Director of Public Prosecutions v Rowntree (a pseudonym)

[2024] ACTSC 155

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

DPP v Rowntree (a pseudonym)

Citation:

[2024] ACTSC 155

Hearing Date:

10 May 2024

Decision Date:

20 May 2024

Before:

Mossop J

Decision:

1.  On the charge of murder (CC CAN 564/2022), the offender is convicted and sentenced to imprisonment for 13 years, commencing on 5 June 2022 and ending on 4 June 2035.

2.  The sentence is to be suspended after the offender has served seven years and nine months from 5 June 2022 until 4 March 2030, upon him giving an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) and with the additional condition that, during the period which the sentence is suspended, the offender is to be on probation subject to the supervision of the Director-General and to obey all reasonable directions of the Director-General.

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – murder – case of mistaken identity – offender intended to commit home invasion but went to the wrong unit – offender only 17 and a half years old at the time of the offence – consideration of offender’s personality structure, antisocial attitudes, underlying mental health conditions and adverse consequences of being detained – offender sentenced to 13 years’ imprisonment to be suspended after seven years and nine months

Legislation Cited:

Crimes Act 1900 (ACT), s 12

Crimes (Sentence Administration) Act 2005 (ACT)

Crimes (Sentencing) Act 2005 (ACT), ss 35, 64(2)(f), 133G(2), Ch 8A

Criminal Code 2002 (ACT), s 45A

Cases Cited:

Bugmy v The Queen [2013] HCA 37; 249 CLR 571

Forster-Jones v The Queen [2020] ACTCA 31

MT v The Queen [2021] ACTCA 26; 17 ACTLR 22

Pikula-Carroll v The Queen [2022] ACTCA 12

R v Haven (a pseudonym) [2022] ACTCA 61

R v JJ [2014] ACTCA 23; 242 A Crim R 363

Parties:

Director of Public Prosecutions

Kieran Rowntree (a pseudonym) ( Offender)

Representation:

Counsel

T Hickey ( DPP)

K Lee ( Offender)

Solicitors

Director of Public Prosecutions

Legal Aid ACT ( Offender)

File Number:

SCC 3 of 2023

MOSSOP J:

Introduction

1․In these reasons, the offender is referred to by the pseudonym Kieran Rowntree. That is because he was a minor at the time of the relevant offending. The offender has pleaded guilty to a charge of murder, contrary to s 12 of the Crimes Act 1900 (ACT) (CC CAN 564/2022). The maximum penalty is life imprisonment.

2․This is a tragic case of mistaken identity that resulted in the death of Glenn Walewicz. Mr Walewicz was at home with his girlfriend at the time that he was killed. The offender, along with two co-offenders, was intending to commit a home invasion. They knew the identities of the intended victims. However, they went to the wrong unit and the offender shot Mr Walewicz without ever knowing who he was. Mr Walewicz did not know his killer and was entirely innocent. His loss has been particularly hard for his friends and family.

3․The offender was 17 years and six months old at the time of the offending. Even though he is now aged 20, his age at the time of the offending means that the special provisions for the sentencing of minors in Ch 8A of the Crimes (Sentencing) Act 2005 (ACT) apply in this case.

Agreed Facts

4․The facts upon which the offender is to be sentenced were set out in a Statement of Facts which was tendered by the prosecution and admitted into evidence. A dispute about certain facts contained in an annexure to the Statement of Facts was resolved by the time of the sentence hearing, it being accepted that the evidence could be admitted.

5․In summary, the facts are as follows.

6․Nicole Williams, who was aged 37 at the time of the offending, lived in Holt. Her son, Jayden Williams, was 18 years old. In the weeks leading up to the murder of Mr Walewicz, Gary Taylor and a 12‑year‑old child (the young person) were staying at Nicole Williams’ house. Another person, who had previously been staying at the premises, left a Winchester .22 calibre pump-action rifle at the premises and Nicole Williams kept the rifle with the intention of selling it.

7․The offender, who at that time was 17 years old, had known Nicole Williams since he was around 12 years of age and considered her to be family. He called her “mum”. On 9 and 10 June 2021, Nicole Williams made arrangements with Jayden Williams, Mr Taylor and the offender to carry out a home invasion at the premises of Juliann Williams and Rhys Dugdale.

