R v Mbele [2013] NSWSC 1394

Supreme Court New South Wales

Medium Neutral Citation: R v Mbele [2013] NSWSC 1394 Hearing dates: 11, 12, 13, 14, 18, 19, 20, 21, 24, 25, 26, 27, 28 June and 30 August 2013 Decision date: 20 September 2013 Jurisdiction: Common Law - Criminal Before: Latham J Decision: Convicted of the murder of Brandon Siaa. Sentenced to a non-parole period 18 years, to date from 25 May 2011, expiring 24 May 2029, with a balance of term of 8 years, expiring 24 May 2037. Eligible for release on 25 May 2029 Catchwords: SENTENCE - murder - knife stabbing on railway station - victim under 18 years of age - intent to inflict grievous bodily harm - premeditated attack - offender on conditional liberty at time of offence - very high level of objective gravity - standard non-parole period would be appropriate but for offender's youth - no show of remorse - reasonable prospects of rehabilitation - finding of special circumstances to moderate degree for offender's youth Category: Sentence Parties: Regina - (Crown) Mosa Julius Mbele - (Offender) Representation: Counsel N Williams - (Crown) M Dennis - (Offender) Solicitors Solicitor for Public Prosecutions - (Crown) Legal Aid NSW - (Offender) File Number(s): 2011/172471

SENTENCE 1The offender, Mosa Julius Mbele, was found guilty by a jury on 28 June 2013 of the murder of Brandon Siaa. The offence carries a maximum penalty of life imprisonment and a standard non-parole period of 25 years, arising out of the fact that the victim was under the age of 18 years, namely 16 years and 9 months, at the time of the offence. 2The circumstances immediately surrounding the commission of the offence on a railway platform at Bankstown at about 6:50pm on Wednesday 25 May 2011 were largely not in dispute at trial, given that they were comprehensively captured by CCTV on the station concourse and the platform itself. What was said between the offender and the victim was disputed to some extent, as was the origin of the confrontation between them about two hours earlier. The hostility between the offender and the victim appeared to reside in their respective membership of opposing groups in the Bankstown area. Whether these respective groups might be described as "gangs" is of little moment. 3The summary of these events in these remarks represents the findings of fact that I have made from the evidence at trial. To the extent that they are adverse to the offender, I am satisfied beyond reasonable doubt of those findings. 4At about lunchtime on 25 May 2011 the offender was in a park in Padstow with a number of his associates. A number of them were drinking wine from a 5 litre cask. The offender was in possession of a large knife. The offender in his evidence claimed that he drank just over a litre of wine and that he did not finish the cask until shortly before the commission of the offence at Bankstown railway station. In any event, the jury clearly rejected by their verdict any degree of intoxication that was capable of reducing the offence from murder to manslaughter. I would infer from this evidence that the consumption of alcohol emboldened the offender to confront the victim later that day. I do not suggest that that intention was present when the wine was consumed in the park. 5The offender's account was that an associate whom he had met at the bus stop on the morning of the offence was carrying the knife. The offender claimed that he took the knife on the basis that he was the older of the two and that he did so for safekeeping. He said he put the knife under the jumper that he was then wearing before going to the park. As will become clear from what follows, I do not accept the offender's evidence in this respect. I am satisfied beyond reasonable doubt that the offender armed himself with the knife. 6Later that afternoon the offender and his friends went to Bankstown where they encountered the victim and his cousins near the phone booths on South Terrace. There was a confrontation at about 5 pm near the phone booths between the offender and the victim, which included a claim on the part of the offender that he "ran Bankstown". Both the offender and the victim traded insults. There was a brief physical struggle during which the victim appeared to gain the upper hand. The offender retreated and returned to his home briefly, which was not far from Bankstown railway station. 7There was evidence in the trial to the effect that the offender was very angry and agitated on his return to his home. The offender removed his jacket before returning with his friends to the payphone area on South Terrace. The offender's account in his evidence was that he left his home with the knife tucked into his pants, unaware that he still had it in his possession. He claimed that when he arrived at Bankstown railway station he began to feel cold and asked one of his friends to lend him his blue hoodie. He further claimed that he went to Bankstown to meet a friend and not for any other purpose. 