Supreme Court New South Wales Medium Neutral Citation: R v AN [2014] NSWSC 1879 Hearing dates: 5 December 2014 Decision date: 19 December 2014 Jurisdiction: Common Law - Criminal Before: Hall J Decision: Offender convicted of the offence of manslaughter. Offender sentenced to a non-parole period of 3 years to commence on 17 December 2014 and to expire on 16 December 2017, and a parole period of 2 years 11 months to commence on 17 December 2017 and to expire on 16 November 2020. Direct that a report be prepared by Juvenile Justice in relation to the offender for the purpose of ascertaining whether there are circumstances falling within the provisions of s 19(4)(b) and/or (c) of the Children (Criminal Proceedings) Act 1987. The sentence imposed is subject to a determination to be made as to whether an order may be made under the provisions of s 19(4) of the Children (Criminal Proceedings) Act 1987 following any report from Juvenile Justice. The proceedings are stood over part-heard to 9:30am on Friday, 13 March 2015. Catchwords: CRIMINAL LAW - sentence - offender charged with murder - offender pleaded guilty at a late stage to the lesser offence of manslaughter - offender entitled to a discount of 15% - joint criminal enterprise - juvenile offender - finding of special circumstances - variation to statutory ratio for non-parole period - direction that a report be prepared for the purposes of ascertaining whether there are circumstances falling within the provisions of s 19(4)(b) and/or (c) of the Children (Criminal Proceedings) Act 1987- sentencing proceedings stood over Legislation Cited: Children (Criminal Proceedings) Act 1987 Crimes (Sentencing) Procedure) Act 1999 Category: Sentence Parties: Regina (Crown) AN (Offender) Representation: Counsel: P Leask (Crown) J Spencer (Offender) Solicitors: Solicitor for Public Prosecutions (Crown) John B Hajje & Associates (Offender) File Number(s): 2011/333568 Publication restriction: Non-Publication order in relation to the name of the accused and all under-age witnesses REMARKS ON SENTENCE 1. The offender, AN, was charged on indictment that on 5 November 2010, at Bossley Park in the State of New South Wales, he did murder Eden Delir. 2. On 10 September 2014, he entered a plea of guilty to a charge of Manslaughter and the Crown accepted the plea in full satisfaction of the indictment. 3. In February 2014, the Crown had indicated to the offender's legal representatives that it would accept a plea to manslaughter. Thereafter the required procedures were followed leading eventually to the guilty plea being entered. 4. Accordingly, the offender now stands for sentence in respect of the offence of manslaughter, the sentencing hearing having proceeded on 5 December 2014. Attached to these Remarks on Sentence is a Schedule setting out particulars as to the exhibited material tendered on behalf of the Crown and on behalf of the offender. 5. The offender was born on 18 May 1995 in Iraq. He was accordingly 15 years of age at the date of the commission of the offence on 30 October 2010 and is presently 19 years of age. 6. Exhibit A, a Statement of Agreed Facts signed on behalf of the offender, was tendered by the Crown. 7. The facts and circumstances to which I will refer are based upon the facts as agreed in that document. The Basis of Criminal Liability for Manslaughter 1. I turn to the basis of criminal liability for manslaughter. 2. In Exhibit A, set out the basis for the offender's criminal liability and what follows is based upon the matters contained in that exhibit. 3. The Crown observed that it is not part of the offender's liability for the offence of manslaughter that he physically attacked the deceased, Eden Delir, himself. However, he admits that he was present during the assault upon Eden Delir, was aware that it was to take place, and stood together with the offending group, present, willing and able to assist physically if needed, and by those acts encouraged and assisted others in what was a joint criminal enterprise: Exhibit A at [1]. 4. The offender's conduct accordingly establishes that he was complicit in what was an unlawful and dangerous act or acts. During the joint criminal enterprise in question, Eden Delir suffered a series of blows to his body by several of those who participated in the attack. Eden Delir was, by arrangement, the intended victim. It was not a random attack. The assault included the use of weapons. During the enterprise in which the offender participated, the act of another in the course of it had, as its direct physical consequence, the death of Eden Delir. 5. Injury was inflicted upon the deceased when he was struck to the head with a weapon, an empty wine bottle, which caused fatal injury to the blood vessels in his head. The haemorrhage of blood to surrounding areas of his brain, and consequent intracranial swelling, starved his brain of the oxygen necessary for life. Brain dead by arrival at hospital that night, Eden Delir was incapable of surviving without medical intervention in a hospital. On 5 November 2010, the life support system on which he depended was turned off: Exhibit A at [3]. 