Supreme Court New South Wales Medium Neutral Citation: R v JP [2014] NSWSC 698 Hearing dates: 30 September 2013 - 4 November 2013; 4 April 2014; 24 April 2014 Decision date: 30 May 2014 Jurisdiction: Common Law - Criminal Before: Hall J Decision: Sentenced to a non-parole period of 7 years to date from 28 October 2013 expiring 27 October 2020, with an additional term of 3 years commencing 28 October 2020 expiring 27 October 2023. Order made pursuant to s 19(1) and s 19(3), Children (Criminal Proceedings) Act 1987 that the offender serve his non-parole period as a juvenile offender until the day upon which he attains the age of 21 years. Catchwords: CRIMINAL LAW - sentence - manslaughter - unlawful and dangerous act - juvenile offender - finding of special circumstances - variation to statutory ratio for non-parole period - direction that the offender serve as a juvenile offender until the day upon which he attains the age of 21 years Legislation Cited: Children (Criminal Proceedings) Act 1987 Crimes (Sentencing Procedure) Act 1999 Cases Cited: Cheung v R (2001) 209 CLR 1 JM v R [2012] NSWCCA 83 JT v R [2011] NSWCCA 128 KT v R [2008] NSWCCA 51 Maglis v R [2010] NSWCCA 247 R v AEM [2002] NSWCCA 58 R v Dodd (1991) 57 A Crim R 349 Regina v Hoerler [2004] NSWCCA 184 R v Isaacs (1997) 41 NSWLR 374 R v KT [2007] NSWSC 83 R v Pham & Ly (1991) 55 A Crim R 128 R v Previtera (1997) 94 A Crim R 76 R v West [2011] NSWCCA 91 The Queen v Olbrich (1999) 199 CLR 270 R v Voss [2003] NSWCCA 182 Wilson v The Queen (1991-1992) 174 CLR 313 Category: Sentence Parties: Regina (Crown) JP (Offender) Representation: Counsel: P Leask (Crown) P Young SC (Offender) Solicitors: Solicitor for Public Prosecutions (Crown) Lex Fori Lawyers (Offender) File Number(s): 2011/235975 Publication restriction: Pursuant to s 15A 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 or any of the underage witnesses. REMARKS ON SENTENCE 1The offender, referred to in the proceedings as JP, was arraigned on a charge of the murder of Eden Delir arising in respect of events that occurred on the evening of Saturday, 30 October 2010. 2The offender pleaded not guilty to murder. 3The trial before a jury of twelve and myself commenced on 30 September 2013 and on 4 November 2013 the jury returned a verdict of "not guilty of murder but guilty of manslaughter". 4The offender accordingly now stands for sentence on the jury's verdict for the offence of manslaughter. 5The offender was born in 1995. He was accordingly aged 15 years as at the date of the offence and he is presently 18 years of age. 6Following the return of the guilty verdict bail was refused. 7The sentence hearing took place on 4 and 24 April 2014. The Events of 30 October 2010 8On the evening of 30 October 2010 Eden Delir attended a teenage Halloween party at premises in Restwell Road, Bossley Park. A number of young people were invited largely through the internet website "Facebook". The evidence was that there were some messages posted on Facebook regarding some people from the Campbelltown area indicating that they were going to attend and bring drugs and alcohol to the party. 9In due course, a group of young males referred to as "the Wakeley boys" attended the party, uninvited, supposedly on the basis that males from Campbelltown referred to in evidence as "the Campbelltown boys" might attend and cause trouble. The offender was one of the former group to which I have referred. The members of it were described in evidence as of Middle Eastern appearance. 10The evidence indicated that Eden Delir arrived at the party at about 7:00pm with his friend JE and another female where they then commenced socialising with others. The evidence indicates that he appeared to be in good spirits whilst at the party. Prior to the attack upon him he had not been involved on the night in any form of dispute with the offender or any of his group. Events 11On the evening of Saturday, 30 October 2010 at approximately 8:00pm or a little later, the group of males, "the Wakeley boys" including the offender arrived at the party in Bossley Park. 12There was evidence that they were told that the Campbelltown boys were not attending the party. Nonetheless they stayed and entered the house. One of them was said to be holding a tubular metal pole. 13There was evidence that members of this uninvited group commenced asking individuals whether they were from Campbelltown, and one or more of their members in boisterous fashion were calling out at times asking "whose the Campbelltown boys". The evidence indicated that the attitude and tone of at least some of the members of this group appeared to be aggressive and confrontational and one or more of them were calling out from time to time in a loud voice thereby causing some disturbance to the party environment. 14At approximately 8:40pm a number of the partygoers, including Eden Delir, were out at the front of the house where the party was being held. 15Evidence was given by a number of witnesses. Some of that evidence went to the issue of the identity of the attacker who struck Eden Delir with a bottle and whether that person was the offender. I will deal with some of the evidence relevant to the question of the basis of the jury's verdict and to the findings that I am required to make for the purposes of sentencing. 16Before the attack upon the deceased, there was some evidence that at least one of the Wakeley boys group, not being the offender, saw Eden Delir at the party and said something to the effect that Eden had "snitched" on him, an apparent reference to Eden having made a report to police about a stolen mobile phone. (1) KC 17KC, a friend of Eden Delir's, attended the party and he saw a good deal of the events as they unfolded. He said he went out the front of the house and joined two friends. Shortly afterwards he said he saw the group of young males of Middle Eastern appearance also come out to the front of the house. He said he had earlier seen them acting in an aggressive manner inside the house. 18At the time they came out to the front of the house one of the males in the group was carrying what he described as a round tubular pole. KC said that he heard one of their number call out to Eden to come over to them. He said that Eden followed their request and went over towards them. He said that they then commenced to walk towards him. 19KC said that then a commotion broke out. He considered that there were about six young males of Middle Eastern appearance in the group. He said they surrounded Eden and then commenced to kick and hit him. He said he then heard glass break. He did not see a bottle make contact with the deceased as there was a tree or bush in his line of vision. He said, however, that he saw a pole being raised and also a bottle being raised and he saw a lot of kicking and hitting. He said that the young males in the group were then surrounding Eden. 20He said that he saw the deceased struck to the ground. This he said was shortly after he heard the glass shattering. 