8I also reject this aspect of the offender's evidence. The offender's alleged ignorance of his possession of the knife is entirely inconsistent with the size and shape of the weapon. It is a knife generally described in the course of the trial as a dagger or hunting knife. Nor do I accept that the offender requested the item of clothing from his friend on the basis that he was cold. I am satisfied beyond reasonable doubt that the offender wore the hoodie in an attempt to at least partially disguise himself with the intention of further confronting the victim. The fact that a friend of the offender's was intending to meet him at Bankstown is not inconsistent with this finding. It follows that the infliction of some harm with the knife was premeditated to this extent. 9Both the CCTV footage from the concourse of Bankstown railway station and the evidence of a number of witnesses who knew both the offender and the victim establish the offender's movements from the concourse of the railway station, down onto the platform of the railway station, in an effort to locate the victim. I am satisfied beyond reasonable doubt that the offender sought out the victim with the intention of engaging in a further confrontation with him. 10Meanwhile, the victim and his friend were sitting on the platform side by side, waiting for the train. The offender is depicted on CCTV footage approaching the victim from the opposite side of the platform, moving to stand in front of the victim, slapping him twice across the face, and producing the knife. The victim's friend, Terranova Lopala, gave evidence that the offender approached the victim saying "do you want to go one-on-one?" then brandishing the knife. The victim told the offender to drop the knife. Once again, the offender and the victim traded insults. 11The offender was in the company of Mbusi Mlotshwa who told the offender to leave. Both Mbusi and Terranova can be seen on the CCTV footage attempting to separate the offender and the victim. At no stage in the course of this altercation does the victim raise a hand towards the offender or threaten him physically in any way. The victim is seen to stand in response to the confrontation from the offender and is obviously not intimidated. After a short time, the victim and Terranova turn and move away from the offender towards the other end of the platform. 12The offender's evidence at trial was that the victim called him a "nigger" during this confrontation and that this was what provoked the offender to slap the victim to the right cheek. The offender maintained that he showed the victim the knife in an attempt to scare the victim. The offender's evidence was that he only engaged in a conversation with the victim in order to sort things out to avoid trouble in the future. The offender claimed that he reached for the knife because the victim stood up and began swearing at him. The offender agreed in his evidence that Mbusi had tried to stop the confrontation and that the victim had told him to drop the knife and fight "one-on-one". The offender claimed that he did not drop the knife because he was afraid that the victim would attack him. 13The offender's account of this confrontation is inconsistent with the objective evidence. The CCTV footage demonstrates that the offender is the initial aggressor, that he stands menacingly over the victim who is seated on the platform and that he strikes the victim to the face within a very short time of initiating the confrontation. I reject out of hand the offender's claim that he was attempting to speak to the victim in order to avoid further trouble. To the contrary, my finding beyond reasonable doubt is that the offender deliberately assaulted and antagonised the victim with the intention that the victim would physically assault the offender, thereby providing him with the justification he required to use the knife. As it happened, at this point in time the victim retreated from the offender's advances. 14The offender is then depicted replacing the knife into its sheath before following the victim and Terranova down the platform to a point adjacent to the stairway. At some point between the seating and the stairway, the offender removed the knife once more from the sheath and confronted the victim yet again. The offender's account at trial, namely that he was walking towards the stairway with the intention of leaving the platform, is unworthy of belief. The graphic account of the offence provided by the CCTV footage and by a number of independent witnesses, who were either seated or standing a very short distance from the offender and the victim, leave no room for the proposition that the offender did not wish to re-engage with the victim. 15The offender is depicted on the CCTV footage walking directly towards the victim. An independent eyewitness who was seated a short distance away saw and heard the offender and the victim yelling at each other. The offender was holding the knife and the victim was saying "Drop your knife we can do this one-on-one. Don't worry about your boys, let's go." A number of other witnesses gave evidence of hearing the victim tell the offender to "drop the knife". Various witnesses described the offender lunging at the victim with the knife. Some witnesses described this action in terms of a "fake stab". Immediately following this action on the part of the offender, the victim moved forward, punching the offender to the head. Almost simultaneously, the offender's right hand, which was holding the knife raised above his shoulder, lunged down and forward towards the victim's chest area. The knife penetrated the victim's chest, the blade breaking from the handle and lodging in the victim's upper torso. 