6. In the Statement of Agreed Facts it was recorded that present with the offender were five other associates including the offender referred to as JP. Eden Delir was the victim of an unprovoked assault during which one of the offender's co-offenders, JP, struck him to the head with the bottle. However, it was noted in Exhibit A that though not responsible for delivering the fatal blow or other physical attacks, the offender shares criminal and moral responsibility in the events and its consequence, namely death, because he participated in the joint criminal enterprise that brought it about: Exhibit A at [4]. 7. In the Agreed Statement of Facts it is noted that the criminal endeavour had as its object the use of violence and the combined force of numbers. It did not involve an intention to kill and no member of the joint criminal enterprise has been alleged to have entertained that intent throughout the entirety of legal proceedings: Exhibit A at [5]. 8. It was further noted in Exhibit A that the Crown accepted, and it is manifest in the plea of guilty to manslaughter in satisfaction of the indictment charging murder, that the Crown was not in a position to prove beyond reasonable doubt that the offender entertained a specific intent to cause grievous bodily harm or that he is punishable for his participation in a joint criminal enterprise in which the infliction of grievous bodily harm was intended by another or others: Exhibit A at [6]. 9. Accordingly, the offender is to be punished for the offence of manslaughter in which he shares criminal and moral responsibility for the death of Eden Delir: Exhibit A at [7]. Factual Circumstances 1. I turn to the factual circumstances. 2. It is not necessary to provide a full and detailed account of all relevant facts concerning the attack upon Eden Delir that occurred on 30 October 2010 as has been necessary in the sentencing of other co-offenders who have been convicted at trial. 3. It is sufficient to note that the crime of manslaughter was committed by the offender at a Halloween party held in Restwell Road, Bossley Park on the evening of 30 October 2010. However, the assault upon Eden Delir had its genesis in events that had occurred earlier in the same year: Exhibit A at [9]. The offender, it is to be noted, was not involved in those events. 4. The events concerning the incident that occurred in February 2010 explain why it was that Eden Delir became the target of the violence that caused his death and it is relevant to an evaluation of the degrees of relative culpability in the joint criminal enterprise. It is not, as I have stated, alleged either that the offender was party to those earlier events, or that he possessed knowledge to a material degree of them or that his sentence is aggravated by the earlier events. 5. Briefly, it may be recorded that on 20 February 2010 Eden Delir was called out by a co-offender who may be here referred to as JH and when outside his home three males with bandanas covering their faces ran towards him. They surrounded him. The co-offender, JH, then ran away. Eden Delir was assaulted and robbed of his Nokia mobile phone. On this occasion, Eden was kicked a number of times to the head and upper body and was subsequently treated in hospital for injuries sustained. 6. On 30 October 2010, a number of people were invited to the Halloween party, largely through the internet website, Facebook. 7. A number of persons, known as "the Wakeley Boys" attended uninvited. They had expected to encounter and confront another group referred to as "the Campbelltown Boys". However, as events turned out the Campbelltown boys did not attend the party. 8. At approximately 8:40pm a number of partygoers, including Eden Delir, and the group known as the Wakeley Boys together with the offender, were out the front of the house where the party was being held. 9. Eden Delir became the subject of comments made by one or more of the offending group, with a comment being made "that's the guy who snitched": Exhibit A at [26]. 10. One of the members of the group called out to Eden Delir and upon Eden and that person walking towards each other, the latter person took his white cap and said "what does your hat say". This, on the evidence, was a distraction tactic. Eden was then punched by a person who ran around the side of a truck with great ferocity, hitting him in the right side of the head causing him to fall to the ground. 11. He was immediately encircled by members of the group with which the offender was associated. This supports an inference that there was an element of planned co-ordination. Members of the group commenced to kick, punch and stomp on Eden, he having already been placed in a very vulnerable state. It was during the attack that he was struck with the wine bottle which shattered: Exhibit A at [29]. That action caused Eden Delir once again to fall to the ground. 12. Though still under attack, Eden somehow managed to escape from the group and run up Restwell Road. He was chased by one or more of the members of that group. 13. The offender was a member of the group who had surrounded Eden Delir before and at the time he was on the ground: Exhibit A at [32]. 