Louise Hawke v Thomas Smith (a pseudonym); Louise Hawke v Alexander Brown (a pseudonym); Louise Hawke v Montgomery White; Louise Hawke v Jaxson Kirkwood; Louise Hawke v Emmanuel Umunakwe; Louise Hawke v Samuel West..

CHILDRENS COURT OF THE AUSTRALIAN CAPITAL TERRITORY & MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Louise Hawke v Thomas Smith (a pseudonym); Louise Hawke v Alexander Brown (a pseudonym); Louise Hawke v Montgomery White; Louise Hawke v Jaxson Kirkwood; Louise Hawke v Emmanuel Umunakwe; Louise Hawke v Samuel West (a pseudonym)
Citation:	[2021] ACTMC 13
Hearing Date(s):	20 September 2021
DecisionDate:	30 September 2021
Before:	Chief Magistrate Walker
Orders:	See [208]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – affray – significance of context to affray – individual culpability – totality – parity – youth sentencing principles – extra curial punishment – reprisal attacks – assistance to authorities – non-conviction order – likelihood of deportation
Legislation Cited:	Crimes Act 1900 (ACT), ss 24, 26, 35A, 35AB Crimes Act 1900 (NSW), s 93C Criminal Code 2002 (ACT), ss 45A, 403 Crimes (Disrupting Criminal Gangs) Legislation Amendment Act 2019 (ACT) Crimes (Sentencing) Act 2005 (ACT), ss 7, 17, 33, 36,133 Crimes (Serious Organised Crime) Amendment Act 2010 (ACT) Children and Young People Act 2008 (ACT), s 12
Cases Cited:	Biddell v Gatherer [2021] ACTSC 236 Bloxsome v R [2020] ACTCA 52 Cobiac v Liddy [1969] HCA 26; 119 CLR 257 Hall v Pendelton [2015] ACTSC 205 MAC v Tasmania [2018] TASCCA 19 Mill v The Queen [1988] HCA 70; 166 CLR 59 MT v R [2021] ACTCA 26 Ngata v R [2020] ACTCA 18 Obradovic v Mottta [2018] VSC 805 Pearce v The Queen [1998] HCA 57; 194 CLR 610 R v Daetz; R v Wilson [2003] NSWCCA 216 R v De Simoni [1981] HCA 31; 147 CLR 383 R v Dillon; R v Rivera [2019] NSWSC 1750 R v Eleter [2003] NSWCCA 130 R v Fajka [2004] NSWCCA 166 R v Goh [2002] NSWCCA 234 R v Harris [2007] NSWCCA 130 R v Huynh [2000] NSWCCA 18 R v KS, R v KN, R v KI (No 2) [2021] ACTSC 23 R v Meyboom [2012] ACTCA 48 R v Nash [2012] VSC 50 R v Newman; R v Reid [2016] ACTSC 102 R v Ngata [2015] ACTSC 356 R v Payne-Moore [2021] ACTSC 125 R v QH; R v CR [2020] ACTSC 178 R v Skura [2004] VSCA 55; 10 VR 361 R v TL [2017] ACTCA 18 R v Toumo’ua [2017] ACTCA 9 R v Verdins [2007] VSCA 62; 16 VR 269 R v XX [2009] NSWCCA 115 Saipani v R [2021] ACTCA 5 Silvano v R [2008] NSWCCA 118 Stevens v R [2007] NSWCCA 152 Turner v Raiser [2021] ACTSC 21 Watson v Stiles [2021] ACTMC 2 Zdravkovic v The Queen [2016] ACTCA 53
Parties:	Detective Leading Senior Constable Louise Hawke (Informant) Thomas Smith (Defendant) Alexander Brown (Defendant) Jaxson Kirkwood (Defendant ) Montgomery White (Defendant) Emmanuel Umunakwe (Defendant) Samuel West (Defendant)
Representation:	Counsel M Howe (ACT Director of Public Prosecutions) J Sabharwal (Thomas Smith) S Whybrow (Alexander Brown) P Edmonds (Jaxson Kirkwood) J Purnell SC (Montgomery White) M Jones (Emmanuel Umunakwe) J Moffett (Samuel West)
Solicitors ACT Director of Public Prosecutions Armstrong Legal (Thomas Smith) David Healy Solicitors (Alexander Brown) Canberra Criminal Lawyers (Jaxson Kirkwood) Aulich Criminal Law (Montgomery White) KG Criminal Law (Emmanuel Umunakwe) Rachel Bird & Co (Samuel West)
File Numbers:	CH 150 of 2021 CH 1086-1087 of 2020 CC 14061-14063 of 2020 CC 14051-14053 of 2020 CC 14076-14078 of 2020 CH 1035 of 2020

CHIEF MAGISTRATE WALKER:

Introduction

These sentencing remarks relate to three adults and three young people, as defined in s 12 of the Children and Young People Act 2008 (ACT), all of whom were involved in an incident on the night of the 26^th to 27^th of September 2020 (‘the incident’), which occurred in the car park of the Weston Creek Skate Park.

Given the number of offenders, I include a table of the charges and the maximum penalties applicable:

Charges	Offence	Provision	Max Penalty
Thomas SMITH (a pseudonym)
CH21/150	Affray (5 or more other people present)	S 35A(3) Crimes Act 1900	10 years imprisonment but capped at 2 years pursuant to s 375(16)(a) of the Magistrates Court Act 1930 following the young person’s consent to summary disposal.
Alexander BROWN (a pseudonym)
CH20/1086	Affray (5 or more other people present)	S 35A(3) Crimes Act 1900	10 years imprisonment but capped at 2 years as above.
CH20/1087	Assault occasioning actual bodily harm	S 24 Crimes Act 1900	5 years imprisonment but capped at 2 years as above.
Montgomery WHITE
CC20/14061	Affray (5 or more other people present)	S 35A(3) Crimes Act 1900	10 years imprisonment but capped at 5 years pursuant to s 375(15)(a) of the Magistrates Court Act 1930 following the defendant’s election for summary disposal.
CC20/14063	Joint commission damage property	S 403 Criminal Code 2002 by virtue of s 45A Criminal Code 2002	10 years imprisonment and/or 100 penalty units ($160,000) but capped at 5 years as above.
CC20/14062	Joint commission common assault	S 26 Crimes Act 1900 by virtue of s 45A Criminal Code 2002	2 years imprisonment.
Jaxson KIRKWOOD
CC20/14051	Affray (5 or more other people present)	S 35A(3) Crimes Act 1900	10 years imprisonment but capped at 5 years as above.
CC20/14052	Joint commission damage property	S 403 Criminal Code 2002 by virtue of s 45A Criminal Code 2002	10 years imprisonment and/or 100 penalty units ($160,000) but capped at 5 years as above.
CC20/14053	Joint commission common assault	S 26 Crimes Act 1900 by virtue of s 45A Criminal Code 2002	2 years imprisonment.
Emmanuel UMUNAKWE
CC20/14076	Affray (5 or more other people present)	S 35A(3) Crimes Act 1900	10 years imprisonment but capped at 5 years as above.
CC20/14077	Joint commission damage property	S 403 Criminal Code 2002 by virtue of s 45A Criminal Code 2002	10 years imprisonment and/or 100 penalty units ($160,000) but capped at 5 years as above.
CC20/14078	Joint commission common assault	S 26 Crimes Act 1900 by virtue of s 45A Criminal Code 2002	2 years imprisonment.
Samuel WEST (a pseudonym)
CH20/1035	Joint commission affray (5 or more other people present)	S 35A(3) Crimes Act 1900 by virtue of s 45A Criminal Code 2002	10 years imprisonment but capped at 2 years as above.

