½ years, NPP 4 years and 3 months, from 18.8.09. On robbery in company, FT of 3 ½ years from 18.8.09. Catchwords: CRIMINAL LAW - sentence - trial for murder, robbery in company with wounding - offender found guilty of manslaughter, robbery in company - offender complicit in stabbing of robbery victim by co-offender - offer before trial to plead guilty to manslaughter - undertaking to give evidence against co-offender and accessory after the fact Legislation Cited: Evidence Act 1995 Cases Cited: Scott v R [2011] NSWCCA 221 R v VDN [2004] NSWSC 426 R v Pham (unreported, 15 May 1998) R v Siose [2007] NSWSC 1202 Category: Sentence Parties: Regina (Crown) HT (accused) Representation: Counsel: M Cunneen SC (Crown) C Smith (accused) Solicitors: S Kavanagh - (Solicitor for Public Prosecutions) (Crown) SE O'Connor - (Legal Aid Commission) (accused) File Number(s): 2009/186123 Publication restriction: Yes Pursuant to s15A Children (Criminal Proceedings) Act 1987, there is to be no publication of any information, picture or other material that identifies or is likely to lead to the identification of the child victim. Identifying information has been removed from this version of the judgment to comply with the statute. Pursuant to s15A Children (Criminal Proceedings) Act 1987, there is to be no publication of any information, picture or other material that identifies or is likely to lead to the identification of the child offender. Identifying information has been removed from this version of the judgment to comply with the statute. remarks on sentence 1The offender, who was 17 years old at the time of the offences, was tried before me for murder, robbery in company with wounding and, in the alternative, robbery in company simpliciter. He was found guilty of manslaughter and the alternative charge of robbery in company. He stands for sentence for those offences. 2The facts are particularly tragic. The victim was a 16 year old schoolboy who was fatally stabbed in the course of a robbery perpetrated upon him by the offender and another young man, Abraham Rodriguez. Rodriguez fled the country shortly after the incident, and is yet to be apprehended. The offences occurred in the early evening of 24 August 1995 while the victim was walking towards his home, having been at sports training after school. It was not until many years later that the finger of suspicion pointed to the offender and Rodriguez and, after investigation, the offender was arrested on 18 August 2009. 3The evidence against the offender was primarily admissions made by him to a friend shortly after the incident, and further admissions made over the ensuing years to another friend and to a woman with whom he was in a relationship. What emerges from the evidence is that neither he nor Rodriguez knew the victim. They were together in the area where the victim was walking and they decided to rob him. Rodriguez was armed with a knife, which the offender had given him. The victim resisted the robbery, removing an aerosol can of deodorant from his sports bag and spraying it towards the offender and Rodriguez. They then assaulted the victim: as the offender expressed it to one of the Crown witnesses, they "jumped him." 4It was at that point that Rodriguez stabbed the boy, inflicting the wound which proved to be fatal. In all probability, the stabbing was impulsive and, as the Crown case on murder was based upon what is still conveniently referred to as felony murder, it was not necessary to establish that Rodriguez intended to kill the victim or to cause him really serious bodily injury. The unfortunate boy fell to the ground, and the offender kicked him to the head. He and Rodriguez then fled from the scene. The proceeds of the robbery were the boy's wallet and the small amount of money it contained. 5The Crown case against the offender, on murder and robbery in company with wounding, was that he participated in the robbery knowing that Rodriguez had a knife and contemplating the possibility that he might use that knife to stab the victim. The jury's verdict of guilty of manslaughter and robbery in company conveys that they were not satisfied that he contemplated that Rodriguez might stab the victim, but were satisfied that he contemplated that he might use the knife to scare him. Indeed, to one of his friends the offender admitted that he had given Rodriguez the knife but had said that it was to be used only to scare. 6In evidence at the trial the offender gave a highly sanitised account of what occurred which, clearly, the jury rejected. He agreed that he had been with Rodriguez in the area where the offences occurred but said that he had not been a party to a plan to rob anyone. The effect of what he said is that whatever occurred between Rodriguez and the victim took place while he was making a call in a public phone box. He said that he heard a scream, which he thought was Rodriguez's voice. He emerged from the phone box, and saw the victim in a seated position in the street but could not see Rodriguez. He thought that there must have been some confrontation between the boy and Rodriguez which caused Rodriguez to scream. He claimed that he demanded the boy tell him why he had hurt his friend, and that he kicked the boy to his leg. 7He said that he caught up with Rodriguez further up the street, and that Rodriguez showed him a knife which was bloodstained and which, he claimed, he had never seen before. Rodriguez said words to the effect that the victim had sprayed him in the face and that he thought he had stabbed him. He said that in another