Court of Criminal Appeal Supreme Court New South Wales

• Medium Neutral Citation: JB v Regina [2012] NSWCCA 12
• Hearing dates: 20 September 2011
• Decision date: 17 February 2012
• Before: Whealy JA at [1]; Hislop J at [72]; Grove AJ at [73]

Decision

1. Appeal against conviction is dismissed.

2. Leave to appeal against sentence is granted.

3. Appeal against sentence is dismissed.

• Catchwords: CRIMINAL LAW - appeal - conviction - admissions - s 90 Evidence Ac 1995 - whether the trial judge should have admitted admissions made by an accused to a community support person.; CRIMINAL LAW - appeal - conviction - misdirection in presentation of defence case to jury - whether self-defence should have been put to the jury.; CRIMINAL LAW - appeal - sentence - wrong statutory ratio of parole to non-parole period - s 44 Crimes (Sentencing Procedure) Act 1999.; CRIMINAL LAW - appeal - sentence - whether the sentence was manifestly excessive - whether trial judge considered all mitigating factors - s 21A(3) Crimes (Sentencing Procedure) Act 1999.
• Legislation Cited: - Children (Criminal Proceedings) Act 1987 - s 13; - Crimes (Sentencing Procedure) Act 1999 - ss 21A(3), 44; - Evidence Act 1995 (NSW), ss 90, 118, 126, 127; - Law Enforcement (Powers and Responsibilities) Regulation 2005 (NSW) - clauses 27(4), 34(2); - Children (Criminal Proceedings) Act 1987 - s 13; - Crimes (Sentencing Procedure) Act 1999 - ss 21A(3), 44
• Cases Cited: - Caristo v R [2011] NSWCCA 7; - Carney v R; Cambrey v R [2011] NSWCCA 223; - Douglass v R [2005] NSWCCA 419; - DPP v Toomalatai [2006] VSC 256; 13 VR 319; - Em v The Queen [2007] HCA 46; 232 CLR 67; - Mencarious v R (2008) 189 A Crim R 219; - Pemble v R [1971] HCA 20; (1971) 124 CLR 107; - Power v R (9174) 131 CLR 623; - R v Cramp [2004] NSWCCA 264; - R v Elyard [2006] NSWCCA 43; - R v Honan (unreported, NSWSC, Hidden J, 24 March 1996); - R v Huynh and Phung [2001] NSWSC 357; - R v Lee (1950) 82 CLR 133; - R v Lilley (2004) 150 A Crim R 591; - R v Mitchell; R v Gallagher (2007) 177 A Crim R 94; - R v Park [2003] NSWCCA 203; - R v Simpson (2001) 53 NSWLR 704; - R v Sophear Em [2003] NSWCCA 374; - R v Wickham [2004] NSWCCA 193; - Trad v R [2009] NSWCCA 56
• Category: Principal judgment
• Parties: JB (Applicant); Regina (Respondent)
• Representation: Counsel: M. Smith (Applicant); J.H. Pickering (Crown); Solicitors: Crimlaw (NSW) Pty Ltd (Applicant); S. Kavanagh (Solicitor for Public Prosecutions)
• File Number(s): 2009/000802

Decision under appeal

• Citation: [2010] NSWSC 543
• Date of Decision: 2010-05-21 00:00:00
• Before: Latham J
• File Number(s): 2009/000802

Judgment

1 WHEALY JA : The appellant was convicted after trial for the murder of Edward Spowart (the deceased) arising out of an incident in the early hours of 21 April 2008. The jury, by its verdict, accepted that it was the appellant who had stabbed the deceased three times, causing his death.

2 The trial judge sentenced the appellant to a non-parole period of 16 years to date from 22 April 2008 with the balance of term of 7 years expiring on 21 April 2031.

3 The appellant appeals in relation to both his conviction and sentence.

4 On the conviction appeal, the appellant complains in relation to two discrete matters. The first is that the trial judge should not have admitted the admissions that the appellant made to Sean Clayton, a support person. Secondly, it is claimed that her Honour should have left self-defence to the jury, even though the appellant's case at trial was that he had not been involved in the stabbing of the deceased.

Facts at trial

5 The events leading to the death of the deceased arose out of a confrontation between members of two ethnic groups late in the evening of 20 April 2008. The appellant and his group of friends were in the concourse area of Granville Railway Station at the time. Each had been drinking, although the precise amount was difficult to determine. Each of these men was a person of Sudanese origin.

