Supreme Court New South Wales

• Medium Neutral Citation: R v HE R v SE [2012] NSWSC 1024
• Hearing dates: 10 February, 6 July, 10 August 2012
• Decision date: 30 August 2012
• Before: Latham J

Decision

HE Convicted of the offence of affray. Directed to enter a bond to be of good behaviour for a period of three years, to date from today, expiring 29 August 2015, pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999.

SE Convicted of the offence of affray. Directed to enter a bond to be of good behaviour for a period of three years, to date from today, expiring 29 August 2015, pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999.

• Catchwords: CRIMINAL LAW - sentence - affray - juvenile offenders - dealt with according to law - discharge of loaded firearms as a feature of the affray - objectively a particularly serious example of affray - whether a victim impact statement should be received by the Court
• Legislation Cited: Crimes Act 1900; Children (Criminal Proceedings) Act 1987; Crimes (Sentencing Procedure) Act 1999
• Cases Cited: Stevens v R [2007] NSWCCA 152; Khanwaiz & Ors v R [2012] NSWCCA 168; R v Borkowski [2009] NSWCCA 102
• Category: Sentence
• Parties: Regina - (Crown); HE - (Offender 1); SE - (Offender 2)
• Representation: Counsel; P Barrett - (Crown); J Manuel SC - (Offender 1); S Grant - (Offender 2); Solicitors; S Kavanagh - Solicitor of Public Prosecutions - (Crown); Emma Hearne - (Offender 1); Emma Hearne - (Offender 2)
• File Number(s): 2010/97161; 2010/97311
• Publication restriction: Prohibition on publication of the names of the offenders and any information capable of identifying them : Children (Criminal Proceedings) Act 1987

SENTENCE

1 The offenders, HE and SE, who are brothers, each stand for sentence on one count of affray pursuant to s 93C(1) of the Crimes Act 1900. The offence carries a maximum penalty of 10 years imprisonment. Each of the offenders pleaded guilty to the offence on 10 February 2012 after the Crown accepted that it did not have a case against them on a charge of murder, for which the offenders were to stand trial, along with others, commencing 30 January 2012.

2 The agreed statement of facts is identical in each case. Each of the offenders acknowledged the basis upon which they would be sentenced by signing a copy of that statement of facts.

3 On 25 June 2009 at approximately 9 pm there was an incident at the Bankstown Centro shopping centre involving two groups of young men who were broadly aligned with the offenders family, on the one hand, and the Mariam family, on the other. The incident involved minor violence and some threats. Police and security officers ejected both groups from the centre. The members of the two groups then engaged in a series of phone calls, in the course of which various friends and relatives were "recruited" to meet later that night to settle the dispute. In the course of the phone calls, expressions such as "punching on" and "I'm going to smash you" were used, although not by either of the offenders.

4 The offenders' older brother contacted the owner of a white van who drove to the offenders' residence where the older brother entered the front seat. The two offenders entered the rear of the van. The offenders' older brother told the owner of the van that his brothers would be dropped off at a friend's house. However that did not occur. At the time of these events HE was 16 years of age and SE was 15 years of age.

5 The van drove to another house in Yagoona where two further males entered the van. After the driver of the van asked what was going on and was told that they were going to "punch on" in a park in Revesby, the driver of the van asked to be taken back to his house. At this point in time one of the occupants of the van saw that the offenders' older brother had a handgun in his possession. There is no evidence that this gun was fired in the course of the evening.

6 Further telephone calls were made between the offenders' older brother and members of the Mariam group. Eventually the agreement was to meet in the car park of the KFC in Milperra. Before going to the car park the occupants of the van picked up a cousin of the offenders, who brought with him a rifle covered in a sheet. At some stage the rifle was shown to other members of the group in the rear of the van. Someone stated that it was purely to frighten the opposition. Whilst the offenders saw the rifle, they did not know that the rifle was loaded.

7 When the van pulled up at the car park at about 10:25 pm the members of the Mariam group were already present. The two offenders left the van and moved towards the other group. The offenders' older brother left the van and ran to a Honda containing members of the Mariam group and started fighting with one of them. Other occupants of the van emerged carrying a length of wood and a spanner type object. These were used to do extensive damage to the Honda. The offenders intended to participate in the affray.

