DPP v JA & Ors
[2023] VSC 531
•12 September 2023
| IN THE SUPREME COURT OF VICTORIA | Unrestricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2022 0257; 0259; 0263
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JA & ORS |
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JUDGE: | HOLLINGWORTH J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 22 August 2023 |
DATE OF SENTENCE: | 12 September 2023 |
CASE MAY BE CITED AS: | DPP v JA & Ors |
MEDIUM NEUTRAL CITATION: | [2023] VSC 531 |
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CRIMINAL LAW – Sentence – Murder – Manslaughter – Intentionally causing serious injury in circumstances of gross violence – Frenzied group attack on unarmed victim with multiple knives – Accused aged 14 and 16 at the time of offending – Sentencing principles for children – Guilty pleas – Remorse – No prior convictions – Rehabilitation prospects.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms K Churchill with Mr J Manning | Ms A Hogan, Solicitor for Public Prosecutions |
| For AM | Mr P Smallwood with Mr M Weinman | Greg Thomas Barrister and Solicitor |
| For JA | Mr B Johnston with Mr L Cameron | Slades & Parsons |
| For MM | Mr M Kozlowski | Unite Legal |
HER HONOUR:
Each of you has pleaded guilty to a different offence, arising out of your involvement in a violent attack on Declan Cutler in March 2022. AM has pleaded guilty to murder. JA has pleaded guilty to manslaughter. MM has pleaded guilty to intentionally causing serious injury in circumstances of gross violence. Four other young people are awaiting trial for Declan’s murder; one other child is awaiting a judicial decision as to whether they can be tried for Declan’s murder.
During the afternoon and evening of Saturday 12 March, you and your co-accused spent time together, hanging around at various locations in the western suburbs of Melbourne. The group used a stolen Mazda to pick each other up and drive around.
Some of your co-accused were affiliated with a youth group known as “the 9iners”, which was based in the western suburbs. There were simmering tensions between the 9iners and a rival youth group, known as “H-town”, which was based in Heidelberg.
That Saturday night, Declan attended a birthday party at a house in Reservoir, with his friends TH and KH. TH was affiliated with H-town, and was in conflict with some young people from the western suburbs. Declan had no known connection to H-town. Also at the party was an associate of the 9iners, a girl called H.
After midnight, arrangements were made for someone in your group, nicknamed “Hoozie”, to go and pick up H from the party. By around 1:40am, all eight members of your group had been picked up in the Mazda and left the Tarneit area, driving towards Reservoir. Someone in the group searched for the address of the party on their phone.
As the night went on, H became increasingly vocal at the party about the fact that Hoozie was coming to pick her up. Around 1:53am, H recorded on her phone a conversation with TH, in which she asked, “Since when were you beefing with the 9iners?” TH replied, “Fuck the 9iners”. It is not clear whether H forwarded the recording to someone in your group, but she certainly spoke on the phone to one of your co-accused after TH made that remark.
When the Mazda got close to the party, just before 2:30am, it pulled up down the street from where the party was taking place. H and her friend walked over to the car and spoke to the occupants. Shortly afterwards, the car performed a U-turn, and H and her friend walked off in the same direction as the car. The Mazda then turned into several nearby streets.
By this time, TH, KH and Declan had left the party and were walking along a nearby street. As they were doing so, the Mazda pulled up near them. Four people got out of the car, which caused Declan and his friends to separate and run away. The four people got back into the car, and the Mazda started to chase Declan.
When the car reached Declan, all eight people got out of the car and started to chase him. Declan tried to run away, but was dragged by his jumper onto the nature strip. Two of your co-accused immediately started stabbing him, while somebody else kicked and stomped on him. The rest of your group soon joined in the attack, by repeatedly stabbing, stomping on or kicking Declan. Declan was lying on his back, trying to fend off the vicious attack.
After the initial attack, all eight of you returned briefly to the car. Then AM and three of your other co-accused returned to attack Declan again. This involved repeated stabbing, kicking and stomping, as well as taking Declan’s shoes. Soon afterwards, all group members got back in the car and drove off, leaving Declan dead or dying by the side of the road.
