Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: BH v R [2016] NSWCCA 290 Hearing dates: 21 September 2016 Decision date: 07 December 2016 Before: Price J at [1] Button J at [2] Fagan J at [76] Decision: (1) Leave to appeal granted. (2) Appeal dismissed. Catchwords: CRIMINAL LAW – sentence appeal – manslaughter – guilty plea – juvenile offender – whether sentencing judge sentenced applicant on basis of factual findings not open – question of motivation for offence – whether sentence was manifestly excessive – appeal dismissed Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW), s 19(3) Cases Cited: Clarke v R [2015] NSWCCA 232 Mulato v The Queen [2006] NSWCCA 282 Turnbull v Chief Executive of the Office of Environment and Heritage (2015) 213 LGERA 220; [2015] NSWCCA 278 Category: Principal judgment Parties: BH (Applicant) Regina (Respondent) Representation: Counsel: E Ozen (Applicant) E Balodis (Respondent) Solicitors: Legal Aid New South Wales (Applicant) Office of the Director of Public Prosecutions (Respondent) File Number(s): 2013/293105 Publication restriction: Pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 (NSW) the name of the applicant is not to be published. Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 13 March 2015 Before: Baly SC DCJ File Number(s): 2013/293105 Judgment 1. Price J: I agree with Button J. 2. Button J: On 13 March 2015, Judge Baly SC, sitting in the District Court of New South Wales at Sydney, sentenced the young man to whom I shall refer as the applicant for one count of manslaughter, on the basis that he had committed an unlawful and dangerous act. He had pleaded guilty to that offence in the Children's Court at Parramatta on 21 November 2014, he having been born in June 1996. Background to the application 1. There was no dispute that, on the evening of 26 September 2013, the applicant, then aged 17 years and 3 months, had inflicted a single fatal punch on Mr Phillip Thackray (the deceased) during an interaction between the two of them at Parramatta Mall. A significant part of the proceedings on sentence, however, was a dispute about the motivation on the part of the applicant for that punch. Her Honour's adverse finding about the question of motivation forms the centrepiece of the application for leave to appeal brought before this Court. 2. Her Honour imposed a head sentence of imprisonment for 5 years and 3 months, with a non-parole period of 3 years and 11 months. A backdate was granted to 28 October 2013, which featured a small amount of concurrency with a separate short sentence that I shall detail later. 3. The sentence imposed by her Honour was founded upon a starting point of 7 years, to which an uncontroversial discount of 25% was applied for the utilitarian value of the early plea. 4. As can be seen, no finding of special circumstances was made that would have led to a variation of the statutory ratio between the non-parole period and the head sentence. 5. Furthermore, her Honour declined to make an order under s 19(3) of the Children (Criminal Proceedings) Act 1987 (NSW) with regard to the sentence for the serious children's indictable offence of manslaughter. As a result, the applicant was transferred to an adult gaol after sentence was imposed (he having turned 18 in June 2014). Objective features 1. An agreed statement of facts was placed before her Honour, along with CCTV footage that partially showed the incident unfold. The result was that, although as I have said there was a sharp dispute about motivation, there was no dispute that the following events had occurred. 2. At about 5 PM on the afternoon in question, the applicant was socialising with a group of young male and female friends at a park in Church Street, Parramatta. 3. At about 9 PM, he walked through the Church Street Mall to the Parramatta train station with a friend who was leaving to go home. 4. At about 9.24 PM, the applicant walked back through the mall alone. At about the same time, the deceased, then 60 years of age, and affected to some degree by alcohol, was also walking through the mall. They came into close proximity, and there appeared to be some communication between the two of them that lasted for a number of seconds. 5. They parted, and the applicant was walking away from the deceased. The deceased followed him, and was a short distance behind him, perhaps something in the order of one to two metres. 6. At that stage, the view of the applicant on the CCTV is blocked by a pillar. The deceased took two or three steps in the direction of where one can infer the applicant must have been, and then stopped. The deceased then turned around (that is, away from the applicant), but then turned again towards him. 7. The applicant stepped towards the deceased, and the deceased stepped towards him. The applicant then punched the deceased once with his right hand to the left side of his face. The deceased immediately fell to the ground. The applicant fled on foot. 8. By coincidence, a number of doctors were passing through the mall moments after the deceased fell to the ground. Extensive efforts were made to save his life by those doctors, the paramedics who arrived promptly by ambulance, and at a hospital. Tragically, all failed. 