8 A member of the Mariam group began shooting at the offenders' group. The offenders themselves immediately took cover. Another occupant of the van took the rifle from the van and began to return fire. Very shortly thereafter the offenders and other members of the group retreated to the van and left the carpark.

9 As the result of the discharge of a firearm by a member of the Mariam group, a truck driver, Robert Knight, was struck by a bullet and killed as he drove his truck down Milperra Road approximately 200 m from the car park.

10 Two members of the Mariam group were also injured by the discharge of firearms, one seriously. That participant, Rami Abdulhardi, was sentenced on 27 April 2012 for his role in the affray.

11 Mr Abdulhardi pleaded guilty to the affray some two weeks after the offenders entered their pleas. His role was of a limited nature in that he was not armed, he did not directly engage in any violence, and he was shot almost as soon as the affray commenced. In addition, Mr Abdulhardi was sentenced as an adult offender. He received a sentence of 3 years and 7 months, including a non parole period of 2 years.

12 The immediate question that arises is whether the offenders ought be dealt with according to law or pursuant to Division 4 of Part 3 of the Children (Criminal Proceedings) Act 1987. If not dealt with according to law, the available penalties are those that apply to the Children's Court jurisdiction. The decision under s 18(1) of the Act must be made having regard to the seriousness of the indictable offence concerned, the nature of the indictable offence concerned, the age and maturity of the person at the time of the offence and at the time of sentencing, the seriousness, nature and number of any prior offences committed by the person, and such other matters as the court considers relevant.

13 Neither of the offenders have any prior criminal history. Notwithstanding that fact and their respective ages and level of maturity at the time of the offence, I am of the view that they must be dealt with according to law. The principal factors in that determination are the gravity of the offence and the fact that affray represents a most serious breach of public order. The objective seriousness of the offence deserves close consideration, for these purposes and for the purposes of the sentencing exercise generally.

14 When sentencing Mr Abdulhardi, I said :-

One only has to relate the circumstances surrounding the commission of the affray to appreciate its objective gravity. The level of violence meted out in the course of these events and the premeditated assembly of 11 young men in a public place, adjacent to a major arterial road in western Sydney, at about 10:30pm on a week night, for the sole purpose of settling a score that seems to have arisen during a petty assault earlier that day, marks this affray as a particularly serious example of the offence.

Notwithstanding that the events outlined above took place over a relatively short period of time (including the discharge of firearms over a matter of minutes), it bore all the hallmarks of a complete disregard for, indeed a contempt for, the rule of law. It was an abhorrent and despicable display of male aggression.

15 I adopt these remarks and would only add the following. There was considerable debate during the sentencing hearing about the extent to which the Court could have regard to the fact that the discharge of firearms resulted in the death of an innocent bystander in assessing the gravity of the offence. That is an issue that has been considered by the Court of Criminal Appeal in similar cases.

16 Most relevantly, in Stevens v R [2007] NSWCCA 152, Price J (McClellan CJ at CL and Hidden J agreeing) said at [25] to [27] :-

In determining an appropriate sentence for an offence of affray contrary to section 93C of the Crimes Act an offender's conduct is to be considered in the context of the conduct of a co-offender. The level of violence used and the scale of the affray is relevant. An offender however, may only be sentenced for that part of his conduct and the conduct of the co-offender which give rise to the offence of affray and not that conduct which resulted in some other offence being committed by him or by the co-offender; see R v Huynh [2000] NSWCCA 18; R v Eleter [2003] NSWCCA 130 and R v Fajka [2004] NSWCCA 166.

His Honour found as I have mentioned that the applicant and Davis were the aggressors. Furthermore it was open to the judge to find that they had attacked both victims with extreme violence. The attack by Davies upon Mrs Herring with a tyre lever was part of the co-offender's conduct which gave rise to the offence of affray. In my view, the nature and extent of the physical violence was an objective factor relevant to the seriousness of the offence.