The entire attack lasted a little over 2 minutes, and involved the use of four knives by five offenders, as well as kicking and stomping by all participants. The attack was frenzied, savage and totally unprovoked. The incident was captured on a neighbour’s CCTV camera. The footage is absolutely shocking in its brutality.
I will consider each of your individual roles in the attack shortly. But it is necessary to explain that you are going to be sentenced partly for your individual actions, and partly for your participation in what the law refers to as an “agreement, arrangement or understanding” with other co-accused.[1] I will use the term “agreement” as shorthand for “agreement, arrangement or understanding.” Such an agreement may be express, or it may be implied (usually from conduct). It may be created well in advance of an offence, or arise immediately before or at the time of the commission of an offence. In a large group of people, there may be a number of different agreements in place between them. Each of you has accepted that you were a party to a different agreement with various co-accused. I will consider your respective agreements later.
[1]Crimes Act 1958 s 323(1)(c).
Some members of your group routinely carried knives with them, and there is no evidence of any actual discussion or pre-planning among the co-accused to attack anybody that night.
The simmering tensions between the 9iners and H-town groups were no doubt aggravated by H reporting that TH had said, “Fuck the 9iners”. But Declan himself was not associated with H-town, and was a total stranger to your group. Tragically, after he became separated from his friends, he just seems to have been the person nearest to your group. You are being sentenced on the basis that the relevant agreements between group members to attack Declan arose almost simultaneously with the start of the attack.
Residents in the street where Declan was attacked were woken by yelling and shouting outside, as well as by a car driving up and down their street. They immediately called 000.
One of the residents left his house to investigate the noise, and found Declan on the nature strip. Emergency services arrived soon after, but were unable to resuscitate Declan.
Declan suffered 66 blunt force injuries, 56 sharp force injuries, and 30 puncture wounds, all over his head, body and limbs. His cause of death was stab wounds to the chest.
In the days following the attack, the Mazda that had been used on the night of the attack was set alight, presumably in an attempt to destroy evidence.
AM and JA were both arrested on 23 March 2022, and provided “no comment” records of interview.
MM left Australia on 27 March 2022, to attend a family wedding in Sudan. He was arrested when he returned to Australia a few months later, in August 2022. He also gave a “no comment” record of interview.
AM, JA and MM have all been in custody since their arrest.
Before I consider each individual’s offending and personal circumstances, I want to say something about the effect this offending has had on others. Very moving victim impact statements were provided by Declan’s mother and father. Declan was only 16 when he died. Unsurprisingly, losing Declan has had a profound effect on them, his siblings, and all who loved him. He was a happy, cheeky, outgoing boy, who loved fishing, sport and spending time with his friends. His family miss him terribly, and now feel scared about the world because of the random nature of the attack. They feel lost and numb, and wish every day that Declan would walk back in through their door.
There is nothing this court can say or do that will bring back Declan, or heal his loved ones’ grief and pain over a life cut so tragically short. The sentence I am going to impose is not a reflection of the worth or value of Declan’s life. Rather, the sentence must reflect the large number of factors which judges are required by law to take into account, only one of which is the content of victim impact statements.
I will begin by saying something about the role that an offender’s youth plays in sentencing, given that each offender was a child at the time of offending.[2] AM was 14, and JA and MM were both 16, at that time.
[2]Each of the three offenders is a “child” under s 3 of the Children, Youth and Families Act 2005 (“CYFA”), and a “young offender” under s 3 of the Sentencing Act 1991 (“Sentencing Act”).
Very different sentencing principles apply to children, and very different sentences are imposed on children, in recognition of the fact that they are less mature, less able to form moral judgments or control their impulses, and less aware of the seriousness and consequences of their actions. That is especially so in the case of offences committed impulsively, such as this one.
The law says that the youth of an offender should be a primary consideration for a sentencing court, where the matter properly arises. In the case of such an offender, rehabilitation is usually more important than general deterrence; rehabilitation benefits the community as well as the offender. There is a significant public benefit in rehabilitating a young offender, and maximising the prospect that they will go on to live a peaceful, productive and law-abiding life.
However, those principles are not absolute; due regard must be had in each case to other relevant matters, including the seriousness of the offending, and whether there has been any prior offending. Generally speaking, the more serious the offending, the less the weight to be attached to youth. But the mitigatory effect of youth will be extinguished only in circumstances of the gravest criminal offending, and where there is no realistic prospect of rehabilitation.