6 The second group of men, which included the deceased, were of Fijian or Islander origin. There was a confrontation between members of the two groups and this escalated into a brawl on the streets of Granville. It seems that a number of men and youths armed themselves with sticks, bricks and street signs. The trial judge found, however, that the deceased played no active part in the confrontation or the later hostilities which erupted. Her Honour described the deceased as "an innocent bystander". It seems he had retreated to the relative safety of a grass verge and was carrying nothing more than a plastic shopping bag when the appellant ran towards him with a knife and viciously assaulted him. He was stabbed three times. The wounds were to the chest, abdomen and leg. The latter incision severed the femoral artery, leading to the deceased's death within a short time, despite the attendance of ambulance personnel at the scene.

7 The initial confrontation was in fact initiated by the appellant. It was near midnight when the appellant approached the other group of men at Granville Station. The appellant asked for a cigarette but was rebuffed and told to go home. Apparently reacting out of a wounded sense of pride, the appellant threw a punch. There was retaliation from the other group of men in the form of pushing and then later chasing the Sudanese group from the station concourse down into the street. The trial judge noted in her remarks on sentence that the deceased could be seen on CCTV at this point leaving the station concourse by an alternative route. At no time did he engage in any contact with the appellant or his friends.

8 In any event, some of the deceased's friends from the group at the railway station continued to chase the appellant and at least one other young male a short distance through the streets near the station. Eventually, they gave up the chase and returned to where the others were near the station. As they made their way home on foot, the group encountered the appellant, who by this time was with a group if young males, some of whom were armed with sticks or poles which they were brandishing. The appellant was at the forefront of this group, armed with a knife which he had retrieved from a nearby location, no doubt in anticipation of a fight. The two groups squared off in the middle of the road before coming to blows.

9 The appellant threatened one of the deceased's friends with a knife, lunging towards him a number of times so that retreat was his only option. It was then that the appellant peeled off from the group and circled around the melee. He ran across the road to where the deceased was standing. The deceased was minding his own business and was well removed from the affray. There was no violence offered by the deceased, and he posed no threat to the appellant. He had taken no part in any of the aggressive conduct that his friends may have shown towards the appellant. The trial judge found that the appellant "targeted Mr Spowart because he was exposed, unarmed, and unprotected".

10 Sean Clayton worked as a youth liaison officer with the Sudanese community. He attended police stations in his area from time to time to try and assist young Sudanese people in custody. On occasion, he was asked by parents, friends and relatives of members of the Sudanese community to go to police stations to act as a support person for various people. He had performed that role for about 7 years.

11 On 22 April 2008, he awoke to find he had a missed call on his telephone from the previous evening. He rang back at about 10am. The call was from the Merrylands Police Station. He was asked by a police officer to attend the station to act as a support person for the appellant. He arrived at about 11 am and spoke to two detectives and the custody manager. Paperwork was completed in relation to his obligations and responsibilities as a support person. He then went in to see the appellant in an interview room. Only he and the appellant were in the room. He asked the appellant what had happened. The appellant told him he had stabbed a man. Mr Clayton asked the appellant where he had obtained the knife. The appellant replied that it was in the garden where he had put it earlier in the night.

The course of the trial

12 The appellant did not give evidence at trial. The appellant's case was that the jury could not be satisfied that it was he and not another man who had stabbed the deceased during the altercation.

13 Prior to the empanelment of the jury, there had been a voir dire hearing on the issue as to whether the court should allow the admission into evidence at trial of the statements made by the appellant to Mr Clayton. Ultimately, her Honour determined that there was no unfairness in admitting the statements made by the appellant to Mr Clayton. She found that the admissions the appellant had made fell into the category of "unguarded incriminating statements". It was inherent in her Honour's ruling that she considered that the appellant's freedom to speak or refrain from speaking had not been compromised in any way by the circumstances of Mr Clayton's visit to him as a support person. Her Honour rejected the argument that the admissions to Mr Clayton fell within the terms of client legal privilege under s 118 of the Evidence Act 1995 (NSW) (" Evidence Act "), or that they fell within the concept of "protected confidence" under s 126B of the Evidence Act .