A determination to hear these matters together came following an application by the prosecution. It was not opposed by any of the defendants or young people, whom I shall refer to as offenders.

I note the utility in such an approach, as addressed recently by Loukas-Karlsson J in Biddell v Gatherer [2021] ACTSC 236. It assists in terms of assessing appropriate sentences for each offender having regard to their role in an incident and their personal circumstances. It also assists the administration of justice by avoiding a multiplicity of proceedings and reduces the possibility of a justifiable sense of grievance being held by any one offender, each having been privy to the submissions and sentencing remarks relevant to co-offenders.

The joining of related matters for sentence should be encouraged by the court and actively pursued by parties where the connection may not be immediately apparent to the sentencing court, given that matters commonly progress separately through the court process.

In interests of efficiency I will refer to each of the offenders by their first name in my sentencing remarks, with the use of pseudonyms for the young persons involved. In the interests of protection of the offenders and their privacy, I have determined not to publish the details of the exhibits tendered on sentencing in support of oral submissions. These exhibits are recorded in an unpublished addendum.

The Facts

What follows reflects the agreed facts, with some minor additions based upon unchallenged offender submissions.

On the evening of Saturday 26 September 2020, Thomas SMITH and two other young persons, Brett Ray and Chris Farrar, were at a gathering at Thomas’ home in Jerrabomberra. He engaged in conversation on Snapchat, a social media site particularly popular with young people, with his ex-girlfriend. She recorded and distributed the exchange to a number of people including Tony Sutton.

Tony was at a party in Stirling with Alex BROWN, Wren Sean and Matthew Glover. The conduct of Wren Sean and Matthew Glover is the subject of separate proceedings in the Supreme and Childrens Courts respectively.

Alex saw the Snapchats. He had never met Thomas but connected with him on Snapchat and continued the exchange. These exchanges were loud, angry and nasty. In particular Thomas threatened to kill Alex’s family and “piss” on Alex’s mother’s grave.

Thomas and Alex agreed to meet for a fist fight at the skate park. Thomas’ cousin Jonathan Smith collected Thomas, Brett and Chris and drove to the skate park in his Toyota 86 coupe (‘the 86’). Thomas sat in the front passenger seat, Chris was seated in the rear passenger side seat and Brett in the rear driver's side seat.

Alex and Matthew were collected from the Stirling party by Abby Sanford, Alex’s girlfriend, in her Toyota Corolla (‘the Corolla’). Abby’s conduct is also the subject of separate proceedings in the Childrens Court.

The group drove to Weston, collecting Wren on the way. Alex sat in the front passenger seat, Matthew sat in the rear passenger seat and Wren in the rear driver's seat. During their trips, Thomas and Alex continued to engage on Snapchat one another.

Meanwhile, Matthew contacted Emmanuel UMUNAKWE to attend at the fight ‘just in case things went south’. Emmanuel, who was at that time living with Alex’s family, was at a separate party in Duffy with Jaxson KIRKWOOD, Montgomery WHITE and Samuel WEST.

Samuel was the only one who had not been drinking alcohol or using drugs so he drove Montgomery's work vehicle, a Mitsubishi Triton (the Triton), to Weston. Montgomery sat in the front passenger seat, Jaxson in the rear passenger seat and Emmanuel in the rear driver's seat.

The vehicles congregated in the car park at the skatepark after midnight. Alex, Matthew and Wren got out of the Corolla. Abby stayed with the vehicle.

Alex and Matthew approached the front passenger side of the 86 and pre-emptively attacked Thomas while he was still seated in the vehicle. They punched Thomas numerous times. He sustained swelling and bruising to his left eye, abrasions to his inner lips and chin, and superficial lacerations to his forehead, nasal bridge, left cheek and eyelids.

Thomas got out of the 86; he, Alex and Matthew kept fighting. Thomas kneed Alex in the groin causing him to fall to the ground and take no further part in the incident. Thomas was stabbed twice in the back and hip by someone other than the offenders being sentenced today.

Whilst this was going on, the occupants of the Triton exited their vehicle. Jaxson and Montgomery attacked Jonathan, pulling him from the drivers seat of the 86. An altercation followed during which Montgomery punched Jonathan to the head and right side of the ribs, Jaxson punched Jonathan about five times, and Emmanuel grabbed Jonathan from behind to assist Montgomery.

Due to the 86 being a coupe, Chris and Brett were initially stuck in the backseat. Chris brandished a machete from the back seat which had been brought from Jerrabomberra. He then got out of the car with the machete and swung it around.

Jaxson, Montgomery and Emmanuel went to the rear tray of the Triton. Jaxson grabbed a pickaxe, Montgomery grabbed a shovel, and Emmanuel a plastic rake. Samuel returned to the Triton and remained in the vicinity of that vehicle. Thus armed, Jaxson, Montgomery and Emmanuel approached Chris, who still had the machete.

Whilst Brett was sitting in the back of the 86, Emmanuel hit the rear windscreen with the rake causing it to shatter. Jaxson hit the bonnet five times with the pickaxe, causing five punctures through the metal. Montgomery hit the front windscreen of the vehicle with the shovel, breaking the front windscreen and passenger side mirror. The vehicle, which had been purchased on 2 March 2020 for $21,366.00, was a write-off.

When the offenders left to return the tools to the Triton, Brett climbed out of the broken rear windscreen of the Toyota and fled on foot. Thomas, who had been stabbed, and Chris, still in possession of the machete, fled the area on foot. Meanwhile, Alex, Matthew and Wren returned to the Corolla and were driven away by Abby, who had remained with her car throughout.