AM has pleaded guilty to murder, which is a standard sentence offence. However, the standard sentence provisions do not apply to child offenders. Similarly, because JA and MM were also children at the time of their offending, the principles relating to custodial sentences for their respective offences do not apply.
All of these considerations can, and do, lead to children receiving sentences which would be regarded as entirely inappropriate in the case of older individuals.
Before considering your individual cases, I want to address a few other general sentencing considerations that are relevant to all three of you.
General deterrence is still an important sentencing consideration in this case. The offending was carried out in company with others, late at night, with knives, as a result of tensions and perceived slights between groups of youths. It involved unprovoked and brutal violence against an unarmed teenager, who was trying to run away at the time. Unfortunately, violent knife crimes committed by young offenders have become far too common. The consequences that flow from such attacks can be devastating, for victims, their families and friends, and those who witness such incidents. It is also a real concern for the wider community, who need to be protected and to feel safe. There is a clear need for general deterrence (as well as denunciation and just punishment) in respect of such offending.
Although the three of you were involved in the same attack, you have pleaded guilty to very different offences, and each had varying degrees of involvement. There are also relevant differences in your ages and personal circumstances. That means the sentencing principle of parity has little role to play in this case.
Each of you is entitled to a discount on the sentence to be imposed upon you in recognition of your guilty plea, and its utilitarian value. Your plea has facilitated the course of justice. The community has, by your plea, been spared the time and cost of your involvement in what will be a complex trial of the remaining co-accused.
During the early stages of the COVID-19 pandemic, the criminal justice system became severely congested, and jury trials were unable to proceed at all, or were delayed. In a case called Worboyes,[3] the Court of Appeal said that there were several reasons why a plea of guilty should be given additional weight during the pandemic, because it carried a greater utilitarian benefit than at other times.[4]
[3]Worboyes v The Queen [2021] VSCA 169.
[4]Worboyes, [35]-[39].
In fact, the Supreme Court has now cleared its pandemic backlog. Custodial conditions have largely returned to their pre-pandemic state. In such circumstances, it might seem strange to allow a Worboyes discount in this case. However, the Court of Appeal has held that, for the sake of consistency, Worboyes discounts (even if modest) must continue to be given in all courts, for so long as any of them are experiencing pandemic-related delays.[5]
[5]Biba v The Queen [2022] VSCA 168, [26].
I also accept that some of your time in custody has been made more difficult by the various restrictions that were in place during the COVID-19 pandemic, particularly by frequent lockdowns during your early months in custody.
I will now consider your individual offending and personal circumstances.
AM
AM, you have pleaded guilty to murder. It is not clear who inflicted the fatal wounds on Declan. You are being sentenced on the basis that: you attended the scene with a knife, knowing that others also had knives; you were party to an agreement to attack Declan, with the joint intention of causing him really serious injury or death; and you participated in that agreement by kicking Declan, and stabbing him multiple times with a knife. You are being sentenced not only for the acts you inflicted yourself, but also for your participation as part of the wider group.
Murder is an inherently grave and serious offence. In terms of your role in the offending, you were one of the last two to join in the initial attack. However, you were clearly holding a large knife when you got out of the car. You started stabbing Declan as soon as you reached him. At one point, you stopped attacking him to check your hand for injuries, but then continued the attack, despite four members of your group having returned to the car in the meantime.
After briefly returning to the car yourself, you were the first to return to Declan for the second wave of the attack. You were still carrying a knife. You started yelling at Declan, then stomped on him, kicked him in the head, and took one of his shoes.
At 14 years old, you were the second youngest member of the group. I accept that, due to your age, any feelings of misguided retribution towards the H-town group were heavily influenced by those around you.
When you approached Declan, you already had the knife in your hand. It was dark, in the middle of the night, in a suburban residential street. Your individual involvement was sustained over a reasonably significant period of time. You had several opportunities to stop, but chose to keep going. You continued to attack Declan as he lay helpless on the ground. You were also the first to start the second wave of the senseless attack. It was a random and unprovoked attack, perpetrated by a large group. Your offending is objectively serious.