14 Mr Clayton gave evidence before the jury. He repeated the admissions that the appellant had made to him at the police station. In cross-examination it was suggested to Mr Clayton that he was not telling the truth about these admissions, but he adhered to his evidence.

15 At the conclusion of the evidence, the issue as to whether self-defence might be left before the jury was raised. Her Honour expressed the preliminary view that there was "absolutely no evidence of what the accused personally believed when he inflicted the blows", assuming that the jury were to find that it was the appellant who had inflicted the knife wounds on the deceased. Other matters were raised as well, including the fact that the vast thrust of the evidence overall was that the deceased had not been part of the fighting groups at any stage and had simply been standing by himself, well away from the point of conflict. He was simply holding a plastic bag and there was no suggestion that he was armed. In the light of that evidence, her Honour asked counsel on what basis she would be entitled to leave self-defence to the jury. There was the additional problem that the defence case was that the appellant was not the person who stabbed the deceased at all.

16 On the following day, Mr Webb, trial counsel for the appellant, renewed his application to the trial judge that self-defence should be left before the jury. In the end, the trial judge determined that she would leave manslaughter on the basis of intoxication (as negativing specific intent) or manslaughter as a result of an unlawful and dangerous act. Her Honour determined that the evidence did not allow her to leave self-defence to the jury. On 31 August 2009, the trial judge gave the jury written directions. These related to the issues she had determined to leave before the jury. On 10 September 2009, the jury retuned with a verdict of guilty of murder. The ultimate sentence hearing proceeded on 16 April 2010 and her Honour delivered sentence on 21 May 2010.

Conviction Appeal (Ground 1)

17 Mr Michael Smith of counsel appeared for the appellant on the hearing of the appeal. Counsel submitted that the trial judge had applied incorrect principles in her consideration of s 90 of the Evidence Act . It was submitted that her Honour erred in that she:

(a) Concluded that the appellant's admission fell into the category of "unguarded incriminating statements";

(b) Failed to advert to the regulatory position of the support person and the underlying rationale;

(c) Held that the relevant inquiry was the appellant's state of mind and in particular whether his freedom to speak or refrain from speaking had been compromised.

18 Mr Smith argued that the position of a support person, assisting a vulnerable person in custody, was a unique one. He argued that, in this case, the categorisation of the admission made was the critical factor. It differed from an admission made knowingly and voluntarily to a police officer. There was no analogy between the admission made to an undercover operative and the admission made to a support person.

19 Mr Smith pointed to the fact that the appellant had plainly refused to say anything to police of any relevance prior to the attendance of the support person. Indeed, in connection with his right to silence, he had deliberately refrained from making any admissions to police, either before or after the conversation with Mr Clayton.

20 Mr Smith submitted that the difference between reliance upon general admissions and the admissions in the present case was to be found in the underlying rationale for the position of a support person: R v Honan (unreported, NSWSC, Hidden J, 24 March 1996); DPP v Toomalatai [2006] VSC 256; 13 VR 319 at [43]-[44]; R v Huynh and Phung [2001] NSWSC 357.

21 Counsel argued that the support person stands in a position that is analogous to the barrister or solicitor who is afforded access to a person in custody. His task is, during the investigative procedure, to counsel, advise and protect. He must ensure that a person in custody is treated in accordance with his or her rights. In effect, the support person must stand between the police and the accused person while that person is in custody. It was within that framework that, in the present case, there arose an element of unfairness in admitting the admissions made to the support person.

22 Mr Smith argued further that the situation in the present case was compounded by the manner in which the alleged admission had been dealt with after it had occurred. Mr Clayton had refused to make a statement to police. Though police made a record of what Mr Clayton told them, at no time was the appellant given the opportunity to either adopt or disavow what was alleged to have been said. It would have been appropriate, counsel submitted, for the police to inform both the appellant and his solicitor of what had occurred and thereby give the appellant the opportunity to comment on the suggestion he had made admissions to Mr Clayton.

Resolution (Ground 1)

23 On this appeal, the appellant did not press the arguments advanced at trial relating to s 118 of the Evidence Act nor those relating to a "protected confidence" under s 126B of the Evidence Act. The principal contention, as I have said, was that the admissions to the support person should have been excluded pursuant to s 90 of the Evidence Act. This provides as follows:

"90. Discretion to exclude admissions

(1) In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if:

(a) the evidence is adduced by the prosecution, and

(b) having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence."

