Director of Public Prosecutions v ZZ

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2023 0085

DIRECTOR OF PUBLIC PROSECUTIONS	Crown
v
ZZ	Accused

---

JUDGE:	Jane Dixon J
WHERE HELD:	Melbourne
DATE OF HEARING:	12 July & 12 September 2024
DATE OF SENTENCE:	10 December 2024
CASE MAY BE CITED AS:	DPP v ZZ
MEDIUM NEUTRAL CITATION:	[2024] VSC 762

---

CRIMINAL LAW – Sentence – Manslaughter – Stabbing – Group attack on rival gang member – Guilty plea – 15 year-old offender – Category A serious youth offence – Subsequent convictions for which offender serving a sentence of 2 years’ detention in a Youth Justice Centre (‘YJC’) – Some Bugmy factors – Reasonable prospects of rehabilitation – Totality – Sentenced to four years’ detention at a YJC when close to the expiry date of his 2-year sentence – Sentencing Act 1991 ss 5, 6AAA, 32 – Crimes Act 1958 ss 323, 464ZFB – Bugmy v the Queen (2013) 249 CLR 571 – R v Tafa [2022] VSC 466 – Castillo (a pseudonym) v The King [2023] VSCA 150 – R v Chol [2022] VSC 341 – DPP v JA & Ors [2023] VSC 531 – DPP v ST [2023] VSC 49.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Ms K Churchill with Mr R de Vietri	Office of Public Prosecutions
For the Accused	Mr R Nathwani KC with Mr L Cameron	Stary Norton Halphen

HER HONOUR:

Introduction

ZZ, you have pleaded guilty to the manslaughter of Hashim Mohamed (‘Hashim’). The maximum sentence for that offence is 25 years’ imprisonment.[1]
[1]The maximum sentence was increased to 25 years for offences committed after 1 July 2020.
Offence facts
Hashim was killed on Sunday 4 December 2022, during a group assault at the St Kilda foreshore. Hashim was only 20 years old. At the time of your offending, you were a teenager of 15 years.
On the day of the offence, the St Kilda foreshore was busy with beachgoers and members of the public. That evening, two separate groups of young males attended the foreshore, whom I shall refer to as ‘Group 1’ and ‘Group 2’. You were part of Group 2. Group 1 was affiliated with a street gang known as the ‘9ers’and consisted of 13 males, including Hashim. Group 2 was affiliated with a street gang known as ‘OGK’ and comprised 7 young males, including yourself.
In the months leading up to the evening in question, there had been escalating tensions between the 9ers and OGK, including previous instances of violence and group retaliation.[2]
[2]Amended SPO for Plea, [12].
At approximately 6:00pm on Sunday 4 December 2022, you and others from Group 2, being CM, NY and RD, met up in Acland Street, St Kilda before meeting MY, MD and KM who were already in the area. You and the other Group 2 males walked along the Esplanade and then sat on a long bench.[3]
[3]These names cannot be published.
Next, at about 7:40pm, the Group 1 males, including Hashim, walked north along the St Kilda Bay Trail, whereupon a chance meeting occurred between Group 1 and Group 2.
A brief verbal exchange occurred and one of the Group 1 members produced a knife, leading to a physical altercation. Several of the Group 2 males then produced knives and brandished them in a threatening manner. The Group 1 males began retreating but the Group 2 males continued to attack the Group 1 males as they retreated. As the Group 2 males moved towards Group 1, one of the Group 2 males[4] began aggressively swinging punches towards some of the Group 1 males. This is captured in CCTV footage.
[4]KM.
You had a knife and you ran towards Group 1. The Group 1 members, including Hashim, ran away to the south, pursued by you and others from Group 2. At least three of the Group 2 members were brandishing knives at this stage. Hashim, who was unarmed, tried to escape by running backwards, but tripped and fell to the ground. The rest of Group 1 fled the scene. One of the Group 1 members (KM) discarded a knife sheath and a knife next to a council bin as he fled. He had been injured during the confrontation and was depositing blood droplets as he fled the scene.
Once Hashim fell to the ground, several Group 2 members converged on him and attacked him with knives, causing injuries. You were part of that group, acting pursuant to an agreement, arrangement or understanding with at least two other offenders to attack the victim with knives. The attack included stabbing Hashim in the lower back and back of the legs, and attempting to stab him to the front. While Hashim was on the ground, he tried to defend himself by sitting up, sliding backwards on his backside, and kicking out with his feet. During the attack one of the participants to the agreement arrangement or understanding ran in towards Hashim and stabbed him with significant force in the back. This injury caused Hashim’s death and founds your liability for manslaughter on the basis of complicity.
The knife remained in Hashim’s back as you ran off with the rest of Group 2 down the St Kilda Bay Trail. As you ran off, you turned briefly and gestured to other Group 2 members to run away with you and Group 2 dispersed.
Meanwhile, members of the public went to the aid of Hashim, who lay unconscious and bleeding on the ground. Moments later, you and five other males from Group 2 returned towards Hashim and one of your group yelled abuse and spat at him.[5] You and the remaining five males from Group 2 then ran back towards Jacka Boulevard.
[5]Yelling, ‘You fucking scum, you got what you deserve’.
Police and ambulance attended, and Hashim was taken to the Alfred Hospital. The knife was still stuck in Hashim’s body. Hashim was not able to be saved.
After fleeing the scene of the attack on Hashim, two of the Group 2 males began confronting a lone male in an aggressive manner, near Jacka Boulevard, and you ran towards that person in a threatening manner. Three more Group 2 males joined in but the lone male broke free. He was chased by you and had to jump over a fence to escape. Of course, you are not to be sentenced for this subsequent incident as it does not form a part of the charge before the Court, but it is reflective of an ongoing attitude of brutal violence that continued beyond the attack on Hashim.
You and five of the Group 2 males then walked off along the path next to Jacka Boulevard. One of the Group 2 males[6] smashed the lone male’s phone and you pulled a knife sheath out of your pants and threw it down near a kiosk on Jacka Boulevard.
[6]CM.