I turn to consider your personal circumstances. You were born in late June 2007. Your parents are originally from Sudan, but you were born and raised in Queensland. You were a witness to, and a victim of, many instances of serious family violence by your father. Your mother moved with you and your siblings to Melbourne when you were six.
Your father moved to Melbourne afterwards, and continued to inflict serious family violence. Several family violence intervention orders have been granted over the years.
You have four brothers and three sisters. As your mother was raising you alone, and had so many children to care for, you were often left unsupervised. Your housing situation was often severely overcrowded and unstable.
Since 2014, you have attended at least eight different schools. After you started secondary school, you began associating with negative peers, and using alcohol, cannabis, and other illegal substances.
In the two years before these events, you suffered two significant losses in your life: a close friend was stabbed to death, and a cousin died in a car accident. Those deaths had a substantial impact on you.
You were also struggling in a crowded and violent home environment. Your mother had re-partnered with a man who was physically violent. You had disengaged from remote learning, because of extended COVID-19 lockdowns. Over the years, child protection authorities have expressed concerns about your living situation, due to environmental neglect, truancy, lack of supervision and exposure to family violence. Shortly before this offending, child protection authorities described you as being “extremely vulnerable and at risk of exploitation”.
You started carrying a knife in public in 2020, which you reasoned was for “self-protection”. You said you felt the need to do this as other people were being stabbed, including your friend who had died from a knife attack.
Around this time, you also started stealing cars and participating in other theft and property offences. Those charges were struck out, because of your age and immaturity at the time. It seems you were engaging in that behaviour because you were bored at home, and found the offending exciting.
For the purposes of sentencing, you were assessed by a clinical psychologist, Guy Coffey. In his report dated 6 August 2023, Mr Coffey said that your exposure to family violence had a profound effect on your cognitive and emotional development. He noted that you have reasonably underdeveloped maturity levels for someone of your age, and that your longer term consequential cognitive processes are in the lower range.
Mr Coffey believes that when you committed the offence, you understood the nature of your actions, but did not possess the maturity to understand the violence you were inflicting. The other factors that led to your offending included: your association with criminally-inclined peers who carry weapons; your trauma-related impulsive anger issues; your underdeveloped moral reasoning and consequential thinking; and your unstable home life, which caused you to form unquestioning loyalty with other disaffected youths. Those matters help to explain the circumstances of your offending, and emphasise the need for you to have adequate and appropriate support in order to reduce your risk of reoffending.
You have previously been assessed by another psychologist, Gina Cidoni. In her report dated 13 September 2021, Ms Cidoni said that your exposure to family violence, and your unstable home life, have had a significant effect on your cognitive and emotional development. Those findings are also broadly consistent with the opinion provided by Ming-Yun Hsieh, a neuropsychologist, in her report dated 21 July 2021. Although Dr Hsieh concluded that you did not have an intellectual disability, her assessment highlighted some developmental delays.
You have no prior convictions. You have one subsequent matter, for which you were sentenced in May 2022 to probation. However, you were on bail for theft and property offences at the time of this offending, which is an aggravating factor.
As far as remorse is concerned, you were not immediately concerned with your actions towards Declan. When you were arrested, you lied to police regarding your involvement in the attack, saying “I wasn’t even there”. In the days after the attack, you continued to engage in antisocial behaviour.
However, the prosecution does not dispute, and I accept, that you have since developed genuine remorse for what you did to Declan, and for the pain that you have caused his family.
Your guilty plea is significant. Unlike most of your co-accused, you have never disputed in court that you were one of the offenders. At your committal, you offered to plead guilty to manslaughter. After that offer was rejected by the prosecution, you applied for a sentence indication for the charge of murder. You entered a plea of guilty to murder upon receiving that indication in May 2023. I accept that you took criminal responsibility for Declan’s death at the earliest reasonable opportunity.
You have used your time in custody productively. You have attended your classes at Parkville College, and have been setting goals for yourself in relation to your course work. You have actively sought extra homework, and been involved in numerous extra-curricular activities. You have been described as engaged and enthusiastic in your schoolwork, and in your participation in the Umoja cultural education program provided to students from an African background. Your teachers report that you have matured significantly since you have been in custody.