17 Most recently in Khanwaiz & Ors v R [2012] NSWCCA 168 , Beech-Jones J said (Basten JA and Harrison J agreeing) :-

50. Further the significance of the distinct element of the affray charge, namely the effect of the attack upon persons at the scene, cannot be understated. Offences such as s 93C have a wider focus that just the impact on the direct victim of the unlawful violence. Section 93C is located within Part 3A of the Crimes Act which deals with public order. Attacks of the kind participated in by Noman can undermine the public's confidence in the security of their streets and homes. His Honour recognised this is in the sentencing judgment when referring to the "separate policy considerations effectively requiring separate assessments of the criminality and issues of accumulation" with the affray offences.

18 It is axiomatic that in determining the appropriate sentence to be imposed upon the offenders for the affray, they are not to be punished for the manslaughter of Mr Knight. By the acceptance of the pleas to the affray, and the agreed statement of facts, the Crown acknowledged that neither of the offenders actually inflicted any violence or were aware of the presence of loaded firearms, which would have brought with it their acknowledgement of the possibility of the discharge of those firearms and the death of another person.

19 In other words, they stand to be sentenced on the basis of their individual and relatively minor roles in the commission of the offence. That, however, does not preclude the Court from taking into account, for the purposes of assessing the objective gravity of the offence, the fact that the discharge of loaded firearms was a feature of the affray. That feature of the offence demonstrated the extent to which members of the public were put in fear for their personal safety.

20 This analysis brings me to another controversy during the sentencing proceedings. The offenders' counsel objected to the reception by the Court of a victim impact statement from Mr Knight's daughter, on the basis that it did not meet the definition of a statement relating to a "primary victim" of the offence of affray. The statement was not read. It was received provisionally pending the resolution of the objection.

21 This issue is governed by s 26 of the Crimes (Sentencing Procedure) Act 1999. It defines a victim impact statement as :-

a statement containing particulars of:

(a) in the case of a primary victim, any personal harm suffered by the victim as a direct result of the offence, or

(b) in the case of a family victim, the impact of the primary victim's death on the members of the primary victim's immediate family.

22 "Primary victim" is relevantly defined as a person against whom the offence was committed. "Family victim" is defined as :-

in relation to an offence as a direct result of which a primary victim has died, .... a person who was, at the time the offence was committed, a member of the primary victim's immediate family, and includes such a person whether or not the person has suffered personal harm as a result of the offence.

23 It is therefore abundantly clear that Mr Knight was not a person against whom the affray was committed. It cannot be said that his death was a direct result of the affray, in the sense that these participants envisaged that the discharge of firearms was likely or probable. Strictly construed, the statement by Mr Knight's daughter is not receivable by the Court for the purposes of sentencing these offenders.

24 Returning to the objective gravity of the offence, the Crown submitted that this affray was "towards the worst case", including as it did a measure of planning and premeditation, the fact that the participants were variously armed with firearms, pieces of timber and spanners, that it was a large group, that it occurred in full view of numerous members of the public in a public car park and that it involved the actual use of violence. The Crown further submits that the offence calls for a sentence towards the upper range for offences of this kind.

25 I have previously commented in the course of sentencing Mr Abdulhardi that the range of sentences imposed for this offence have not perceptibly changed since the maximum penalty was doubled in December 2005. For the same reasons that I articulated on the previous occasion, the offenders nonetheless have a legitimate expectation that they will receive sentences in accordance with the existing sentencing practice.

26 To the extent that the gravity of the offence is affected by its short duration and the fact that it occurred late at night, after the various retail outlets on the perimeter of the car park had closed, those factors are of some, albeit, limited significance. The relatively short period of time during which the affray took place, in the order of minutes, was no doubt the product of the repeated discharge of at least two firearms and the wounding that resulted to two of the Mariam group. The participants in the affray were in exposed positions in the car park. The longer they remained there, the more likely it was that they themselves would be injured. Notwithstanding that the fast food outlets were no longer trading, there were members of the staff of those outlets who were waiting in the car park to be collected by friends and relatives. Moreover, adjacent to the car park, there was a service station and 711 store which was, at the time of the affray, trading with members of the public. All of these people were potentially put at risk of serious injury. That risk materialised in the death of Mr Knight.

