Citation: R v HEK [2012] NSWSC 1364
Court: Supreme Court of New South Wales
Date: 30 August 2012
Judge(s): Latham J
Background
The offender, HEK, was convicted by jury of affray and maliciously damaging property by fire, both carrying a maximum penalty of 10 years imprisonment. The offences arose from a violent confrontation in a Bankstown car park on the night of 25 June 2009, when HEK was approximately two months short of his eighteenth birthday.
HEK had initiated a physical altercation at a shopping centre earlier that evening. Over the following hour, both his group and a rival group made arrangements by telephone to reconvene for a further confrontation. Around 10:25 pm, the two groups met in a nearby car park. HEK left his group's van to physically assault an occupant of a rival vehicle. Firearms were discharged during the confrontation. A stray bullet struck and killed an innocent truck driver on an adjacent road.
After fleeing the car park, HEK drove the van used by his group to a suburban street and set it alight using an accelerant, intending to destroy evidence of his and others' involvement. He also directed the van's owner to report it stolen.
Legal Issues
- Whether HEK should be sentenced as a juvenile under the Children (Criminal Proceedings) Act 1987 or dealt with according to law as an adult
- The objective gravity of the affray, including what weight could be given to the death of an innocent bystander
- Whether HEK knew a loaded firearm was present in his group, and whether he contemplated it would be discharged
- Whether a victim impact statement was appropriately received by the court
- The appropriate sentence, balancing objective seriousness, subjective circumstances, and the offender's prospects of rehabilitation
Decision
Latham J held that HEK must be dealt with according to law rather than under the juvenile sentencing regime. The key factors were the objective gravity of the affray and HEK's pivotal role in instigating it. Although he had no prior criminal history and was just under eighteen at the time, his relative maturity and central role in organising and initiating the confrontation made the juvenile provisions inappropriate.
On the question of HEK's knowledge of firearms, the court was satisfied beyond reasonable doubt that HEK knew his cousin carried a loaded rifle during the journey to the car park. However, the court was not satisfied beyond reasonable doubt that HEK contemplated the weapon would actually be discharged during the confrontation. There was trial evidence suggesting HEK had expressly disavowed reliance on firearms. The jury's acquittal of the co-offender who returned fire was interpreted as consistent with a finding that the rival group had effectively set up an ambush.
The affray was characterised as a particularly serious example of the offence. Eleven young men assembled in a public place near a major arterial road, armed, for the premeditated purpose of settling a petty score. The discharge of firearms and the death of an innocent bystander, while not directly attributable to HEK's own conduct, were relevant context in assessing the overall gravity of the events. The court relied on Stevens v R for the principle that an offender may be sentenced having regard to the conduct of co-offenders that forms part of the affray, though only to the extent it gives rise to that offence.
On subjective matters, the court noted HEK's lack of prior offending, his family support, the hardship of serving time in adult custody at a young age, and his reasonable prospects of rehabilitation. Latham J considered that the sentences should give some emphasis to rehabilitation at the expense of punishment and retribution, and that specific deterrence was not a relevant consideration. A slight reduction in penalty was also applied because HEK came before the higher courts only by reason of having been charged with murder.
Orders Made
- Convicted of affray: non-parole period of 2 years, commencing 10 April 2010 and expiring 9 April 2012, with a balance of term of 1 year expiring 9 April 2013
- Convicted of maliciously damaging property by fire: fixed term of 2 years imprisonment, commencing 10 September 2010 and expiring 9 September 2012
- Entitled to release on 10 September 2012
Key Takeaways
- Under s 18(1) of the Children (Criminal Proceedings) Act 1987, a court must consider the seriousness and nature of the offence, the offender's age and maturity at both the time of offending and sentencing, prior offending history, and other relevant matters before deciding whether to apply adult sentencing; here, the Supreme Court held that objective gravity and the offender's instigating role outweighed his youth and lack of prior history.
- A conviction for affray may properly reflect the conduct of co-offenders as part of the same event, but an offender can only be sentenced for conduct giving rise to the affray itself, not for separate offences committed by others during the same episode.
- Sufficient evidence existed to find beyond reasonable doubt that HEK knew a loaded firearm was present in his group, even though the court was not satisfied he contemplated its use.
- Where an offender is brought before a superior court solely because of a more serious charge that ultimately does not result in conviction, some slight mitigation of penalty for the remaining offences is available.
- The hardship of a young offender serving time in adult custody is a recognised factor in mitigation at sentencing.
Legislation and Cases Referenced
Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW), s 18(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes Act 1900 (NSW), s 93C (affray)
Cases:
- Stevens v R [2007] NSWCCA 152
- Khanwaiz & Ors v R [2012] NSWCCA 168