16The knife wound penetrated to a depth of 125 mm, tracking through the skin, the musculature between the third and fourth ribs, nicking the bone of the fourth rib, through the front of the left lung and into the heart. The victim fell to the platform and died within minutes. He died within the presence of his brother and a number of his closest friends. A number of commuters present on the platform who witnessed these events were obviously traumatised. 17It is obvious that the jury's verdict imports the rejection of much of the offender's evidence at trial, and in particular any question of accident, self-defence, excessive self-defence and provocation. That said, I accept that the victim racially abused the offender in the course of their confrontation and that the use of the term "nigger" was offensive and capable of provoking the offender. However, such provocation as was offered by the victim was the consequence of the offender's own aggression towards the victim on the station platform. By the time the abuse was uttered by the victim, the offender had already resolved to assault the victim. Any abuse from the victim during the earlier confrontation near the phone booths could not have meaningfully contributed to the commission of the offence two hours later. 18Despite the availability of evidence at trial from a number of admittedly unreliable witnesses that the offender had previously expressed an intention to kill or stab the victim, I am not satisfied beyond reasonable doubt that the offender intended to kill. To the extent that such statements were made before or on the day of the offence, I am inclined to the view that it was an expression of the offender's false bravado. I am satisfied beyond reasonable doubt that the offender used the knife with the intention of inflicting really serious injury upon the victim, in the knowledge that the victim's imposing physical size placed the offender at a significant disadvantage in the absence of a weapon. 19This was a cowardly, vicious, vengeful and premeditated attack upon the victim which was out of all proportion to the petty animosities that existed between them. The possession and the use of the knife in these circumstances calls for particular emphasis upon the principle of general deterrence, as does the commission of the offence in public on a crowded railway station. 20More importantly, the offender was on conditional liberty, having been placed upon an 18 month bond for an assault in October 2010. The commission of this offence within 7 months of the imposition of the bond suggests a contempt for the law on the offender's part. That impression is reinforced by the pre-sentence report which notes that the offender's response to supervision "was borderline with missed appointments and minimal intervention to address his offending behaviour." 21The objective gravity of the offence is very high. But for the offender's own youth (22 years of age at the time of the offence), I would regard the standard non-parole period as entirely appropriate to this offence. There is no remorse, the offender maintaining in effect that the stabbing was accidental. The offender has expressed his regret for the death of the victim, but takes no responsibility for bringing it about, even to the extent of acknowledging that he was armed with a knife and continued to brandish it, after being urged by a number of witnesses (including his own friend Mbusi) to walk away. 22The offender is the middle child of three children born to his parents in South Africa. The offender's father came to Australia in 2003 with the remainder of the family joining him in February 2007, but for the offender's older sister who remains in South Africa. In 2008, the offender met a young woman who bore him two children, presently aged four years and 18 months respectively. At the time of the offence the offender was unemployed and in receipt of Centrelink benefits. He voluntarily terminated his employment because of an intention to move to Victoria where his partner and children were residing. Since the commission of this offence, the children are residing with the offender's parents, although the offender's partner remains in Victoria. 23The offender left school halfway through his final year to come to Australia. He entered year 10 and completed his school certificate. He then completed a certificate in information technology and a certificate of nursing. The offender was employed in nursing homes, in the construction industry and most recently in traffic control. 