14. A post-mortem examination was conducted by Dr Stephen Wills on 9 November 2010. Dr Wills' post-mortem report indicates that the cause of death was "head injury". His report detailed a multiplicity of wounds and bruising to Eden's head and face, to his upper limbs and to other parts of his body. Objective Seriousness of the Offence 1. I turn to the objective seriousness of the offence. 2. The objective circumstances of the attack upon Eden Delir establish that he was ambushed, rendered vulnerable and then set upon by four or more of the group of six that had encircled him. 3. The attack was entirely unprovoked. There had been no dispute or disagreement or confrontation prior to the attack being launched upon him. 4. The attack upon Eden Delir can only be described and regarded as a ferocious and cowardly one. The force of numbers against one vulnerable young victim, the use of weapons in the nature of a steel pole by at least one of the attackers, and in due course the use of a bottle as a weapon, marks out the offence as a very objectively serious offence of manslaughter. 5. It is clear on the evidence that the motivation of those who decided upon and participated in the attack on Eden Delir was associated with the fact that following the assault upon him on 20 February 2010, Eden Delir was interviewed by police and gave a statement to them. This was seen by members of the group of attackers as being totally unacceptable and regarded by their members as "snitching", and it is clear that the sole motive of those who decided upon the attack was related to the fact that Eden had provided information when interviewed by police. The attack was a form of retaliation or revenge. The Offender's Role 1. I turn to the offender's role. 2. A further matter of importance in determining sentence is the role of the offender in the group attack upon Eden Delir. 3. There are a number of matters to be stated in this respect: (1) The Crown made clear that it is not in a position to prove that the offender physically attacked Eden Delir with a weapon or otherwise. (2) There is no evidence or allegation that the offender was involved in the attack upon the deceased that occurred on 20 February 2010. (3) There is no evidence that, as at 30 October 2010, the offender had any knowledge, at the time of attending the party, of the events that had occurred on 20 February 2010. (4) There is no evidence and no allegation that the offender was one of the principal decision-makers who initiated the attack upon Eden Delir. 1. The Crown's submission was that the offender, assessed on a relative basis of culpability as amongst the offenders, is at the lower end of the hierarchy: T 4:15-20, 5 December 2014. 2. The Crown's further submission in this respect was in the following terms: "… it is a matter for the Court, of course, to evaluate relative moral culpability and there is a wide range of it amongst these co-offenders, but in terms of parity, he is going to be at the bottom of the hierarchy, the reason being the basis upon which he has pleaded guilty …" (T 4:20-25) 1. The Crown properly observed, however, that the offence was nonetheless a serious one. 2. The seriousness of the offending arose, amongst other matters, in the Crown's submission, from the degree of force utilised, that a number of assaults upon Eden Delir took place which persisted for some time, the number of individuals involved, assaults that included both punching and kicking and the use of weapons. As the Crown observed, and I accept, there was co-ordination amongst a number of the co-accused as to the roles the attackers adopted or pursued during the attack which only ended when Eden Delir managed to escape and not by reason of the members of the attacking group ceasing the assaults of their own accord. 3. Plainly, as the Crown observed, there was a foreseeable risk to life and limb. 4. The Crown submitted, and I accept, that the assault upon Eden Delir was triggered by the disapproval held against someone who is labelled a "snitch": T 6:10-15. 5. Mr Spencer of counsel, who appeared on behalf of the offender, confirmed that his client accepted that he was present at the time of the assault and was ready, willing and able to assist if needed: T 9:25-30. 6. Accordingly, it was accepted that he became a party to a joint criminal enterprise but that he was not complicit in the "… actual blow or assault, himself, upon the deceased …": T 9:30-35. 7. Accordingly, Mr Spencer submitted that the offender was in a markedly different position in terms of complicity and culpability than his co-offenders. 8. Further, it was submitted that the Crown could not and did not attempt to prove beyond reasonable doubt that the offender entertained a specific intent to cause grievous bodily harm or that his participation in the joint criminal enterprise in which the infliction of grievous bodily harm was intended by others. This was an important matter, he submitted, as to the issue of his intention as distinct from the intention of others: T 9:35-41. 