24 In Em v The Queen [2007] HCA 46; 232 CLR 67, Gummow and Hayne JJ described the discretion given by s 90 as a "safety net" provision. Their Honours also stated (at 109):

"When it is 'unfair' to use evidence of an out-of-court admission at the trial of an accused person cannot be described exhaustively. 'Unfairness', whether for the purposes of the common law discretion or for the purposes of s 90, may arise in different ways."

25 In the joint judgment of Gleeson CJ and Heydon J in Em v The Queen , their Honours traced the origins of s 90 to the Australian Law Reform Commission's Report on Evidence (Report No 38, 1987) and to the common law discretion discussed in R v Lee (1950) 82 CLR 133 at 151-155. The Report had said:

"The Lee discretion focuses on the question of whether it would be unfair to the accused to admit the evidence. The discretion to exclude illegally or improperly obtained evidence requires a balancing of the public interest. It would, therefore, be less effective than the Lee discretion. In the situation where the confession was obtained because the accused proceeded on a false assumption, there is a need for a discretion to enable the trial judge to exclude evidence of admissions that were obtained in such a way that it would be unfair to admit the evidence against the accused who made them. Such a discretion should be added to the proposal."

26 Their Honours, having referred to the Report, continued (at 56):

"The language in s 90 is so general that it would not be possible in any particular case to mark out the full extent of its meaning. Whether or not the appellant is correct to submit that the primary focus of s 90 was on incorrect assumptions made by accused persons, there is no doubt that it is one focus of s 90 and it is one which is relevant to the way in which counsel submit the appellant's incorrect assumption should be viewed. In any particular case, the application of s 90 is likely to be highly fact-specific."

27 In the Court of Criminal Appeal ( R v Sophear Em [2003] NSWCCA 374) Howie J (with whom Ipp JA and Hulme J) observed that:

"Section 90 in effect confers on the trial judge a discretion to reject evidence of admissions where to admit them would result in an unfair trial for the accused. It is unfairness arising from the use of the admissions by the prosecution that is central to the discretion under the section and not whether the police unfairly treated the accused. The purpose of the discretion is the protection of the rights and privileges of the accused. It is concerned with the right of an accused to a fair trial and includes a consideration of whether any forensic advantage has been obtained unfairly by the Crown from the way the accused was treated ( R v Swaffield ; Pavic v The Queen [1998] HCA 1; 192 CLR 159 at [78])."

28 A central argument advanced by Mr Smith related to what he described as the "unique position" of the support person. Counsel was eventually driven to take an absolute position arising from his argument that it is the role of a support person to stand between the police and the accused while the accused is in custody. For that reason, counsel submitted, it is unfair to admit admissions made by an accused person to a support person in any circumstance. No matter how the admission came to be made, it should not be admitted into evidence. Mr Smith argued that, if this were not so, the position of the support person would be reduced to a complete nullity.

29 With respect, I am unable to accept this argument. I shall briefly state my reasons. First, Mr Clayton's relationship with the appellant did not fall within any of the restricted categories of relationship (as outlined by Parliament) that protect unique relationships. There is, for example, no protection equivalent to s 118 Evidence Act for the relationship between a support person and a juvenile. There is no protection for the relationship between a support person and a juvenile as a "special relationship" such as may arise under s 126A, or in the case of religious confessions (s 127) and other privileged communications.

30 Secondly, it may be seen that there is a fundamental difference between each of those "protected" relationships and the relationship, on the other hand, of a support person and young person. Certain specific relationships have been given special legislative protection because it is central to the function of those relationships that free and frank disclosure exist between the two persons involved. For example, a lawyer needs to obtain confidential information from his client to do his job adequately. It is part of the legal requirement of the solicitor/client relationship that confidences exchanged between them are to be strictly treated as confidential by the practitioner. No such legal or ethical relationship applies to a person playing a support role for a juvenile at a police station. The fundamental role of the support person is to assist the juvenile in his or her dealings with the police. It is to protect children from the disadvantaged position they are in as a consequence of their age. It is to protect them from police impropriety or from the disadvantages that arise simply because they are in a custodial situation and at the mercy of mature and experienced police officers ( R v Honan; DPP v Toomalatai; and R v Huynh and Phung ).