27 In the result, it is not necessary to embrace the Crown's description of the offence as one approaching the worst case. It is always possible to envisage circumstances that would render the offence more objectively serious, although that does not preclude a finding that an offence is in the worst case category. This affray did not take place at a time or in a place that engendered in a large number of members of the public fear for their personal safety. That does not detract from my assessment of the offence as objectively a particularly serious example of affray.

28 The nature and gravity of the offence would, in the case of adult offenders, elevate general deterrence in the sentencing exercise. However, the principles established by the common law and s 6 of the Children (Criminal Proceedings) Act are capable of ameliorating that factor. The extent of that amelioration depends in part upon the degree to which the offenders' realised that what they were embarking upon when they arrived at the carpark was a most serious offence. The other considerations prescribed by s 6 are nonetheless relevant to the sentencing exercise in each case.

29 I turn to a consideration of HE's role in the offence and his subjective circumstances.

30 The offender did not give evidence and what information there is disclosing his comprehension of the events of that night is contained in a Juvenile Justice report (Exhibit D). It is said that on the afternoon of the offence, he was at home with his younger brother SE when his eldest brother, HEK, informed him of the incident at Bankstown with another group of boys. HEK told the offender that he was going to meet up with this group at a park in Revesby. The offender agreed to go with his brother on the understanding that they were to discuss the problem. However, the offender acknowledged that if a fight broke out, he was prepared to participate in it. The offender expressly disavowed any coercion brought to bear by his older brother.

31 The offender stated that he did not participate in any of the conversations in the van and that he was not aware at any time that there were guns in the van. The offender left the van in the carpark with others and commenced to walk towards the opposing group with the intention of participating in the affray. As soon as he heard gunshots, he took cover.

32 The offender only became aware of the death of Mr Knight a few days later when he was watching television. He reported that this came as a shock to him and that he was affected by TV coverage of the family grieving for the death of Mr Knight. The offender told the Juvenile Justice officer that he regularly thinks about Mr Knight and the impact of his death on his family.

33 No doubt, the offender's level of maturity exposed him to a degree of influence from his older brother. In addition, there was a degree of stress within the family owing to the serious illness of the youngest child with leukaemia between 2007 and 2009. The offender's father and mother spent days at a time at hospital, leaving their other children at home without support and guidance. It is perhaps understandable that in those circumstances, the offender's older brother assumed a greater degree of authority.

34 However, this offender is not without intelligence. He is described by his principal at Condell Park high school as "an outstanding student". He was considered a candidate for tertiary education, was well liked by his peers and teachers and was always polite. It is therefore puzzling, given that his prospects were promising and he was largely ignorant of his older brother's peers, that he would consciously involve himself in an event that he knew could turn violent.

35 Having regard to these matters, the need for the penalty to reflect general deterrence is somewhat attenuated. Moreover, the offender's acknowledgement to the Juvenile Justice officer that he takes responsibility for the offence and that he recognizes its gravity augurs well for his rehabilitation and demonstrate a level of maturity that was obviously lacking at the time of the commission of the offence. The offender returned to school to complete the HSC on his release to bail on 2 September 2010, and secured employment in a roofing company thereafter. He is currently scheduled to commence tertiary studies at the University of Western Sydney. These are powerful indications that the offender's prospects of rehabilitation are promising and that the interests of the community in ensuring that he continues with a law-abiding life may be better served by the imposition of a sentence that allows those aims to be realised. Specific deterrence plays no role in sentencing this offender.

36 The Crown maintained in its submissions that that the offender exhibited no remorse for the offence. I am satisfied from the contents of the Juvenile Justice report that the offender demonstrates a capacity to empathise with the family of Mr Knight. The absence of any clear statement of remorse, whether on oath or of a hearsay nature, is explicable by the offender's repeated denial of knowledge of the presence of guns. In that respect, he maintains he is not responsible for the death of Mr Knight, a fact that is established by his plea to affray. His remorse for his involvement in the affray itself was interpreted by the Juvenile Justice officer from the offender's comments, rather than by any direct statement of remorse.