9. On the offender's state of mind, Mr Spencer further submitted: "… he was not possessed of knowledge to a material degree as to the intent of others and therefore his sentence is not [aggravated] by the earlier events. In other words someone thought the deceased was a snitch and was going to do something to him. It is not asserted that he knew of that. You have a background of why the deceased was singled out and the Crown alluded to that. As I've said before, it is not alleged that this offender was possessed of that knowledge to any material extent … it can't be said to be an aggregated part of the events." (T 10:5-10) 1. Mr Spencer submitted that the offender was at the lower end of the range. He noted that the range of sentences on a charge of manslaughter varies greatly and each case had to be determined in accordance with its own facts. 2. As noted earlier, the Crown similarly accepted that the offender's culpability should be assessed at the lower end of the hierarchy, and I accept that submission. Subjective Factors 1. I turn to the subjective factors. 2. As I have noted earlier, the offender was 15 years of age at the date of the offence and, prior to the subject offence, did not have any criminal antecedents. 3. Exhibit B establishes that on 7 December 2010 he committed an offence of break and enter a house and on 20 December 2010 an offence of take and drive conveyance without consent of the owner (two counts). He was placed on a s 33(1) bond in respect of the first of those offences for a 12-month period and in respect of the second offences for a period of 9 months. 4. The Juvenile Justice Confidential Background Report dated 28 November 2014 written by Ms Wong, Juvenile Justice Counsellor and Sarah Abusharif, Assistant Manager, Clinical, contains relevant information concerning the offender, his family and his living circumstances. The report is based upon multiple interviews with the offender. 5. He was, as I have stated, born in Iraq and his family moved to Greece when he was two years of age to escape the war in that country. He and his family resided in Greece for five years before being granted refugee status to relocate to Australia when the offender was seven years of age. 6. There was no evidence indicating that the offender experienced any significant difficulties or hardships assimilating to life in Australia. 7. The offender's father died from a heart attack in the year of the subject offence. Following that, the authors of the report observed that, on the offender's account, he did not wish to witness his mother's grieving. He reported his lack of understanding regarding how to deal with his grief which led to him truanting from school and gravitating towards anti-social friends and behaviours. He said he spent an increasing amount of time outside the home. 8. The offender stated that since being granted bail he "got his act together". His former high school confirmed that his attitude towards schooling improved in Years 11 and 12. Following his completion of school he enrolled in the Diploma of Engineering (Standard) at UTS: Insearch (University of Technology, Sydney). 9. Exhibit 2 establishes that he commenced his course on 11 February 2014 but withdrew after one semester. The study period in the first semester was from 11 February 2014 to 23 May 2014. 10. The authors of the Background Report observed that the offender's re-engagement in and willingness to complete his university degree may be a protective factor in assisting him in preventing further offending behaviours. 11. There was no history of drug abuse, although the offender reported that he drank two to three beers on the night of the offence and that this made him feel intoxicated and affected his appreciation of the severity of the attack. 12. The denials or non-acceptance of his responsibility, as recorded in the Background Report are, of course, inconsistent with his plea to the charge of manslaughter on the basis of unlawful and dangerous act. However, it was made clear by Mr Spencer that no reliance was placed upon his inconsistent statements as recorded in the Background Report: T 2:20-35. 13. The account in the Background Report, however, refers to the fact that the offender said that he was of the understanding that a "fight" was going to occur, but denied that the victim was the intended target or that weapons would be used. 14. The offender identified that following his father's death he behaved impulsively and did not think about the consequences of his behaviour. 15. The authors of the report observed: "Further intervention may be beneficial to explore any underlying factors surrounding [AN's] denial, the reasons for providing inconsistent accounts of his involvement, and avoidance in discussing his attitudes and beliefs regarding the offence …" (at p 6) 1. The report of Dr Mohammad Abu-Arab, clinical Psychologist dated 20 October 2014, was tendered (Exhibit 1). 2. The offender was referred to Dr Abu-Arab by his general practitioner for counselling, trauma and depression management. 