street, as they were walking away from the scene, Rodriguez showed him a wallet and, a little later, threw it into an industrial rubbish bin. 8I received a victim impact statement by the boy's father. It was an eloquent expression of his grief and outrage at the senseless death of his son, and of the serious and enduring effects this tragedy has had upon him and the family. The hearts of the community must go out to them in their loss. At the time I read the statement I expressed my deepest sympathy to the family, and I do so again now. 9The offender is now 34 years old. He had no criminal history prior to these offences, but he has been dealt with for a number of offences since, commencing in 2000. They include some offences of violence, but all of them were dealt with relatively leniently in the Local Court. However, while I appreciate the relevance to sentence of an offender's criminal history since the offence in question, I consider this offender's record to be of little or no significance for present purposes. 10He was born in Vietnam, but came to this country with his family when he was very young. He was at high school in year 12 at the time of the offences. I received testimonials from his younger siblings, a sister and a brother, both of whom appear to have achieved stable and productive lifestyles. Both of them spoke highly of the offender, noting that he shouldered a considerable measure of responsibility for their care when they were younger because their parents worked long hours every day to provide for the family. Their testimonials also reveal that he progressed well at school until the final years, when he fell into bad company and began to use drugs. 11In 1998, he and his former partner had a son. Both his sister and his brother noted that after the birth of the child he set about putting his life in order. Over a period he severed his connection with his undesirable associates and sought to deal with his drug use, which was primarily marijuana, together with a pattern of alcohol abuse. 12He was recently assessed in custody by Dr Richard Furst, psychiatrist, who has supplied a report. To that doctor he expressed remorse for the death of the victim, saying that what had happened was wrong and that he should have had the courage to help the boy, who was seriously wounded. He also expressed his sorrow for the boy's family. Dr Furst diagnosed him as suffering from a major depressive disorder. 13I also received a statement by a prison chaplain, Mr Steve House, who wrote that the offender had become a practicing Christian and was receiving counselling from him. He also wrote that the offender appeared "to be extremely remorseful for his actions, the pain and stress it has caused his family, friends, loved ones and the community." He had also expressed remorse in similar terms to his sister, to one of his friends who gave evidence in the Crown case, and in his own evidence at the trial. 14While in custody he has undertaken courses and employment, and appears to have been a well behaved and trusted inmate. He enjoys the support of his family, who visit him regularly. Significantly, he is able to maintain contact with his son who, with the consent of his former partner, visits him with the family. Dr Furst saw these matters as favourable to his prognosis, noting that psychological counselling would also be valuable and he was willing to undertake it. 15The offender has undertaken to give evidence against Rodriguez, should he ever be brought to trial. He has also undertaken to give evidence against Rodriguez's father, who is shortly to be tried as an accessory after the fact to the murder alleged to have been committed by his son. It is the Crown case that Mr Rodriguez senior secreted or disposed of the knife used in the offence, and assisted his son to flee the country. 16If Rodriguez were brought to trial for the murder, part of the Crown case would be admissions said to have been made by him. Nevertheless, evidence by the offender tending to implicate him would be of significant assistance to the Crown case. It would be even more significant in the trial of Mr Rodriguez senior, in which evidence of admissions made by his son and by the offender would, of course, be inadmissible. As part of the case against Mr Rodriguez as accessory after the fact, the Crown would have to prove that his son had fatally stabbed the victim in circumstances amounting to murder. In the absence of independent eye-witness evidence, evidence of the offender tending to implicate the son would be of importance to the prosecution. 17That said, the evidence which the offender would be prepared to give would not depart from his testimony at his trial. He would maintain that he was not a party to a robbery and only saw the aftermath of whatever happened between Rodriguez and the victim. Nevertheless, his evidence that Rodriguez had the bloodstained knife and the wallet clearly point to his having robbed the victim and stabbed him in the process. The offender's evidence of what Rodriguez said at that point about the stabbing might also be admissible in the trial of his father under s 65(2) of the Evidence Act, but lest that matter be the subject of argument at that trial, I express no concluded view about it. 18Obviously, the proposed evidence of the offender is problematic and, no doubt, his credit would be open to attack. He would not be prepared to acknowledge his part in the incident as the jury found it, and would maintain the account he gave in evidence at his trial which, in my view, lacks credibility. However, a jury might reject his evidence insofar as he sought to exculpate himself but accept it to the extent that it implicated Rodriguez. 