Director of Public Prosecutions v JN
[2023] VSC 500
•24 August 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2022 0041
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JN |
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JUDGE: | HOLLINGWORTH J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 19 June 2023 |
DATE OF SENTENCE: | 24 August 2023 |
CASE MAY BE CITED AS: | DPP v JN |
MEDIUM NEUTRAL CITATION: | [2023] VSC 500 |
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CRIMINAL LAW – Sentence - Manslaughter – Unlawful and dangerous act – Single stab wound to the head with a screwdriver – Offender aged 17 at the time of offending – Diagnosed with PTSD, schizophrenia and autism spectrum disorder in custody – Verdins principles applicable – Prior convictions – Prospects of rehabilitation if suitable treatment and counselling undertaken – Sentenced to 6 years’ imprisonment with a non-parole period of 4 years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms J Warren | Ms A Hogan, Solicitor for Public Prosecutions |
| For JN | Mr T Alexander | Geelong Lawyers, Barristers & Solicitors |
HER HONOUR:
You have pleaded guilty to the manslaughter of Jason Langhans.
On Saturday 20 March 2021, a 16th birthday party was held at a semi-rural property in Tooradin. There were about 150 children and young adults at the party over the course of the evening. Jason and a group of his friends arrived at the party around midnight.
Earlier that evening, you were at your friend Billy’s house, together with two other friends, Ali and Sajjad. You were all drinking, and some of you smoked cannabis. At some stage, you all decided you would go to the party, to which Billy had been invited.
Before you left, Billy warned you that “there might be trouble.” One of you asked, “got any knives in case anyone starts anything?” Billy said he only had a screwdriver, and placed a small screwdriver on the bench. You took the screwdriver with you to the party.
Your group arrived at the party around 1:30am. By that time, there were about 30 people still there; most were standing out the front, waiting for transport home. You, Billy, Ali and Sajjad stood around in the carport, chatting among yourselves. Ray Roeder, a guest who was unknown to you, came up to your group. Ray seemed to be intoxicated, and was behaving obnoxiously. He began touching Ali and Sajjad on the face. Ray then slapped Sajjad’s face. In response, Sajjad punched or headbutted Ray to the side of his face. Things then settled down, and the parties separated.
About 20 to 30 minutes later, Ray came over to your group again. This time, you were near the front gate to the property. Ray extended his hand and offered to shake hands. You shook his hand, but it seemed to observers that one of you was refusing to let the other’s hand go.
Jason was standing nearby. When he saw what was happening, he and some friends came over to intervene. Jason said something like “leave it” or “stop”. Jason was trying to diffuse the situation between you and Ray.
As Jason came towards you, the handshake between you and Ray ended. You grabbed the screwdriver, and held the handle in the palm of your hand, with the sharp end protruding between your fingers. Without warning, you punched Jason once to the left side of his head, above his eyebrow. Jason immediately fell to the ground.
The two groups then began fighting. Your group was chased from the property by other partygoers, who were throwing bottles and other objects towards your group. When other partygoers caught up with Sajjad, they punched and kicked him multiple times. Initially, you became separated from your friends, but you met up again later. You told them “I hit one guy badly with a screwdriver.”
After he fell, Jason was helped inside by friends. The extent of his injury was not immediately apparent. However, after his condition deteriorated, Jason was taken to hospital by ambulance. He underwent several operations on his brain. The pressure on Jason’s brain was difficult to control over the following weeks, and he began to develop other complications. Despite medical treatment, it became clear that Jason would not recover. His life support was withdrawn, and he died on 10 April 2021.
The autopsy confirmed that Jason had a single penetrating injury through his cranial bone, with two wound tracts within the injury. The cause of death was complications from that injury.
You were arrested on 9 June 2021, after the police had identified you as one of the people involved in the fight. You gave a no comment record of interview. You were charged with murder and have been in custody since then.
I turn to consider the seriousness of your offending.
Although this was not a premeditated attack, you were carrying a screwdriver to a party, which you were prepared to use as a weapon if there was any trouble. You positioned the screwdriver in your hand so that when you punched someone it would cause damage.
Jason was not behaving aggressively and had no weapon. You hit him without warning, and he had no opportunity to defend himself.