21He said that he was about 15-20 metres away at this time but he then moved towards the group. He was about 5 metres closer when he saw Eden trying to escape and he saw him fall before reaching the driveway. He said "they" continued punching him whilst on the ground. He then saw two or three of the young males run across the road as the rest continued to beat him. 22KC said that he was in shock at what was taking place and without apparent regard for his own safety he intervened with the male who had tried to line up the pole apparently, it appeared to him, to hit Eden whilst at the same time a chubby male was trying to push Eden down. KC in an endeavour to assist his friend jumped at the male with the pole which sent the male off towards the road. He said he saw him and his mates run off. (2) JE 23JE's evidence was that he identified the offender as one of four people punching and kicking Eden Delir. He said in evidence that before the assault upon the deceased commenced, a group of young men approached the deceased. One of that group he said distracted Eden whilst another struck him with a severe punch to the right side of his face. Very soon after followed an attack upon the deceased by four males. JE said that he heard a bottle break. He said that Eden Delir attempted to get away and that three of the four constituting the group to which he had earlier referred, chased him up the road. He said that before that, all four of them had been delivering punches and kicks to him. (3) JZ 24Another Crown witnesses, JZ, stated that he saw Eden Delir walk towards the male who had called out to him and that person was at the same time walking towards Eden and he then pulled his cap or hat off and said, "what's this?" and then, or very shortly after that, another male came from around the side of a truck and hit Eden on the right side of the face. JZ said he then saw Eden fall to the ground. He heard Eden call out. JZ said he saw Eden "stomped and kicked" with blows to the back, his head, the lower part of his body and on his legs: T 729. He said that he thought it was after that that Eden was trying to get up off the ground that he was struck with the bottle, although his evidence indicates that he did not actually see the bottle strike the deceased. 25After Eden got up and commenced to run towards Cowpasture Road, JZ said he saw a male chase after him and take hold of his jacket a few times and then he lost sight of the two of them. (4) TM 26TM said that at the party premises after the attack upon the deceased he was standing with LD-M when a male came up and asked for a cup of water. He said that this person had a cut along his hand (T 936) and was bleeding. TM later identified that person as the offender in a police photo array: T 936:21-26. (5) LD-M 27LD-M said that he saw a group attacking the deceased and that one of the members of the group was the offender. He said "they were just in like a circle formation, punching and kicking": T681:30-35. 28LD-M knew the offender. They had been to the same school together. He said that the offender was two years older than he was: T 630:21. LD-M said that after the attack the offender came and asked him to get him some water. He said that this occurred when they were outside the house 'on the grass area at the top": T 628:10. When LD-M asked the offender if he was alright, the offender pulled out his hand and he saw fresh blood on the palm of his hand. He asked SZ to get a cup of water: T 627-8. Also at 621:37-T 622:1-12. 29LD-M gave evidence of seeing the offender the next day at the KFC premises. He said they had a conversation. He said that in that conversation the offender asked "Did anyone see us do it." (6) HA-H 30HA-H gave evidence that before the attack he saw the offender enter the house. HA-H said that he was at the front door when the offender walked past him: T 839:20-25. He said that he saw him pick up an empty bottle off the floor. He said that he saw the offender then go outside with the bottle to where he said his group of friends were: T 840:45-46. 31HA-H said that after seeing the offender leave he, HA-H, then went through to the back of the house and left: T 841. Forensic Evidence 32There was evidence that established that the offender's blood was found on Eden Delir's cap. The Crown submitted that there was an irresistible inference flowing from that evidence, that the offender was involved in the attack, in particular, the assault on Eden Delir at the time of the attack or shortly thereafter. The blood on the cap, it was submitted, showed that the offender came into such proximity to the events that the deceased's blood was deposited on the fabric of the cap. 33Additionally, the offender was said to be bleeding from a fresh cut from the glass and that the only object that was capable of inflicting injury was the bottle which there was evidence the offender had been holding: Crown's Sentencing Submissions at [13](vi). 34Exhibit CK contained a transcript of a telephone intercept lawfully made by police on 28 November 2010. The transcript recorded a conversation on that date at 17:34:09 between SY (identified in the transcript as V2) and the offender (identified in the transcript as V3). 35The relevant extract was in the following terms: "V3: Yeah. Hey listen: um, thing, bro -talk to, you know Natalia ...? V2: Yeah, she was with me at the hospital just not long ago. She came here with me. V3: Yeah, she's saying, she's saying, she's blaming me for that, that guy, that, ah, her cousin died or some shit. V2: Why's she blaming you? V3: I don't know. 'Cause remember how I hit him and shit, bro? She's saying, oh, it was me, this-that. Tell her, say, 'What the fuck are you blaming my cousin for, this-that.' Talk to her. V2: Can I ask you a question? V3: What? V2: When you hit him, like... V3: Yep? V2: ...when you bottled him, did someone hit him after that? Like, were people hitting him... V3: Yeah, yeah, yeah, yeah. V2: But you stopped. Did you stop? V3: Yeah, yeah. (Stutters) Oh, I just, I, I, I left after that - that's why." (emphasis added) 36This telephone exchange, as I have earlier noted, was said by Mr Young to be open to interpretation and that the response "Yeah, yeah, yeah, yeah" was a response to the latter part of the question posed. However, whether that be so or not the jury were entitled to consider the offender's response to the question as adopting the opening premise or proposition in the question encapsulated within the words "... when you bottled him ...". The offender certainly did not seek to correct or reject SY statement. 37On the evidence, after the assaults upon him Eden Delir somehow managed to get up and run up the road. He entered the front yard of neighbouring premises. 38At about 9:40pm police attended the party and made inquiries about the whereabouts of the deceased. 39At about 10:30pm Eden was found lying unconscious down the side of a house further up Restwell Road. 40He was taken to hospital and remained in a coma following surgery. He passed away on 5 November 2010 as a result of head injuries sustained on 30 October 2010. The Sentencing Hearing 41The Crown tendered a number of documents which together were marked as Exhibit A in the proceedings on sentence. Exhibit A includes the following documents: (i) Victim Impact Statement of Ardavaz, Dorothy and Annabelle Delir. (ii) Criminal antecedents of the offender. (iii) The custodial history of the offender. (iv) A Juvenile Justice report by Lobna Yassine dated 18 March 2014. 