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Court of Criminal Appeal 21 February 2013

AH v R

[2013] NSWCCA 32

Assault & violenceHomicide
CRIMINAL LAW MANSLAUGHTER EXTENDED JOINT CRIMINAL ENTERPRISE AGREED FACTS OFFENDERS WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: AH v R [2013] NSWCCA 32
Court: NSW Court of Criminal Appeal
Date: 21 February 2013
Judge(s): McClellan CJ at CL, Rothman J, Bellew J

Background

The applicant, a juvenile offender, pleaded guilty to manslaughter arising from a fatal stabbing at a residential premises in Busby on 25 April 2009. He had organised and led a group of armed individuals to the premises following a dispute with another young man. One member of the group, a co-accused, stabbed and killed the deceased during the ensuing affray. The applicant was not aware at any time that the co-accused was carrying a knife.

The applicant was sentenced by Johnson J in the Supreme Court to a total term of 4 years' imprisonment, comprising a non-parole period of 2 years and an additional term of 2 years, to be served entirely as a juvenile offender under s 19 of the Children (Criminal Proceedings) Act 1987. Two co-accused were separately convicted and sentenced for their roles in the same incident.

The applicant sought leave to appeal against the sentence on multiple grounds, including that the sentencing judge had misconstrued the basis of the plea, had erred in assessing objective gravity, had given excessive weight to general deterrence given his youth, and that there was unjustifiable disparity between his sentence and those of his co-accused.

  • Whether the sentencing judge misconstrued the basis of the applicant's guilty plea, particularly by conflating joint criminal enterprise with extended joint criminal enterprise
  • Whether the sentencing judge erred in assessing the objective gravity of the offending
  • Whether the sentencing judge gave disproportionate weight to general deterrence given the applicant's youth
  • Whether an unjustifiable sentencing disparity existed between the applicant and his co-offenders
  • Whether the sentence was manifestly excessive in all the circumstances

Decision

The Court of Criminal Appeal rejected each ground of appeal. On the question of whether the sentencing judge had confused joint criminal enterprise with extended joint criminal enterprise, the Court found no error. The applicant's plea was entered on the basis that he had contemplated the possibility that serious bodily harm might be inflicted during the affray, which was the correct legal foundation for liability under extended joint criminal enterprise.

On objective gravity, the Court confirmed that the sentencing judge's characterisation of the offending as "objectively serious" was correct. The applicant had played an organisational role: he recruited a large group of armed participants, led them to the premises, and was present when the stabbing occurred. These circumstances distinguished him from the other co-accused and properly elevated the seriousness of his conduct.

Regarding general deterrence and the applicant's youth, the Court acknowledged that youth is a relevant mitigating factor and that courts must weigh it carefully. However, the Court held that the nature of the offending, organised armed street violence resulting in death, meant that general deterrence and the protection of the public remained legitimate sentencing considerations despite the applicant's age. The sentencing judge had had regard to the applicant's subjective circumstances, including a medical report referencing his immaturity.

On disparity, the Court found no unjustifiable difference when the sentences of the co-accused were examined in light of their respective roles. Notably, the applicant had played an organisational role that neither of the other co-accused shared, and that distinction justified the difference in sentences. The appeal was dismissed on all grounds.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • An applicant who organises and leads armed participants to a confrontation, in circumstances where serious bodily harm is contemplated, may be sentenced on the basis of extended joint criminal enterprise even where the fatal act was carried out by another participant without the applicant's knowledge.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that general deterrence and community protection remain relevant sentencing considerations in cases of organised armed street violence, even where the offender is a juvenile.
  • Sentencing disparity between co-offenders is assessed by reference to the substance of each person's role; where one offender holds an organisational role that others did not, a more severe sentence for that offender does not constitute unjustifiable disparity.
  • Under s 19 of the Children (Criminal Proceedings) Act 1987, a court may order that a term of imprisonment be served wholly as a juvenile offender, and such an order does not preclude the imposition of a sentence that reflects the full objective gravity of the offending.
  • No error arises from a sentencing judge's assessment of objective gravity simply because the offender did not personally inflict the fatal injury, where the agreed facts established a contemplation of serious bodily harm and an active organisational role in the events leading to death.

Legislation and Cases Referenced

Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW), s 19
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)

Cases:
- KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571
- Mulato v R [2006] NSWCCA 282
- R v Barghachoun [2012] NSWCCA 1534