8․On the evening of 10 June 2021, the offender and Reatile Ncube, an 18‑year‑old, went to the home of Nicole Williams. Mr Ncube stayed in his car while the offender went inside.

9․When inside, Nicole Williams introduced the offender to Mr Taylor and the young person and told them to do a “run through”, that is, a home invasion, of a unit occupied by Mr Dugdale and Juliann Williams, being people who she said owed her money. She instructed them to take any drugs and money that they found at the premises. Mr Dugdale and Juliann Williams were related to Nicole Williams and Jayden Williams. They were also known to Mr Taylor. The offender did not know either of them.

10․Nicole Williams told the offender that she believed Mr Dugdale may be in possession of a firearm and might try to shoot them. She then retrieved the rifle from under her bed and called the offender into the kitchen where another person was waiting. The offender was given the rifle and shown how to use it. Although the offender was previously aware that Nicole Williams was in possession of the rifle, he had not seen it before this night, and was not aware that she expected it to be used in the home invasion until it was given to him.

11․The offender then left Nicole Williams’ home with Mr Taylor and the young person and travelled with Mr Ncube to the block of units where Mr Dugdale and Juliann Williams lived.

12․Shortly before 11:35pm, the group arrived at the block of units. The offender, Mr Taylor and the young person approached the units while Mr Ncube waited in the car. The offender was carrying the rifle inside his jacket. Mr Taylor was carrying a small axe.

13․Because the offender did not know the people whose home they had been sent to invade, he was reliant upon Mr Taylor to direct him to the correct premises. Mr Taylor knocked on the door of one of the units and the occupant of that unit directed them towards Mr Walewicz’s unit. The group then went to the entrance to Mr Walewicz’s unit, believing it to be the unit belonging to Juliann Williams and Mr Dugdale. The entrance was fitted with an external fly screen door that opened outwards and an internal wooden door that opened inwards. Between the two doors was a thick, opaque, burgundy curtain, which covered the entire doorway.

14․Mr Taylor knocked on the front door. Mr Walewicz opened the internal wooden door but stayed behind the burgundy curtain. Mr Walewicz asked, “Who is it?” At this time, the offender and Mr Taylor were standing to the side of the entry to the unit. The offender then removed the rifle from his jacket and chambered a round by pumping the loading mechanism on the rifle.

15․The next sequence of events occurred in a matter of mere seconds. Mr Walewicz pulled back a portion of the burgundy curtain and asked again, “Who is it?” The offender approached the doorway with the rifle raised and said, “Open up.” Mr Walewicz dropped the curtain, so that the offender could no longer see him. The offender fired one round of the rifle, which passed through the fly screen door, through the burgundy curtain, through the internal wooden door and hit Mr Walewicz. Mr Walewicz stumbled back and fell to the ground.

16․The offender pulled the trigger of the rifle with the intention of firing it but did not intend to kill or injure Mr Walewicz.

17․The offender then moved back to the side of the entry and chambered another round in the rifle by pumping the loading mechanism. The offender then moved forward briefly and peered towards the doorway to Mr Walewicz’s unit. The offender said, “What do we do?” Mr Taylor said, “Run.” The group fled and ran to the nearby car in which Mr Ncube was still waiting. Once in the car, the offender said words to the effect, “I fucked up, I shouldn’t have shot him”. Mr Ncube drove the group back to Nicole Williams’ address.

18․Police and ambulance services arrived at the scene just before midnight, and Mr Walewicz was immediately transported by ambulance to the Canberra Hospital. However, at 12:15am on 11 June 2021 he was declared dead.

19․Post-mortem examinations revealed the shot from the rifle hit Mr Walewicz in the neck, striking the brachiocephalic artery, the lateral wall of the trachea, the upper lobe of the right lung and the fifth rib on his right side, causing his right lung to collapse. The autopsy report lists the cause of death as a gunshot wound to the neck and chest.

20․Police established a crime scene around Mr Walewicz’s unit and conducted a forensic examination. During the examination, police located a .22LR calibre shell casing bearing the branding “CCI” on the ground outside the unit.