It is difficult to estimate the level of force you used to stab Jason. Jason had a much thinner than average skull, so less force was needed to cause such a serious injury. However, you did target Jason’s head, which is a relatively vulnerable part of the body.
It is also a serious feature of this offending that you stabbed Jason in front of other children and young people.
Your counsel argued that it was Ray who was holding your hand and refusing to let it go. He said that was relevant to the sense of threat that you perceived that you faced. Even if Ray was the aggressor in that regard, by the time Jason came over the handshake had ended. Furthermore, Jason had nothing to do with the handshake, and was not behaving aggressively. Objectively, you were not acting in excessive self-defence. However, I accept that, as a result of your mental illnesses, which I will discuss shortly, you overreacted to what you perceived to be a threatening situation.
Before I consider your personal circumstances, I want to say something about the effect your actions have had on others. A large number of very moving victim impact statements were provided by Jason’s family and friends, which addressed the effect that these events have had on them. It is clear that Jason was a much-loved son, grandson, brother, nephew, cousin and friend.
Jason was 17 when he died. He loved four wheel driving, camping, fishing and playing footy. He was about to start an apprenticeship as a plumber, and had just bought his first car.
Jason was a kind, caring and thoughtful person, with an infectious smile and cheeky manner. He is greatly missed every day, especially on special occasions, such as at the Langhans’ annual family day. Jason’s family and friends are utterly devastated that they will never get to see him fulfil his dreams, or share their lives with him.
His loved ones spent three distressing weeks seeing him in a coma in intensive care, not knowing whether he would recover. Eventually, his family made the difficult decision to turn off his life support. They had to take turns spending time with him in hospital, as COVID-19 restrictions meant that only two visitors were allowed at a time. They spent Jason’s last day with him watching his beloved Richmond Tigers, talking to him, and playing his favourite songs.
Some of those who were at the party at the time now feel anxious at large gatherings. They have flashbacks and nightmares about what they saw, and have been scared to go out since it happened. Some now take medication for anxiety and depression. They feel guilty that it was Jason who was taken and not them.
There is nothing this court can say or do that will bring back Jason, or heal his loved ones’ terrible grief, pain and anger. The sentence I am going to impose is not a reflection of the worth or value of Jason’s life. Rather, it reflects a large number of factors which judges are required by law to take into account, only one of which is the content of the victim impact statements.
I turn to consider your personal circumstances.
You were born in December 2003 in Afghanistan. You are the third youngest of ten children.
Your father was a farmer in Afghanistan, in a district that became an area of primary Taliban influence. The Taliban ruled with violence and fear. You and your family moved around to escape the danger and threats. You frequently saw bombings and dead bodies, and constantly felt fearful and unsafe.
When you were 8, the Taliban came looking for your father, accusing him of being a US sympathiser. Your father decided that the family should flee. Most of your family fled to Pakistan, leaving a few of your older siblings in Afghanistan. You then flew to Indonesia. After a month in Indonesia, you came to Australia by boat. There was no food or water on the boat, and two of your siblings became unconscious.
When you arrived in Australia, you were detained in offshore detention for two months. You described that time as like being a prisoner in a cage. Whilst in detention, your family learned that your eldest brother had been shot and killed by the Taliban in Afghanistan. That had a significant effect on you, as you not only mourned the loss of your brother to whom you were very close, but you also felt guilty that you had been able to escape and he had not.
After arriving in Darwin, you were moved to four different detention camps over four months. When you were 10, you were granted a bridging visa, and came to Geelong. Your parents separated while living in Geelong, but your father has remained close by and stayed involved with the family.
You received some basic schooling while in immigration detention, and then attended school in Geelong. You found school difficult due to language problems, some emerging cognitive problems, and the racism you experienced. Your jaw was broken when someone punched you when you were about 13. Your attendance at high school was poor, and you exhibited various behavioural and social problems. At the end of year 9, you changed schools to attend a flexible learning centre. You attended school on and off, but left in 2020 without completing year 12. Apart from a brief period of work painting houses, you have no work experience.
You began showing early signs of mental illness while in offshore detention. You ran away from your family and hid in a container to avoid being vaccinated, because you thought the authorities and your family were trying to kill you. You would ask your mother to take the first bite of food that she cooked, to show that it wasn’t poisoned. You thought that people were spying on you. You became increasingly reclusive. But you received no support or treatment for your problems at the time.
