Citation: Regina v SSA & Siose [2007] NSWSC 1202
Court: Supreme Court of New South Wales
Date: 2 November 2007
Judge(s): Hidden J
Background
Two young men were sentenced following the fatal stabbing of Dong Jun Kim at an amusement parlour in Parramatta on 27 July 2005. The victim, also a young man, was killed during a brief, spontaneous altercation that began when the offenders interpreted his glances in their direction as aggressive. Both offenders had been carrying knives, not for aggressive purposes, but because they feared certain men who frequented the area.
The first offender (referred to throughout as "the juvenile offender") was seventeen years old at the time and was convicted of murder after a trial. The second offender, John Phillip Siose, was originally charged with murder but pleaded guilty to manslaughter, a plea accepted by the Crown in discharge of the murder indictment against him.
The juvenile offender had a troubled upbringing, a medical condition causing unusually short stature, and a history of gang involvement. Siose had served in the Australian Army before the offence and had a limited prior record. Both offenders had been in custody since shortly after the killing.
Legal Issues
- What sentence was appropriate for the juvenile offender convicted of murder, including whether special circumstances existed to justify continued detention as a juvenile offender beyond the usual age threshold?
- What weight should be given to the juvenile offender's intent, given the spontaneity of the stabbing?
- What sentence was appropriate for Siose's guilty plea to manslaughter, and what discount applied for the utilitarian value of that plea?
- Whether the objective gravity of each offence, and the subjective circumstances of each offender, warranted departure from standard sentencing patterns.
Decision
Hidden J sentenced the juvenile offender on the basis that he intended to inflict grievous bodily harm rather than to kill. Although the Crown submitted that the nature and force of the single stab wound to the chest supported an intent to kill, the court found that the spontaneity of the act meant it was not satisfied of that intent beyond reasonable doubt. The jury had rejected self-defence and defence of another on both the murder and manslaughter alternatives.
On the juvenile offender's subjective case, the court found significant but not determinative mitigating factors: a disturbed childhood, a medical condition (hypopituitarism) that left him of unusually small stature, a history of bullying, and susceptibility to peer influence. The court noted genuine progress toward rehabilitation, including educational achievements while in custody. These factors, combined with the offender's vulnerability to harm in an adult prison, satisfied the court that special circumstances existed under s 19(3)(a) of the Children (Criminal Proceedings) Act 1987, justifying a direction that he serve his sentence as a juvenile offender until age twenty-one.
For Siose, the court assessed his criminality on the basis that he and the juvenile offender had jointly assaulted the deceased by displaying their knives intending to instil fear, and that Siose, knowing his co-offender was armed, had contemplated the risk that an unlawful and dangerous act might follow but had failed to withdraw. The court assessed a pre-discount sentence of eight years' imprisonment, then applied a fifteen percent discount for the utilitarian value of the guilty plea, reducing the total term to approximately six years and nine months.
Orders Made
- The juvenile offender was sentenced to imprisonment with a non-parole period of 13 years, commencing 27 July 2005 and expiring 26 July 2018, and a balance of term of 5 years, expiring 26 July 2023. The court directed that he serve his sentence as a juvenile offender until he turns twenty-one.
- John Phillip Siose was sentenced to imprisonment with a non-parole period of 3 years and 9 months, commencing 28 September 2005 and expiring 27 June 2009, and a balance of term of 3 years, expiring 27 June 2012.
Key Takeaways
- Where a stabbing is spontaneous and occurs in the heat of a brief altercation, a sentencing court may decline to find an intent to kill beyond reasonable doubt, even where the location and force of the wound might support such an inference; the offender is then sentenced on the lesser basis of intent to inflict grievous bodily harm.
- Under s 19(3)(a) of the Children (Criminal Proceedings) Act 1987, a court may direct that a young offender convicted of a serious offence continue to be detained as a juvenile offender past the usual threshold where vulnerability in adult custody and prospects for rehabilitation support that course.
- Merely displaying a knife with the intention of instilling fear in another person constitutes an assault in law, a principle that directly shaped the factual basis for Siose's manslaughter plea.
- A guilty plea entered before a separate trial was due to commence, though at a late stage, attracted a fifteen percent discount for utilitarian value rather than a higher discount that might apply to an early plea.
- Troubled background, medical vulnerability, gang association stemming from peer influence, and demonstrated rehabilitation in custody can all bear on the sentence for a young offender, though the court carefully weighed those factors against the gravity of taking a life.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
- Children (Criminal Proceedings) Act 1987 (NSW), s 19(3)(a)
Cases:
- R v E & B (2006) 164 A Crim R 208
- R v Hearne (2001) 124 A Crim R 451