Jaxson, Montgomery, Emmanuel, and Samuel, who was still driving, left in the Triton. In driving the others to and from the fight, Samuel became knowingly concerned in the affray committed by these offenders. There is no evidence of him engaging in any actual violence.

During the altercation Jonathan suffered multiple stab wounds to his chest and upper body and died. Thomas was treated for his injuries at the Canberra Hospital. The whole incident had lasted about 3 minutes.

Jaxson, Montgomery, Emmanuel, Samuel, Alex, Matthew, Wren and Abby all went to an address in Duffy. On the way and once at the house, Wren showed a number of different people that he had a knife and said he had stabbed someone.

It was not until the evening of 28 September 2020 that the offenders attended Woden Police Station to speak with police about the incident. Each of the offenders participated in interviews with police and provided a version of events consistent with their pleas and the above facts.

All of the offenders entered guilty pleas following initial brief disclosure, therefore at an early but not the earliest, opportunity.

Significance of Context

As part of the agreed statement of facts, the Court was apprised of Jonathan Smith’s death. None of the offenders currently in this Court are implicated in Jonathan’s death. All offenders agreed with the prosecution that it was appropriate to put this information before me at sentence. It is relevant in a number of ways.

It would be artificial to consider the criminal conduct of these offenders without having regard to what came immediately before the conduct and also what ensued. It was also the media coverage of Jonathan’s death that led to a number of offenders presenting themselves to the police. Thus, the context is relevant as to how those individuals came to be prosecuted and what assistance they provided to police in investigating that matter. The context is relevant in considering the impact on those involved in the offending and how they have responded to that. It is also important to give context to the victim impact statement. The context also provides a salutary warning to the community and other would-be offenders as to how quickly trivial matters can escalate and how tragically wrong they may go.

The Offences

I turn now to a consideration of the objective seriousness of the offences.

In respect to the summary/indictable matters charged, each of the offenders elected to have the matters proceed summarily with the associated sentencing cap. Nonetheless, the yardstick for sentencing is the maximum penalty legislated for the offence, not the jurisdictional limit imposed as a result of the election.

Whilst there is a tendency in this court to ‘grade’ offending as a short-hand form of assessing mitigating and aggravating factors, ‘it is preferable for a sentencing judge to confine themselves to identifying features of the case that inform the objective seriousness of that case’ (see R v Toumo’ua [2017] ACTCA 9).

Assaults

In respect to the offences of assault, there are both distinct and common aggravating features. Where the assault is contrary to s 24 of the Crimes Act 1900 (ACT), the extent of bodily harm caused is relevant factor. The injuries caused by Alex are detailed above. Where the assault is contrary to s 26 of the Crimes Act 1900 (ACT), the use of physical as opposed to verbal violence is a relevant consideration. Here the offences committed by Jaxson, Montgomery and Emmanuel reflect physical violence, also described above.

Relevant to both s 24 and s 26 offences is whether the conduct was reckless or intentional, and in these matters, the conduct was intended. Also relevant is the degree of premeditation. Here there was some premeditation of a planned conflict, although for Emmanuel at least, that was conditional upon how the primary planned fight between Thomas and Alex went.

Weapons were not used in the assaults, however Alex, Jaxson and Montgomery all made contact with their victim’s heads, which is generally accepted to be a vulnerable target (see R v QH; R v CR [2020] ACTSC 178). There was a group of three assailants on Jonathan and two on Thomas, creating an inequality and aggravating the offences.

The common assaults and assault occasioning actual bodily harm were significant although not the most serious examples of these offences. Emmanuel’s role in the common assault was, however, relatively minor.

Property Damage

Jaxson, Montgomery and Emmanuel acted in concert in damaging the 86. They used weapons and caused considerable damage to a motor vehicle, often an important and valuable personal possession. They did so whilst Brett was in the vehicle. Whilst the damage was not in itself aimed at causing this person harm, the conduct must have been intended to create fear and no doubt would have done so, to Brett in particular. This is a serious example of the offence.

Affray

Each of these offenders are charged with affray. A real question arises for this Court as to how to assess their individual culpability for that offence and, how, where they are charged with further offences, totality is to be properly reflected.

The offence has a fairly recent history in this jurisdiction. Historically it is part of a suite of public order offences of escalating severity, sitting above offences such as disorderly conduct but below an offence such as riot. In its modern formulation, it sits in Part 2 of the Crimes Act1900 (ACT), titled ‘Offences against the person’. The history of the offence in the ACT was helpfully addressed by Ms Jones on behalf of Emmanuel.

S 35A(1) of the Crimes Act 1900 (ACT) was created by the Crimes (Serious Organised Crime) Amendment Act 2010 (ACT). The offence attracted a maximum penalty of 10 years imprisonment. Subsequently, the Crimes (Legislation) Amendment Act 2013 (ACT) reduced the maximum penalty to two years, consistent with the maximum penalty for common assault. Further amendment was made by the Crimes (Disrupting Criminal Gangs) Legislation Amendment Act 2019 (ACT), which inserted subsections 35A(2) and (3). This created a tiered offence with penalties of up to 2 years imprisonment for the offence committed by a single person, 5 years where two or more people were involved, and 10 years where five or more people were involved.

This most recent amendment was in the context of increased concern about violence perpetrated in the community by members of outlaw motorcycle gangs (OMCGs), a concern reflected in the title of the amending act. Ms Jones provided an excerpt from Hansard as part of her submissions, in which the current Attorney-General, Mr Shane Rattenbury, addressed this issue on 26 November 2019. He noted the potential for the 10 year offence to be applied other than as intended by the legislature, whilst ultimately accepting that the approach of the government would be effected by checks and balances afforded by court process. He did note however, as is clearly the case with respect to these offenders, that the section is not limited on its terms to application to OMCGs.

S 35AB of the Crimes Act 1900 (ACT) provided for review of the provision after the third year of operation. I am unaware as to whether such a review took place, although clearly no amendment has been made to the provision.

There are few reported decisions relating to offences of affray in the ACT. In R v Ngata [2015] ACTSC 356, Refshauge J sentenced the defendant in respect to an aggravated robbery arising in the context of dispute between rival OMCGs. One of the backup charges, although ultimately dismissed, was a charge of affray. His Honour made obiter dictum comment at [16] about the issue of concurrency, noting that ‘it would offend the totality principle for the sentences of aggravated robbery and affray not to be concurrent’. His Honour referred to the decision in R v Harris (2007) 171 A Crim R 267; [2007] NSWCCA 130. I note that this decision addressed the concept of concurrency, but in a context where the court was considering the offences of break, enter and steal and taking a conveyance.