42On behalf of the offender the following documents were tendered: (i) Exhibit 1: Report of Hanan Dover, Clinical and Forensic Psychologist dated 28 March 2014. (ii) Exhibit 2: Letter of Susan French, school Principal, dated 14 February 2014. (iii) Exhibit 3: Reference by Khalil Kamar (undated). (iv) Exhibit 4: Reference by Ashoor Lazar, Parish Priest of Holy Apostolic Catholic Assyrian Church of the East (dated 5 February 2014). (v) Exhibit 5: Copy of bail undertaking given by the offender (undated). 43Subsequent to the hearing Mr Young provided to my Associate a copy of the report from Juvenile Justice dated 22 May 2014 by Annika Ross and Sarah Abusharif. A copy of that report has been tendered today and is admitted into evidence. The Basis of the Crown's Case 44The Crown case at trial in relation to the offence of murder, and the implicit alternative count of manslaughter, was as follows: (a) The Count of Murder 45The Crown conducted the trial as to the offence of murder on the following bases: (i) Direct responsibility murder; (ii) Joint criminal enterprise murder; and (iii) Extended joint criminal enterprise murder. (b) The Alternative Count of Manslaughter 46As to the alternative verdict of manslaughter, the Crown relied upon the following bases: (i) Direct responsibility manslaughter; and (ii) Joint criminal enterprise manslaughter. 47In relation to the alternative verdict the jury was instructed that the two elements for the offence of direct responsibility manslaughter were: (i) That there was a deliberate act by the accused (the offender) which caused, or substantially contributed to death; and (ii) That this act was unlawful and dangerous. 48In sentencing the offender it is necessary to identify the basis upon which the jury determined its verdict. This issue was the subject of close attention in the submissions on sentence. By reason of its importance it is necessary that I refer in these remarks to the basis upon which I have determined that issue. The Basis for the Jury's Verdict of Manslaughter (i) Submissions for the Offender 49Mr Young SC who appeared on behalf of the offender submitted that the jury's verdict of manslaughter was based on a finding that the offender committed an unlawful and dangerous act, in that he participated in an assault involving punching and/or kicking the deceased, not done in self-defence and in circumstances where objectively there was a real risk of serious injury. 50Mr Young relied upon his written submissions dated 2 April 2014 and his Outline of Additional Submissions on Sentence dated 23 April 2014 supplemented by his oral submissions. 51Mr Young noted that the Crown at trial referred to various pieces of evidence that supported the conclusion which the Crown argued the jury would reach beyond reasonable doubt - that the offender struck the deceased on the head with a bottle with such force that it shattered. It was argued by the Crown at trial that such conduct enabled the inference to be drawn that the offender intended to cause grievous bodily harm. Mr Young further observed that the learned Crown Prosecutor repeatedly used the phrase in his address to the jury "what did he think was going to happen". 52It was contended for the offender that the jury could not have been satisfied beyond reasonable doubt that if the bottle caused the injury to the back of the deceased's head, it was the offender who did it: Outline of Submissions on Sentence on Behalf of the Offender at [4]. 53It was additionally submitted for the offender that the jury could not have accepted that if the offender joined in punching and/or kicking, it was done with the intent to inflict really serious injury. 54It was noted by Mr Young that there were no admissions by the offender as to his participation or role in the assault available to the Crown at the trial. 55It was further submitted: "In the background report of 18 March 2014 signed by Ms Lobna Yassine and Ms Sarah Abushariff, (Ex "A") the offender was reported as saying that he became involved in punching and kicking the deceased, along with his co-offenders. (page 1, para 3) Further, he denied 'using any object/weapon to assault the victim'. (page 1, paragraph 3) This version remains reasonably open to the evidence and is not susceptible of being rejected as fanciful, or self-serving to the point of incredulity. It accords with the evidence of a witness who knew the offender, and described his being involved in punching and kicking the deceased. (D-M 630 2)." (Submissions on Sentence of Behalf of the Offender at [8]-[10]) 56In the Outline of Additional Submissions on Sentence on Behalf of the Offender dated 23 April 2014, Mr Young observed, in relation to "use of a bottle": "(1) If the Court was satisfied beyond reasonable doubt that the offender struck the deceased on the head with a bottle causing it to shatter this would amount to an 'aggravating feature' for the purpose of sentence." 57In his Additional Submissions Mr Young referred to the relevant principles as stated in R v Isaacs (1997) 41 NSWLR 374 at 377-8 which were quoted with approval in Cheung v R (2001) 209 CLR 1 at 12-13. 58I will return to consider these principles and, in particular, the requirement that there be consistency of sentencing in accordance with the jury's verdict. 59In his additional submissions Mr Young observed that no witness gave direct evidence of seeing the offender strike the deceased over the head with a bottle, though a number heard the sound of breaking glass. 60Mr Young noted that the offender was said to have been seen with a bottle inside the house and to carry it outside. Further, there was evidence that he is said to have had blood on his hand after the incident and further that the offender's blood was found on the deceased's cap. 61Mr Young submitted that the conversation captured by a telephone intercept between the offender and SY on 28 November 2010 (part of Transcript at Exhibit CK) is ambiguous, and is capable of explanation other than it being an admission. 62Mr Young referred to the Crown opening which was on the basis that the offender "went smashing the bottle on Eden's head, cut himself". Further, the learned Crown Prosecutor observed that this was the basis for "direct responsibility murder" in the Crown case. 63In the Crown's closing address the Crown addressed the jury in relation to its contention that the offender directly intended grievous bodily harm: "The Crown alleges that he himself directly intended grievous bodily harm because during the course of the event he did something which was plainly indicative of that intention, because if you smash a bottle over someone's head, and at the same time that victim is being beaten by others who also have weapons, that is a person who is intending really serious bodily injury." (T 1122:9-14) 64Mr Young further referred to that part of the Crown's address as follows: "The Crown says that [JP] was participating in the joint criminal enterprise to assault Eden Delir with an intention to do grievous bodily harm, or that he reasonably contemplated in the course of an agreement to assault Eden Delir that one or more of his number might form an intent to cause really serious bodily harm, or in the absence of any joint criminal enterprise whatsoever, he, with the bottle, smashed it over the head of Eden Delir with intent to cause grievous bodily harm. (T1123:41-50) So, these facts speak. You either have that intent when he smashed this bottle over the head of Eden Delir, or he shared an intent with his compatriots to inflict grievous bodily harm, or if he didn't, what was he thinking was going to happen?" (T1123:49-T 1124:2) 65Mr Young in his additional submissions stated: "The Crown did not make any submissions that the offender (or anyone else with whom he was in a joint criminal enterprise) could smash a bottle over the deceased's head yet be found guilty of manslaughter." (Additional Submissions at [12]) 66Mr Young observed that the jury were addressed on behalf of the offender on joint criminal enterprise manslaughter and it was put to the jury that that was a preferable way of viewing the Crown case. Mr Young stated that there had not been a submission that such a manslaughter verdict was available if there was a finding that the offender had broken the bottle on the deceased's head. Considerable time, it was submitted, was spent in an attempt to dissuade the jury from such a conclusion: at [14]. 