9. At autopsy, the deceased was found to have a fractured left jaw, and minor abrasions to his face and his elbows. He also had a significant blood alcohol reading of at least 0.20. 10. The next day, the applicant exchanged text messages with an associate. The associate warned the applicant that the associate had seen a news bulletin about the incident, and suggested that the applicant throw away what he had been wearing the previous evening, including his watch. The applicant texted that he had already thrown away his clothes, and enquired (in very primitive code) whether his face was depicted in the CCTV footage that had been broadcast. 11. The applicant was arrested on 27 September 2013, and has not been at liberty since then. 12. On 29 September 2013, an associate of the applicant told police that the applicant had "told me he got into a fight". 13. Her Honour also said the following at pp 17-18 of her remarks on sentence about the objective seriousness of this example of the offence of manslaughter: Turning to the objective seriousness, when sentencing for manslaughter regard must be had, of course, to what was done and why it was done but also to the context in which death was caused [her Honour referred to R v Hoerler (2004)147 A Crim R 520; [2004] NSWCCA 184 at [44]]. The surrounding circumstances bear upon the objective gravity of the offence and the moral culpability of the offender, see R v Loveridge [2014] NSWCCA 120 at 229. The offence was committed in a public place at night. As far as manslaughter offences go this is a serious one. I am not required to further categorise the objective seriousness of the offending. Sufficient to say that my finding is based upon the following: The offender made a conscious decision to strike the deceased and to deliver a punch to his face, appreciating that there was a risk that he would cause significant injury. He did so because he was provoked by a racist remark. However the deceased did not present a physical threat to the offender. The offender struck a forceful blow out of anger. The offender failed to assist the deceased in circumstances whereby it was clear to him that he must have injured the deceased. The offence is aggravated by the fact that the offender was on conditional liberty. Subjective features 1. As I have said, the question of motivation was a point of serious dispute in the proceedings on sentence. I shall detail that dispute shortly. 2. As I have also indicated, the applicant was aged 17 years and 3 months when he committed the offence of manslaughter. He is a young man of Maori descent, with dark skin (that attribute is relevant to an offensive remark that her Honour found was made by the deceased, which I shall discuss shortly). He pleaded guilty to the offence at an early stage of the proceedings, and her Honour found that he was remorseful about it. 3. The applicant had grown up in difficult circumstances. He was born in New Zealand, and his father had ties to an outlaw motorcycle gang. The whole family moved to this country in 2005, when the applicant was a young boy, in order to escape that criminal milieu. Violence marred the upbringing of the applicant, and he demonstrated a resultant anger from an early stage. 4. He suffers from attention deficit hyperactivity disorder (ADHD), which has responded to counselling and medication. Regrettably, his family could not always afford the latter. 5. He exhibited behavioural problems at primary school that extended into high school. He left school after completing year 10. A promising rugby career did not bear fruit. 6. Her Honour accepted that the upbringing of the applicant had featured acts of violence perpetrated against him, and accepted that he had been attacked "out of nowhere and smashed in the back of his head with a piece of wood". 7. Finally, the applicant has been diagnosed as suffering from a borderline intellectual disability. 8. Separately, an important part of the evidence before her Honour was the criminal record of the applicant. It showed the following. 9. In June 2012, he had committed an assault with intent to rob. At the Children's Court at Parramatta in July 2012, he had been placed on an 18 month bond. 10. In December 2012, he committed a robbery in company. In the Children's Court at Parramatta in July 2013, he was placed on probation for 12 months. That led to him being called up on the same date on the bond for the assault with intent to rob, and the bond was converted to probation for 12 months expiring in July 2014. 11. He was fined $50 in April 2013 for failing or refusing to disclose his identity on request. 12. In April 2013, he was cautioned, fined, and disqualified for driving with the middle range concentration of alcohol in his blood, and for driving whilst never having been licensed to do so. Those offences occurred in April 2013. 13. In December 2013, the probation for the robbery in company was in turn called up, and a control order of 2 months was imposed. 