Your group then ran towards the Esplanade and fled the scene. The knife sheath discarded by you was later located and analysed for fingerprints and DNA. The results of this analysis identified your fingerprints and found DNA likely to have originated from you, on the knife sheath.
At about 8:40pm on the evening of the offence, you and four others from Group 2 were intercepted by police in Robe Street, St Kilda. By then, you were not wearing the gold chain or jacket you had been wearing earlier, nor were you carrying your mobile phone.
Forensic pathologist Dr Joanna Glengarry conducted a post-mortem examination of the deceased’s body[7] and identified six distinct sharp force injuries. She concluded that the cause of death was a ‘stab wound to the back’. She described a penetrating stab wound to the left mid-back with a black-handled single-edged kitchen knife still in situ.[8] The knife had passed through one of the bones of the spine, a rib at the start of the wound track and at the end of the wound track. The wound was described as representing severe force.[9]
[7]On Monday 5 December 2022.
[8]The knife was embedded to the hilt, with the tip visible beneath the skin and palpable at the front of the chest, without perforating the thorax. The wound track was directed from back to front, slightly upwards and slightly from left to right.
[9]Noting that the estimation of the force required to cause an injury may be problematic, as it is subjective and requires consideration of factors such as the protective effects of clothing and skin, the sharpness and taper of the blade and the relative kinetic energies of the blade and person: Amended SPO for Plea, [39(c)].
Your role in the offence
By your plea, you accept complicity based on participating in the agreement, arrangement or understanding to attack Hashim,[10] which involved the stabbing of him.[11] However, the Crown accept that they cannot prove beyond reasonable doubt which participant to the agreement, arrangement or understanding inflicted the fatal stab wound,[12] so you are not to be sentenced on the basis that it was you who did so. This is a significant matter in the factual matrix for consideration when imposing your sentence.
[10]Pursuant to s 323(1)(c) of the Crimes Act 1958.
[11]Outline of Defence Plea Submissions, [7].
[12]Prosecution Submissions for Sentence, [2(d)].
You were arrested on 15 December 2022. A mobile phone was seized from you and subsequently found to show your communication with other members of Group 2, as well as rap lyrics about the incident. Three relevant videos were located on your phone: first, a selfie depicting yourself wearing the jumper and hat you were later arrested in; secondly, a video depicting police and the caption ‘on the run’; and thirdly, a video depicting a police van and the caption, ‘come catch me’; along with further conversations with others around the arrest of members of your group, including referencing police looking for you.
The phone extraction revealed several sets of rap lyrics written between 13 and 14 December 2022, reflecting your involvement in the offending. These rap lyrics would be perceived by right-thinking members of the public as callous and repugnant.[13] They are indicative of your immature and remorseless attitude at the time of writing, although I will later discuss whether that attitude has persisted since then.
[13]The first set of lyrics boasted about how your group stabbed Hashim (a ‘9-er’) who is now dead, and being the ‘talk of the town’; a second set of lyrics referred to the fact that Hashim had been in a previous car crash. A third set of lyrics refer to ‘Hashim’ dying and ‘catching a kill’.
Details of co-offenders
Six other males[14] were arrested in relation to the public gang violence that led to the killing of Hashim. They were charged with various offences, although none as serious as yours. One of the offenders (CM) was an adult at the time of the offending and was dealt with in adult court on 23 August 2023. The other five offenders who, were under 18 at the time of the offending were sentenced in the Children’s Court on 16 April 2024. Details of all your co-offenders’ charges and sentencing are as follows:
(a)CM – who was 18 at the time of the offending, was sentenced to 195 days’ imprisonment along with an 18-month Community Corrections Order[15] on pleading guilty to a charge of violent disorder for the offending,[16] and for an unrelated charge of robbery.
(b)NY – who was 17 at the time of the offending, was sentenced to a 12 month Good Behaviour Bond (without conviction) on pleading guilty to the charge of affray.[17]
(c)KM – who was 17 at the time of the offending, was sentenced to a 12 month Youth Supervision Order (with conviction) on pleading guilty to the charge of affray.[18]
(d)MD – who was 16 at the time of the offending, was sentenced to a 12 month Good Behaviour Bond (without conviction) on pleading guilty to the charge of affray.[19]
(e)RD – who was 17 at the time of the offending, was sentenced to a 12 month Youth Supervision Order (with conviction) on pleading guilty to the charge of affray.[20]
(f)MY – who was 17 at the time of the offending, was sentenced to a 12 month Youth Supervision Order (with conviction) on pleading guilty to the charge of affray.[21]
[14]CM, MY, RD, NY, KM and MD (whose names cannot be published).
[15]‘CCO’. The CCO involved 200 hours of community work.
[16]Sentenced by Judge Chettle on 23 August 2023 on the basis that he was wielding a knife and tried to stab at Hashim’s legs and that he was involved in the subsequent attack on the lone male. See DPP v Chol [2023] VCC 1525. The offence of violent disorder under s 195I of the Crimes Act1958 carries a higher maximum sentence than the charge of affray under s 195H of the Crimes Act1958.
[17](No conviction attaches to this sentencing option in the Children’s Court). No DNA retention order was applied for.
[18]DNA retention order applied for and granted.
[19]No DNA retention order applied for.
[20]DNA retention order applied for and granted.
[21]DNA retention was automatic, due to the sample having been taken when he was an adult.
You were the youngest of the offenders prosecuted over the incident before the Court. Regarding those co-offenders sentenced for affray, their charges proceeded on the basis that the affray involved offenders with knives, but that the Crown could not prove beyond reasonable doubt that any one of those five offenders themselves used a knife. That was not the case for Chol who was found to have been wielding a knife during the incident.
Parity
Mr Nathwani noted that none of your co-accused were charged with manslaughter, and all were dealt with in the Children’s Court, apart from CM. All were sentenced for either affray, or in the case of CM, violent disorder, and it is those same people that the Crown allege you were complicit with in the offending before this Court. In other words, perhaps due to lack of evidence, none of those offenders were prosecuted for manslaughter.