67Mr Young quoted the following passages from the summing up: "So the question of intention. I think I mentioned in passing the obvious example you see someone hitting someone over the head with an axe, you could infer readily from that act that that person has intention to cause that person grievous bodily harm." (Summing Up at p 30) "So I only identify those ("lies" topic, dealt with earlier) to illustrate how the Crown case is, notwithstanding there was no witness who could say the accused was the one that wielded the bottle, the Crown relies upon a series of facts called circumstantial evidence". (Summing Up at p 32-33) 68These passages, it was submitted, are examples of how the Crown's case on murder was characterised to the jury. 69Mr Young submitted that the Crown's treatment of the question of the use of a bottle by the offender during the course of the trial was confined to direct responsibility murder. He submitted that there was never a suggestion of its use in the way alleged could support a verdict of manslaughter. 70The alternative basis of murder, joint and extended, were addressed by the Crown, but never in the context of having used a bottle. 71Mr Young further submitted that the evidence does not support a finding beyond reasonable doubt that the offender broke the bottle over the head of the deceased. 72He submitted: "20. In the light of the way in which the trial was conducted, to sentence him on the basis that proposition is established would be inconsistent with the jury's verdict and/or what was necessarily implied by the verdict." (ii) Crown's Submissions on the Issue of the Basis of the Jury's Verdict 73The Crown relied upon its written submissions dated 4 April 2014 and its Supplementary Written Submissions dated 23 April 2014 and its oral submissions. 74The Crown submitted that the jury's verdict did not arise out of opposing bodies of evidence that gave rise to irreconcilable division in the evidence necessitating resolution. Nor could it be said that the evidence involved the rejection of competing bodies of evidence. The verdict of manslaughter, the Crown contended, was one that logically arose from the evidence and the onus of proof. Consistently with the issues at trial and the jury verdict, it was submitted that the offender's intention was "the material factor". 75The Crown case was that the offender was one of a subset of youths who set upon the deceased assaulting him "with weaponry" involving "a bottling". His connection to the bottle, directly and by inference, was said to have been "... critical at trial to his guilt" and that it marked out his participation and role in the joint enterprise beyond reasonable doubt. 76The Crown submission was that the doubt entertained to the offender's guilt of murder was one as to the element of intent. The Crown case was not that he had an intention to kill. The evidence was that Eden Delir was struck once with the bottle not more than once, and that it smashed. 77The Crown contended: "It was not conduct involving multiple blows with a weapon which in other cases uncontroversially indicates the manifest specific intention. And last, his conduct fell for consideration in the context of a violent joint enterprise." (At [5]) 78It was submitted these essential facts provided the basis for the jury's verdict and which the Crown proved beyond reasonable doubt: 79The Crown further submitted: "Although the alternative of manslaughter was left upon a basis that JP was culpable as a member of the attacking group, employing fists and feet, or both, and not a weapon, the evidence on the whole established beyond reasonable doubt that there was one who used a bottle, and it was JP. The court will be satisfied that it was the strike to the head with the bottle that proved to be the cause of the subdural bleeding and oxygen deprivation to his brain. Brain death and Eden Delir's mortality were the direct causal result." (Crown's Submissions on Sentence at [7]-[8]) 80The Crown also referred to the principles established in Cheung v The Queen (2001) 209 CLR 1; The Queen v Olbrich (1999) 199 CLR 270; and R v Isaacs (1997) 41 NSWLR 374 at 377-8, and I have had regard to the principles therein enunciated. 81The Crown stated that whilst a jury's verdict decides issues joined it does not decide all facts of possible relevance to sentencing but that it may be possible to infer that certain parts of the evidence must have been accepted: at [11]. 82The Crown referred to the evidence adduced at trial which it submitted established facts to the requisite degree that in turn established the offender's role as involving "direct liability" for the deceased's death and not mere accessorial in that respect. I have referred to the evidence bearing upon that aspect. 83The Crown submitted: "By all accounts the bottle resembled a wine or champagne bottle. It must have been struck with a great [deal?] of force, and although not satisfied beyond reasonable doubt that it was done with intent to cause grievous bodily injury in satisfaction of an element of a criminal offence, it suffices to qualify as involving a frightening degree of wilful violence and it was malicious." (Crown's Submissions on Sentence at [15]) 84In this case, the Crown observed that the offence of manslaughter may give rise to multiple bases including provocation even though no basis had in fact been advanced as a hypothesis at trial: Supplementary Submissions at [3]. 85Although it may be possible to determine that an argument must have been rejected in order for a jury arrive at the verdict that it did, the Crown submitted that that may not always be so: Supplementary Submissions at [4]. 86In the present case the Crown contended that all that might be determined is that the jury verdict must be taken as a rejection of a finding that the offender comprehended (and in terms of direct liability, specifically intended) grievous bodily harm. Hence, the acquittal on the charge of murder: Crown's Submissions at [4]. 87The Crown submitted that the offender's state of mind was in issue and the evidence supported beyond reasonable doubt that the offender struck Eden Delir with a bottle to the head. The latter finding did not exclude a finding of something less than the contemplation of grievous bodily harm. Principles 88It is necessary that I say something about the principles to be applied in relation to this aspect. 