31 In a given situation, the role undertaken by a support person may require that advice be given to a juvenile that he or she may or should remain silent during a police interview; it may require the tendering of advice or the giving of practical assistance during the actual interview itself. Such a role, though important, does not demand per se confidentiality in relation to admissions made freely by the juvenile to the support person outside the interview room, and in the absence of the police.

32 Thirdly, Mr Smith's reliance on the Law Enforcement (Powers and Responsibilities) Regulation 2005 (NSW) does not advance his argument. Particular reliance was placed by counsel on clauses 27(4) and 34(2).

33 Reg 27 requires that a detained person who is a vulnerable person be entitled to have a support person present during any investigative procedure in which the detained person is to participate. Clause 27(4) requires the custody manager to give the detained person reasonable facilities to enable the person to arrange for a support person to be present and allow the detained person to do so in circumstances in which, so far as is practical, the communication will not be overheard.

34 Reg 34 provides that if the detained person is given a caution in the absence of a support person, the caution must be given again in the presence of a support person, if one attends during the person's detention.

35 Reference was also made to s 13 of the Children (Criminal Proceedings) Act 1987 which renders inadmissible in evidence an admission given to a member of the police force by a child unless there was present at the place where, and throughout the period of time during which, the admission was made, a person responsible for the child, an adult (other than the member of the police force) who was present with the consent of the child, or an Australian legal practitioner of the child's own choosing.

36 In my opinion neither the Act nor the Regulations on which Mr Smith placed reliance alter or enlarge the essential role of a support person. Nor do they provide an absolute prohibition on the admissibility of an admission or confession made by a juvenile to a support person.

37 Of course, it does not follow that every admission made to a support person, even if given freely, will be admissible in criminal proceedings against the juvenile. If the support person has cajoled or tricked the accused into making an admission, it may well be that s 90 has effective work to do. Similarly, if the support person has been acting at the direction of the police, there may emerge a powerful argument as to why the admission should not be allowed at the trial. There is no need to envisage or list the many possible circumstances that might be said to constitute unfairness so as to warrant the justified use of the safety-net provided by s 90 Evidence Act .

38 The fact that the police are directed by the Regulation to allow privacy to the support person and the accused really says nothing as to whether a voluntary admission made to the support person in a private conversation between them is or is not admissible. Similarly, the fact that an accused juvenile is to be "re-cautioned" in front of the support person simply lends support to the proposition that the support person's role extends to his being satisfied that there is a protection in place while the police are interviewing the accused.

39 Ultimately, Mr Smith was driven to argue that a support person must himself administer a caution to the accused as soon as he meets him in private, a caution directed to any communication passing between the two of them. Such a requirement simply does not emerge from the nature of the support person's role or from the relationship of the accused juvenile in custody and the support person.

40 Mr Smith's principal argument fails ultimately because his attempt to equate the position of a support person with that of a lawyer, counsellor, priest or other confidant in a special position is simply not warranted. If the legislature thought that special protection should be extended to communications between a support person and a juvenile, it could have extended the range of protected relationships. It has not done so.

41 In the present matter, the appellant knew Mr Clayton. When the two were alone together Mr Clayton simply asked "What happened?" This question was entirely neutral and did not require the making of any admission. Nor did it place any pressure on the appellant or, so far as can be ascertained, create any unfairness. In this context, it is not unimportant to note that no evidence was given by the appellant as to his belief, his understanding or assumptions in relation to Mr Clayton. The trial judge was correct to find that the appellant's admission fell into the category of an unguarded incriminating statement. I do not consider that her Honour failed to take into account a relevant matter by not discussing at length the regulatory position of the support person and its underlying rationale. Nor do I consider that her Honour was incorrect to record, as she did, that the relevant inquiry was into the appellant's state of mind and, in particular, whether his freedom to speak or refrain from speaking had been compromised. Each of these matters was an appropriate and relevant consideration to the discretionary exercise under s 90.

42 A second argument raised by Mr Smith was that there was some significance in the fact that when the appellant had been cautioned by the police he said nothing, but then made an admission to the support person in the absence of the police. In this regard, Mr Smith pointed out that, after his conversation with Mr Clayton, the appellant on a second occasion declined to make any admissions to the police.