This makes parity a complex consideration. I take into account that you are the only person from Group 1 or Group 2 who has been brought before this Court on a charge involving causing Hashim’s death, although each of your co-offenders contributed to the circumstances and context in which your actions took place.
Hashim Mohamed
Hashim was born in Melbourne on 15 March 2004 and lived with his mother and four siblings in Tarneit. He was a young man whose future was cruelly and horrifically ripped away from him on 4 December 2022.
Victim impact statements
As observed by your counsel, the loss of Hashim’s life has had and will continue to have an enduring and profound impact.
Hashim’s mother, Ashir Osman, said in her victim impact statement that her son’s death has affected her whole life, and changed everything. She always fears for her children if they are out of the home now and has a lot of anxiety about this. She said:[22]
Almost every night since then I see him in my dreams. Even now I still hope that he will walk through the door. Everywhere I go I see him. I don't go to Nth Melbourne anymore, as there are too many memories left there.
This has changed my life forever […]
His hopes and his dreams are now all cut short, they have all been taken and it has broken my heart.
[22]Victim Impact Statement bundle tendered by the Crown as Exhibit P3 at the plea hearing on 12 July 2024.
Hashim’s brother, Hanad, described in his victim impact statement how the devastating loss of his brother plunged him into a profound abyss of grief and sorrow, forever altering the fabric of his being. He is haunted by the image of what was done to his baby brother.
Hashim’s tragic death also has ramifications for the wider community. No civil society should have to endure the loss of a young man’s life during an episode of mindless gang violence in a public place on an otherwise peaceful Sunday afternoon.
Objective gravity and moral culpability
As submitted by the Crown, manslaughter is a serious offence reflecting the value the law places on human life. The Crown submitted that this is a serious example of manslaughter.
The following matters were relied on by the Crown as markers of the high objective gravity of your crime:
(a)The brazenness of the offending occurring during daylight hours in a densely populated seaside area, exposing many members of the public to horrific violence;
(b)The use of knives, including your decision to carry a knife while attending the St Kilda foreshore, in company with others who also were carrying knives, and your resort to using your weapon;
(c)The offending occurring in company;
(d)The victim being attacked while he was defenceless on the ground and while outnumbered by members of your group, as well as being unarmed and not one of the initial aggressors from Group 1;
(e)The return of you and your group to the scene soon after the stabbing, with verbal abuse and spitting, which further terrified members of the public and showed disregard for the victim as he lay dying;
(f)The post-offending pursuit of the lone male afterwards;[23] and
(g)Your lies to police about your previous whereabouts when speaking to police after the offending, showing a continuing defiant attitude.
[23]A 16 year-old New Zealander.
In considering these matters relied on by the Crown, I note that your behaviour following the commission of the crime, whilst contextually relevant is not part of the offence of manslaughter.[24] I also take into account my assessment as to:
(a)The relatively spontaneous and un-premeditated nature in which the conflict erupted and in which Hashim ultimately lost his life;
(b)The fact that your Group of 7 males was confronted by a much larger group of 13 males, and that it was a member of Group 1 who first produced a knife.
[24]See, eg, R v De Simoni (1981) 147 CLR 383; DPP v McMaster (2008) 19 VR 191, 200 (Ashley JA, Neave JA and Lasry AJA agreeing); LN v R [2020] NSWCCA 131, [40]–[41] (Basten JA, R A Hulme J agreeing); R v Nobile [2006] VSCA 211, [8] (Nettle JA); and the discussion in Jackson v The Queen [2020] VSCA 95, [66] (Croucher AJA). See also, eg, Judicial College of Victoria, Victorian Sentencing Manual (4^th ed, 2023) 89–90 [5.2.8.5], 306 [21.3.2].
However, these latter aspects provide only slight mitigation of objective gravity. In considering the appalling way in which Hashim lost his life, I endorse the remarks of Taylor J in R v Tafa.[25] Justice Taylor said:[26]
Bravery is not demonstrated nor is respect found in pack behaviour. Being a member of a gang masks cowardice. True courage is shown by stepping away from a group bent on unlawful, violent behaviour and indeed, by opposing it.[27]
[25][2022] VSC 466.
[26]Sentencing a 20 year-old offender for violent disorder as one of a group of 10 youths who attacked another youth in a public carpark; he was sentenced to 9 months’ imprisonment.
[27][2022] VSC 466, [47].
The Crown submitted, and I accept, that despite your youth, general deterrence is an important sentencing purpose because of the frequency of youth knife crime and its corrosive effect on community safety, amplifying the need for courts to respond appropriately.[28]
[28]In this regard see the comments of Coghlan J in R v SV [2012] VSC 478, [5] and DPP v Castillo [2023] VSCA 150, [53].
Personal history and circumstances
You were born on 21 January 2007 and were 15 years old at the time of the offending. You are now 17 and will turn 18 in January next year.[29] You are one of nine children to your parents.
[29]And therefore both a ‘child’ for the purposes of the Children, Youth and Families Act 2005 and a ‘young offender’ for the purposes of the Sentencing Act 1991 (falling to be sentenced under that latter Act): Prosecution Submissions for Sentence, 2 [4], [6].
I have drawn my understanding of your personal history from the plea material advanced by your counsel along with the content of the Youth Justice Pre-sentence report that was called for by the Court as part of the plea hearing.[30]
[30]Exhibit D7; discussed further below.
At the time of your offending, you were living with your parents and six siblings. It was put on your behalf that your parents suffered trauma during the South Sudanese civil war and that although you were born in Australia, the sequelae of that trauma has impacted upon you and your family.

You reported that there was instability within the home, marked by frequent parental disagreements, compounded by the incarceration of your two older brothers. The family home was crowded and relatively impoverished, and you were exposed to problematic role-modelling and lacked effective parental guidance.
The backdrop to these factors was the impact of the COVID-19 pandemic during the critical years of your adolescence and schooling. As a result, you fell in with gang culture, leading you into cannabis use and poor behaviour. You reported having limited supports at this time.