3. The report records the loss of the offender's father was an unfortunate blow to him at his age, namely, 15 years of age, and that he had reported that losing his father had affected his life to an extreme extent. In this respect it was noted: "At the age of 14 years he lost his father, and he was left with three younger siblings, and his mother was depressed." (at p 3) 1. Dr Abu-Arab observed that the loss of a parent at the age the offender was when his father died (14 years and 11 months) is known as a stressful event in a person who is said to be able to manage and cope with the loss of a family member: Report at pp 3-4. Discussion 1. It is relevant to discuss, at this point, the purposes of sentencing. 2. The purposes of sentencing are specified in the Crimes (Sentencing Procedure) Act 1999. They are stated to include: (a) To ensure that the offender is adequately punished for the offence. (b) To prevent crime by deterring the offender and other persons from committing similar offences. (c) To protect the community from the offender. (d) To promote the rehabilitation of the offender. (e) To make the offender accountable for his or her actions. (f) To denounce the conduct of the offender. (g) To recognise the harm done to the victim of the crime and the community. 1. Section 21A of that Act specifies that, in determining the appropriate sentence for an offence, the Court is to take into account the aggravating and the mitigating factors referred to in s 21A(2) and (3) and any other objective or subjective factor that affects the relative seriousness of the offence. 2. In the present case, the aggravating factors associated with the offence involve the offence involved the actual use of weapons by co-offenders, parties to the joint criminal enterprise with the offender, and the offence and the events involved a planned or organised criminal activity, it being observed, as I have earlier noted, that the offender did not use any weapon himself and was not a principal in the planning of the attack. 3. The mitigating factors under s 21A(3) include the following: the offender not having any record of previous convictions, that he was of good character, where the offender in question has good prospects of rehabilitation (whether by reason of the his age or otherwise), as well as a guilty plea being entered and any remorse shown by the offender for the offence, but only if, amongst other things, the offender has provided evidence that he or she has accepted responsibility for his or her actions. 4. This is a case, as I have stated, which involves a type of offending that is most serious. The fact that it was a group attack upon Eden Delir, who was completely outnumbered and was attacked by surprise and without warning in an attack involving the use of weapons, are all matters, as I have stated, that characterise the offence as an objectively very serious one. 5. It is in that context that the individual culpability of the offender is to be assessed. 6. Two co-offenders have thus far been sentenced on the basis of unlawful and dangerous act manslaughter, such co-offenders having been high in the hierarchy of culpability. 7. On the basis identified in the Crown's submissions and the submissions on behalf of the offender, I accept that there is no evidence in the present case which establishes that the offender was one of those who physically attacked Eden Delir. On the basis stated by the Crown, I accept that the offender's culpability must be assessed at the lower end of the range or hierarchy of culpability for the objectively serious offence in this case. 8. There is to be taken into account the offender's plea of guilty which, on accepted principles, entitles him to a discount on the sentence that would otherwise be imposed. Important in determining the extent of the discount is the time at which the plea is entered or which could reasonably have been entered. I have adverted earlier to the fact that it was in February 2014 that the Crown indicated that it would accept a plea of manslaughter in full satisfaction of the indictment. That said, the guilty plea was entered at a late stage. 9. In all the circumstances, I consider an appropriate discount for the offender's plea is a discount of 15%. 10. Whilst the Background Report records that the offender was able to acknowledge the amount of grief that the victim's parents might feel over the loss of their son, there is no evidence that establishes any genuine remorse or contrition upon the basis that he has accepted responsibility for his actions. 11. Apart from his culpability being assessed towards the lower end of the relevant hierarchy of culpability, for reasons I have earlier discussed, there is also to be taken into account as subjective factors the fact that he was only 15 years of age at the time of the offence, that he had suffered the trauma of losing his father with associated grieving by his mother which further impacted upon him, which all contributed to his truancy at school and his association with anti-social persons. 12. These individually, and in combination, represent strong subjective factors which are to be taken into account on sentencing. They are factors that operate in mitigation and affect the determination of the appropriate sentence for the offence. Victims Impact Statements 1. There were tendered at the sentencing hearing Victim Impact Statements. 2. The parents of Eden Delir, Ardavaz and Dorothy Delir, and their daughter Annabelle, provided Victim Impact Statements which were marked respectively Exhibits D and E in the proceedings. 