21․The Statement of Facts as agreed by the offender states that “[t]he murder was essentially one of mistaken identity”. The actual targets of the home invasion were Mr Dugdale and Juliann Williams. This is demonstrated by messages found on Nicole Williams’ mobile phone that show that in the days leading up to the murder, she was arranging the home invasion with her son. One message on the day before the murder reads, “Gaz [Mr Taylor] number message him when [the offender] is ready to do them fullas over”. Another message on the day of the murder reads, “Oi [the offender] said can you tell Gaz to answer his phone bc [the offender] wants to go do Rhys over”.

Victim impact

22․Two victim impact statements were read. The first was provided by Mr Walewicz’s mother. The loss suffered by Mr Walewicz’s mother has been profound. The loss of her son has created a massive hole in her life. He was her only son. She spent most weekends with him. She records her grief as being overwhelming and feeling pain every day. Understandably, she has so many questions, in particular “why”. She describes her son as being “a loud and in your face person” who “brightened a room” and was “very kind”. She feels as though the murder has stolen from her the best years of her life with her adult son. She describes her grief as never ending and all consuming.

23․Mr Walewicz’s wife of 20 years also provided a victim impact statement. At the time of his death, she and Mr Walewicz were married but were separated. She was told of the death when she was in hospital recovering from spinal surgery. She describes her heart as being broken and having a feeling of rage inside her, pondering the “whys” and the “what ifs”. She too feels overwhelming sadness at his loss.

24․It is clear that the grief and loss of the members of Mr Walewicz’s family has been increased by the fact that the murder was a terrible mistake.

Objective seriousness

25․The offence of murder is the most serious offence in Territory law. It recognises that the protection and preservation of human life is one of the most important pursuits of a civilised society. Having said that, the circumstances in which murders occur can vary significantly.

26․The plea in the present case was based upon reckless indifference to human life as distinct from the alternative bases upon which murder may be proved under s 12 of the Crimes Act. The offender aimed the gun and pulled the trigger knowing that there was a person at the door. He acted in company. Whilst there was some planning involved, insofar as the offender carried the gun to the scene of the crime and it was loaded and cocked before the door was opened, the decision to shoot seems to have been made on the spur of the moment. The planning and orchestration of the offence was the responsibility of an adult, Nicole Williams, who had a relationship with the offender which gave her significant influence over him. The offending took place in the context of a planned home invasion during which it was intended to steal illicit drugs and money. In sentencing Mr Taylor, I assessed the murder as being in the mid-range of objective seriousness for murder and I adopt that same assessment here.

Subjective circumstances

27․The subjective circumstances of the offender are disclosed in a pre-sentence report dated 6 December 2023, a report of Dr Jacques Claassen dated 20 November 2023, and letters from the offender, his mother and Christopher McInnis from the Canberra Police Community Youth Club. Dr Claassen also gave oral evidence. His opinions appeared to be balanced and accurate. In light of the diagnoses by Dr Claassen and his explanation of those diagnoses, it is necessary to take a cautious approach to findings of fact based upon evidence which merely repeats statements made by the offender himself. Unfortunately, large parts of the pre-sentence report fall into that category.

28․The offender was born in Canberra. [Redacted]. The offender had very limited contact with his father. The offender visited his father when the offender was around the age of four and saw his father again when the offender was seven.

29․Between the ages of six and 11, the offender recalled both witnessing and suffering domestic violence at the hands of his mother and the younger of his two elder half‑sisters, who I will refer to as LR. He reported some evidence of a sexual assault by LR. In circumstances where multiple versions of the conduct have been given by the offender, where he is said to have recalled it many years later following a dream, where he has not given evidence in a manner where his evidence could be tested, and where Dr Claassen recognised that he probably had a tendency to engage in “impression management”, it is not possible to conclude on the balance of probabilities that the event occurred. However, that conclusion does not substantially affect the picture of childhood dysfunction substantially contributed to by LR that is otherwise established by the evidence.

30․Between the ages of four and 11, there were numerous reports made to the Child and Youth Protection Service relating to the offender. They related to the conduct of his mother and of his sister, LR.