Notwithstanding the seriousness of your offending, I accept that you have fair prospects of rehabilitation, if you continue showing your current positive attitude towards education and relationships, as well as continuing to engage with relevant professionals to address your behavioural problems. Your rehabilitation will require targeted support, and a willingness by you to engage and apply what you have learned.
JA
JA, you have pleaded guilty to manslaughter. It is not suggested that you inflicted any of the fatal stab wounds.
You are being sentenced on the basis that: you attended the scene with a knife, knowing that others also had knives; you participated in an agreement to attack Declan, with the joint intention of causing him harm; and you participated in that agreement by kicking or stomping on Declan and making stabbing motions directed towards the lower half of his body. There is no evidence that you actually inflicted any stab wounds on Declan. However, you are being sentenced not only for your own acts, but also for your participation as part of the wider group.
In terms of your role in the offending, you were one of the boys who had a knife. When you approached Declan, you did not initially join in with the same degree of violence or activity as the others. You stomped on Declan once, before standing to the side of the group.
However, after a few moments, you crouched down in the gutter and wiped your knife. You then approached Declan, and made several stabbing motions directed towards the lower half of his body, while others were also attacking him. You then returned to the car, and did not go back to participate in the second wave of the attack.
The day after the attack, you stole a Holden car from a gym with two friends. When the Mazda which was used in connection with the offence was set on fire, the stolen Holden was used as the getaway car.
There are a number of matters that are relevant to assessing the objective seriousness of your offending.
Although you made less of a contribution to the overall attack than your co-accused, and were one of the least engaged participants, you were still an active participant. In terms of age, you were around the middle of the group. I accept that, due to your age, you may have felt peer pressure to engage in the conduct; that may explain your initial reluctance to participate. However, your actions in wiping your knife, and using it to make stabbing motions in the direction of Declan, were still deliberate. It must have been clear to you that Declan was completely vulnerable and could not fight back.
After the attack, you stole a car and continued to engage in antisocial behaviour.
You were born in late July 2005, and were 16 at the time of the offending. You have recently turned 18.
Your parents are from Somalia, but you were born in the USA, where you spent your early childhood. Your mother and father separated amicably when your mother was pregnant with you. You have two older brothers and an older sister.
You moved to Australia shortly before your ninth birthday with your mother and siblings, to help care for your grandmother. You found the move challenging. You miss your father, but remain in regular contact with him. Your older brothers returned to America to live with him when you were 13. You struggled to cope with that, and begged your mother to return to America to live with your father.
Your mother later re-married a man who was very violent. A family violence intervention order was ultimately put in place against him. It seems clear that, at the time of this offending, you did not have any positive male role models in your life.
Your mother had two sons with her new husband. They both have autism spectrum disorder and high needs. You have helped your mother significantly in raising your half-brothers. You remain very close to your extended family, particularly your aunt.
You have attended three schools in Australia. During the COVID-19 pandemic, you struggled with schooling and disengaged from remote learning. In 2021, you were expelled from your high school for being disruptive. You decided to attend a different school, but were arrested for this offence before that could happen.
In the year before this offending, you were robbed at a shopping centre by six armed men. They stole your iPhone, which your mother had saved up to buy for you. The attack was reported to police, but no arrests were made.
About six months’ before this offending, your best friend died in a car accident, after a group of young people were chased and attacked by another group of young people.
Your friend’s death came after several other losses in your life. Your maternal uncle, to whom you were close, was murdered in Africa in 2019. Several of your family members also died as a result of the COVID-19 pandemic. You were also unable to see or visit your family in America during the pandemic.
The cumulative effect of all those losses, in the period leading up to this attack, was that you began experiencing low mood, anger, disillusionment and frustration. While you have been in custody, you lost another friend in a senseless stabbing in St Kilda.
You have experimented with alcohol and cannabis when in the company of others. You would often mix excessive amounts of alcohol with benzodiazepines and “black out”. You were using cannabis daily in the lead up to the attack, and had also started inhaling nitrous oxide.
You met AM and another member of the offending group in early 2022, less than two months before the offending. You didn’t know any of the others in the group before the day of the offending. You knew AM was involved with the 9iners, but were not affiliated with them yourself.