89The jury received written and oral directions on the offences of murder and manslaughter. Those directions in relation to each offence, as earlier indicated, identified the elements in respect of what was termed "direct responsibility murder" and "direct responsibility manslaughter" (additional to directions in relation to each on a joint criminal enterprise basis). 90The first of the two elements for direct responsibility murder and direct responsibility manslaughter were framed in identical terms, namely: "(1) There was a deliberate act by the accused which caused, or substantially contributed to death." 91The evidence in relation to that element for either offence was the subject of what I consider to have been significant evidence from a number of witnesses, namely, KC, JE, LD-M and HA-H. Leaving to one side, for the moment, the distinction between the offences of murder and manslaughter, their evidence was directly relevant to an issue that was common to either offence, namely, the question as to whether the offender was the person who committed a deliberate act, being the use of a bottle as a weapon striking the deceased on the head, which caused or substantially contributed to his death. 92The factual issue as to the identity of the person who struck the deceased with the bottle was a central factual issue in the trial upon which each of the above witnesses gave evidence of their observations and which evidence it was well open to the jury to accept. There was no attack upon any of the above three witnesses in terms of their truthfulness as distinct from the issue of the accuracy and reliability of what they said they saw and heard being tested. 93It must, in my assessment, be accepted that the jury were entitled, beyond reasonable doubt, to reach a finding that the assailant who smashed the bottle on the head of the deceased was in fact the offender. The evidence from a number of witnesses was consistent evidence and strongly implicated him. I conclude that the evidence did establish beyond reasonable doubt the offender as having been the assailant who struck Eden Delir with the bottle. 94A finding adverse to the offender on that issue then left for the jury's consideration the second element of the offence of murder, the issue of intent. If the jury was not satisfied that the evidence established that element - the requisite state of mind - to the necessary standard, then the second element of manslaughter would arise. The second element of both offences went to the question of mens rea or intent. Plainly the jury were not satisfied that the offender committed a deliberate act that caused or substantially contributed to the death of the deceased with the intent to cause grievous bodily harm. However, the jury were instructed that they were entitled to find the offence of manslaughter proved if, in addition to the first element, the second element for the offence of manslaughter was established beyond reasonable doubt, namely, "[t]he act was unlawful and dangerous". 95The physical element for the offence of manslaughter is, of course, the unlawful and dangerous act which causes death. The mental element requires that the act must be willed and not accidental: Wilson v The Queen (1991-92) 174 CLR 313 at 328. To be found guilty of manslaughter by unlawful and dangerous act, the circumstances must be such that a reasonable person in the position of an accused would have realised that he or she was exposing another or others to an appreciable risk of serious injury: Wilson (supra) at 332-4; Regina v KT [2007] NSWSC 83. 96It was open to the jury to consider, in determining the issue of "unlawful and dangerous", all of the evidence as to the assaults committed upon Eden Delir including the hitting, kicking and the action of striking him on the head with the bottle. In the event that the jury determined beyond reasonable doubt that the offender was the person who wielded the bottle smashing it on Eden Delir, it was then plainly open to it to conclude that his action in doing so constituted an unlawful and dangerous act and that it caused or contributed to the death of the deceased. There is, in my opinion, no basis upon which it can be said that the way in which the Crown conducted its case excluded or precluded the alternative offence of "direct responsibility manslaughter" upon that basis. 97I have accordingly concluded that it was open to the jury to find beyond reasonable doubt that the offender so acted in striking the deceased with the bottle with an intent to cause an unlawful and dangerous act being an act that carries an appreciable risk of serious injury: Wilson v The Queen (1991-1992) 174 CLR 313 at 333 per Mason CJ, Toohey, Gaudron and McHugh JJ. I am satisfied to the required standard that that was the basis for the jury's verdict of manslaughter. The Objective Gravity of the Offence 98The maximum penalty for the offence of manslaughter is imprisonment for 25 years. There is no prescribed standard non-parole period. 99The offender is to be sentenced on the basis of an unlawful and dangerous act that caused the death of the deceased. 100In assessing the objective seriousness of the offence of manslaughter by way of unlawful and dangerous act, it has been said that there is no hierarchy of seriousness between voluntary and involuntary manslaughter. Spigelman CJ said as much in Regina v Hoerler [2004] NSWCCA 184 at [29]: "Even a case where there is present an intention to kill or maim, which would constitute murder but which is reduced, by reason of provocation or diminished responsibility, to a charge of manslaughter, will not necessarily attract a higher sentence than other forms of manslaughter, including the relevant one here, ie, killing by an unlawful and dangerous act. As a five judge bench of this Court, including Gleeson CJ, Mason P, Hunt CJ at CL, Simpson and Hidden JJ, said in R v Issacs (1997) 41 NSWLR 374 at 381: 'The argument for the appellant advanced on this appeal appeared to assume that a case of provocation manslaughter is necessarily, or at least ordinarily, worse than a case of manslaughter by unlawful and dangerous act. We do not accept that. Each case depends upon its own circumstances. The range of sentencing available in the case of manslaughter is notoriously wide. There have been cases where provocation manslaughter has resulted in non-custodial sentences.'" 101In determining the sentence in the present case, I am required to consider the objective and subjective factors relevant to the offence and the aggravating and mitigating factors in accordance with the provisions of s 21A of the Crimes (Sentencing Procedure) Act 1999 and relevant sentencing principles. I am, in particular, required by law to take account of a number of matters in determining the objective gravity of the offence committed by the offender and the other matters to which I have referred. The sentence to be imposed is one that is appropriate to the particular crime, having regard to the gravity of the offence viewed objectively: Regina v Dodd (1991) 57 A Crim R 349 at 354. 102Without setting out the provisions of s 21A of the Crimes (Sentencing Procedure) Act, I bear in mind that those provisions seek to identify the relevant objective and subjective factors that establish the aggravating and mitigating circumstances of the offence. 