14. In December 2013, he was also placed on probation for 12 months expiring in December 2014 for an offence of "Goods in Custody", which he had committed in September 2013. 15. In other words, it was not disputed that the applicant had committed two crimes of violence before the evening upon which he committed manslaughter. Nor was it disputed that, as at September 2013, he was on two forms of conditional liberty. 16. His custodial record was also placed before her Honour. It showed that, whilst held in a juvenile detention centre since October 2013, he had committed five acts of actual or threatened violence: two acts of intimidation in January 2014; one act of intimidation in March 2014; at least one assault in January 2015; and a further act of intimidation in the same month and year. 17. On the other hand, in custody the applicant had enjoyed the support of his family, who visited him every weekend. The father of his young girlfriend had offered him employment upon release, and the applicant had been undertaking training whilst detained. Both the father of his girlfriend and a juvenile justice officer (who had had extensive contact with the applicant in custody) spoke very highly of his potential for rehabilitation. 18. Finally, the applicant accepted before her Honour that he suffered from a serious problem with anger management in the period leading up to the offence. Evidence was placed before her Honour that the applicant had done some boxing training, in an effort to provide an outlet for that problem. The question about motivation 1. Turning to the factual dispute that largely founds the appeal, the applicant gave evidence on oath that, at an early stage of the interaction between himself and the deceased, the deceased called the applicant a "black peasant". Her Honour accepted that that had been said by the deceased. 2. The position of the applicant, however, was not that he had punched the deceased in a provoked rage, or indeed in anger at all. Rather, his position was that, because of all of the brutality to which he had been subject throughout his highly disadvantaged life, his realisation that the deceased was walking behind him – perhaps preparatory to attacking him – made him fearful. In short, his position was that he had responded violently in fear, not in anger. 3. The applicant was cross-examined at length by the lawyer for the Crown at the proceedings on sentence. It is noteworthy that the following exchanges occurred: Q. Did he look like a fit and strong man to you? A. Yes. Q. Did he look like someone who you'd be scared of? A. I can't say I'd be scared of him. Q. You weren't scared of him, sir, were you? A. Not afraid of anybody. Q. You weren't afraid of him at all, sir, were you? A. If he was coming up behind me yes, I would be. Q. Sir, he was a 60 year old man-- A. If I know that, no, I didn't. … Q. Sir in the report from Dr Pullman [sic] she says that you smoked 20 cigarettes a day since the age of 16 and also you drank 24 cans of full strength beer each night. I just want to focus on that part. The drinking of the 24 cans of full strength beer each night, when did that start? A. You just said it. Q. Since the age of 16? A. But I wouldn't say I drank them all they'll probably be there. Q. But you do that every night? HER HONOUR: Sir? MORKAYA [Crown Prosecutor] Q. Is that what you're saying? A. I drink when I can. … Q. Where did you get the money for the alcohol sir? A. I can't say that, I don't – you know. HER HONOUR Q. What do you mean "you can't say that?" A. My dad gives me money when he can. MORKAYA Q. Sir is the alcohol cheaper than the Ritalin or is the Ritalin more expensive than the alcohol? OZEN [counsel for the offender]: Your Honour, WITNESS: Jesus. [emphasis added] 1. In the result, her Honour came to the following position in her remarks on sentence at p 16: I have come to the view that the offender acted out of anger rather than from fear. It seems to me that the threat posed by the deceased was not as significant as the offender would have me accept. However I do not accept that the deceased was merely annoying to the offender. I find that the words used by the deceased provoked in the offender a degree of anger that he was unable or unwilling to control. He struck out in anger. Grounds of appeal Ground 1: The sentencing judge sentenced the applicant on the basis of factual findings not open to her. 1. Counsel for the applicant submitted that, on all of the evidence, it was not reasonably open to her Honour to find that the motivation for the fatal punch was anger as opposed to fear. He was content to rely on that formulation of the test for intervention, and did not delve into the different approaches suggested by members of this Court: see Turnbull v Chief Executive of the Office of Environment and Heritage (2015) 213 LGERA 220; [2015] NSWCCA 278; and Clarke v R [2015] NSWCCA 232. 2. It was said that her Honour had indeed accepted that the applicant had been spoken to in a way that vilified him because of his race. As the CCTV showed, however, he had not responded immediately with angry violence. To the contrary, it was said, one can see that he had walked away from the deceased, and it was the deceased that followed him for a time. It was after that that the two of them approached each other, and the fatal punch was thrown. 