You were first referred for mental health support when you were about 12. You attended Headspace, a youth mental health foundation, but did not engage with the treating team consistently.
Your first contact with the criminal justice system was when you were 12. Over the years since then, you have been dealt with for numerous offences in the Children’s Court, including assaults and possessing weapons, as well as property and drug offences. You have received several good behaviour bonds and non-custodial orders, but have shown poor compliance with their conditions. It is not clear what, if any, role your then undiagnosed mental illnesses have played in any of your earlier offending. This is by far your most serious offending.
When you were about 14 or 15, you started using drugs, particularly cannabis, and drinking excessive amounts of alcohol. You also started hearing voices and becoming paranoid. Your behaviour was often strange, erratic and anti-social, and you often ran away from home. You began to engage in self-harming behaviours.
When you were first placed in custody for this offending, your behaviour was difficult for the authorities to manage, and you were involved in numerous incidents of property damage and assaults in the youth justice system. In July 2021, you assaulted a youth justice worker. You believed the staff member was talking to other young people about you; you were agitated, confused and upset, and at times experiencing auditory hallucinations. You were sentenced to a 14 day youth justice centre order.
Unfortunately, it took some months before it was realised that you were actually psychotic. You were assessed by Orygen Forensic Youth Mental Health Service and diagnosed with major depressive disorder with psychotic features, and post-traumatic stress disorder. You were treated with various medications, but they had little effect.
In March 2022, you spent about three weeks in Orygen’s secure treatment facility under a secure treatment order. This ended when the unit was damaged by another young person so badly that it became unusable.
During August and September 2022, you were an inpatient at Thomas Embling Hospital on a secure treatment order, because you were paranoid and hearing voices. You were treated with clozapine, a strong antipsychotic medication used for treatment-resistant psychotic symptoms, and your psychosis stabilised.
Since your return to youth detention in September 2022, your psychotic symptoms and behaviour have improved significantly. You were placed in a unit by yourself, or with just one other young person, as you found it easier having less people around. However, you continue to suffer from PTSD, including flashbacks and nightmares of your experiences in Afghanistan.
For the purposes of sentencing, you were assessed by a psychiatrist, Dr Rajan Darjee. You told Dr Darjee that you first started hearing voices and becoming paranoid when you were about 15. You said you didn’t tell anyone at the time, because you didn’t want them to think you were crazy. Dr Darjee diagnosed you as having a complex combination of mental health problems, including schizophrenia, PTSD, cognitive and language difficulties, and alcohol and cannabis use disorder. He noted that you have also previously been diagnosed with a personality disorder.
You have also recently been diagnosed with autism spectrum disorder. A report by Dr Sarah Sherwell, senior clinical neuropsychologist at Orygen, also noted that you have an intellectual impairment. You have significant difficulties navigating social interactions, including making eye contact, you struggle when plans change, and have sensory processing issues. Dr Sherwell recommended therapeutic support from a speech pathologist and an occupational therapist.
In a case called Verdins,[1] the Court of Appeal said than an offender’s impaired mental functioning may be relevant to sentencing in one or more of six different ways. Your counsel argued that what are commonly referred to as principles 1, 3, 4 and 5 apply to your case.
[1]R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269.
I accept that your mental impairment reduces your moral culpability for this offending. Dr Darjee’s expert opinion is that your undiagnosed and untreated schizophrenia and PTSD were significant contributors to the offence. At the time, you were generally on edge, fearful and hypervigilant, due to the impact of auditory hallucinations, persecutory delusions, and your earlier experiences of having your life threatened and being bullied. But for your intense paranoia, Dr Darjee believes you would not have carried the screwdriver with you, or have reacted to Jason’s actions in the way you did. Being affected by psychosis would also have significantly impacted your ability to make rational and calm judgments, and to control your response to perceived provocation or threats. However, another contributing factor to the offending was your intoxication; that moderates the reduction in your moral culpability due to your mental health problems.
I am also satisfied that you are not a suitable vehicle for general deterrence because of the role your PTSD and schizophrenia played in your offending, and have moderated that consideration accordingly.