As I am about to discuss, although you have no prior convictions in respect of the charge before the Court, your behaviour during 2021 and 2022 led to a number of other charges and subsequent convictions. You also await court in relation to various outstanding charges, some of which relate to your time in custody in 2023.
Proven prior offending, and subsequent convictions
As submitted by Mr Nathwani, you are to be characterised as having no prior criminal history, despite having a number of subsequent convictions for serious offending which was dealt with in a consolidated plea hearing in the Melbourne Children’s Court on 18 October 2023. A total effective sentence of 2 years’ Youth Justice Centre (‘YJC’) detention was imposed for those matters on that date. The subject offences were helpfully tabulated by the Crown in their submissions on sentence and included, inter alia, aggravated home invasion, armed robbery, robbery and charges involving the infliction of injury to two different victims.[31]
[31]Prosecution Submissions for Sentence, [26].
Mr Nathwani pointed out that you had not faced court for that earlier offending before the commission of the current crime and much of that earlier offending was committed in company with older co-offenders. When you did face court for that series of offences, you had already been on remand awaiting trial for the attack on Hashim.[32]
[32]The original charges included a charge of murder, which was later not proceeded with.
It was accepted on your behalf that the matters comprised in the consolidated plea in October 2023 bear on your prospects for rehabilitation and deserve some weight when considering specific deterrence. However, it was also pointed out that you were only 14 and 15 years old when those earlier offences took place. Those offences span the period between 19 November 2021 and 30 November 2022 with most of the serious offending occurring in late 2022, not very long before the offence before the Court. Indeed, the most serious charge of aggravated home invasion involving the use of a bladed weapon, was committed on 30 November 2022, only days before the attack on Hashim.[33]
[33]The incident involved a group attack in the family home of a person associated with the 9ers.
The offending dealt with on 18 October 2023 is indicative of the danger you could pose to the community if you were not able to be successfully rehabilitated after serving the sentence for that other offending and the sentence I am about to impose. The sentencing exercise I must undertake involves consideration of totality, taking into account the gravity of the current offence alongside the gravity of the offending for which you are currently under sentence. Whilst being cognisant of totality, denunciation, just punishment and specific and general and deterrence are also relevant. I must also consider your prospects for rehabilitation, given your young age at the time of all the offending committed during 2021 and 2022.
You face outstanding charges for unproven assault-related offending on 6 November 2022,[34] and for involvement in a serious riot on 3 October 2023 at Malmsbury YJC.[35] Whilst it is relevant for the Court to be informed of subsequent alleged offending, those unproven matters do not bear directly upon your sentence for the crime before the Court.
[34]The matter of Informant Browne was listed for contested hearing on 4 December 2024 and relates to alleged offending on 6 November 2022, being charges of Intentionally Cause Injury, Assault with a Weapon, and Attempted Armed Robbery.
[35]The charges have been laid by Informant Koschel and were still pending committal at the time of your plea hearing before this Court. The allegations involve participation in the riot with 12 other inmates.
Nevertheless, the overall pattern of your behaviour throughout the year or so before you were remanded into custody paints a very concerning picture.
Conditions in custody
It was also put on your behalf that this is your first time in detention and you spent part of your time in detention during the tail-end of the pandemic. Also, that you have now been detained in a YJC for a significant period during your formative years and now face a further significant period of time in custody. I accept that this is so.
The Newton Report
Forensic psychologist Patrick Newton furnished a report (‘the Newton Report’), having conducted a series of consultations with you in May and June 2024. The report mentioned some aspects of your presentation which remain quite concerning, and other aspects that provide a basis for thinking that in time you may develop more self-awareness and be capable of reformation. He considered that your personality remains in the process of forming. Notwithstanding a degree of bravado, he considered that you remain an immature young man who is still progressing through the adolescent processes of identity formation, values clarification and social skills development.[36] While aspects of these issues reflect your age and stage of development, they are also influenced by the challenges arising from cultural dislocation, family poverty and social exclusion that have delayed your progression towards maturity.
[36]Newton Report, [43].
Results of testing by Mr Newton suggested that your offending arose out of an affiliation with antisocial peers, precipitated by a combination of poor parental management, school-related problems, and limited social support. Further, your affiliation with problematic peers saw you develop a range of negative attitudes exacerbated by a lack of empathy for others and problems with impulsivity and anger management.
You were found to pose a moderate-high risk for further violent offending, or an above average risk for such recidivism relative to other adolescent offenders. On the other hand you were found likely to be of high-average intelligence with good potential to benefit from further education and training and from therapeutic endeavours, provided you are motivated to engage and avoid behavioural problems and can maintain your focus on your broader goals. Placement in an adult prison (particularly for the longer term) was considered by Mr Newton to create a risk of exacerbating nascently problematic features of your personality and permanently diverting your personality adjustment into dysfunctional paths.
Youth Justice Pre-sentence report
On 4 September 2024, the Court received a pre-sentence report from Youth Justice which assessed you as suitable for detention within a YJC.
Regarding your offending, Youth Justice noted the offending was committed in conjunction with adolescent peers who are known to the justice system from past offending, association on the unit and through your older siblings. Youth Justice viewed your offending as having occurred within the context of a lack of consequential thinking about the impact of your actions, noting that you said you were ‘fuelled by adrenaline’ and felt fear after sighting a weapon brandished by a member of the opposing youth group.[37] You reported having affiliations with ‘OGK’, and feeling loyalty towards your peers, due to having grown up with them and having shared life experiences, and familial ties. Your apparent continuing loyalty to these associates is a risk for your successful rehabilitation depending on whether you are able to view things more maturely as you undergo sentence into the future.
Bugmy factors
[37]Exhibit D7, p3.
Your counsel referred to Bugmy[38] factors, relying on your underprivileged upbringing, which was submitted to be marked by hardship and violence. It was argued that in an earlier report about you, Youth Justice had found that family hardship was one of the contributing causes of your past offending and that although you looked up to your older brothers, both were in custody for violence. This was said by Mr Nathwani to show your immaturity and vulnerability to influence. The crowded conditions in the family home and absence of good role modelling were remarked upon. I note that Patrick Newton’s report supported the existence of a dysfunctional home life prior to your arrest, wherein your parents seemed to lack the capacity to influence or control your behaviour. Factors of social isolation and exclusion and a background of past parental trauma and the undesirable influence of your older brothers and their associates were also seen to have played a part in shaping you.