In R v Newman; R v Reid [2016] ACTSC 102, concerning the sentencing of two co-offenders for assault occasioning actual bodily harm and affray, Murrell CJ observed at [24] that the ‘offence of affray is also objectively serious. Members of the public were confronted by an aggressive exchange between members of rival motorcycle gangs’. The offence was therefore of the type envisaged by the legislature in creating the tiered offence, albeit charged at the lowest level. The offenders were sentenced at the same time for assault occasioning actual bodily harm by way of an Intensive Corrections Order. The affray was dealt with by a sentence of imprisonment ‘to the rising of the court’, that is a nominal sentence of imprisonment served on the day it is imposed.

In Turner v Raiser [2021] ACTSC 21, Burns J dealt only tangentially with the offence insofar as it was relevant for making a non-association order.

Most apposite to the matters before me is R v KS, R v KN, R v KI (No 2) [2021] ACTSC 23 (‘R v KS’). These sentencing remarks of Loukas-Karlsson J related to offending committed by young offenders detained in the Bimberi Youth Justice Centre, including assaults and affray. Notably, all three offenders were charged with the first-tier offence of affray despite the apparent involvement of more than two, indeed it appears more than five, young people. As to aggravating features of the affray, Her Honour noted that it was committed in company, in a custodial setting against staff, and as part of an ongoing course of violent conduct rather than a single episode.

Her Honour carefully addressed the issue of concurrency. In respect to the three young offenders, terms of imprisonment were imposed for the assaults (inter alia) but Good Behaviour Orders for the affray matters. This was the case even where the assaults were common assaults, carrying the same maximum penalty as the affray. Despite a very carefully crafted sentence, Her Honour’s reasoning in sentencing for the affray in that way is not evident. One inference is that the affray was considered less serious than the assault; another is that each offender’s involvement in the affray was assessed as reflecting the same level of criminal culpability, whereas the actual violence used by each of them was more properly reflected in the additional individual charges.

It appears that the question of how to assess the conduct of one offender which constitutes affray, vis-à-vis the conduct of co-offenders involved in the same incident whose conduct may be quite different, has not yet been closely considered in the Territory.

The issue has been considered in NSW, although the guidance is somewhat conflicting. The equivalent offence is found in s 93C of the Crimes Act 1900 (NSW). The wording is substantially the same; the offence occurs where a person ‘uses or threatens unlawful violence towards another’ and their conduct ‘would cause a person of reasonable firmness present at the scene to fear for his or her personal safety’. Unlike the Territory offence, however, the section does not provide differential penalties depending on the number of other persons engaging in the affray; the offence simply carries a maximum penalty of 10 years’ imprisonment.

In Stevens v R [2007] NSWCCA 152, Price J (with whom McClellan J and Hidden J agreed) stated at [25]:

In determining an appropriate sentence for an offence of affray contrary to s 93C of the Crimes Act, an offender’s conduct is to be considered in the context of the conduct of a co-offender. The level of violence used and the scale of the affray are relevant. An offender, however, may only be sentenced for that part of his conduct and the conduct of the co-offender which gave rise to the offence of affray and not that conduct which resulted in some other offence being committed by him or by the co-offender: see R v Huynh [2000] NSWCCA 18; R v Eleter [2003] NSWCCA 130 and R v Fajka [2004] NSWCCA 166.

In R v Dillon; R v Rivera [2019] NSWSC 1750, Campbell J said at [59]:

The cases have emphasised the importance in sentencing an offender for an offence of affray, of the underlying consideration that such an offence is an offence against public order and that the violence inflicted on the primary victim is not the sole consideration. Passers-by going about their daily lives in the near vicinity of the affray are likely to be afraid for their own safety and the safety of their companions or family. For these reasons, considerations of denunciation and general deterrence need to be clearly in focus amongst the various purposes of sentencing.

His Honour’s observations highlight that the gravamen of the offence is the impact or potential impact on observers in combination with the violence meted to other participants in, or subject to the violence of, the affray. This approach would suggest that the Court should assess the different levels of involvement of the participants in the affray.

However, according the rationale of R v Eleter [2003] NSWCCA 130, a different level of involvement by various participants in an affray will not always call for a differentiation in penalty. In that case, one co-offender struck the victim while the other did not actively inflict any violence. Their Honours Simpson, Hidden and Bell JJ found at [15] that this distinction did not call for different sentences, as ‘[i]t was the conduct of the group of offenders, who had arrived at the scene at about the same time, bent on retribution, which was significant here’ . Nonetheless, their Honours stated at [16], ‘[t]his is not to deny that there may be cases in which the level of involvement of the various participants in an affray calls for some differentiation in penalty’.

This conclusion was supported by reference to s 93C(2) of the Crimes Act 1900 (NSW), which provides that ‘[i]f 2 or more persons use or threaten the unlawful violence, it is the conduct of them taken together that must be considered’ in determining whether the affray would have caused fear for personal safety. The Territory offence is similar in this respect: s 35A(3)(e) requires that ‘the conduct of the person and the other people taken together would be likely to cause a reasonable person to fear for their safety.’

An approach contrary to that in R v Eleter [2003] NSWCCA 130 can be seen in R v Huynh [2000] NSWCCA 18. That case concerned a brawl between two groups of young men near a roller skating rink, in which one youth was ultimately stabbed to death. There was little to no evidence that the three defendants were actively involved in the violence. The sentencing judge had made a deferred sentence order for all three defendants. The Court of Appeal dismissed a Crown appeal against those sentences. Hulme J (with whom Spigelman CJ and Smart AJ agreed) stated at [35]:

In light of the limited evidence which there was as to the Respondents' involvement, it seems to me that one should not hold against them the death which occurred, or the presence of weapons, or the magnitude of the brawl overall. The limited extent of the evidence of the Respondents' knowledge, participation and the duration of their participation means that the penalty appropriate to them is far less than due to whoever laid out the machetes at the door of the Silverwater house, or those who brought weapons to the scene. One must approach the issue of what is a proper sentence on that basis.

His Honour observed at [29]:

Furthermore, there is also much to be said for the distinction … between premeditated affrays, including pitched street battles of rival gangs, and the affrays which break out spontaneously in response to an unforeseen event. All other things being equal, clearly the former merit heavier punishment than the latter.