43 It is difficult to see this second argument assisting the appellant. Rather it tells against him. It further supports the finding made by the trial judge that this was an unguarded incriminating statement. In the absence of any evidence from the appellant, it is impossible to say on what basis or assumption he acted in making his statement to Mr Clayton. The position is no different than if he made the admission to a family member or friend who visited him in custody. If that had been the situation, in the absence of special circumstances, there would have been no capacity for s 90 to have any operation. The fact that thereafter he again declined to be interviewed does not advance the appellant's position.

44 Finally, Mr Smith argued that there may have been some impropriety in the fact that the police, after learning from Mr Clayton that an admission had been made by the accused, did not immediately convey this information to the appellant or his solicitors. With respect, it is difficult to see that these circumstances could have any bearing on the situation. Section 90 is concerned with the circumstances "in which the admission was made". It is those circumstances that require careful analysis to determine whether it would be unfair to the accused to use the evidence at trial.

45 For these reasons, I conclude that ground 1 has not been established.

Conviction Appeal (Ground 2)

46 Mr Smith. asserts that the trial judge erred in not directing the jury in relation to the issue of self defence. In my view, this ground must fail.

47 The obligation of a trial judge to leave an issue such as self-defence is well known. Pemble v R ([1971] HCA 20; (1971) 124 CLR 107) does not oblige a trial judge to give a direction in relation to a defence issue unless it is reasonably open on the evidence: see Carney v R; Cambrey v R [2011] NSWCCA 223. (This is a recent decision of this Court where the scope of the obligation to leave manslaughter as an alternative to murder is discussed at length.) See also R v Park [2003] NSWCCA 203; Douglass v R [2005] NSWCCA 419; Mencarious v R (2008) 189 A Crim R 219 at [65].

48 In the present matter, the trial judge gave careful and thorough consideration to the issue as to whether self-defence should be left. Her Honour recognised that the appellant's case at trial was that he was not involved in stabbing the deceased and, in that situation, did not need to do any act in self-defence. However, her Honour also recognised that the appellant's case at trial did not preclude self-defence being left to the jury, if other evidence raised the issue on a realistic basis. Of course the appellant did not give evidence and this led her Honour to comment that, for self-defence to be left to the jury, it would have involved "inviting the jury to speculate what was in his mind at that particular time based on circumstances that are really of a fairly, background nature" (Transcript 677 line 30).

49 There were three separate phases to the activity on the night in question. The first involved a dispute between the appellant and the man he had asked for a cigarette. A punch was thrown by the appellant and there was retaliation from the other group of men in the form of pushing and chasing. The deceased had nothing to do with this preliminary scuffle and he was seen on CCTV leaving the station concourse by an alternative route to the others.

50 The second phase involved the group of men who had first chased the appellant. It did not involve the deceased. The group encountered the appellant and his friends who by now were armed with sticks or poles. The appellant was at the forefront of this group, as I have said, armed with a knife which he had retrieved from a nearby location. There was no evidence to suggest that the deceased was part of either of the groups during the fight that ensued in this second phase.

51 The third phase involved the appellant moving away from the two scuffling groups and circling around the outskirts of the melee. It was at that point, that the appellant ran across the road to where the deceased was standing, holding a plastic shopping bag. There was no evidence of any violence or threat being offered by the deceased. It was clear, as I have said, that he had taken no part in any of the aggressive conduct in either of the two earlier phases of activity. He was, as the trial judge found in her sentencing remarks simply an "innocent bystander". It was at that stage that the appellant stabbed the deceased three times.

52 In argument, Mr Smith sought to make something of the fact that the admission made to Mr Clayton at the police station had included a statement by the appellant:

"The knife was in the garden that he had put there earlier that night. And when the fight started, he ran back and grabbed it because he was frightened ... He said because some man was bashing him up - he said it was over a cigarette."

53 Mr Smith argued that the terms of this admission might suggest that it was the deceased who was "bashing him up".

54 Her Honour, however, was entitled to look at the whole of the evidence in the trial. It was absolutely clear from that evidence that the deceased was not the man who had refused to give the appellant the cigarette and who had been involved in the initial scuffle. Whether the appellant had such a belief, or whether he had any particular state of mind, was simply not revealed by the evidence in the trial. The appellant was perfectly entitled not to give evidence before the jury and his counsel could not be criticised in that regard. The absence of evidence from the appellant, however, meant that the trial judge had to examine the evidence as a whole in determining whether self-defence ought to have been left to the jury. Her Honour applied herself to that task assiduously and reached, in my opinion, a permissible conclusion.