[38]Bugmy v The Queen (2013) 249 CLR 571.
In countering the Defence reliance on Bugmy factors, the Crown submitted that there is insufficient evidence of factors of significant childhood deprivation, since you were reluctant to discuss this issue with Patrick Newton. Referring to Sabbatucci v The Queen,[39] the Crown submitted that it was hard to translate your experience of your upbringing to an assessment of any impact on your moral culpability for this offending.[40]
[39][2021] VSCA 340, [6].
[40]In Sabbatucci, the Court of Appeal (Maxwell P and Emerton JA) determined that whether, and to what extent, social disadvantage warrants a reduction in moral culpability in a particular case to be assessed by reference to the nature and circumstances of the offence, the nature and severity of the disadvantage suffered and whether the effects of the disadvantage can be seen to be in any way explanatory of the offending: refer Prosecution Submissions for Sentence, [42].
Ultimately, I am prepared to allow modest weight for Bugmy factors, as it is clear that you lacked appropriate role models and the matters mentioned by Patrick Newton and in the Youth Justice report show that your family circumstances meant that you were not well-supervised and instead were exposed to criminogenic influences at an early age even within your own family, through your older brothers.
Value of plea of guilty
In mitigation, your counsel emphasised your young age at the time of the offence, and your plea of guilty which was submitted to be deserving of very significant weight. It was argued that your guilty plea has high utilitarian value in the facilitation of the course of justice and in demonstrating an acceptance of responsibility for the offending.[41] I accept that submission and will mitigate your sentence accordingly. I also accept that had you chosen to contest the matter there were triable issues so that the savings in Court resources, the sparing of witnesses and chance of closure for family members of the victim are important aspects of your plea of guilty.
[41]Outline of Defence Plea Submissions, [35].
You were arraigned and pleaded guilty to manslaughter in this Court on 7 March 2024, and though the listing backlog caused by the COVID-19 pandemic has now subsided, you are entitled to a very slight Worboyes[42] benefit especially taking into account that the sentence I impose will run in tandem with the sentence you are now undergoing which included 305 days’ pre-sentence detention, and noting that when you went into custody in December 2022 there were still some COVID-19 restrictions in place.
[42]Worboyes v The Queen [2021] VSCA 169; see also Biba v The Queen [2022] VSCA 168.
The presence or absence of remorse
The Crown emphasised your lack of remorse in the immediate aftermath of the offence seen in your return to the scene while other people were trying to help Hashim, and your subsequent behaviour towards the lone male and your attitude towards police later that day. The content created on your phone in the lead-up to your arrest was also noted, and it was put that you appear to retain some loyalty to peers who have been part of your gang culture.
However, Mr Nathwani suggested that the Court could find evidence of remorse from the fact that you have pleaded guilty and from the attitude you have espoused whilst awaiting sentence. He referred to the Newton Report,[43] where among other things you said:
I feel remorseful. It’s like it pulled me up to think like an older person.
I feel shame for it because I know the situation is bad and it can’t be corrected even though it could have been prevented.
[43]Paragraphs [35] and [36] of the Newton Report (p. 7) were referred to.
The Youth Justice report also suggests that during discussion, you demonstrated some insight into the impact your actions have had on the victim, family and community. Further, you are reported to have recently demonstrated positive shifts in your behaviour and attitude within custody, avoiding involving yourself in incidents on the unit and reflecting positive decision-making.
The Court was also provided with a supportive letter written by Jack McCombe, the Transitions Team Leader at Parkville College (Cherry Creek Campus), dated 8 July 2024. He reports that you are currently enrolled in the Victorian Certificate of Education with a Vocational Major (‘VCE-VM’) program with the goal of completing Year 12. His report of your engagement in your studies and with your teachers is very positive indeed. He indicates that you currently aim to become educated so you can contribute to your family in a helpful way.
Ultimately, I accept that although you were not remorseful in the wake of the attack on Hashim, you have more recently reflected on your role in contributing to Hashim’s death and you are now experiencing some remorse.
Prospects of rehabilitation
Regarding your prospects for rehabilitation, your counsel submitted that these should be assessed as at least reasonable due to your young age at the time of the offending and lack of any prior criminal history (albeit accepting your subsequent convictions for offences which pre-date the offence before this Court). Mr Nathwani also pointed to continued family support, the absence of any mental health conditions, your potential to benefit from further education and therapy and Patrick Newton’s finding that, at the age you are now, your negative personality traits are not entrenched, and might be improved with appropriate intervention.
The Crown submitted that the Court should be guarded about your prospects of rehabilitation based on your conduct since the age of 14. Ms Churchill noted that your time in youth detention has been marred by incidents in August and September 2023 and that there were indications that you continue to identify as part of a gang. She referred to Patrick Newton’s report where you were found to present as a moderate-high risk of further violent recidivism.
Ultimately, on the basis of the entirety of the material before the Court, I am persuaded that your prospects of rehabilitation are reasonable. I accept the opinion expressed in the Newton Report that it is not too late for you to turn the corner and reform yourself, provided you continue to cooperate with education and therapeutic endeavours whilst undergoing sentence and avoid embroiling yourself in further conflict.
Defence submissions on sentence
Mr Nathwani submitted that the Court should impose a sentence of detention in a YJC.
It was common ground that under s 32(1) of the Sentencing Act 1991 (‘the Act’), the Court may not make a YJC order unless a sentence involving confinement is justified and the Court has received a pre-sentence report and:
(a)it believes that there are reasonable prospects for the rehabilitation of the young offender; or
(b)it believes that the young offender is particularly impressionable, immature or likely to be subjected to undesirable influences in an adult prison.
Section 32(2) provides that in determining whether to make a YJC order, the Court must have regard to the nature of your offence, as well as your age, character and past history.