His Honour considered a situation where there was premeditation on the part of some, but not all, participants in an affray. His Honour said at [34]:

Although I have no doubt there was premeditation on the part of some people, and clearly some brought weapons into the dispute, the evidence does not persuade me that the Respondents here had any such premeditation prior to the dispute arising. Of course, had they had such premeditation or had they brought weapons into the fight, the result of this appeal would be almost certainly different from that which it will be.

My attention was drawn also to the decision in R v Fajka [2004] NSWCCA 166. Mr Edmonds submitted, on Jaxson’s behalf, that this decision supports the proposition that the Court should differentiate the actions of each participant in assessing culpability. That matter was an appeal from a decision of the District Court, in which their Honours Hulme, Simpson and Howie JJ noted at [27-29]:

It seems to me, with respect, that too much was made throughout the sentencing hearing of the conduct of the brother rather than focusing, as his counsel sought to have the judge do, on the conduct of the applicant. The brother was charged with a number of offences, including, somewhat surprisingly, two counts of affray. The applicant did not become liable for all that his brother had done, either because of the nature of the charge of affray or because, in his Honour’s words, “he was quite prepared to identify himself with his brother”. If that phrase meant that he became involved in order to assist his brother or to take his brother’s part in disputes with the hotel guests, then it might be accurate. But if it suggests that by participation in the brawl he adopted all that his brother did and in someway became criminally liable for it, that is not so.
Of course the applicant’s conduct had to be considered in the context of the fact that his brother had become involved in a brawl with guests and staff at the hotel on what was in effect a family occasion, with children present. But that was the limited basis upon which the brother’s conduct aggravated that of the applicant. Section 93(C)(2) does not mean, in my opinion, that the applicant was to be punished for all the conduct of both himself and his brother. Rather the section is concerned with ensuring that the conduct of the two of them is considered in determining whether that conduct “is such as would cause a person of reasonable firmness present at the scene to fear for his or her personal safety”.
In a case such as the present the applicant could only be punished for that part of his and his brother’s conduct which gave rise to the offence of affray and not that conduct which also resulted in some other offence or offences being committed by the brother, for example an assault occasioning actual bodily harm. In particular where the brother was charged with two offences of affray and the applicant only one offence, the sentencing court had to be careful not to take into account that part of the brother’s conduct that gave rise to the second offence with which the applicant was not charged.

Mr Howe for the prosecution submitted that the Court should consider both the individual conduct of each offender, along with the surrounding circumstances, in assessing the objective seriousness of the offence.

In consideration of the disparate approaches reflected in the authorities, I approach the issue as follows. The court should have regard to those aspects of the affray in which an offender participated, either by premeditation or considered act, for example pre-arranging an event with planned violence, being aware of or actively engaging a number of participants, the location and thus likely ‘audience’ of the conduct, the bringing of weapons, or the level of violence engaged in.

These may be differentiated from those aspects of the affray which arose with no forethought or planning, such as being unaware of the number of people who were to be involved, becoming embroiled in a spontaneous event, or a lack of intent to engage in violence.

Both sets of circumstances ought then be considered against the event as it in fact unfolded and the part played by each offender. Where an offender is charged with separate offences, unless those offences reflect conduct other than that which is relied upon for the affray, a significant degree of concurrency is appropriate in reflecting the offender’s total criminal culpability.

It is the act of engaging in violence, rather than the particular violence or harm suffered as a result of it, which is the gravamen of the offence of affray. The level of violence is relevant in assessing whether the hypothetical reasonable person might be placed in fear of their own safety as a result of the conduct. This is an element of the offence. However, it would undermine the nature of the offence were it necessary to assess to a nicety the role of each individual involved.

In these matters, in so far as the role of each individual offender warrants separate consideration, that has been addressed appropriately by the laying of additional charges which more properly reflect that individual’s role. This approach allows the Court to reflect in sentencing both the significance of the public order offence and the particular harm caused by individuals, to persons or property, through their specific conduct in the incident.

In adopting this approach it is of course important that the court be conscious of the need to avoid traversing the principle enunciated in R v De Simoni (1981) 147 CLR 383, namely that a court cannot take into account as an aggravating factor a circumstance that would warrant conviction for a more serious offence.

In considering the appropriate penalty to impose on conviction for affray, a review of NSW cases discloses penalties ranging from non-conviction and dismissal through to lengthy sentences of full-time imprisonment (noting that on 15 December 2015, the maximum penalties in NSW for affray increased from 5 to 10 years imprisonment, and for riot from 10 to 15 years imprisonment): (see R v Huynh [2000] NSWCCA 18, R v Goh [2002] NSWCCA 234; R v Eleter [2003] NSWCCA 130 ; R v Graham (2004) 62 NSWLR 252; [2004] NSWCCA 420; R v Maher; R v Welsh; R v Lardner; R v Priestly (2005) 154 A Crim R 457; [2005] NSWCCA 16; Apthorpe v R [2012] NSWCCA 100; Abounader v R [2013] NSWCCA 106).

I was also referred to the ACT Sentencing database in relation to the sentencing practice with respect to the offence of affray, however it was of limited utility as it fails to distinguish between the various tiers of offending.

Sentencing Principles

Totality and Concurrency

As summarised by Loukas-Karlson J in R v KS, when sentencing for multiple offences, I must fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence, as well as totality: Zdravkovic v The Queen [2016] ACTCA 53 at [64] (‘Zradvkovic’).

The real question is whether the total sentence is ‘just and appropriate’ to reflect the total criminality: Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59, R v Meyboom [2012] ACTCA 48 at [66], Pearce v The Queen [1998] HCA 57; 194 CLR 610, R v XX [2009] NSWCCA 115; 195 A Crim R 38 and Zdravkovic at [71]”.

On the issue of concurrency, I was referred to the decision of Bloxsome v R [2020] ACTCA 52, in which the defendant was convicted for offences of aggravated robbery and taking a motor vehicle without consent. The offences overlapped in that the motor vehicle was the subject of the theft component of the aggravated robbery. The Court of Appeal concluded that there should be concurrence in relation to any sentence because of the significant overlap of elements of the offence. Ms Jones, on behalf of Emmanuel, submitted that this is also the case with this offending. I do not agree. It seems to me that despite a degree of overlap in the conduct required to commit the offences, there is an inherent difference between the offences of affray and those of assault or damage property, as addressed above.

Whilst there is scope for application of the principle of totality, having regard to the course of conduct, there is also a distinction to be drawn. Indeed, the laying of additional charges in these instances largely reflects that distinction. Whilst there is scope for partial concurrency, total concurrency would fail to reflect the particular culpability of each offender where it extends beyond the affray offence and the offending of other participants.