I also accept that specific deterrence must be moderated as a sentencing consideration. Even though you are now able, to some extent, to understand and accept your role and responsibility in the offending, your mental impairment made you perceive threats differently to other people and respond impulsively.
I also take into account that incarceration has been, and will continue to be, more onerous for you than for someone who does not suffer from a mental impairment.
Your age is another very relevant sentencing consideration. Because you were 17 at the time of offending, you are to be sentenced as a child offender.[2] Very different sentencing principles apply to children, and very different sentences are imposed on them, in recognition of the fact that they are less mature, less able to form moral judgments or control their impulses, and less aware of the consequences of their actions.
[2]Section 3(a) of the Children, Youth and Families Act 2005 defines child as “a person who at the time of the alleged commission of the offence was under the age of 18 years but of or above the age of 10 years but does not include any person who is of or above the age of 19 years when a proceeding for the offence is commenced in the court”.
The law says that the youth of an offender should be a primary consideration for a sentencing court, where the matter properly arises. In the case of such an offender, rehabilitation is usually more important than general deterrence; rehabilitation benefits the community as well as the offender.
However, those principles are not absolute; due regard must be had in each case to other relevant matters, including the seriousness of the offending, and whether there has been any prior offending. Generally speaking, the more serious the offending, the less the weight to be attached to youth. But the mitigatory effect of youth will be extinguished only in circumstances of the gravest criminal offending, and where there is no realistic prospect of rehabilitation.
All of these considerations can and do lead to children receiving sentences which would be regarded as entirely inappropriate in the case of older individuals.
I turn to consider your prospects of rehabilitation.
I accept that you are genuinely remorseful for causing Jason’s death, to the extent that your mental illnesses allow insight and remorse. You offered to plead guilty to manslaughter before the committal hearing, acknowledging that you had caused Jason’s death. You told Dr Darjee how sorry you are for what you have done. You also wrote a letter to the court, which I accept is a sincere apology for your actions.
In Dr Darjee’s assessment, your historic risk factors mean you would pose an ongoing high risk of further violence. However, that risk of violence would be significantly reduced by further stability, treatment and support, both in custody and when you return to the community. The medication you are taking for your mental illnesses is helping you, and you are keen to continue with that medication. You now have insight into your mental health problems and have developed a good relationship with your psychologist. In Dr Darjee’s opinion, while it is early days, there are some positive signs in terms of your prospects for rehabilitation.
As mentioned earlier, you have been involved in numerous incidents while in custody, including property damage and assaulting staff. Your frustrations with staff and other inmates appeared to have arisen from your paranoia, as well as your limited conflict resolution skills. However, since your return from TEH, there has been a significant decrease in the number of incidents in which you have been involved. Your last serious incident was in October last year, and your last incident was in January of this year.
Notwithstanding the seriousness of your offending and the incidents you have been involved in while in custody, I accept Dr Darjee’s opinion that you have reasonable prospects for rehabilitation if you continue to engage with appropriate mental health practitioners to address your mental health and behavioural problems. I note that the prosecution also accept that you have reasonable prospects of rehabilitation if you continue to engage in appropriate treatment.
In a pre-sentence report provided by Youth Justice on 13 July 2023, the author took a more pessimistic view of your prospects of rehabilitation. However, that Youth Justice report seems to be heavily influenced by concerns about staffing shortages, as well as an undue focus on your historical behavioural problems.
You were initially charged with murder. You first offered to plead guilty to manslaughter in October 2021, before the committal hearing. That offer was rejected and, in March 2022, you were committed to stand trial in the Supreme Court through the “fast-track” procedure. In September and October 2022, s 198B examinations of various witnesses were conducted. In late December 2022, your offer to plead to manslaughter was accepted by the prosecution. I treat this as a plea offered at the earliest opportunity.
You are entitled to a discount on the sentence to be imposed upon you in recognition of your guilty plea, and its utilitarian value. Your plea has facilitated the course of justice. The community has, by your plea, been spared the time and cost of a trial. Because of your plea, witnesses, and the family and friends of Jason Langhans have been spared what would have been a traumatic trial for all concerned.