24A report under the hand of Dr Allnutt notes that the offender has no relevant drug and alcohol issues, apart from some former cannabis abuse, is not taking medication, was not seeing a mental health worker at the time of Dr Allnutt's interview, had no cognitive difficulties and appeared to have adequate insight and judgment. The offender gave Dr Allnutt an account of being kidnapped two weeks prior to the offence. During the offender's detention in a motor vehicle, he was threatened with a gun and handcuffed. At one point the gun discharged and the offender managed to escape. The offender claimed to be unaware of the reasons for this assault. The offender's account of these events and the sequelae suggested to Dr Allnutt that the offender suffered post-traumatic stress disorder as a result. Whilst the offender manifested "ongoing residual symptoms of post-traumatic stress disorder" at the time of Dr Allnutt's interview, Dr Allnutt went on to note that :- Post-traumatic stress disorder can contribute to the heightened sense of personal vulnerability. In this case, consideration needs to be given to the evidence that suggests that he initially approached the deceased (at least at the time of the later interchange at the railway lines prior to the offence). PTSD is more likely to cause a person to be avoidant of situations that are similar to the original, as they trigger anxiety. Notwithstanding this, in less severe cases of PTSD it is reasonable to consider that at the material time of the alleged offence when he was leaving the station that he was more prone to feeling anxious, when under attack. 25This opinion ought to be assessed against the background of the account provided by the offender to Dr Allnutt of the circumstances leading up to the stabbing of the victim, namely the account that was advanced at trial and rejected by the jury. The residual symptoms of PTSD noted by Dr Allnutt, namely "hypervigilance, social avoidance, intermittent nightmares, reduced quality of sleep and some depressive symptoms" may be equally consistent with the offender's incarceration for the first time at a young age. In any event, I do not accept that the offender's actions in the course of the commission of the offence are consistent with PTSD. To the extent that the offender's counsel submits that the offender suffers hardship in custody arising out of his PTSD, I do not accept that the condition is not capable of reasonably effective treatment, such as antidepressants, or that the offender's symptoms are more severe than the prospect of lengthy imprisonment inevitably produces. 26I take into account the fact that the offender suffered a number of stab wounds after his assault upon the victim, inflicted by the victim's friends. These wounds included multiple lacerations to the hand and scalp, cuts to the leg, buttock and face. The injuries were not permanent or life threatening but did result in the offender's hospitalisation for a period of time. 27The offender's parents and their associates describe the offence as out of character. The offender is not generally regarded as violent. It is difficult to determine whether or not the offender presents any future prospect of dangerousness. On balance, his immaturity, including a need to dominate his peers and assert his authority, is the more likely explanation for his offending, rather than any pervasive predisposition towards violence. However, the offender has thus far demonstrated a resistance to intervention aimed at improving his insight into his offending. 28The offender's prospects of rehabilitation are reasonable, although they arise principally from the ongoing support of his family. Their evidence on sentence suggested that they provide a stable and loving environment for the offender, yet they remain somewhat ignorant of his antisocial activities, his earlier abuse of drugs, and, I suspect, the true nature of his character. The offender's lengthy incarceration at such a young age for the first time warrants a finding of special circumstances to a moderate degree, given that the length of the sentence itself necessarily provides for a lengthy period of supervision. 29The reasons provided for the imposition of a sentence invariably and necessarily focus on the offender. It is understandable that the family of the victim feel lost and disempowered by the trial and sentencing procedure. Let me reassure each of them that the Court is acutely aware of the devastating effects upon them of the untimely death of a much loved family member. The violent circumstances surrounding his death must haunt their daily lives. For them, no sentence this Court can impose will compensate for their loss. The duty of this Court is to impose a sentence according to law, that is, a sentence which is warranted by a synthesis of all the objective and subjective circumstances. 30Mosa Julius Mbele, you are convicted of the murder of Brandon Siaa. I impose a non-parole period of 18 years, to date from 25 May 2011, expiring 24 May 2029, with a balance of term of 8 years, expiring 24 May 2037. You are eligible for release on 25 May 2029. 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: 20 September 2013