Parity

I have had regard to the principle of parity as it was recently espoused in Saipani v R [2021] ACTCA 5, applying the decision in Wong V R [2001] HCA 64; 207 CLR 584. Gaudron, Gummow and Hayne JJ observed at [65] that ‘equal justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant aspect’.

Parity is secondary to individualised justice, particularly when sentencing young offenders.

Youth Sentencing Principles

This very issue was addressed recently in MT v R [2021] ACTCA 26 (‘MT’), in which Murrell CJ, Mossop and Thawley JJ canvassed the legislative and common law approach to youth justice principles in the Territory. Their Honours observed that Chapter 8A of the Crimes (Sentencing) Act 2005 (ACT) (‘the Sentencing Act’) alters the way in which the s 7 sentencing purposes are to operate:

(a) to emphasise rehabilitation;

(b) to elevate the importance of “individualised justice” (including by requiring that a sentencing court consider additional matters relevant to the particular young offender);

(c) to tightly restricts a court’s capacity to impose a sentence of imprisonment;

(d) to exclude the parole provisions; and

(e) to promote combined sentences as the preferred way in which a young offender should serve any sentence of imprisonment.

Further, despite s 7(2), in the case of young offenders the sentencing purpose of rehabilitation is prioritised. It may be given more weight than other purposes. The sentencing court must pay ‘particular regard’ to ‘individualised justice’, pursuant to s 133C. The importance of individualised justice in the sentencing of young offenders is also supported by s 133D, which addresses considerations of maturity, development and past and present family circumstances. Their Honours stressed that imprisonment, if required after consideration of all possible alternatives, must be for no longer than is necessary to achieve the relevant sentencing purposes.

I note the absence of the option of parole when sentencing a young person and the analysis of this legislative provision in MT. In removing this option, the legislature squarely placed rehabilitation of young offenders under the supervision of the court, through the availability of suspended sentences, whose breach is dealt with by the court, rather than the Sentence Administration Board, an administrative body tasked to deal with the granting and supervision of parole. This approach elevates the requirement for rehabilitation and individualised justice in respect to young offender vis-a-vis general deterrence and denunciation.

In R v KS, cited with approval in MT, Loukas-Karlsson J reiterated at [23]:

The law recognises the potential for the cognitive, emotional and/or psychological immaturity of a young person to contribute to their breach of the law. Accordingly, allowance will be made for an offender’s youth and not just their biological age. (R v Hearne (2001) 124 A Crim R 451; [2001] NSWCCA 37 at [25]). The weight to be given to the fact of the offender’s youth does not vary depending upon the seriousness of the offence (Hearne at [24]). Where the immaturity of the offender is a significant factor in the commission of the offence, the criminality involved will be less than if the same offence was committed by an adult. (Hearne at [25]; MS2 v The Queen (2005) 158 A Crim R 93; [2005] NSWCCA 397 at [61]).

In R v TL [2017] ACTCA 18, Burns, Mossop and Collier JJ affirmed that the approach statutorily required for those offenders under 18 years of age may still apply to young adult offenders, despite the seriousness of the offence. Rehabilitation is to be preferred over the need for general deterrence, as harsh punishment may in fact lead to further offending. The prospect of moulding a young offender is inherently greater than that of a more mature offender whose offending is less likely to be attributable to immaturity.

Extra Curial Punishment

The court was invited to have regard to extra curial punishment inflicted on a number of the offenders, in the form of reprisals against Montgomery, Alex and Samuel.

In Hall v Pendelton [2015] ACTSC 205 at [14], Burns J observed:

It is common in sentence proceedings for assertions of fact to be made from the bar table during submissions in mitigation of sentence, particularly in the Magistrates Court. Where an accused person, or their legal representative, asserts a matter of fact in such a way, and it is not challenged by the prosecutor or the Magistrate, the court will ordinarily accept that the asserted facts are proved without the necessity of formal proof: Talukder v Dunbar[2009] ACTSC 42; (2009) 194 A Crim R 545 at [24].

Following the sentencing hearing with respect to these offenders, by consent of the parties, the prosecution provided me with a chronology of events said to constitute extra curial punishment in the form of vigilantism. On review of this document, I am satisfied that unknown persons have waged a campaign of violence against three of the offenders I am to sentence: Montgomery, Samuel and Alex (including indirectly through attacks on his girlfriend and her home), which has caused both a financial and emotional harm to the offenders and their families. The financial impact has been greatest on Montgomery’s family, estimated in the region of $30,000.

Whilst not specifically referenced in the Sentencing Act, the impact of extra curial punishment is recognised by the common law. In R v Daetz; R v Wilson [2003] NSWCCA 216; (2003) 139 A Crim R 398 at 411, James J, with whom Tobias JA and Hulme J agreed, observed at [62]:

While it is the function of the courts to punish persons who have committed crimes, a sentencing court, in determining what sentence it should impose on an offender, can properly take into account that the offender has already suffered some serious loss or detriment as a result of having committed the offence. This is so, even where the detriment the offender has suffered has taken the form of extra-curial punishment by private persons exacting retribution or revenge for the commission of the offence. In sentencing the offender the court takes into account what extra-curial punishment the offender has suffered, because the court is required to take into account all material facts and is required to ensure that the punishment the offender receives is what in all the circumstances is an appropriate punishment and not an excessive punishment. How much weight a sentencing judge should give any extra-curial punishment will, of course, depend on all the circumstances of the case. Indeed, there may well be many cases where extra-judicial punishment attracts little or no significant weight.

S 36(3)(h) of the Sentencing Act provides the statutory basis for a lesser penalty to be imposed due to ‘any injury suffered by the offender or the offender’s family, or any danger of risk of injury to the offender or the offender’s family’ due to any assistance provided by the offender to law enforcement authorities. This provision is intended to allow consideration of retribution by a person where an offender has assisted in the case against them, but arguably but would it extend to apply to this situation also. Extra curial punishment may also be considered pursuant to s 33 of the Sentencing Act under the heading ‘any other relevant circumstance’.

Various cases in which an offender has suffered injury as a result of his or her offending have not attracted a reduction in penalty, for example where a methamphetamine laboratory blew up around the time of arrest, or where a person was shot by a security guard during the commission of a crime. This was also the case where a person was assaulted in prison, as the court found that the assault was not by way of reprisal but was simply the unfortunate consequence of the violent environment (see Silvano v R [2008] NSWCCA 118).

A distinction, although not definitive, appears to fall between those cases in which a person is harmed as a direct consequence of their own criminal act, which is not generally mitigating, and being subject to loss occasioned by another in response to their criminal act, which may be mitigating.