3. The Statements are expressed in dignified but poignant terms, reflecting the immense loss that each have suffered with the death of their son and brother, on all accounts, a very fine young person. The Statements evidence the fact that the loss of Eden has had and will continue to impact upon their lives. 4. On behalf of the Court I again express my condolences to the members of Eden's family for the immense pain and suffering that they have and they will continue to endure. 5. I have noted the provisions of Division 2 of Part 3 of the Crime (Sentencing Procedure) Act 1999, in particular s 28 thereof. I have of course given close consideration to the victim impact statements in this case as significant material that is before the Court. In circumstances where no submissions have been made in relation to s 28, I have determined that the sentence should not be increased by virtue of the statements to which the Division applies, but is to be determined, as otherwise appropriate, on the evidence and the findings I have made. Rehabilitation Prospects 1. I turn to the question of the offender's rehabilitation prospects. 2. In determining the offender's rehabilitation prospects I have taken into account the Background Report of Juvenile Justice, together with the psychological report of Dr Abu-Arab. 3. The offender appears to have a supportive family and he has made efforts to advance his education, although he has discontinued his diploma course. However, his progress in completing his high school education and moving to a tertiary education, although only for a limited time, gives reason to believe that the offender does have reasonable prospects of rehabilitation. I have not overlooked, in forming that conclusion, the offences that were committed in late 2010 for which he was placed on two bonds. However, on balance I consider that, at his age, the relevant subjective factors and having regard to the fact that he had no prior convictions before the subject offence, that his rehabilitation prospects are, as I have earlier stated, good and that is a factor to be taken into account in determining the appropriate sentence to be imposed. Sentence 1. On the question of sentence, in order to give effect to the findings made as to the relative objective criminality of the offender's behaviour taking into account both the objective seriousness of the offence and the subjective factors that I am required to take into account, along with the Crown's acceptance that the offender's role marks out his criminality at the low end of the hierarchy, I have determined that the starting point for the sentence is a period of 7 years, which, after applying a discount of 15% for the offender's plea, results in a term of 5 years 11 months (rounded out). 2. I have also determined that a finding of special circumstances should be made given the offender's age and the fact that, prior to the offence, he had no criminal record. 3. On the basis of the finding of special circumstances I vary the statutory ratio of the non-parole period to the total term. 4. AN, you are convicted of the offence of manslaughter. I sentence you to a non-parole period of 3 years to commence on 17 December 2014 and to expire on 16 December 2017, and a parole period of 2 years 11 months to commence on 17 December 2017 and to expire on 16 November 2020. 5. Accordingly, the total sentence imposed is a period of 5 years and 11 months comprised of a non-parole period of 3 years with a parole period of 2 years and 11 months. 6. Accordingly the first date upon which you will be eligible for parole will be on 16 December 2017. 7. I direct that a report be prepared by Juvenile Justice in relation to the offender for the purpose of ascertaining whether there are circumstances falling within the provisions of s 19(4)(b) and/or (c) of the Children (Criminal Proceedings) Act 1987. 8. The sentence that I have imposed is subject to a determination to be made as to whether an order may be made under the provisions of s 19(4) of the Children (Criminal Proceedings) Act 1987 following any report from Juvenile Justice. For the purposes of s 19, the period of incarceration in a juvenile detention institution can only operate until the age of 21 years unless the provisions of s 19(4) of the Children (Criminal Proceedings) Act 1987 apply. Accordingly, in that respect, and for that purpose, the proceedings are stood over part-heard to 9:30am on Friday, 13 March 2015. ********** SCHEDULE OF EXHIBITS On behalf of the Crown the following documents were tendered: * Exhibit A – Statement of Agreed Facts * Exhibit B – Antecedents of AN * Exhibit C – Juvenile Justice Report dated 28 November 2014 * Exhibit D – Victims impact Statement of Delir family * Exhibit E – Victims Impact Statement of Annabelle Delir On behalf of AN the following documents were tendered: * Exhibit 1 – Psychological Report prepared by Dr Mahmoud Abu-Arab dated 20 October 2014 * Exhibit 2 – Statement from University of Technology Sydney (Insearch) re AN's enrolment in the Diploma of Engineering (Standard) 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: 14 January 2015