During the early stages of the COVID-19 pandemic, the criminal justice system became severely congested, and jury trials were unable to proceed at all, or were delayed. In a case called Worboyes,[3] the Court of Appeal said that there were several reasons why a plea of guilty should be given additional weight during the pandemic, because it carried a greater utilitarian benefit than at other times.[4]
[3]Worboyes v The Queen [2021] VSCA 169.
[4]Worboyes, [35]-[39].
In fact, the Supreme Court has now cleared its pandemic backlog. In such circumstances, it might seem strange, or even illogical, to allow a Worboyes discount in this particular case. However, the Court of Appeal has recently held that, for the sake of consistency, Worboyes discounts (even if modest) must continue to be given in all courts for so long as any of them are experiencing pandemic-related delays.[5]
[5]Biba v The Queen [2022] VSCA 168, [26].
I accept that some of your time in custody since June 2021 has been made more difficult by the various restrictions that were in place during the COVID-19 pandemic. You have spent time in lockdown, or without access to programs, and your contact with your family was initially only by phone and video call.
Your counsel submitted that a youth justice centre order was appropriate in this case. Manslaughter is a Category A serious youth offence, so exceptional circumstances must exist before a youth justice centre order can be made.[6] Your counsel argued that your various mental health diagnoses establish exceptional circumstances. The prosecution argued that even if exceptional circumstances were made out, the maximum term of a youth justice centre order[7] would not be sufficient for the seriousness of this offence and having regard to your prior history.
[6]Sentencing Act 1991, s 32(2C).
[7]Under s 32(3)(b) of the Sentencing Act 1991, the maximum term of a youth justice centre order is four years.
Following your plea hearing, I requested a pre-sentence report from Youth Justice. In a report dated 13 July 2023, Youth Justice assessed you as being unsuitable for a youth justice centre order for two reasons. The first was that the author assessed you as having poor prospects of rehabilitation given your previous offending, the increase in the severity of your offending, and what she perceived to be your lack of insight into your offending. The second reason was the author’s concern that you could be a negative influence on younger peers in youth detention. The author also noted that if you received a youth justice centre order, they could not continue the current arrangement of having you in a unit by yourself with two staff members.
Although the first reason does reflect the legal test in s 32(1)(a) of the Sentencing Act 1991, in my opinion the author has taken an overly pessimistic view of your rehabilitation prospects, based on too much reliance on historical matters which occurred before you received appropriate treatment, and without the nuanced understanding of mental health issues demonstrated by Dr Darjee. The second reason offered by the author completely misconceived the legal test in s 32(1)(b); the author has failed to address the question of whether you are “particularly impressionable, immature or likely to be subjected to undesirable influences in an adult prison”.
Dr Darjee’s opinion is that you would be “very vulnerable” in an adult prison, and if transferred to one there would likely be a re-emergence of you becoming concerned about potential threats to your safety. Dr Darjee notes that you currently have access to appropriate medical treatment in a known setting, with practitioners with whom you have established relationships; he believes that if your future treatment in an adult prison was suboptimal, or you felt threatened by adult prisoners, there would likely be a deterioration in your symptoms of schizophrenia and PTSD.
Although I have concerns about the prospect of you being sent to an adult prison at this relatively early stage of your treatment for serious mental illnesses, I am not satisfied that a youth justice centre order is appropriate, given the seriousness of your offending and your past history.
However, this is an appropriate case in which to request the Adult Parole Board to consider transferring you to the youth justice system until you are 21.[8] In making that recommendation, I strongly urge the Adult Parole Board to have regard to the expert opinion of Dr Darjee, mentioned above, and to focus on your conduct since you returned from TEH rather than during the period when you were not receiving adequate treatment.
[8]Under s 471 of the Children, Youth and Families Act 2005.
Having regard to all these matters, for the offence of manslaughter, I sentence you to imprisonment of 6 years. I fix a period of 4 years as the period you must serve before you become eligible for parole.
Had you not pleaded guilty, I would have sentenced you to 8 years’ imprisonment, with a non-parole period of 6 years.
Further, I declare that the period to be reckoned as already served under this sentence is 792 days, not including today’s date.[9] I direct that there be noted in the records of the court the fact that such a declaration was made and its details.
[9]The 14 days that you have served as a youth justice centre order for another offence has been deducted.
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