For the purposes of your sentence indication, you were also assessed by Gina Cidoni. In her report dated 8 May 2023, Ms Cidoni noted that you present with trauma dissociation and detachment issues, which may have contributed to your lack of insight and judgment at the time of this offence. Ms Cidoni assessed your risk of reoffending, particularly violent reoffending, as a low to medium risk, which is tied to your associations with negative peers and substance abuse. This reinforces the need for your rehabilitation to take place away from those negative peers.
You have no prior convictions. You have a number of pending charges for theft of motor vehicles, which were committed around the same time as this offending; they have been listed for plea later this month. You have also been involved in a few assaults while in custody, some of which involved actual violence. This is by far your most serious offending.
There are a number of other matters that are relevant to sentencing you.
Your guilty plea is significant. After your sentence indication in May this year, you entered a plea of guilty to manslaughter. That is a relatively early plea.
As far as remorse is concerned, it is not clear whether you were immediately concerned about your actions towards Declan. In the hours following the attack, you accessed Declan’s social media to look at pictures of him, and searched for news articles about him. You also performed an internet search for “Is hell guaranteed for Muslim who commits murder?” Those searches may indicate some concern about the gravity of your actions, and the wrongfulness of what you had done. Or they may have been motivated by concern for your own position. Without evidence, I am not able to draw conclusions as to why you made those searches.
In more recent times, you have been developing and expressing genuine remorse for what you did to Declan, and for the pain that you have caused his family and friends.
You have mostly used your time in custody productively. Although you have been involved in a few incidents with other young people, it appears that you were not a primary instigator and were minimally involved compared with your co-offenders. This seems to be a pattern of behaviour, which reiterates the need for you to have proper structures in place that encourage you to foster positive peer associations.
Apart from that, you have been described by your youth justice workers as a mature, highly-engaged person, who is generally positive and proactive. You hope to start a building or plumbing apprenticeship, to continue to support and care for your family, and eventually earn enough money to buy a car and a home. You have also participated in counselling and programs to address your offending behaviour.
Notwithstanding the serious nature of your offending, I accept that you have reasonably good prospects of rehabilitation. Your lack of any prior criminal history, your age, your productive use of time whilst in custody, and your strong family support, are all relevant factors in my assessment.
MM
MM, you have pleaded guilty to intentionally causing serious injury in circumstances of gross violence. You are not being sentenced for contributing to Declan’s death, and your role in the attack was less severe than the other offenders.
You are being sentenced on the basis that: you attended the scene with others, knowing that some of them were carrying knives, and intending to confront Declan; you entered into an agreement to attack Declan with the intention of causing him serious injury; you participated in that agreement by kicking Declan four times and stomping on him once; and you continued to cause injury to Declan, in company with others, after he was incapacitated.
When the attack on Declan started, you were the fourth person to get out of the car and immediately got involved in the assault. You began kicking and stomping on Declan, alongside several others. You briefly stood to the side of the group, before returning to Declan and kicking him several times. You then retreated back to the Mazda with three others, and did not return to participate in the second wave of the attack.
While you may have made less of a contribution in the overall attack than your co-accused, you were still an active participant. You did not hesitate to get involved in the attack, and continued to inflict injuries to Declan, even though he was vulnerable and had no prospect of defending himself.
You were born in early May 2005 and were 16 at the time of the offending. You are now 18.
You had a largely positive and stable childhood. You were born in Melbourne, and grew up around the Footscray area. Your parents are originally from South Sudan, and they moved to Australia the year before you were born.
When you were two years old, your parents separated. You mother has raised you on her own since then. When your parents separated, your father left the country, and did not return for many years. You do not have much to do with him. You have remained close to your mother, and have a positive relationship with your brother and sister. They remain supportive of you.
When you were eight, you travelled with your mother to South Sudan, but became stranded there when the civil war broke out. You witnessed terrible violence, and continued to have nightmares about it for some time. You described seeing people dying on the street, and sought to cope through avoidance strategies and by blocking out the images from your mind.
You left primary school due to bullying. You also felt bored and unable to concentrate. Things improved in high school, when you started to make more friends. However, you were suspended from school in year 7, because of your involvement in a physical altercation.
In years 8 and 9, you were sent to a boarding school in Kenya. Discipline was strict, and you would be physically disciplined if you weren’t concentrating. You returned to Australia at the start of the COVID-19 pandemic.