103The evidence establishes that the offence of manslaughter in this case involved an unlawful attack involving a number of serious matters. These included the following: (i) The act causing death occurred in circumstances in which a group of young males including the offender (approximately six in number) identified the deceased who was known to one or more of their number and a decision was then made to physically attack him as a group. (ii) The attack had not been preceded on the day in question by any dispute or confrontation involving the deceased. He as an invited guest at the party was simply a participant enjoying a social occasion. (iii) The member of the group who called Eden over clearly did so for the purpose of setting him up for a group attack. (iv) The evidence as to the attack reflects a degree of co-ordinated activity amongst at least some members of the group - one called him over and distracted him by taking his hat/cap while another came in from the side and delivered a forceful blow to the right side of his head so severe as to knock him off balance. (v) By that stage, when their victim was in a wounded and vulnerable position, the members of the group moved in to jointly inflict a series of violent attacks involving punching, stomping and kicking the deceased to various parts of his body inflicting further injury upon him thereby rendering him even more vulnerable and unable to defend himself. (vi) At some point after the joint attack commenced the offender struck the deceased with a blow to his head using the bottle as a weapon smashing it and causing him to fall to the ground. The bottle, I find was the empty bottle which HA-H said he had not long before seen the offender pick up from the floor of the house. (vii) Notwithstanding that Eden Delir was by this time very seriously injured, members of the group, of which the offender was one, continued to carry out further assaults upon him with one or more members of the group endeavouring to hold him as he desperately attempted to escape. 104Those facts establish that the multiple and severe assaults upon Eden Delir constituted brutal, co-ordinated joint criminal activity that was unlawful, dangerous and cowardly. The fact that Eden Delir was outnumbered approximately six to one, that the attack was without any warning and was unprovoked and that the combined attack then continued upon an increasingly injured young man through kicking and punching, and then by the smashing of the bottle over his head, underlines the complete callousness of the attack that subsequently brought about the death of a young person approaching the threshold of young adult life. 105This was not, in other words, a case merely involving a spontaneous act. The objective seriousness of the offence in this case is much greater than those all-too-frequent cases where someone is punched to the head and falls to the ground and dies as a result of injuries sustained. The objective seriousness of this manslaughter cannot, in my assessment, be characterised as anything other than extremely grave. The actions of the offender, before the attack, in picking up the bottle in the house and taking it outside, convey a serious element of calculated conduct on his part. Subjective Facts 106The offender did not give evidence at trial or in the sentence hearing. Accordingly, the source of information in relation to his background is derived from materials that were tendered and that became exhibits in the proceedings. 107The offender, now as I have stated, 18 years of age, is the eldest of three children, their parents being of Assyrian ethnic background. His father is said to have arrived in Australia in 1992 on a refugee visa whilst his mother migrated to Australia from Syria in 1994. The offender was born a year later. 108The offender appeared to have little difficulty with his schooling in primary school but struggled with his education and learning in high school. His attendance at school appears to reflect those difficulties as his attendance record deteriorated. Ms French, the Principal at the offender's school, noted that he brought low academic skill levels to high school. She said that as with many who had low literacy and numeracy, he acted out with his peers and teachers, resulting in three suspensions in year 8, one in year 9 and three in year 10. The suspensions were imposed as a response to abusive behaviour, intimidation and aggression. Each suspension was said to have been resolved satisfactorily and his behaviour improved. 109Following his arrest, the offender transferred to Sydney Distance Education High School to complete the School Certificate which he completed in 2011. 110Ms French said that on visiting the offender in his home, his capacity to care and show empathy for others was immediately obvious demonstrated by his interaction with his mother and sister. 111Ms French referred to other favourable qualities exhibited by the offender. 112A Background Report by Lobna Yassine, Counsellor, and Sarah Abusharif, Assistant Manager (Clinical) of Juvenile Justice, was tendered and admitted as part of Exhibit A. 113No issues of family neglect or abuse were reported. Indeed, it is apparent that he has a supportive family. 114The report confirms that the offender has no prior convictions, that is, no previous Juvenile Justice history. 115Since being in custody the offender has participated in four educational subjects and is reported as progressing well and there have been no behavioural difficulties. 116The authors of the report record that the offender stated that he often empathises with the victim's family and reported a feeling of being overwhelmed by the sadness of their loss. 117The forensic medico-legal report of Ms Hanan Dover, Clinical and Forensic Psychologist, dated 28 March 2014 was based upon examinations carried out on 16 August 2013 and 12 October 2013 and the materials referred to in her report. 118Ms Dover stated that he reported episodes of anger and aggression and poor impulse control but could not explain the incidents in detail nor had adequate insight except to admit that he may need help with respect to his anger. 119Ms Dover assessed his general intellectual ability with a Full Scale IQ of 71 which is in the borderline range. She also assessed his verbal comprehension and perceptual reasoning, the former being in the extremely low range and the latter in the borderline range. She assessed his general cognitive ability as in the borderline range. She opined that he had significant impairment of intellectual functioning "which leads to a lack of understanding and insight into the consequences of one's own behaviour". 120I have read and taken into account the testimonials or references from Parish Priest Ashoor Lazar of 5 February 2004 (Exhibit 4) and that of Khalil Kamar, undated (Exhibit 3). 121There is evidence, as I have stated, in the Juvenile Justice Report to expressions of sadness by the offender for Eden Delir's family. I am prepared to accept that he has some remorse for what has occurred although it is difficult on the evidence to assess the extent or level of such remorse. Sentencing Juvenile Offenders 122In sentencing an offender I am first required to take into account the objective seriousness of the offence, the subjective circumstances of the offender and the special sentencing considerations applicable to young offenders. 