In R v Payne-Moore [2021] ACTSC 125, Loukas-Karlsson J accepted the submission from both Counsel for the offender and the prosecution ‘that retributive assault is the paradigm example of extra-curial punishment’ at [55].

I consider that where an offender has been subject to retributive violence, the loss occasioned thereby, whether to the offender or their family, should be taken into account on sentence and given the weight thought appropriate by the court. The purpose in doing so is not to perversely punish the vigilante, although vigilantism is to be discouraged, but rather to recognise that such extra curial punishment may go some way to achieving the aims of sentencing.

Assistance to the Authorities

S 36 of the Sentencing Act provides that a lesser penalty may be imposed if an offender is convicted of an offence and assisted law enforcement authorities in investigating the offence.

The prosecution and Counsel for the offenders proceeded on the basis that in coming forward to police and cooperating by way of interview, each of the offenders had indeed assisted the police. It is also anticipated that they may give evidence for the prosecution in the Supreme Court proceedings related to Jonathan’s death.

Sub-section 36(3) provides a series of mandatory considerations which I now address in turn:

(a) the effect of the offence on the victims of the offence, the victims' families and anyone else who may make a victim impact statement.

The Court has read a victim impact statement was prepared by Jonathan Smith’s father, on behalf of the family, which detailed the unfathomable effect of Jonathan’s death. The extent of their suffering weighs against a significant reduction in sentence.

(b) the significance and usefulness of the offender's assistance to law enforcement authorities, taking into account any evaluation by the authorities of the assistance provided or undertaken to be provided;

No evidence was provided from the police as to the significance of assistance provided by the offenders. However, their voluntary responses and admissions would surely have made proof of the current offences more straightforward. The information provided has also contributed to the ongoing prosecution of a person relating to Jonathan’s death.

(c) the truthfulness, completeness and reliability of any information or evidence provided by the offender;

It appears that the police accepted the truthfulness of the versions of events given by the offenders. The interview of each corresponds with the facts asserted by police against them.

(d) the nature and extent of the offender’s assistance or promised assistance;

Addressed above.

(e) the timeliness of the assistance or undertaking to assist;

The offenders attended the police station to assist police the day after the offending when it became widely reported in the news and on social media that Jonathan had died. The response was not immediate, but it was reasonably timely.

(f) any benefits that the offender has gained or may gain because of the assistance or undertaking to assist;

No such benefits are identified, other than reliance on this provision.

(g) whether the offender will suffer harsher custodial conditions because of the assistance or undertaking to assist;

No such submissions were made.

(h) any injury suffered by the offender or the offender’s family, or any danger or risk of injury to the offender or the offender’s family, because of the assistance or undertaking to assist;

Addressed above, under ‘Extra Curial Punishment’.

(i) whether the assistance or promised assistance is in relation to the offence for which the offender is being sentenced or an unrelated offence;

Both arise, as addressed above under subsection (b). I note that in providing the version of events that they did, however, each offender was also serving the purpose of exculpating themselves from what was by then known to be a far more serious offence relating to Jonathan’s death.

(j) if the offender is to serve a sentence of imprisonment—the likelihood that the offender will commit further offences after release from imprisonment.

There is no indication that any of the offenders are likely commit further offences.

Sub-section 36(4) provides that a lesser penalty imposed under this section must not be unreasonably disproportionate to the nature and circumstances of the offence. In R v Ngata [2015] ACTSC 356 Refshauge J addressed both the legislative provision and the common law principles which overlap on this point. His Honour noted at [58]:

The discount given is often combined with a discount for a plea of guilty. In New South Wales, discounts of between 25 per cent and 50 per cent have been given. A discount in excess of 50 per cent is a truly exceptional discount, as pointed out by Bell J, with whom Sully and Hoeben JJ agreed, in T v R[2007] NSWCCA 62 at [23]. Where there is no risk in a prison environment, it has been suggested that a discount in excess of 40 per cent is not appropriate. See R v Sukkar[2006] NSWCCA 92 at [4]. In this Court, Murrell CJ in R v Hodge [2015] ACTSC 214 gave a discount of 40 per cent.’

His Honour applied a 40 per cent combined discount in that matter also.

Verdins Principles

A number of offenders invited the Court to consider the application of what have come to be referred to as the Verdins principles (see R v Verdins (2007) 16 VR 269). These principles deal with the relevance of mental illness in assessing an offender’s moral culpability and in determining an appropriate sentence.

In R v Skura [2004] VSCA 55, the Court determined that the onus is on an offender to demonstrate that there is a proper basis, even if short of serious psychiatric illness, to moderate the need for specific or general deterrence.

In R v Verdins (2007) 16 VR 269 the Court stated, at [13]:

Where a diagnostic label is applied to an offender, as usually occurs in reports from psychiatrists and psychologists, this should be treated as the beginning, not the end, of the inquiry. … The sentencing court needs to direct its attention to how the particular condition (is likely to have) affected the mental functioning of the particular offender in the particular circumstances – that is, at the time of the offending or the lead up to it – or is likely to affect him/her in the future.

The Court further noted, in that case, that there were a variety of ways in which a condition could affected the moral culpability of an offender and that it was not appropriate for an appellate court to be prescriptive about the issue. It did, however, list ways in which the courts have correctly held that impaired mental functioning has reduced the moral culpability and thus rendered denunciation as less likely to be relevant in sentencing. The Court said at [26]:

Impaired mental functioning at the time of the offending may reduce the offender’s moral culpability if it had the effect of:
(a)    Impairing the offender’s ability to exercise appropriate judgement;
(b)    Impairing the offender’s ability to make calm and rational choices or to think clearly
(c)    Making the offender disinhibited;
(d)    Impairing the offender’s ability to appreciate the wrongfulness of the conduct;
(e)    Obscuring the intent to commit the offence; or
(f)     Contributing (causally) to the commission of the offence.

In Muldrock v R [2011] HCA 39 (‘Muldrock’), the Court recognised the well-established principle that a sentence aimed towards retribution and general deterrence is to be balanced having regards to an offender’s mental disorder, and noted that a question will often arise as to the causal relation, if any, between an offender’s mental illness and the commission of the offence.