3. Emphasis was placed upon the fact that the applicant had given his version on oath, rather than asking her Honour to deduce it from documents or other indirect evidence. 4. The proclivity to violence and anger of the applicant in the past was relied upon in support of the proposition that this was not an act of anger. In light of his background, it was submitted, if he had been moved to anger, it undoubtedly would have shown itself at the time of the racial slur, not afterwards. 5. Turning to my determination of this ground, I accept that minds may legitimately differ about the resolution of the question of motivation. That is one thing; it is another to find that the resolution arrived at by her Honour – who, of course, had the opportunity to observe the applicant in the witness box, an opportunity denied to members of this Court – was not reasonably open. I say that for the following reasons. 6. First, the CCTV footage was played at least twice during the hearing of the application, and I have also reviewed it repeatedly in Chambers. It is true that the applicant walked away from the deceased for a period, and the deceased followed him for a short time. Having said that, it is not the case that, during that period, the deceased was "breathing down the neck" of the applicant. Rather, he was at least a step or two behind. Furthermore, it is clear that, for whatever reason, at the end of the interaction each man approached the other. In short, the CCTV footage does not of itself establish that her Honour was mistaken. 7. Secondly, it is not the case that the applicant pushed the deceased over, or kicked him in the shins, or punched him in the shoulder. Nor indeed is it the case that the applicant – a physically healthy young man – quickened his pace, or ran away in fear from the deceased. Rather, the applicant punched the deceased to the jaw with sufficient force to break it, and with sufficient force to cause the deceased to fall to the ground immediately. 8. Thirdly, the applicant was aged 17 years, and the deceased 60 years. Speaking generally, one might expect a contrast in relative strength between two males of those ages. 9. Fourthly, the applicant had undertaken some boxing training, and accepted in the witness box that that had strengthened his arms and hands. 10. Fifthly, the applicant frankly accepted that, as at the time of the offence, he had a longstanding problem managing his anger. 11. Sixthly, his criminal record showed that, prior to the evening in question, he had (at the least) been part of serious crimes of violence on two occasions. 12. Seventhly, his record of offences whilst in custody had a similar flavour. 13. Eighthly, her Honour accepted that a distressing racial remark had been made. It is quite true, to his credit, that the applicant did not respond immediately to it. Nevertheless, it provides a context in which an act borne of anger could have occurred a short time after the remark was heard by the applicant. 14. Ninthly, the accused fled the scene, and took steps to hide what he had done, thereby evidencing a consciousness of guilt. Of course, one should not make too much of that, in the case of an immature juvenile suffering from an intellectual disability and ADHD. Having said that, it is not the case that the applicant remained at the scene, and immediately spoke to others of having acted completely (or even partially) in self-defence. 15. Tenthly and finally, although the transcript of the evidence of the applicant self-evidently does not capture the tone or volume in which he spoke, it is possible that his demeanour in the extracts of his evidence that I have provided did not assist his case on the question of his readiness to be raised to anger on the evening in question. 16. In short, as I have said, minds may legitimately differ about whether or not one might find that the fatal violence was motivated by anger, fear, or a complex mixture of both. On all the evidence placed before the sentencing judge, however, I do not consider that it can be said that the adverse finding at which her Honour ultimately arrived was not reasonably open to her evaluation. 17. For those reasons, I would reject ground 1. Ground 2: The sentence was, in all the circumstances, manifestly excessive, and another sentence is warranted at law. 1. This ground was based, to a degree, on the success of ground 1. It was also based, to a large degree, on the assessment of objective seriousness made by her Honour. I have already extracted it in its entirety at [20]. 2. It was explained by counsel for the applicant that, along with the assertion that the assessment of objective seriousness extracted above was too high, ground 2 was also based on the sentencing judge having paid insufficient regard to the powerful subjective features. 