55 I conclude that the trial judge was not bound to direct the jury on the self-defence hypothesis as it was not one reasonably open, having regard to the evidence at trial.

Sentence Appeal (Ground 3)

56 The appellant seeks leave to appeal on sentence alleging at the outset that the sentencing judge applied the wrong statutory ratio to the sentence and failed to give effect to her finding of special circumstances. Prior to addressing this ground of appeal, it is convenient to say something as to her Honour's general remarks on sentence. Her Honour said she was unable to conclude beyond reasonable doubt that the appellant intended to kill the deceased. In this regard, she noted that his capacity to make a reasoned judgment had been compromised by his intoxication. That said, her Honour had no difficulty in concluding that the objective gravity of the offence was nonetheless high. At paragraph 12 ROS her Honour said:

"The use of a knife, in company, in a public street late at night, with a degree of premeditation, justifies a sentence in the order of 25 years in my view, before account is taken of the offender's subjective circumstances. Such a sentence would necessarily give expression to the principle of general deterrence. The offender's youth should result in some amelioration of that penalty, given that the law recognises that the emphasis lies on the rehabilitation of a juvenile offender, rather than on general deterrence. The extent of the departure from that sentence ought not result in a penalty which fails to reflect the objective gravity of the offence, having regard to the fact that the offender was not so young that he did not appreciate the consequences of his conduct. More importantly, notwithstanding the offender's youth, general deterrence is still a significant factor in this case given that the type of conduct engaged in by the offender is regrettably not an uncommon occurrence in suburban streets at night, where young males gather, fuelled by alcohol and intent on proving their manhood."

57 Her Honour then outlined the appellant's subjective circumstances. His history was undoubtedly a tragic one. It appears to have been accepted that at the time of his sentence he was a few months short of his eighteenth birthday. He was fifteen at the time of the offence. He and his family had been forced out of the Sudan in 1996 due to civil unrest. They travelled from there to Kenya but they were separated from the appellant's father whom they did not see again until 2002. In the intervening period, the appellant, his mother and two sisters remained in a refugee camp in North West Kenya where living conditions were described as "terrible". The detail of the conditions in the camp available in the evidence before her Honour demonstrated that it was terrible in the extreme. Later the appellant was taken by his father to Uganda to live with his stepmother and her children while his mother and sisters remained in the refugee camp. His father worked as a doctor within the World Health Organisation until 2004 at which time the family became aware of the father's imprisonment as a political prisoner. The appellant has had virtually no contact with his father since that time.

58 In 2005 the appellant came to Australia with his stepfamily. By then it included four stepbrothers and two stepsisters. The appellant completed an English language course which enabled him to attend high school in 2006 and 2007. It was about this time that the appellant's behaviour changed considerably for the worse. He stayed away from home for increasing periods of time and did not obey house rules or curfews.

59 In 2007/early 2008 the appellant left the family home for a 6-month period. This appears to have been the beginning of his serious abuse of alcohol and cannabis. He received Centrelink benefits, spending most of his money however on "clothes, alcohol and smokes". Her Honour found it difficult to determine whether the material before the court demonstrated that the appellant had been thrust into a social and educational environment with which he could not cope, or whether he simply chose to drift into an association with other dislocated and unmanageable Sudanese youths.

60 Her Honour was doubtful as to the appellant's prospects of rehabilitation. His behaviour in custody has not been ideal although he had apparently completed an anger management programme and was continuing his studies whilst at Kariong Detention Centre. Her Honour then said:

"While I am mindful of the importance of managing the offender's return to the community upon his release, and of the primacy of rehabilitation in the circumstances of this case, the non-parole period cannot be reduced too far below the statutory proportion, lest it fails to reflect punishment and retribution for the loss of a life. The real dimensions of that loss were brought home to the court by the victim impact statements which spoke movingly of the impact of the victim's death on all the members of his family."

61 It is clear from her Honour's remarks and the sentence she imposed that a finding of special circumstances was made. Her Honour's sentence, in mathematical terms, reflected a finding of special circumstances. The non-parole period constituted 69.5 per cent of the total sentence. Consequently, there does appear to be a moderate alteration of the statutory relationship required by s 44 of the Crimes (Sentencing Procedure) Act 1999. The degree of any adjustment to the statutory ratio, it should be said, is generally a matter for the discretion of the sentencing judge: R v Cramp [2004] NSWCCA 264 at [31]; Trad v R [2009] NSWCCA 56 at [33]; Caristo v R [2011] NSWCCA 7 at [31].

