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Supreme Court 1 May 2015

R v SB; R v AE; R v MG

[2015] NSWSC 659

Assault & violenceHomicide
CRIMINAL LAW SENTENCING MURDER JUVENILE OFFENDERS EXTENDED JOINT CRIMINAL ENTERPRISE OFFENDERS

Citation: R v SB; R v AE; R v MG [2015] NSWSC 659
Court: Supreme Court of New South Wales
Date: 1 May 2015
Judge(s): Hall J

Background

Three juvenile offenders, identified only as SB, AE, and MG (their names suppressed under the Children (Criminal Proceedings) Act 1987), were convicted of the murder of 17-year-old Eden Delir, who died as a result of a violent assault on 5 November 2010. The offenders were part of a larger group of young males who arrived uninvited at a Halloween party in Restwell Road, behaving aggressively and confronting guests in search of a rival group known as the "Campbelltown boys."

When the rival group proved not to be present, the offenders and their associates turned on the victim. Two co-offenders, JP and JH, had previously been convicted of manslaughter arising from the same death and sentenced to 10 years imprisonment with non-parole periods of 7 years. A third co-offender, AN, had pleaded guilty to manslaughter. All three of the present offenders were under 18 at the time of the offence.

The sentencing proceedings required Hall J to determine the factual basis for the murder verdicts, to weigh aggravating and mitigating factors (including youth and rehabilitative prospects), to consider parity with the manslaughter co-offenders, and to determine how and where the sentences should be served.

  • Whether the jury's murder verdicts should be characterised as based on a direct joint criminal enterprise (object: grievous bodily harm) or an extended joint criminal enterprise (object: assault, with a substantial risk one participant might cause grievous bodily harm with intent)
  • What sentences were appropriate for juvenile offenders convicted of murder, having regard to the purposes of sentencing under s 3A of the Crimes (Sentencing Procedure) Act 1999
  • How the principle of parity applied, given that co-offenders convicted of the lesser offence of manslaughter received 10-year sentences with 7-year non-parole periods
  • Whether special circumstances existed justifying a variation to the standard statutory ratio between the non-parole period and the head sentence
  • Whether the offenders should serve their sentences (or part of them) in juvenile detention rather than an adult correctional facility, pursuant to the Children (Criminal Proceedings) Act 1987

Decision

Hall J accepted the submission of the offenders' counsel that the jury's verdicts were most appropriately characterised as extended joint criminal enterprise murder, rather than the Crown's preferred characterisation of direct grievous bodily harm murder. This distinction carried significance for the relative culpability assessment of the three murder-convicted offenders compared to the manslaughter-convicted co-offenders.

On parity, the court was required to reconcile the murder verdicts against the sentencing outcomes already imposed on JP, JH, and AN for manslaughter. All three manslaughter offenders received 10-year head sentences with 7-year non-parole periods. The court acknowledged that the murder convictions reflected greater criminal culpability, warranting meaningfully higher sentences, while still maintaining a rational relationship between the outcomes across the group.

The court found special circumstances existed in each case, justifying a departure from the statutory default ratio (under which the non-parole period would ordinarily be three-quarters of the head sentence). The offenders' youth, the significant time some had spent on strict bail conditions, and the importance of a longer period of supervised parole to support rehabilitation all informed this finding. Hall J imposed head sentences of 12 years with non-parole periods of 8 years for each offender, producing a ratio of two-thirds rather than three-quarters.

Regarding where the sentences would be served, Hall J made orders under ss 19(1) and 19(3) of the Children (Criminal Proceedings) Act 1987 directing that each offender serve the non-parole period of their sentence as a juvenile offender until attaining the age of 21. This reflected the court's assessment that the rehabilitative interests of each young offender were better served in a juvenile detention environment for that period.

Orders Made

  • SB: Convicted of murder. Head sentence of 12 years imprisonment. Non-parole period of 8 years commencing 23 December 2012, expiring 22 December 2020. Parole period of 4 years expiring 22 December 2024.
  • AE: Convicted of murder. Head sentence of 12 years imprisonment. Non-parole period of 8 years commencing 20 November 2014, expiring 19 November 2022. Parole period of 4 years expiring 19 November 2026.
  • MG: Convicted of murder. Head sentence of 12 years imprisonment. Non-parole period of 8 years commencing 25 November 2014, expiring 24 November 2022. Parole period of 4 years expiring 24 November 2026.
  • Orders made under ss 19(1) and 19(3) of the Children (Criminal Proceedings) Act 1987 directing each offender to serve their non-parole period as a juvenile offender until attaining the age of 21.

Key Takeaways

  • Where co-offenders in the same fatal joint enterprise have been convicted of different offences (here, murder versus manslaughter), the parity principle requires sentencing courts to maintain a rational and proportionate relationship between outcomes, while still reflecting the greater culpability attached to the more serious verdict.
  • Extended joint criminal enterprise murder, where the agreed object was mere assault and the grievous bodily harm was a foreseeable risk rather than the intended object, may attract a different culpability characterisation than direct grievous bodily harm murder, even though the ultimate conviction is the same.
  • Special circumstances sufficient to vary the statutory non-parole ratio can arise from a combination of factors including the offender's youth, the prospect of rehabilitation, and the practical burden of extended pre-sentence bail conditions.
  • Under the Children (Criminal Proceedings) Act 1987, the Supreme Court has power to order that a juvenile offender serve the non-parole period of a custodial sentence in a juvenile detention facility until they turn 21, even where an adult sentence has been imposed.
  • Standard non-parole period provisions under Division 1A of the Crimes (Sentencing Procedure) Act 1999 do not apply where the offender was under 18 at the time of the offence, by operation of s 54D(3) of that Act.

Legislation and Cases Referenced

Legislation
- Children (Criminal Proceedings) Act 1987 (NSW), ss 19(1), 19(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 54D(3), 61(1)
- Crimes Act 1900 (NSW), s 19A

Cases
- Green v R [2011] HCA 49; (2011) 244 CLR 462
- Jimmy v R [2010] NSWCA 60; (2010) 77 NSWLR 540
- KT v R [2008] NSWCCA 51
- R v AEM (Snr) [2002] NSWCCA 58
- R v AN [2014] NSWSC 1879
- R v Dennis (NSWCCA, 14 December 1992, unreported)
- R v Fowler [2003] NSWCCA 321
- R v Hearne (2001) 124 A Crim R 451
- R v Isaacs (1997) 41 NSWLR 374
- R v JH [2014] NSWSC 1845
- R v JP [2014] NSWSC 698
- R v Khamas (1999) 108 A Crim R 499
- R v Pilley (1991) 56 A Crim R 202
- R v Simpson (2001) 53 NSWLR 704
- R v Webb [2004] NSWCCA 330; 149 A Crim R 167