Furthermore, as manslaughter is a Category A serious youth offence,[44] the Court must not make a YJC order unless satisfied that exceptional circumstances exist, pursuant to s 32(2C) of the Act.
[44]Sentencing Act 1991, s 3(1) (definition of ‘Category A serious youth offence’).
Mr Nathwani invoked exceptional circumstances based on the combined factors of your young age at the time of the offending, this being your first time in custody, your troubled and deprived upbringing and your immature and impressionable personality. Added to these factors was the opinion of Patrick Newton that your personality could still evolve in a positive way; the fact that there is no allegation that you delivered the fatal stab wound; and the absence of criminal convictions preceding the offence.
Mr Nathwani submitted that review of comparative sentences for youth offenders facing charges such as yours shows that a four-year YJC sentence should not be seen as outside the range. He argued that the community is better served if you are not subjected to the influence of adult offenders and instead are able to engage in rehabilitative courses in YJC to work towards improving your immature and negative personality traits. As a first-time offender serving a custodial sentence it was also put that lengthy time in custody could be counterproductive to your reformation.[45]
[45]Outline of Defence Plea Submissions, 13 [57] citing CNK v The Queen (2011) 32 VR 641, 662 [77] (Maxwell P, Harper JA and Lasry AJA).
Finally, Mr Nathwani submitted that if the Court were not persuaded to impose a sentence of YJC, and decided to impose a prison sentence, the Court should recommend that you remain in Youth Justice until you reach the age of 21.[46]
[46]Pursuant to s 471 of the Children, Youth and Families Act 2005: This would allow the Adult Parole Board to facilitate you serving at least part of your sentence in a YJC.
Mr Nathwani pointed out that a four-year period is the maximum period of detention that can be imposed under the Act,[47] and that the Children’s Court sentence imposed on 18 October 2023 will expire on 14 December 2024.[48] He submitted that, had you not been on remand for the offence before this Court, you might have qualified for youth parole during the currency of the sentence imposed in the Children’s Court which related to offending committed when you were as young as 14.
[47]Pursuant to s 32(3)(b).
[48]The consistent position of the Defence appeared to be that your current sentence will expire on 14 December 2024; but the Youth Justice pre-sentence report noted (at pp. 4 and 9) that the sentence would expire on 16 December 2024. However, this discrepancy will not impact on the sentence I have selected.
In addressing totality, and inviting the Court to consider the option of a YJC sentence, Mr Nathwani submitted that the Court could avoid any overlap of the two sentences by deferring sentencing in the current matter until close to the expiry of the current sentence. This would lead to an outcome where the service of the earlier sentence imposed by Judge Vandersteen could be added to by a sentence in the current matter of up to four years YJC and thereby could appropriately reflect the combined offending.
In pursuit of a YJC disposition, Mr Nathwani pointed out that the Youth Justice report opined that you have reasonable prospects for rehabilitation and that you are impressionable to undesirable influences in an adult prison given your age, developmental stage and personal history and that you have been assessed as immature for reasons explained in that report. The Newton Report (at [14] to [16]) also supports the view that you are immature, and that your personality is still forming, and that there are intense risks attached to prolonged immersion in an adult custodial setting, whereas your more problematic attitudes are not yet an entrenched part of your personality. Therefore, Mr Nathwani submitted that the Court could find the criteria for a YJC order met as regards s 32(1)(a) and/or (b) of the Act. Either of those bases could ground the decision to make a YJC order.

Mr Nathwani also laid emphasis on your improved behaviour since being admitted to the Cherry Creek facility.
Crown submissions on sentence
Ms Churchill conceded that youthfulness is relevant to an assessment of subjective culpability and to your rehabilitative prospects. She referred to the recent statements of principle of Hollingworth J in DPP v JA & Ors,[49] highlighting the delicate balance of factors to be weighed in cases such as yours. This includes recognition that children are understood to be less mature, less able to form moral judgments or control their impulses, and less aware of the seriousness and consequences of their actions, so that youthful actions may be committed impulsively. The Court must consider the public benefit in rehabilitating a young offender whilst also giving weight to offence gravity, since the more serious the offending, the less weight that can be given to youthfulness as a factor in mitigation.
[49][2023] VSC 531, [25]–[27].
Ms Churchill emphasised the importance of giving prominence to the nature and seriousness of your offence alongside consideration of your age, character and past history, in deciding if a YJC order is warranted.[50]
[50]Sentencing Act1991 s 32(2).
It was put by the Crown, and I accept, that your sentence should reflect denunciation and just punishment, as well as specific and general deterrence. Community protection was also submitted to be relevant because of the seriousness and public nature of the offence before the Court, grounded as it was in gang rivalry, and also in light of your other offending.[51]
[51]In this regard it was also noted that when you were arrested in mid-December you were found in possession of a knife in circumstances where you had been involved in the crime before the Court only 11 days earlier.
Ms Churchill submitted that even if you meet the tests under s 32(1)(a) and/or (b) of the Act, your case does not overcome the need to show exceptional circumstances. You have, after all, accepted guilt of stabbing the deceased even though the Crown does not allege that you inflicted the fatal wound. Reliance was placed on the case of Castillo (a pseudonym) v The King (‘Castillo’),[52] and it was argued that the combined factors referred to by Mr Nathwani to invoke exceptional circumstances were routine, and not exceptional, individually or in combination. However, Ms Churchill allowed that if the Court were satisfied that exceptional circumstances were made out, then the prerequisite criteria for a YJC order would otherwise leave such a sentence open for the Court to impose. She also conceded that totality was a relevant consideration for the Court.
[52][2023] VSCA 150.
In considering each side’s submission on disposition, firstly, I make plain that based on the Newton Report and the Youth Justice report I find that both limbs of s 32(1) of the Act are met in your case, in terms of consideration of an order for YJC.[53] I have also had regard to s 32(2), and note that although the nature of the offence is serious, you were only one of a number of young people embroiled in the incident and you are standing sentence for the most serious charge of all those involved. Whilst you have now been sentenced for a series of concerning offences committed prior to 4 December 2022, you had not been dealt with for those matters before being arrested for the current charge. Although the maximum available sentence of YJC is 4 years, that is still a lengthy sentence for a young person who went into youth detention at the age of 15 and who has been in custody for nearly two years and who is yet to commence serving a sentence for the current offence.