You later learned that four of your friends from Kenya had been killed in a car accident; that had a real impact on you. Around that time, you stopped showing up for your job at McDonalds (which you had held for close to a year), and started skipping school. You began misusing substances, including benzodiazepines and cannabis, and started associating with negative peers. This offending happened soon after.
For the purposes of sentencing, you were assessed by Marlese Bovenkerk, a forensic psychologist, who provided a report dated 28 July 2023. Ms Bovenkerk said that you have a particular tendency to numb your emotional experiences, and have a pattern of bottling up your emotions. That is manifested through avoidant coping mechanisms and substance misuse.
While you have had a limited history of alcohol consumption and cannabis use, you have a history of misusing benzodiazepines. On one occasion, you took seven Xanax tablets and woke up in a hospital.
At the time of your offending, you were under the influence of Xanax and cannabis and described yourself as being “off your head”. In the lead up to your arrest, you continued using benzodiazepines.
Ms Bovenkerk said that your depressive and anxious symptoms appear to be related to untreated PTSD, and that your symptoms fluctuate in their intensity and frequency in tandem with your substance misuse patterns. However, she did not suggest that there was any causal link between those symptoms and your offending. She believes that your substance misuse and peer associations were the main contributing factors to your offending. She recommended that, in order to address these problems, you would benefit from psychological support and specialised counselling.
There are a number of other matters relevant to sentencing you.
Before this incident, you had arranged to travel to Sudan for a family wedding; you left Australia shortly after the incident, as planned. While you were overseas, your mother told you that your home had been searched and there was an ongoing police investigation into Declan’s death. With that knowledge, you returned to the country as planned, to face the investigation and any consequences. You were only 16 at the time, which demonstrates a fair degree of maturity and acceptance of responsibility in the circumstances.
You were originally charged with murder. After a case conference was held, the prosecution agreed to accept a plea to the current charge. You pleaded guilty in May 2023. This is a relatively early plea.
There is no dispute that you now recognise, to some degree, the moral repugnance of your group’s offending, and the role you played in it. In conjunction with your voluntary return to Australia, knowing that an investigation was on foot, that reflects an acceptance of your actions and a reasonable degree of remorse.
You have no prior convictions, and no subsequent or pending matters.
Ms Bovenkerk assessed you as posing a moderate risk of committing future violence, but does not believe that you possess any entrenched criminal belief system or pro-violence attitudes. In her assessment, your rehabilitation will be best served through further psychological intervention, and increased association with positive peers.
You have been in custody since your arrest in August 2022. Youth justice workers have described you as a quiet, conservative young person, who is polite and respectful. However, you have been involved in several incidents in youth custody.
You have otherwise engaged and participated well in education and other intervention programs. While your interest in engaging with available education opportunities has waned due to your self-reported lack of motivation, you have continued to attend the challenging antisocial attitudes program, and the Umoja cultural education program. In doing so, you have generally been observed to interact well with others. You have also shown an interest in other extra-curricular activities, and have worked hard to obtain several certificates. You have expressed goals and aspirations for the future, including undertaking further studies.
You have strong family support. You have remained in regular contact with your mother and siblings, and your long-term girlfriend, throughout your time in custody.
For all of these reasons, I consider that your prospects of rehabilitation are reasonably good.
AM sentence
AM, because you were a child at the time of offending, I am not required to take the standard sentence into account, or fix a minimum non-parole period.
Murder is an inherently serious offence, and I consider your offending to be a serious example of that offence. As such, a sentence of imprisonment with a non-parole period is the only appropriate sentence for you.
Nevertheless, I am satisfied that this is an appropriate case in which to recommend to the Adult Parole Board that you be transferred to the youth justice system until you are 21.[6] There are a number of reasons for that recommendation. You possess particular vulnerability, because of your age and your underdeveloped maturity levels. Adult prison would expose you to greater negative influences and peers than youth custody, which may be harmful to your rehabilitation prospects.
[6]CYFA, s 471.
Your rehabilitation would also be assisted by you finishing your schooling, something you have engaged well with in youth custody. It would also be assisted by the positive relationships you have been developing through your extra-curricular activities in the youth justice system. These are all matters which are important to your rehabilitation, for the benefit of the community as well as yourself.
