Citation: R v AM [2012] NSWSC 1635
Court: Supreme Court of New South Wales
Date: 14 December 2012
Judge(s): Latham J
Background
The offender, AM, was a juvenile at the time of the offence. On 25 June 2009, he participated in an arranged confrontation between two opposing groups of young men in a car park at Milperra. The gathering followed an earlier altercation at a Bankstown shopping centre, and AM played a role in arranging the meeting by contacting members of the opposing group and enlisting his older brothers.
The confrontation ended in serious violence. AM's older brother, MM, opened fire with a semi-automatic pistol, killing an innocent truck driver on a nearby road and wounding at least one other participant. AM himself was not armed and, on the agreed facts, had no knowledge that firearms were present.
AM pleaded guilty to one count of affray. His older brother and several other co-offenders had already been sentenced for their parts in the same incident, raising significant parity considerations. AM was sentenced as a juvenile under the relevant statutory framework.
Legal Issues
- To what extent can the court take into account the death of an innocent bystander, caused by a co-offender's discharge of a firearm, when sentencing for affray?
- How is the objective gravity of the affray to be assessed where the most serious consequences flowed from a co-offender's conduct?
- What weight should be given to parity with co-offenders, the offender's youth, and his subjective circumstances?
- Whether a custodial sentence was warranted for a juvenile offender of relatively limited culpability.
Decision
Latham J confirmed the principle, drawn from Stevens v R [2007] NSWCCA 152, that an offender may only be sentenced for the conduct that gave rise to the affray itself, not for separate offences committed by a co-offender, such as manslaughter. AM was therefore not to be punished for Mr Knight's death. However, the level and nature of violence forming part of the affray, including a co-offender's use of a firearm, remained relevant to assessing the objective gravity of the charge.
Her Honour assessed the objective gravity of the offence as particularly serious. The confrontation was premeditated, involved multiple participants from two organised groups, and escalated to the discharge of firearms in a public place. Drawing on observations in Khanwaiz & Ors v R [2012] NSWCCA 168, her Honour noted that affray offences under Part 3A of the Crimes Act 1900 engage broader public order considerations beyond harm to direct participants.
AM was assessed as among the least culpable of all participants. He was unarmed, had no knowledge of firearms, and was a juvenile at the time. His account of intending to act as a peacemaker was regarded with scepticism, but her Honour accepted that he was appalled by the escalation of violence. His offer to plead guilty at the Children's Court stage, which the Crown had rejected, entitled him to a 25% discount on the otherwise appropriate sentence.
Applying the sentencing principles applicable to juvenile offenders under the Children (Criminal Proceedings) Act 1987, with their emphasis on rehabilitation over general deterrence, and taking into account nearly four months already served in custody, her Honour concluded that a further period of imprisonment was not warranted. AM was convicted and placed on a good behaviour bond.
Orders Made
- AM convicted of affray.
- AM directed to enter a good behaviour bond under s 9 of the Crimes (Sentencing Procedure) Act for a period of three years from 14 December 2012.
Key Takeaways
- An offender sentenced for affray may only be punished for the conduct constituting the affray itself. A co-offender's separate criminal act, such as manslaughter arising from the same incident, cannot be used as a basis for increasing the offender's sentence.
- The level and nature of violence used during an affray, including a co-offender's use of a firearm, remains an objective factor relevant to the seriousness of the affray charge itself.
- Under Part 3A of the Crimes Act 1900, affray carries a public order dimension extending beyond harm to immediate participants, and sentencing courts may take into account the broader impact on public confidence in safety.
- Parity with co-offenders is a significant consideration where multiple participants in the same affray have already been sentenced, particularly when calibrating differences in individual culpability.
- Sentencing courts dealing with juvenile offenders under the Children (Criminal Proceedings) Act 1987 place greater emphasis on rehabilitation and correspondingly reduced weight on general deterrence, reflecting the relative immaturity and vulnerability of young offenders.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 93C (affray); Part 3A (public order offences)
- Children (Criminal Proceedings) Act 1987 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 9
Cases:
- R v Mariam [2012] NSWSC 1023
- R v Abdulhardi NSWSC, 20 April 2012
- Stevens v R [2007] NSWCCA 152
- Khanwaiz & Ors v R [2012] NSWCCA 168
- R v Huynh [2000] NSWCCA 18
- R v Eleter [2003] NSWCCA 130
- R v Fajka [2004] NSWCCA 166