123Because of his age as at the date of the offence, 15 years, the provisions of the Children (Criminal Proceedings) Act 1987 are, for sentencing purposes, applicable. 124Section 6 of that Act sets out "principles" to which I am required to have regard. In particular, the youth of an offender is a relevant factor in the sentencing consideration, to be given the appropriate weight, together with all other relevant factors. The above principles in their application will, of course, depend upon the nature of the offence charged as well as the age and conduct of the offender: R v Voss [2003] NSWCCA 182; R v AEM [2002] NSWCCA 58. 125In R v Pham & Ly (1991) 55 A Crim R 128 Lee J (with whom Gleeson CJ and Hunt J (as his Honour then was) agreed) stated in the context of offenders respectively aged 17 and 19: "It is true that courts must refrain from sending young persons to prison, unless that course is necessary, but the gravity of the crime and the fact that it is a crime of violence frequently committed by persons even in their teens must be kept steadfastly in mind otherwise the protective aspect of the criminal court's function will cease to operate. In short, deterrence and retribution do not cease to be significant merely because persons in their late teens are the persons committing grave crimes, particularly crimes involving physical violence to persons in their own homes." 126The principles that apply in the sentencing of young offenders were set out in KT v Regina [2008] NSWCCA 51 by McClellan CJ at CL at [22]-[25]. 127Although accepted to be of less significance than when sentencing adults, considerations of general deterrence and retribution cannot be completely ignored when sentencing young offenders. It has been noted that there remains a strong public interest in deterring antisocial conduct. 128In KT v Regina, supra, it was stated that the emphasis given to rehabilitation rather than general deterrence and retribution when sentencing young offenders, may be moderated when a young person has conducted him or herself in the way an adult might conduct him or herself, and has committed a crime of violence of considerable gravity. In determining whether a young offender has engaged in "adult behaviour" the court will look to various matters including the use of weapons, planning or premeditation, the existence of an extensive criminal history and the nature and circumstances of the offence. Where some or all of these factors are present the need for rehabilitation of the offender may be diminished by the need to protect society. In the present case, as I have noted, on the finding I have earlier made there was the use by the offender of a bottle as a weapon, there was very limited premeditation, commencing at or just prior to the offender picking up the bottle, the circumstances of the offence to which I have referred, and the fact that the offender does not have a criminal history. 129In JT v R [2011] NSWCCA 128 Hoeben J (as his Honour then was) was not persuaded in that case involving an offender who was 16 years and 7 months at the time of the offence, that it was the sort of offence which indicated impulsivity and immaturity on the part of the applicant so that the need for rehabilitation should be given paramount consideration. Rather, his Honour said, it was the very sort of offence that was referred to in KT at [24] and [25]. 130The weight of authority is that the seriousness of an offence is relevant to the emphasis that can be given to the youth of an offender. It has been observed, however, that that does not mean that youth is not an important consideration; but retribution and deterrence cannot, in a case as serious as the present case, give way entirely or even substantially to the interests of rehabilitation: JM v R [2012] NSWCCA 83 per Simpson J at [108] (dissenting but not on this point). 131In a case such as the present where there was a use of extreme violence occasioning death and occurring in the circumstances to which I have referred, general deterrence and retribution cannot be ignored. 132The factors to which I have referred in the sentencing of juvenile offenders, often pull in different directions. That is particularly marked in this case. The offender was in his mid-teens and has no criminal history. Allowance must be made for his immaturity. He has rehabilitation prospects although it is difficult on the evidence to say how strong those prospects are. Much will depend upon his capacity to free himself from peer groups with so-called normalised views on violence and the success of intervention strategies that provide insight about his use of violence as noted in the Juvenile Justice Report, part of Exhibit A. 133This is a case where individual deterrence and to a lesser extent, general deterrence, must be properly taken into account. The extreme level of violence, unprovoked, the use of the bottle as a weapon on a highly vulnerable victim as part of a calculated group attack upon him, mark the offence for which the offender is to be sentenced, as an extremely grave one and one that cannot be categorised as the crime of a child. 134In determining sentence I have considered a number of sentencing decisions which I do not reproduce here. I attach to these remarks a list of the decisions to which I refer. 135Given the various circumstances of each case they do not, of course, establish any particular pattern of sentencing. 136By reason of the particular matters associated with the objective gravity of the offence, the sentence I propose to impose is a substantial one. Special Circumstances 137I have considered the question as to whether there is a basis for a finding of special circumstances for the purposes of s 44 of the Crimes (Sentencing Procedure) Act 1999 so as to vary the relationship between the non-parole period, and the head sentence. In that respect I have considered the personal and subjective matters to which I have earlier referred. 138I have determined that the offender's age, and the absence of a history of previous juvenile offending, provide a basis for a finding of special circumstances for the purpose of the above provisions. 139However, although I have made such a finding it does not, in my assessment, permit a reduction of the non-parole period to a level that does not adequately reflect the objective seriousness of the offence and the culpability of the offender after regard is had to all relevant circumstances: Maglis v R [2010] NSWCCA 247; R v West [2011] NSWCCA 91. 140Accordingly, for those reasons on the special circumstances finding I have made I intend to provide a very limited adjustment only to the statutory ratio, namely, the ratio of the non-parole period to the total term. Victim Impact Statement 141A Victim Impact Statement prepared on behalf of the parents and sister of Eden Delir was received by the Court. The statement expresses in clear and dignified terms the grievous effect and the immense loss of the life of Eden Delir has had upon each of them. The loss of a young person in the circumstances with which this case is concerned are exceptionally painful and tragic. On behalf of the Court I extend my condolences to the family of the deceased for the immense loss that they have endured and will continue to endure. Nothing of course can address the immense loss that has occurred. I have dealt with the Victim Impact Statement in accordance with well established principles: R v Previtera (1997) 94 A Crim R 76. Sentencing as a Juvenile Offender 142In certain circumstances, if a court sentences a person under 21 years of age to imprisonment for an indictable offence it may direct that the whole or any part of the term of the sentence be served as a juvenile offender: s 19(1) Children (Criminal Proceedings) Act 1987. 