AM, having regard to the matters I have just discussed, for the offence of murder, I sentence you to 15 years’ imprisonment. I fix a period of 10 years before you will become eligible for parole.[7]
[7]These numbers are slightly lower than the numbers given at the sentence indication, due to the provision of further information at your plea hearing.
But for your plea of guilty, I would have sentenced you to 18 years’ imprisonment, with a non-parole period of 13 years.
Further, I declare that the period to be reckoned as already served under this sentence is 538 days, not including today’s date. I direct that there be noted in the records of the court the fact that such declaration was made and its details.
I will also make the forensic sample order sought by the prosecution. Given the seriousness of your offending, it is appropriate to make such an order. I also note that you do not oppose the order being made.
JA sentence
JA, manslaughter is a Category A serious youth offence, so a period of confinement is necessary. If a sentence involving confinement is justified in respect of a young offender, a court may make a youth justice centre order if:
(a) It has received a pre-sentence report; and either
(b) It believes that there are reasonable prospects for rehabilitation of the young offender; or
(c) It believes that the young offender is particularly impressionable, immature or likely to be subjected to undesirable influences in adult prison.
In deciding whether to make a youth justice centre order, a court must have regard to the nature of the offence, and the age, character and past history of the young offender. The maximum period of detention available under a youth justice centre order is 4 years.[8]
[8]Sentencing Act, s 32(3)(b).
Because manslaughter is a category A serious youth offence, the court cannot make a youth justice centre order unless satisfied that “exceptional circumstances” exist.
During your sentence indication hearing, I indicated that I was satisfied that exceptional circumstances existed due to the following matters: your age at the time of the offence; your particular actions in the attack; your guilty plea; your lack of any prior criminal history; your supportive family; your positive engagement in programs and education during your time in custody; your good prospects for rehabilitation; and your particular vulnerability to negative peer associations and influences in adult custody. Many of those matters are also relevant to my assessment that you meet the other criteria for making a youth justice centre order.
In a pre-sentence report by the Department of Justice and Community Safety, dated 28 July 2023, you were assessed as suitable for a youth justice centre order.
JA, having regard to the matters I have just discussed, for the offence of manslaughter, I sentence you to 4 years’ detention in a youth justice centre.
But for your plea of guilty, I would have sentenced you to imprisonment of 6 years, with a non-parole period of 4 years.
Further, I declare that the period to be reckoned as already served under this sentence is 538 days, not including today’s date. I direct that there be noted in the records of the court the fact that such declaration was made and its details.
The prosecution have also sought an order that the forensic sample you provided to police be retained on the database. In your case, the application is opposed. In deciding whether to make such an order, it is necessary for the court to have regard to the seriousness of the circumstances of the offence, and whether, in all the circumstances, the order is required.
Given your significantly lesser role in the offending, your age, your lack of prior convictions, your lack of subsequent convictions for violence, and your good prospects for rehabilitation, I am not persuaded that it is appropriate to make a forensic sample order in your case.
MM sentence
As intentionally causing serious injury in circumstances of gross violence is a Category A serious youth offence, a period of confinement is necessary.
However, I am satisfied that a youth justice centre order would be suitable in your case, on account of your age, your reasonable prospects of rehabilitation, and your particular susceptibility to being influenced by negative peers. The prosecution does not dispute, and I accept, that “exceptional circumstances” exist in your case.
In a pre-sentence report dated 28 July 2023, you were assessed by DJCS as suitable for such an order.
MM, having regard to the matters I have just discussed, for the offence of intentionally causing serious injury in circumstances of gross violence, I sentence you to 3 years and 6 months detention in a youth justice centre.
But for your plea of guilty, I would have sentenced you to imprisonment of 5 years, with a non-parole period of 3 years and 6 months.
Further, I declare that the period to be reckoned as already served under this sentence is 398 days, not including today’s date. I direct that there be noted in the records of the court the fact that such declaration was made and its details.
The prosecution also sought an order that the forensic sample you provided to police be retained on the database. In your case, the application was not opposed.
However, given your significantly lesser role in the offending, your age, your lack of prior or subsequent convictions, and your good prospects for rehabilitation, I am not persuaded that it is appropriate to make a forensic sample order in your case.
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