31․The child concern reports were summarised in the pre-sentence report as follows:

The child protection concerns have been around [the offender] experiencing physical abuse, exposure to family violence between [the offender’s] mother and sister [LR], [the offender’s] mental health, and [the offender’s] risk-taking behaviours. In 2011 [the offender’s] mother was identified in child protection records as the person believed responsible for the emotional abuse and physical abuse of [the offender]. In March 2013, [the offender’s] sister, [LR] was identified in child protection records as the person responsible for family violence due to her escalated and aggressive behaviours within the family home.

32․He attended [redacted] Primary School. He then went to [redacted] High School. He came into conflict with his peers and teachers. He was racially bullied at school. At [redacted] High School he had been suspended [redacted]. When in Year 8, at about the age of 13 or 14, he dropped out of school.

33․He hung around with older children and commenced using marijuana and methamphetamine at that stage. He was a regular user of cannabis from the age of 14. He used methamphetamine occasionally between the ages of 13 and 14. He then ceased but recommenced using at the age of 17.

34․His sister LR had long-standing emotional and behavioural problems. She had Substance Use Disorders and a diagnosis of Borderline Personality Disorder. Her mother also refers to her as having schizophrenia. There was conflict between LR and her mother which led to LR being removed into care at the age of 14. She periodically elected to return to the family home for short periods of time.

35․At the age of 16, the offender worked briefly as a [redacted] but was fired. At the age of 17, he started a [redacted] apprenticeship and persisted with that for seven months. At the time of the offending, he was completing an introductory [redacted] course which he completed successfully.

36․While in custody, he has made some progress with his education. He has enrolled in Year 12.

37․The offender was actively using illicit substances prior to the offending. He was a regular smoker of cannabis. He had used methamphetamine for two days prior to the offence, as well as on the night of the offence. His intoxication by illicit substances is not a mitigating factor as, by that time, he would have been familiar with the effects that the drug had upon him. It must, however, be borne in mind that his introduction to illicit substances was at a very young age and at a time when he could not have made mature judgments as to their use.

38․The offender had reported different histories of drug use, sexual assault, and mental health conditions to different doctors. Dr Claassen appears to have taken into account the varying reports along with his clinical impression of the offender arising out of his interview with him. Dr Claassen identified that, at the time of his assessment, the offender was suffering from:

(a)Major Depressive Disorder;

(b)Post-Traumatic Stress Disorder;

(c)Cluster B spectrum personality disorder, including Borderline and Antisocial types; and

(d)Substance Use Disorder (cannabis, stimulant type (methamphetamine)) currently in early remission in a controlled environment.

39․Dr Claassen also concluded that the offender had previously suffered from Generalised Anxiety Disorder.

40․He did not consider that the offender suffered from a psychotic spectrum process illness, such as schizophrenia or schizoaffective disorder. The psychotic phenomena that the offender had presented with were better explained by his use of illicit substances. In relation to suffering from Borderline and Antisocial Personality Disorders, he said:

The evolution of these personality disorders are, in my opinion, a direct result of the early life traumas [the offender] experienced during his formative years, including absence of a father figure, insecure attachment to his mother, significant age gap between mother and son, domestic violence within the family home, alleged sexual abuse, psychosocial instability, first degree relatives with their own mental health difficulties, educational disruption, antisocial peer affiliation and early onset substance abuse.

I acknowledge that [the offender] was seventeen (17) years old when the index offence occurred. Although one should exercise caution in the diagnosis of personality disorders prior to the age of eighteen (18) years given ongoing emotional and neurocognitive shifts typical of the adolescent phase, I am of the opinion that the features of both personality disorders … were established in [the offender] by that age. As such, I am comfortable assigning the diagnoses.

Furthermore, it is my clinical opinion that the presence of these two (2) personality disorders forms the basis of [the offender’s] enduring and extensive emotional and behavioural difficulties. They increase his vulnerability to episodes of depression, emotional dysregulation, impulsivity, psychotic-like symptoms, and risk-taking behaviours (including harm to himself and others).

