Citation: R v HE; R v SE [2012] NSWSC 1024
Court: Supreme Court of New South Wales
Date: 30 August 2012
Judge: Latham J
Background
Two brothers, HE (aged 16 at the time) and SE (aged 15), were sentenced for affray arising from a violent confrontation between two groups of young men in a car park in Milperra, western Sydney, in June 2009. The incident began as a minor dispute at Bankstown Centro shopping centre and escalated through a series of telephone calls in which both groups recruited associates to "settle the score" later that night. By the time the groups met, multiple firearms were present.
During the confrontation, members of the opposing group opened fire, and a member of the offenders' group returned fire using a rifle. Neither of the two offenders personally discharged a weapon, though they had participated in travelling to the scene and moved toward the opposing group when the van arrived. As a direct result of the gunfire, an innocent bystander, a truck driver passing on a nearby road, was struck and killed.
The offenders had originally been charged with murder. After the Crown accepted it could not sustain that charge, each pleaded guilty to affray under section 93C(1) of the Crimes Act 1900, which carries a maximum penalty of 10 years imprisonment.
Legal Issues
- Whether the offenders should be sentenced as juveniles under the Children (Criminal Proceedings) Act 1987 or "dealt with according to law" as adult offenders, given their ages at the time of the offence.
- How to assess the objective seriousness of the affray, including the extent to which the discharge of firearms and the death of an innocent bystander could be taken into account.
- Whether a victim impact statement from the deceased bystander's family could be received by the court.
- What sentence was appropriate given the offenders' youth, lack of prior criminal history, relative roles in the offence, time spent on remand, and prospects for rehabilitation.
Decision
Dealt with according to law
Latham J determined that both offenders must be sentenced as adults under the general law, notwithstanding their young ages and lack of any prior criminal history. The primary factors were the objective gravity of the affray and the fundamental seriousness of any offence that constitutes a major breach of public order. The court weighed the statutory criteria under section 18(1) of the Children (Criminal Proceedings) Act 1987, including age, maturity, and criminal history, but concluded that the nature and seriousness of the offence outweighed those mitigating personal circumstances.
Objective seriousness
Latham J adopted findings made when sentencing a co-offender earlier in 2012, describing the affray as a particularly serious example of the offence. The court noted the premeditated assembly of multiple young men in a public place adjacent to a major arterial road, the presence of firearms, and the complete contempt for the rule of law that the events demonstrated. Drawing on the Court of Criminal Appeal's decisions in Stevens v R and Khanwaiz v R, Latham J confirmed that the conduct of co-offenders, including the discharge of firearms, was a legitimate factor in assessing the objective gravity of the affray, even where the individual offenders did not personally fire a weapon. The death of the innocent bystander, while not a distinct aggravating circumstance in the formal sense, was relevant context for understanding the scale and gravity of the events.
Individual circumstances and parity
Both offenders had no prior criminal history, had spent 16 months on remand, and had been subject to strict bail conditions for approximately two years. Each had made genuine efforts toward employment and further education since the offence, and their prospects of rehabilitation were assessed as good. Their remorse was acknowledged, though described as qualified. The court noted that SE's slightly greater involvement in the offence was offset by his younger age, and saw no basis for distinguishing between the two brothers in terms of penalty.
Sentence
Given the combination of the offenders' youth, the time already spent on remand, their rehabilitation prospects, and the absence of prior offending, Latham J concluded that a good behaviour bond was the appropriate sentence in each case, rather than a further term of imprisonment.
Orders Made
- HE: convicted of affray and ordered to enter a good behaviour bond for three years pursuant to section 9 of the Crimes (Sentencing Procedure) Act 1999, expiring 29 August 2015.
- SE: convicted of affray and ordered to enter a good behaviour bond for three years pursuant to section 9 of the Crimes (Sentencing Procedure) Act 1999, expiring 29 August 2015.
Key Takeaways
- Under section 18(1) of the Children (Criminal Proceedings) Act 1987, even juvenile offenders with no prior history may be dealt with according to law where the objective gravity of the offence, particularly a serious affray involving firearms, warrants it.
- Conduct of co-offenders, including the discharge of loaded firearms, is a legitimate factor in assessing the objective seriousness of an affray charge, even where the individual offender did not personally fire a weapon, consistent with Stevens v R [2007] NSWCCA 152 and Khanwaiz v R [2012] NSWCCA 168.
- The death of an innocent bystander resulting from the affray formed relevant contextual background to the gravity of the offending, though the court was careful not to sentence the offenders for a more serious offence than that to which they pleaded guilty.
- Parity principles applied between co-offenders: a marginally higher level of individual participation by the younger brother did not justify a heavier sentence where that difference was offset by relative immaturity.
- A substantial period of pre-sentence custody on remand, combined with genuine rehabilitation, stable employment, and youth, can support a non-custodial outcome even for serious public order offences when the overall circumstances warrant it.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 93C(1) (affray)
- Children (Criminal Proceedings) Act 1987 (NSW), s 18(1), Division 4 of Part 3
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 9
Cases
- Stevens v R [2007] NSWCCA 152
- Khanwaiz & Ors v R [2012] NSWCCA 168
- R v Borkowski [2009] NSWCCA 102