37 The last matter that ought to be addressed relates to the admission by the legal representatives of this offender and his brother SE in the course of a bail application on 2 September 2010 of the offenders' involvement in the affray. It is submitted that such an acknowledgement of guilt ought to result in the application of the maximum discount for the plea of guilty. Whatever instructions were given to the offenders' legal representatives approximately 14 months after the commission of the offence, the fact remains that no plea of guilty was entered until the commencement of the trial. The statement by the Court in R v Borkowski [2009] NSWCCA 102 in relation to the principles applicable to the assessment of a discount for the plea of guilty does not accommodate the submission in this case.

38 In any event, in the view that I have formed as to the appropriate penalty to be imposed, this is not a matter that requires resolution.

39 I turn to the subjective circumstances of SE and his appreciation of the role he played in the commission of the offence.

40 This offender gave no evidence in the course of the proceedings. Once again, what little information there is in relation to his appreciation of the gravity of the offence is to be derived from a Juvenile Justice report which is Exhibit E.

41 It is said that this offender was aware that his older brother had a dispute with another young person on the day of the offence. He was aware that his brother, HEK, and the young person arranged to meet to sort out the disagreement. The offender agreed to go with his brother to act as support. He agreed that he was prepared to engage in a physical fight if the need arose.

42 The offender reported that he was unaware of any of the discussion that occurred whilst he was in the van and he denied seeing or being aware of any firearms in the van. On arrival at the carpark, he left the van with a piece of wood and approached the occupants of the Honda. He reported that he intended to scare them with the piece of wood and that he had no intention of using it as a weapon. He admits that he was willing to engage in a physical altercation if that was necessary to assist his brother. He immediately returned to the van as soon as shots were fired.

43 When discussing the offence with the officer, the offender stated he wished that he had not been involved. He accepted that he had made a poor decision, that he was immature at the time and did not comprehend or consider the consequences of his actions. His young age and the factors that bore upon his decision to participate in the offence lessen to some extent the emphasis on general deterrence. Nonetheless, on his own admission, his role in the offence was more active than that of HE, in that he armed himself with an implement capable of causing injury.

44 The offender also reported his sorrow for Mr Knight and his family. He said that he had experienced nightmares arising out of the incident. According to the Juvenile Justice officer, this offender was visibly upset during this discussion. The offender also expressed regret for the additional stress that he had visited upon his family.

45 I need not repeat the observations that I have made above in relation to the impact of the stressful conditions then applying in the offender's family. This offender was one year younger than HE during the period of his younger brother's illness. Moreover, his educational history was not so promising, in that he experienced difficulties during the early years of his secondary schooling. He was suspended on several occasions for aggressive behaviour towards the students, intimidating behaviour towards teachers and refusal to follow directions. These problems resolved to the extent that the offender was able to complete his year 10 certificate at Condell Park high school.

46 After leaving school the offender obtained an apprenticeship as a carpenter and remained there until he was arrested on 21 April 2010. On his release to bail on 2 September 2010 he worked in various places before obtaining employment installing aluminium doors and windows in January 2011. He remains employed in that role. He has enrolled at TAFE to undertake further study in his adopted trade.

47 The offender's maturation since the commission of the offence no doubt improves his prospects of rehabilitation. His present employment and his acknowledgement of responsibility for engaging in a violent altercation suggest that he is capable of adopting and maintaining a constructive crime free life. It must be acknowledged that, like his older brother HE, his remorse for the offence is qualified. Specific deterrence is not a factor that needs to be addressed.

48 I see no reason to distinguish between the offenders in terms of penalty, despite the slightly higher criminality exhibited by SE in the commission of the offence. That circumstance is offset to some extent by SE's relative immaturity. In all other respects, the offenders stand in the same position. They have each served a period of 16 months on remand and have been subject to strict bail conditions for a period of two years.

49 Taking all of these matters into account, I propose to sentence as follows :-

50 HE, you are convicted of the offence of affray. I direct that you enter a bond to be of good behaviour for a period of three years, to date from today, expiring 29 August 2015, pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999. You must appear before the court if called on to do so at any time during the term of the bond, and you must be of good behaviour for the duration of the bond.

51 SE, you are convicted of the offence of affray. I direct that you enter a bond to be of good behaviour for a period of three years, to date from today, expiring 29 August 2015, pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999. You must appear before the court if called on to do so at any time during the term of the bond, and you must be of good behaviour for the duration of the bond.

Decision last updated: 12 November 2012