19An important factor on sentence, of course, is the offender's youth at the time of the offences. They can fairly be seen as the product of his immaturity and the unsatisfactory environment with which he associated. I accept that he is now a very different person from the young man he was at that time. I do not doubt that he very much regrets the death of the unfortunate young victim and the pain it has caused his family. There is a measure of remorse which I take into account, but it is entitled to limited weight only because of his continued refusal to acknowledge his own involvement. 20That said, I think it is unlikely that he would re-offend in such a way or, indeed, at all. Given the constructive use he has made of his time in custody and the enduring support of his family, his prospects of rehabilitation are good. They would be fostered by an extended period of conditional liberty, subject to supervision and the sanction of parole, and for that reason I find special circumstances warranting a departure from the statutory proportion between sentence and non-parole period. 21None of this is to deny the seriousness of the offences. The manslaughter falls into the more serious category of that offence, with particularly tragic results. The vulnerable victim was even younger than the offender. The offence was committed in company, a factor relevant to the gravity of the manslaughter although, of course, it was an element of the robbery offence. The incident involved the all too common use of a knife. Although I am satisfied that the offender is unlikely to re-offend in this way, general deterrence remains an important consideration. 22It was common ground that the two offences should attract concurrent sentences. I shall impose a sentence with a non-parole period for the manslaughter and a fixed term of imprisonment, concurrent with that non-parole period, for the robbery in company. The incident occurred in 1995, but neither counsel suggested that there had been any significant change in the pattern of sentence for manslaughter since that time. This is consistent with the view arrived at by the Court of Criminal Appeal in Scott v R [2011] NSWCCA 221, per James J (with whom Bathurst CJ and Johnson J agreed) at [60] - [63]. 23The offender had offered to plead guilty to manslaughter at the time of his arraignment and again before his trial. This is a matter which entitles him to a degree of leniency, which should be reflected in a quantified reduction of sentence. There should be a further quantified reduction to reflect his undertaking to give evidence against Rodriguez and his father. This also was common ground, although counsel did not agree about the extent of that reduction. Counsel for the offender, Mr Smith, submitted that a discount of 15% for each factor was appropriate. The Crown prosecutor argued that each discount should be no more than 10%. I think that the figures proposed by Mr Smith are reasonable. As to the offender's undertaking to give evidence, his credibility would be open to challenge for the reasons I have identified, but the fact remains that his evidence would be of significant assistance in the prosecution of two other alleged offenders. 24Mr Smith referred me to three manslaughter sentence cases relating to offenders who were complicit in the fatal stabbing of a victim by a co-offender: the decision of Whealy J in R v VDN [2004] NSWSC 426, and my own decisions in R v Pham (unreported, 15 May 1998) and R v Siose [2007] NSWSC 1202. There is no need to examine them. I believe that they are consistent with a pattern of sentence which can be discerned in cases of this kind involving, as they usually do, young offenders. As the Crown prosecutor pointed out, in Pham and Siose the objective facts were significantly less serious than the present case, while in VDN the offender made out an exceptional subjective case. On the other hand, in none of those cases did the offender offer to give evidence against another offender. 25For the manslaughter in the present case, but for the offer to plead guilty to that offence and the undertaking to give evidence, I would have imposed a sentence of imprisonment for 9 years. A 30% reduction produces a term of roughly 6 years and 4 months, which I would round up to 6 ½ years. While I have found special circumstances, I would reduce the non-parole period from the statutory proportion only to a modest extent. Any greater reduction, in my view, would lead to a non-parole period inadequate to reflect the offender's criminality. That non-parole period will be 4 years and 3 months. For the offence of robbery in company I shall impose a concurrent fixed term of imprisonment for 3 ½ years. The offender has been in custody since his arrest on 18 August 2009, and the sentences will date from that day. 26Accordingly, for the offence of manslaughter the offender is sentenced to a non-parole period of 4 years and 3 months, commencing on 18 August 2009 and expiring on 17 November 2013, and a balance of term of 2 years and 3 months, commencing on 18 November 2013 and expiring on 17 February 2016. For the offence of robbery in company, he is sentenced to imprisonment for a fixed term of 3 ½ years, commencing on 18 August 2009 and expiring on 17 February 2013. He will be eligible for release on parole on 17 November 2013. ********** 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. Decision last updated: 15 August 2012