[53]Being s 32(1)(a) and (b).
Pursuant to s 32(2C) of the Act, I am also satisfied that exceptional circumstances exist justifying the imposition of a YJC order. Many of the matters that satisfy the criteria under s 32(1) also go towards my finding of exceptional circumstances. I accept Mr Nathwani’s submission that the combination of factors he referred to[54] amount to exceptional circumstances, coupled with my observation that your potential for reformation is at a critical juncture and could risk being permanently disrupted by a term of adult imprisonment. That would not be in your interests, or the community’s interests, despite your serious offending. I note that exceptional circumstances were made out in the analogous cases of R v Chol (‘Chol’),[55] DPP v JA & Ors (‘JA’)[56] and DPP v ST (‘ST’)[57] to which I will shortly refer. Like Nettle J in R v Mohamed,[58] ‘It appears to me that there would be very little to gain and, in all probability, a great deal to lose by imprisoning you within an adult gaol’.
[54]Refer as summarised at [70]–[71] of this sentence above.
[55][2022] VSC 341 (‘Chol’).
[56][2023] VSC 531.
[57][2023] VSC 49.
[58][2008] VSC 299, [40], quoted by Beale J in Chol at [83].
Whilst in Castillo[59] exceptional circumstances were not established and that finding was upheld by the Court of Appeal, the facts in that case are distinguishable. Castillo was 17 at the time of the offending and had previously been dealt with for the offences of armed robbery. Bugmy factors were not present and the specific nature of the offending in that case also differs from your offence. Castillo lured his victim to a railway station and, in the process of robbing him of items, attacked the victim with a butcher’s knife, stabbing him in the back and then kicking the victim to the upper body before stabbing him multiple times to the chest as he lay on the ground. In your case, you produced a knife and joined into group conflict after a Group 1 member first produced a weapon, and it is not alleged you inflicted the fatal stab wound.
[59](relied on by the Crown).
Current sentencing practices
Ultimately, it seems to me that the most relevant comparative cases are those of Chol, JA and ST. However, the parties drew to my attention to a number of other cases involving young offenders dealt with for manslaughter.[60]
[60]Including (inter alia) DPP v JN [2023] VSC 500; R v MA [2023] VSC 613; R v Smart & Ors [2023] VSC 469; and R v KV [2022] VSC 805.
In Chol, the offender was aged only 15 at the time of the offence, while the victim was only 17. The offender engaged in provocative behaviour towards the victim at a basketball centre and when the victim sought to retaliate, he stabbed him to the abdomen with a knife before fleeing the scene. He later boasted about the incident on social media. He was sentenced to 4 years detention at a YJC.
In JA, a group of several offenders aged between 14 and 16 engaged in a frenzied and unprovoked attack on an unarmed and unsuspecting child victim who was simply walking home.[61] JA pleaded guilty to manslaughter at an early stage and was sentenced to 4 years detention at a YJC. It was not suggested that he inflicted any of the fatal stab wounds, but he was sentenced on the basis that he attended the scene with a knife, knowing that others had knives, and he participated in an agreement, arrangement or understanding to attack the deceased intending to harm him.
[61]The victim was attacked for over 2 minutes with at least 4 offenders wielding knives and stabbing him while others kicked and stomped on him.
In ST, the offender and the victim were both aged 15 at the time of the offending. A group of 10 attacked the victim, who was knocked to the ground and punched and kicked and struck with weapons.[62] ST pleaded guilty to manslaughter, having earlier been charged with murder.[63] He had no prior history, but when on bail prior to trial he committed further offences and he had also been sentenced for affray that occurred while in youth detention. Exceptional circumstances were established, permitting the Court to make a YJC order, and ST was sentenced to two years’ youth detention.[64]
[62]ST stabbed the deceased once to the left-hand side of his chest, fatally piercing his heart.
[63]The Crown did not assert that ST deliberately or intentionally stabbed the victim but relied on the unlawful and dangerous act involved in brandishing the knife in the way that he did.
[64]Limited remorse was found, but he was found to have very good prospects of rehabilitation, based on his conduct after again being granted bail.
Parsimony
I must also apply s 5(3) of the Act, which provides that ‘a court must not impose a sentence that is more than that which is necessary to achieve the purpose or purposes for which the sentence is imposed’.
I have kept in mind when determining the length of your sentence that it will operate in tandem with the Children’s Court sentence which is soon due to expire.[65] Taking into account the principle of totality, the period to be imposed by me, when added to the period you have already served as part of the sentence you are currently undergoing, should serve the purposes of deterrence, community protection, denunciation, just punishment and rehabilitation.
[65]On either the 14 or 16 December 2024.
The sentence to be imposed marks the gravity of your offending while maximizing the prospect of your reclamation following a lengthy period of detention in a YJC.
Sentence
ZZ, please stand.
ZZ, I sentence you to four years’ detention at a Youth Justice Centre, to be served concurrently with the remainder of the sentence you are currently undergoing.[66]
[66]Noting that s 33 of the Sentencing Act 1991 creates a presumption that a term of youth detention -regardless of when it is imposed – will be served concurrently with any other uncompleted term of detention unless the court orders otherwise.
For the avoidance of doubt, there are only 2 days’ pre-sentence detention to be counted against the sentence I am now imposing.
Pursuant to s 6AAA of the Act, I declare that had you not pleaded guilty, I would have imposed a sentence of 6 years’ imprisonment with a non-parole period of 4 years.