…

Individuals with a Borderline Personality Disorder demonstrate a pattern of emotional instability, identity disturbance, fear of abandonment, impulsivity, recurrent suicidal gestures or acts, difficulties with anger and transient paranoid thinking or dissociative symptoms.

Individuals with Antisocial Personality Disorder demonstrate a pervasive pattern of disregard for and violation of the rights of others. It is evidenced by three (3) or more of the following: failure to conform to social norms as far as lawful behaviours are concerned, deceitfulness, impulsivity and planning deficits, irritability and aggressiveness, reckless disregard for the safety [of] self or others, consistent irresponsibility, and lack of remorse. These features must consistently occur from the age of fifteen (15) years to warrant the diagnosis being made.

41․Dr Claassen expressed the opinion that the psychiatric disorders impaired the offender’s ability to exercise appropriate judgment. In particular, his Borderline and Antisocial Personality Disorders would have had the effect of adversely impacting his rational decision-making. The effect was amplified by his acute substance intoxication at the time of the offence. The psychiatric disorders would have affected his ability to make calm, rational choices and think clearly. His personality disorders and acute substance intoxication would have disinhibited him. He would have had an impaired ability to appreciate the wrongfulness and seriousness of his conduct. Dr Claassen did not consider that the psychiatric conditions had causally contributed to the commission of the offence, although they would have had an indirect effect by affecting his ability to calmly and rationally think through the situation in which he found himself.

42․Dr Claassen considered that a custodial sentence would weigh more heavily on the offender than it would on a person with normal mental health because the stress of imprisonment would have an adverse effect on his Major Depressive Disorder, Post‑Traumatic Stress Disorder and Generalised Anxiety Disorder. He would also be vulnerable to the influence of others with whom he develops strong emotional ties in prison. He also considered that the offender’s relationship with Nicole Williams had a significant influence on his offending.

43․Dr Claassen considered that a high level of input would be required in order to manage his personality disorder in the long term. The treatment would need to be lifelong and intensive. He considered that the appropriate treatment for the offender’s complex mental health conditions would not be able to be delivered in a non‑therapeutic setting, such as a prison. He described the offender’s normalisation of criminal and antisocial activities as being well developed rather than entrenched. He considered that the offender would be a risk to the community without appropriate structured support. He agreed with the proposition that, at present, the offender remains a high risk to the community.

44․The offender’s attitude to the offending and to offending conduct more generally involved a mixed picture. In some contexts, he expressed appropriate remorse. He expressed a willingness to engage in restorative justice with the family of Mr Walewicz. At other times, he is recorded as not being able to imagine his life free of crime. I accept that he is regretful for the death of Mr Walewicz. However, I find that, as a result of his circumstances prior to the offending, he continues to have antisocial attitudes and values.

45․The prosecution placed a significant emphasis upon some rap lyrics that were found on the offender’s phone. They were written in the days and months after the offending. They do not reflect any remorse for the killing. I did not consider that this evidence was of great significance. There are two reasons for this. First, it is not established, and it is certainly not obvious, that the rap lyrics penned by the offender truly reflect his attitude to the offending as distinct from being written in that form because of subcultural expectations as to the themes of such lyrics. Second, whilst the lyrics reflected a lack of remorse and hence might be considered inconsistent with the statements of remorse put into evidence for the purposes of the sentencing, I have treated the statements of remorse with considerable caution in any event. I consider that the other evidence about the offender’s personality and mental health conditions is of much greater significance in assessing his overall prospects of rehabilitation than the statements of remorse or lack of it.

46․I do not accept the evidence arising from the statement made by the offender to Dr Claassen that the gun went off because he had panicked. That does not appear to be consistent with the video of the incident. As indicated earlier, I consider that statements reported to have been made by the offender need to be treated with considerable caution.

47․There is no particular evidence as to his level of maturity at the time of the offending. On the one hand, he was almost of an age where he would be considered to be an adult. On the other hand, 17-year-olds still have a lot of maturation to do.

Criminal history

48․The offender has no criminal convictions which predate the current offending. One matter was dealt with in 2017 without conviction. Two matters postdating the offending were also dealt with without conviction.