62 It is necessary to keep steadfastly in mind that, when a ground of appeal is taken relating to the appropriateness of the ratio between non-parole and parole periods, the appellate court is to have regard to whether the non-parole period imposed is the minimum period that the offender must spend in custody. It must have regard to all of the elements of punishment, including rehabilitation, the objective seriousness of the offence and the offender's subjective circumstances: Power v R (1974) 131 CLR 623 at [627-629]; R v Simpson (2001) 53 NSWLR 704 at [59].

63 In the present matter, a significant period of time for rehabilitation has been allowed within the structure of the sentence selected by her Honour. The total period of time the appellant will be on parole is 7 years. In itself, this must be seen as a lengthy period of time in which the rehabilitation of the appellant might be achieved: R v Mitchell; R v Gallagher (2007) 177 A Crim R 94 per Howie J.

64 In my opinion this ground of appeal has not been established.

Sentence Appeal (Ground 4)

65 This ground asserts that the sentencing judge did not take into account sufficiently (or at all) the mitigating factors set out in s 21A(3) of the Crimes (Sentencing Procedure) Act 1999.

66 The particular complaint is that her Honour did not sufficiently take into account the following matters:

• the offence was not part of a plan or organised criminal activity; and
• that the appellant did not have any prior criminal record.

67 It is trite to observe that a sentencing judge is not obliged to refer to each of the s 21A factors as though running through some type of "check-list". It is necessary to take these matters into account, of course, but only to the extent they are relevant to the case the court is considering: R v Wickham [2004] NSWCCA 193; R v Lilley (2004) 150 A Crim R 591 at [41], [53]; R v Elyard [2006] NSWCCA 43 at [5].

68 It is accepted that her Honour did not make a finding that there was a planned activity involved here resulting in the need to take into account an aggravating feature of the crime. However, her Honour's remarks on sentence make it clear that she could not be satisfied on the balance of probabilities that the appellant's involvement in the murder was not planned, even if that plan was one that was contemplated only moments before the attack. I agree with the Crown submission that, whether or not this attack on the deceased was planned or unplanned was, in the circumstances, a matter of little moment. The critical issue was the criminality in the eruption of street violence involving an offender brandishing a knife and attacking an innocent bystander. The question of the actual degree of planning was unlikely to make any real difference to the ultimate sentence. Her Honour did, of course, make reference to the use of a knife "with a degree of pre-meditation", referring to the place where the knife was kept and its retrieval.

69 The final complaint relates to the fact that the appellant had no prior criminal record. This was a matter acknowledged by her Honour in her remarks on sentence (para 24). There was no need for her Honour to mention the terms of s 21A(3)(e). Her Honour gave careful consideration to the features of the applicant's subjective circumstances, particularly the difficulties of his upbringing and the tragic circumstances of his family's expulsion from their native country. I do not consider that her Honour was required to do any more than she did in relation to those brief portions of her remarks where the appellant's absence of criminal record was noted. Neither of these complaints has been made out.

Overall

70 I have been troubled to some extent in relation to whether sufficient weight was given in the sentencing process to the issue of the appellant's youth. He was after all only 15 at the time of the commission of the offence and it must be the situation that the horrific circumstances of his early upbringing meant that he did not have the level of parental supervision, both in Kenya and here in Australia, that was available to other young people of less troubled backgrounds. Nevertheless, it ought to be noted that no separate submission was made on this basis in the appeal before us. I have considered this aspect of the matter carefully but, on balance, I have decided that her Honour's thorough and careful analysis of the disparate factors that pulled in different directions on this difficult sentencing exercise has not been shown to be erroneous. Although the appellant's situation has been shown to be a sad and tragic one, in the end I consider that her Honour was correct in emphasising the objective seriousness of this offence and the strong need for both general and personal deterrence in relation to it. Accordingly, I have concluded that the sentence is not manifestly excessive.

71 I propose the following orders be made:

1. Appeal against conviction is dismissed.

2. Leave to appeal against sentence is granted.

3. Appeal against sentence is dismissed.

72 HISLOP J : I agree with Whealy J.

73 GROVE AJ : I agree with Whealy J.

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Decision last updated: 17 February 2012