3. It was also noted that the failure to find special circumstances with regard to the statutory ratio, and the failure to make a finding of special circumstances with regard to s 19(3) of the Children (Criminal Proceedings) Act, meant that they would, in combination, operate very much to the disadvantage of the applicant. 4. In regard to the latter, I interpolate that one can infer that the refusal of her Honour to alter the place of custody would have taken effect shortly after the imposition of sentence on 13 March 2015. That is because, although the applicant had turned 18 in June 2014, his custodial record shows that he was not transferred to an adult gaol at that stage. I infer that that was because the authorities awaited subsequent resolution of the question by her Honour on the occasion of imposition of sentence. 5. Nevertheless, on the assumption that the applicant moved to an adult gaol on 13 March 2015, and bearing in mind the first possible date for release to parole is 27 September 2017, the applicant will spend a minimum of 2 years and 6 months detained in an adult prison. 6. Counsel for the applicant made the following submissions in support of ground 2. 7. First, with regard to the first basis of the ground (erroneous assessment of objective seriousness), counsel submitted that matters that reduced the objective seriousness included: that the applicant was not the aggressor, and had not previously displayed aggressive conduct on the night; that the applicant was not intoxicated; that the applicant did not approach the deceased; that the applicant did not initially respond with aggression, but rather attempted to walk away; and that it was only after a further verbal altercation, and at a point at which the applicant feared that the deceased would strike him, that he struck the deceased. 8. Secondly, with regard to the second basis of the ground, counsel for the applicant submitted that the sentencing judge had insufficient regard to the powerful subjective case. In particular, he noted that the applicant was a victim of domestic violence and disadvantage; that he suffered from ADHD, sometimes untreated due to poverty; the existence of an offer of work for the applicant; the evidence of real breakthroughs in his behavioural difficulties; and all of the matters that suggested good prospects of rehabilitation. 9. Thirdly, he submitted that the failure to vary the statutory ratio or to permit the applicant to serve his sentence in juvenile detention in combination operated harshly. Counsel for the applicant submitted that serving his sentence in juvenile detention would have provided further educational and vocational opportunities to the applicant, which would in turn have assisted him in taking up the offer of work. He also pointed to the evidence in the proceedings on sentence that the applicant had built strong rapport with a particular Juvenile Justice Officer in juvenile detention. 10. Turning to my determination of this ground, when boiled down to its essentials, the objective finding of her Honour extracted at [20] was that this was a serious example of the offence of manslaughter. This Court is notoriously slow to interfere with the evaluative judgments of sentencing judges about objective seriousness: Mulato v The Queen [2006] NSWCCA 282. Quite apart from that, the factors to which her Honour pointed demonstrate the correctness of the assessment of the matter as a serious example of the notoriously varied offence of manslaughter. 11. Separately, minds may again differ as to whether special circumstances had been established in this case, either with regard to the statutory ratio or the place of detention. But again, I do not think that the findings made by her Honour can be impugned as not open to her evaluative judgment, even as a "sub-ground" of an allegation of manifest excess. 12. Thirdly, it is true that here was a young man who had suffered deeply from many disadvantages as a child and teenager, through no fault of his own. The applicant had accepted his guilt, and her Honour had found him to be remorseful, with regard to an offence that was completed in a moment. 13. To be weighed against that were his previous intersections with the criminal justice system; his conditional liberty arising from two crimes of violence; and the simple fact that, as a result of an act found to be borne of anger, a human life was violently and senselessly extinguished. 14. The sentence featured no shortening of the non-parole period. It also led to the incarceration of a young man in an adult gaol for over two years, for an offence committed when he was barely 17 years old. I respectfully think that that sentence was not without its punitive aspects. In all of the circumstances, however, I am not persuaded that the sentence imposed by her Honour of a head sentence of 5 years and 3 months, with a non-parole period of 3 years and 11 months, was manifestly unreasonable, or plainly unjust. 15. It follows that I would dismiss this ground as well. Proposed orders 1. Accordingly, I propose the following orders: 1. Leave to appeal granted. 2. Appeal dismissed. 1. Fagan J: I agree with Button J. ********** 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: 07 December 2016