Plea of guilty

49․The offender was first before the Magistrates Court on 6 June 2022. He pleaded not guilty on 8 August 2022, the fourth time the matter was before the court. On 11 January 2023, the ninth occasion the matter was before the court, a plea of guilty was entered. The plea of guilty was a reasonably early one, although not as early as it might have been, and followed a plea of not guilty. However, the prosecution points out in its written submissions that, in the circumstances of the present case, the plea of not guilty did not generate significant extra work because the brief of evidence had already been prepared in relation to charges against his co-offenders. As a result, the utilitarian value of the plea was not reduced by the initial plea of not guilty at an early stage. I consider that, in those circumstances, the utilitarian value of the plea warrants a reduction pursuant to s 35 of the Crimes (Sentencing) Act of approximately 25 percent on the sentence that would otherwise have been imposed. I accept that an alternative to a percentage discount would have been to reduce the lengthy sentence by a period of years. I have adopted the percentage approach in order to deal with the offender in a manner consistent with the manner in which his co-offender, Mr Taylor, was dealt with.

50․I also accept as a matter of fact and take into account the matters stated at paragraph 96 of the written submissions made by counsel for the offender in relation to which there is a nonpublication order in place. I do not, however, see this evidence as indicative of a generalised change in attitude.

Time in custody

51․The offender has been in custody since 5 June 2022, 715 days (almost two years) prior to today. The backdate date is therefore 5 June 2022.

Co-offenders and comparable cases

52․On 14 November 2022, Mr Ncube pleaded guilty to one count of being an accessory after the fact to murder. On 3 February 2023, he was sentenced by Berman AJ to two years’ imprisonment to be suspended after spending 187 days in custody.

53․Mr Taylor pleaded guilty to murder on the basis that his liability was established pursuant to s 45A of the Criminal Code 2002 (ACT). I sentenced Mr Taylor on 8 March 2023. The starting point was a sentence of 17 years’ imprisonment which was reduced by 40 percent to 10 years and three months’ imprisonment on account of his early plea of guilty and assistance to authorities. The non-parole period was five years and six months.

54․On 28 June 2023, Jayden Williams pleaded guilty to attempted aggravated burglary. On 14 August 2023, Loukas‑Karlsson J sentenced him to two years’ imprisonment to be suspended after spending 410 days in custody.

55․Nicole Williams has pleaded guilty to attempted aggravated burglary and being an accessory after the fact to murder. She is scheduled to be sentenced in September 2024.

56․R v JJ [2014] ACTCA 23; 242 A Crim R 363 involved a young offender who was just short of 17 years of age. He and a co-offender committed a violent robbery on a random stranger and beat the victim to death. The offender had no relevant prior offences. There was a real prospect of rehabilitation. He had offered assistance to authorities which caused his co-offender to change his plea. He was given a sentence of imprisonment of 17 years, suspended after 10 and a half years.

57․MT v The Queen [2021] ACTCA 26; 17 ACTLR 22 involved a young offender who took a dose of LSD which caused him to fall into an acute psychosis. He then engaged in an horrific assault of three elderly people, killing one of them and badly injuring the other two. The fact that MT was a novice drug user and had never experienced an adverse reaction to drugs lowered his moral culpability. He had good prospects of rehabilitation. He was accepted as being genuinely remorseful. The starting point for the murder was 12 years and six months, reduced to 10 years on account of the plea of guilty. Along with other offences, the head sentence was 11 years and nine months to be suspended after serving four years and six months. The facts of the case are very remote from the present circumstances.

58․Forster-Jones v The Queen [2020] ACTCA 31 and Pikula-Carroll v The Queen [2022] ACTCA 12 involved factual circumstances which were in some respects similar to the current circumstances. The sentences for those offenders had starting points of approximately 21 years and 19 years. However, both were adults and the circumstances of their offending were more serious, as were their criminal histories.

Consideration

59․The special requirements under Ch 8A of the Crimes (Sentencing) Act that apply in relation to the sentencing of persons under the age of 18 who commit offences, including very serious offences such as murder, include:

(a)the requirement to consider promotion of the rehabilitation of the offender and the potential to give that more weight as a sentencing consideration;

(b)the need to consider the offender’s culpability having regard to his maturity, the offender’s state of development and his past and present family circumstances; and

(c)the requirement that any sentence of imprisonment be “for the shortest appropriate term”.