DNA retention order application
I will order a DNA retention order be made in respect of you in accordance with the forensic sample orders sought by the Crown. Pursuant to section 464ZFB(1) of the Crimes Act 1958 (‘Crimes Act’), the Court has the power, upon application, to order the retention of a child’s DNA where:
(a)a DNA profile sample is taken from a DNA person who is a child in accordance with section 464SC or 464SE or a forensic procedure is conducted on a child in accordance with section 464U(7) or 464V(5); and
(b)a court finds the child guilty of―
(i)the offence in respect of which the DNA profile sample was taken or the forensic procedure was conducted; or
(ii)any other offence arising out of the same circumstances; or
(iii)any other offence in respect of which evidence obtained as a result of the DNA profile sample or forensic procedure had probative value
A sample of your DNA was obtained by Victoria Police on 15 December 2022 via informed consent in accordance with ss 464SC and 464SD of the Crimes Act.
As part of the Crown’s submissions of 10 July 2024, a DNA retention order was sought in relation to this DNA sample. The Defence outlined their opposition to the retention order by way of additional submissions dated 16 October 2024.
In considering whether to grant a retention order, pursuant to s 464ZFB(2) of the Crimes Act, the Court:
(a)must take into account the seriousness of the circumstances of the offence […]; and
(b)must be satisfied that, in all the circumstances, the making of the order is justified; and
(c)may make such inquiries on oath or by affirmation or otherwise as it considers desirable.
The case of MB v Children’s Court of Victoria & Anor,[67] (‘MB’) referred to by both parties provides guidance about the considerations that arise from s 464ZFB(2) of the Crimes Act. In that case, dealing with a magistrate’s decision to make such an order and noting the mandatory requirement that the court be satisfied that in all the circumstances the order is justified, McDonald J noted that s 464ZFB requires the Court to undertake a broad evaluative assessment of whether an order is justified.[68] Both parties provided submissions discussing the factors to be rallied for or against the making of a retention order in your case, raising matters similar to the kinds of factors discussed in MB. Having regard to those factors, and my own assessment of the relevant circumstances in your case, it appears to me that the factors tending in favour of the retention order include that:[69]
(a)you have pleaded guilty to manslaughter, admitting involvement in a group attack on the deceased with knives;
(b)your offending was very serious;
(c)you admitted to an association with the OGK youth crime gang;
(d)your DNA sample was inculpatory, in so far as the sample was ‘matched’ to DNA found on the exterior of a knife sheath that was discarded by you as you fled the scene;
(e)your degree of participation in the offending was high;
(f)you have subsequent convictions for violent offending, and you present as a moderate-high future risk of further violent offending or an above average risk for such recidivism relative to other adolescent offenders; and
(g)the retention of your DNA could provide police a high degree of assistance when investigating serious violent crimes.
[67][2023] VSC 666.
[68]This meant the Court was required to required to undertake an evaluative assessment of the circumstances both in favour and against the making of an order. Having undertaken that assessment, an order should only have been made if the magistrate was satisfied that the order was justified.
[69]Refer Prosecution Submissions for Sentence, 15–17.
The factors tending against the making of a retention order include that:[70]
(a)your plea of guilty was entered into on a complicity basis;
(b)the Crown accept that it cannot be proved that you inflicted the fatal stab wound to the deceased;
(c)you were 15 years old at the time of the offence and the youngest of those charged in relation to the incident that led to the deceased’s death;
(d)you are presently only 17 years old;
(e)You have no prior convictions. Your subsequent convictions are for offending which pre-dates the instant offending and your remand for same;
(f)you have been on remand continuously since your arrest for this offending, nearly two years ago. Despite allegations of offending and other issues whilst in youth detention, your engagement and behaviour have improved since you moved to Cherry Creek Youth Justice Centre approximately one year ago;
(g)you have reasonable prospects for rehabilitation; and
(h)the order for retention would operate for the remainder of your life which is a very significant matter for a child.
[70]Additional Defence Submissions, 3.
Both parties noted the requirement to consider your human rights, including:[71]
(a)the right not to have your privacy unlawfully or arbitrarily interfered with; and
(b)the right, without discrimination, to such protection as is in your best interests and needed by you by reason of being a child.
[71]Charter of Human Rights and Responsibilities Act 2006, (the Charter) ss 13, 17(2); Prosecution Submissions for Sentence, 15 and Additional Defence Submissions, 3.
Having balanced these competing considerations, I have determined that a retention order should be made, and that it is in the public interest to make such an order. Despite the fact that you were quite young when you stabbed the victim in the present case, and you are still quite young, and acknowledging your human rights as a child under ss 13(a) and 17(2) of the Charter[72] along with the significance of these rights in the context of a retention order that would operate for the remainder of your life, I nevertheless consider a retention order should be granted in this case. The circumstances of the offending are very serious. The victim was attacked whilst he was defenceless, unarmed and subject to a group attack with knives. It is relevant that not only were you part of the group attack, but you admit to stabbing the victim. You continued to behave aggressively after the group attack on the victim.
[72]Charterof Human Rights and Responsibilities Act 2006.
Further to this, your DNA sample was inculpatory, matching to DNA found on a knife sheath you discarded as you fled the scene. You also have subsequent convictions for violent offending.[73]
[73]These offences are outlined in the Prosecution Submissions for Sentence at pp. 7–9 and include robbery, armed robbery, aggravated home invasion, theft of motor vehicle and intentionally cause injury, which pre-date the instant offending and for which he is currently on remand.
Although I acknowledge that your engagement and rehabilitation have improved since being moved to Cherry Creek Youth Justice Centre a year ago, and I have found that you have reasonable prospects for rehabilitation, I am persuaded that, in all the circumstances, there is a realistic risk of further violent offending and that it is in the public interest to grant the retention order.[74]
[74]This is particularly so given the brazenness of the instant offence which occurred during daylight hours in a densely populated area. A DNA sample may, in the future, provide police with relevant evidence when investigating serious crime.
Having regard to the foregoing reasons,[75] I make the DNA retention orders.
[75]Pursuant to s 464ZFB(3) of the Crimes Act 1958, if a court makes a retention order, it must give reasons for its decision and cause a copy of the order and reasons to be served on the person on whom the forensic procedure was conducted.
Ancillary orders
I will make the forfeiture orders[76] sought by the Crown.
[76]Refer Prosecution Submissions for Sentence, [57].

---

[2024] VSC 762

10 December 2024