143Section 19(3) of the lastmentioned Act provides that a person who is sentenced to imprisonment in respect of a serious children's indictable offence (as in the present case) is not eligible to serve a sentence of imprisonment as a juvenile offender after the person has attained the age of 18 years unless one or other of the matters set out in subparagraphs (a), (b) or (c) are satisfied. 144The eligibility to serve a sentence of imprisonment imposed in respect of a serious children's indictable offence as a juvenile offender after a person has attained the age of 18 years, in this case, would depend upon whether or not a finding of special circumstances can and is made under s 19(4) of the Act (in particular, subparagraphs (a) or (b) or (c) thereof). 145Mr Young tendered information supplied by Juvenile Justice in a report dated 22 May 2014 upon the offender's participation in various courses conducted by juvenile correctional facilities. 146It is clear from that report and from the report of Ms Hanan Dover that the offender has significant intellectual disabilities that have given rise to the need for special educational programs. Ms Dover assessed the offender's general cognitive ability as borderline range observing: "... those who score in the borderline range tend to also struggle with classroom and school environments. This was also reflective of his school reports and documents from the Department of Education ..." (Report at p 6) 147The need for specialised educational programs for the offender is directly linked to his capacity to appreciate and gain insight into his use of violence as observed in the Juvenile Justice report by Ms Yassine and Ms Abusharif to which I have earlier referred. That report emphasises the need for the offender's special educational needs to be met by appropriate support and attention. 148The recent report from Juvenile Justice dated 22 May 2014, identifies the courses that the offender has undertaken to the date of that letter. The authors of the report note that a preliminary assessment has indicated that the offender has a reading age of 12.5 years, and that further assessment is ongoing. The report states: "... this will assist with identifying areas of need and Girrakool School can provide one to one tutoring where the young person will be taken out of class for extra support if required." 149The report further states that a "longer term educational plan" will be developed closer to the completion of his IT course. The report concludes: "Mr de Joux advised that there is an extensive range of age-appropriate (adolescent) courses available to detainees." 150The provisions of s 19(3) and 19(4) and (4A) were the subject of consideration in JM v R [2012] NSWCCA 83. 151As was made clear in that case, the provisions of s 19(4) and (4A) indicate that more than mere youth is necessary to permit a finding of special circumstances. 152On the evidence before me, more is present in this case. 153The evidence, including, in particular, that to which I have referred, bears directly upon the provisions of s 19(4)(b), namely: "That the only available educational, vocational training or therapeutic programs that are suitable to the person's needs are those available in detention centres." 154The evidence makes plain that the offender has special educational needs and that such needs require special rather than ordinary educational or vocational training that are otherwise available. Unless his educational needs as identified in the evidence are met, his capacity to gain insight and reintegrate into the community in the future will be impaired. 155The only issue which as I understand it that the Crown points to on this issue is that there is no express evidence to establish that there are no available educational or vocational training programs available in adult correctional institutions. 156The evidence establishes that juvenile detention centres, including in particular the Girrakool School has the capacity to provide one-to-one tutoring to provide what is referred to as extra and age-specific programs. 157I do not doubt that there are educational and vocational programs available in adult correctional centres. That, however, is not the point. A relevant matter in the present case is that the offender does have special needs requiring special education programs. The evidence in these proceedings permits me to draw the inference that appropriate one-to-one tutoring, though available to juvenile offenders who have learning impairment, is not available in adult correctional centres. The Crown, of course, is in a position to call evidence to the contrary if that were not the case. There is no contrary evidence that would prevent the inference to which I have referred from being drawn. 158A finding of special circumstances under s 19, of course, does not permit an order to be made that goes beyond the offender's 21st birthday. 159I make an order pursuant to s 19(1) and 19(3), directing that the offender serve his non-parole period as a juvenile offender until the day upon which he attains the age of 21 years. 160In sentencing the offender it is my intention that he be able to remain in a children's detention centre as a juvenile offender until the day he turns 21, whereupon he is to be transferred to an adult gaol. 161In relation to the provisions of s 15C of the Children (Criminal Proceedings) Act I note that no application has been made by either party, or any other interested party, for the usual statutory prohibition on the publication or broadcast of the name of the offender to be lifted on the event of being convicted of a serious children's indictable offence. 162Having considered the provisions of s 15C, I do not consider that an order should be made pursuant to s 15C(2) and accordingly it would be an offence for any person to publish or broadcast material that connects the name of the offender with these criminal proceedings. Sentence 163JP you are convicted of the offence of manslaughter. I sentence you to a non-parole period of 7 years to date from 28 October 2013 and to expire on 27 October 2020. There will be a parole period of imprisonment of 3 years to commence on 28 October 2020 and to expire on 27 October 2023. 164Accordingly, the head sentence is a term of imprisonment for 10 years with a non-parole period of imprisonment for 7 years. 165The first date upon which the offender will be eligible for release to parole accordingly will be on 27 October 2020. ********** List of Comparative Sentencing Decisions 1Mariam v R; R v Mariam [2013] NSWCCA 338 2R v AEM [2002] NSWCCA 58 3R v AH [2011] NSWSC 1535 4R v CW [2009] NSWSC 1155 5Regina v Hoerler [2004] NSWCCA 184 6R v KT [2007] NSWSC 83 7R v Pham & Ly (1991) 55 A Crim R 128 8R v Sutcliffe & Ors [2013] NSWSC 715 9R v WA [2012] NSWSC 1317 10R v West [2011] NSWCCA 91 11R v Voss [2003] NSWCCA 182 ********** 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: 27 November 2014