60․The provisions of Ch 8A are summarised in R v Haven (a pseudonym) [2022] ACTCA 61 at [66]-[67] and explained in MT v The Queen at [53]-[56].

61․It must be recognised that these provisions have the effect of reducing what would otherwise have been the appropriate starting point for any sentence. That will lessen the extent to which the victims of the offending feel a sense of vindication by reason of the court’s decision. However, it is a product of the legislative regime in place and the fact that the offender was under the age of 18 at the time of the offending.

62․The evidence of Dr Claassen disclosed entrenched problems with the offender’s personality structure arising from his dysfunctional upbringing. Those aspects of his personality and well‑established antisocial attitudes indicate that he is a risk to the community. If that risk is to be reduced, he needs lifelong intensive psychological treatment. There is no certainty at all that he will receive such treatment. I accept Dr Claassen’s evidence as to the impact that a sentence of imprisonment will have on the offender, and that such a sentence will weigh more heavily upon him and will have a risk of an adverse effect on his mental health.

63․This is a case in which the background and upbringing of the offender have contributed to his personality structure and mental health conditions. Whilst, on the one hand, they reduce his moral culpability, on the other hand, they also increase the need for protection of the community. They therefore pull in opposing directions as sentencing considerations. That is consistent with the explanation given in Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at [43]-[44].

64․Whilst in one sense the diagnoses made by Dr Claassen are mitigatory-factors, some of them, including Borderline and Antisocial Personality Disorder, are likely to increase the risk of the offender committing further offences in the future. As a consequence, they increase the need for personal deterrence and protection of the community as part of any sentence.

65․Because of his personality structure, the offender’s prospects of rehabilitation are, at best, guarded. However, despite his personality structure, his well‑established antisocial attitudes, his underlying mental health conditions, and the adverse consequences of being detained, his thinking is likely to mature as he gets older. There are some signs that this is occurring in his attitude to education while in custody.

66․Any sentence of imprisonment sufficient to recognise the objective seriousness of the offending will be long enough to thoroughly institutionalise the offender and to expose him over long periods to other offenders. The only available remedy for such a circumstance is to ensure that there is a very significant period, following his release, during which he will be subject to supervision in the community and hence subject to constraints on his conduct as he attempts to make his way in the community outside the very structured context of prison.

67․In my view, the appropriate starting point is the same as that which was applied in relation to Mr Taylor. Whilst, in contrast to Mr Taylor, the offender was the one who pulled the trigger, the offender was a minor and Mr Taylor was an adult. The fact that the offender pulled the trigger increases his moral culpability but the application of the matters in Ch 8A and the mental health conditions identified by Dr Claassen require some moderation of the sentence. In particular, effect must be given to the intent of s 133G(2) of the Crimes (Sentencing) Act that the sentence be for the “shortest appropriate term”.

68․From the starting point of 17 years, the offender is entitled to a reduction in sentence of approximately 25 percent which gives a sentence of 13 years. Because the offender was under the age of 18 at the time of the offence, a non-parole period may not be set and, as a result, the sentence should be served by way of a partially suspended sentence of imprisonment rather than by way of a sentence with a non-parole period: Crimes (Sentencing) Act, s 64(2)(f). The minimum term necessary to be actually served to satisfy the competing requirements of the various purposes of sentencing is a sentence which is suspended after seven years and nine months’ imprisonment. That suspension will be subject to a good behaviour order which will incorporate a requirement for supervision on probation during the term of the suspension.

Orders

69․The orders of the Court are:

1.On the charge of murder (CC CAN 564/2022), the offender is convicted and sentenced to imprisonment for 13 years, commencing on 5 June 2022 and ending on 4 June 2035.

2.The sentence is to be suspended after the offender has served seven years and nine months from 5 June 2022 until 4 March 2030, upon him giving an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) and with the additional condition that, during the period which the sentence is suspended, the offender is to be on probation subject to the supervision of the Director-General and to obey all reasonable directions of the Director-General.

I certify that the preceding sixty-nine [69] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop.

Associate:

Date: 4 June 2024