The Verdins approach was applied but refined in the post Muldrock decision of R v Nash [2012] VSC 50. Robson J, citing from his own decision in Charles v R [2011] VSCA 399, which was adopted by the rest of the Court of Appeal in that case, concluded that:

(i)The Verdins’ principles are and should be regarded as exceptional.
(ii)The onus lies on the offender to establish the facts to enliven the Verdins’ principles on the balance of probabilities as a mitigating factor.
(iii)Cogent evidence, normally in the form of an expert opinion, is ordinarily necessary if the principles in Verdins are to be enlivened.
(iv)It is always necessary to consider how the particular condition affected the mental functioning of the offender at the time of the offence and how it is likely to affect him or her in the future.
(v)The offender must establish that the offender’s disability had the effect of impairing the offender’s ability to exercise appropriate judgment, or impairing the offender’s ability to make calm and rational choices or to think clearly at the time of the offence.
(vi)Verdins has no application in respect of a mental condition postulated to have existed at the time of the offending unless the condition relied upon can be seen to have some ‘realistic connection’ with the offending; or ‘caused or contributed’ to the offending; or is ‘causally linked’ to the offending.

Non-Conviction Order

A number of the offenders invited the Court to exercise a discretion not to record a conviction, pursuant to s 17 of the Sentencing Act.

On behalf of Samuel, Mr Moffett made this application with reliance on the small part he played in the incident. On behalf of Emmanuel, Ms Jones invited the court to have particular regard to the likelihood of deportation or placement in immigration detention if a conviction is recorded. In relation to both these and the other offenders, the youth and prior good character of the offender coupled with their prospects for rehabilitation was relied on.

I recently considered the principles applicable to a s 17 disposition in Watson v Stiles [2021] ACTMC 2, which I adopt and apply. In particular, I note that the option is open in respect to any type of offence, even very serious offences and serious examples of such offending.

The discretion not to record a conviction was exercised in the context of affray in Obradovic v Mottta [2018] VSC 805, per Champion J, in the context of three offenders convicted of affray with a 5 year maximum penalty, in circumstances where one of the participants was murdered at the hands of others (see also R v Goh [2002] NSWCCA 234).

The significant effect of recording a conviction is an important consideration when sentencing young offenders, even those who have reached their majority. However, a sentence crafted solely to avoid an extra curial consequence may be characterised as ‘mere pegs on which to hang leniency dictated by some extraneous and idiosyncratic consideration’ (see Cobiac v Liddy (1969) 119 CLR 257, [27]).

In R v Butters [2019] ACTSC 143, Loukas-Karlsson J reviewed the authorities in respect to considering applying a more lenient sentence, having regard to the risk of an offender being deported. She observed:

[I]t is clear that the prospect of deportation may be relevant to sentencing but that a sentence may not be crafted in such a way as to avoid the migration legislation. Additionally and importantly, there must be evidence which demonstrates that the prospect of deportation is realistic and not subject to appeals and discretions. There must be sufficient evidence of any mitigating factor on sentence and deportation cannot only be a speculative possibility as it is, in my view on the evidence, in the case of the offender (cited with approval in Ngata v R [2020] ACTCA 18).

I will address this point in greater detail shortly, as it relates specifically to Emmanuel.

General Sentencing Considerations

The court is guided by the purposes of sentencing provided for in s 7(1) of the Sentencing Act, namely punishment, deterrence, protection of the community, rehabilitation, accountability, denunciation and recognition of harm done to the victim of the crime and the community. Sub-section 7(2) provides that no purpose must be given greater weight than any other purpose. This is, however, subject to Chapter 8A in respect to young people, as I have already addressed.

I have had regard to each of the relevant considerations under s 33 of the Sentencing Act. As noted by the ACT Court of Appeal in Ngata v R [2020] ACTCA 18 at [43]: ‘the existence of a factor that must be considered pursuant to this provision does not necessarily translate into a sentence discount. It certainly cannot result in a percentage or quantified discount arrived at mathematically; that would offend the instinctive synthesis principle.’

Pursuant to s 33(j) and s 35, the guilty pleas entered by each of these offenders are a relevant consideration. An early guilty plea may be indicative of remorse but even if not, it may still have significant utilitarian value in avoiding the stress associated with witnesses having to give evidence. It may also lead to quicker finalisation of the matter, which benefits affected parties and saves court time and public money. The prosecution submits that each offender entered guilty pleas at a point in the proceedings which should be considered early. Whilst this is so, it was not at the earliest opportunity.

I will make further reference to the s 33 considerations, in so far as they are relevant, with respect to each individual offender. I now turn to a consideration of each offender.

The Offenders

Thomas Smith

Thomas was just 16 when the offending occurred and is now 17 years old, one of the youngest of the offenders involved in this incident.

He, responding to a perceived slight regarding an ex-girlfriend, became enraged in Snapchat exchanges, first with one young person, whose involvement ended when Alex then joined in. The ensuing exchanges were heated, vile, provocative, and juvenile. His conduct in large measure incited the affray. He is charged with that offence only.

Whilst he engaged in physical conduct with others present, causing harm to Alex, this was responsive to the assault commenced by Alex and Matthew. However, Thomas’ violence forms the conduct which implicates him in the affray.

Whilst the fight was premeditated, the extent of the affray was not in the sense that it is accepted that whilst he planned a fight, there was no plan to involve others with came with him. The latter bespeaks of recklessness as to whether the violence would extend beyond the one on one ‘schoolyard’ type fist fight to something more, such as the affray which indeed erupted.

The comprehensive report provided by Ms Whyte of Child and Youth Protection Services (CYPS) dated 9 September 2021 discloses that Thomas has had the benefit of a loving and supportive family, both nuclear and extended. Since the loss of his cousin in the incident he instigated he has, not unsurprisingly, been diagnosed as suffering complex grief as detailed in the report of psychologist, Ms Joanne Hanna. Whilst his nuclear family continue to closely support Thomas and grieve deeply with him, they are also struggling with the impact on the extended family of Jonathan’s loss.

Prior to the incident, Thomas was a talented footballer who spent time in Sydney in a Talented Sport Program. He has never been in trouble at school, he works part-time and previously enjoyed good physical health. His footballing aspirations and his academic performance have dropped since the incident.

Following the incident, he suffered pain for months from stab wounds suffered at the hands of someone other than the offenders being sentenced today. He still feels pain when running and his mobility is reduced. He is unlikely to resume elite sport. He continues to receive psychological treatment from Ms Hanna. These matters are addressed not as extra curial punishment but as factors to be considered in setting an appropriate sentence.

In terms of criminogenic risk factors, CYPS were unable to identify any area requiring their intervention, indeed CYPS consider it would be counterproductive for Thomas to be supervised by their service following finalisation of this matter. Ms Whyte also considered that it would be better for Thomas to concentrate on school and his current employment rather than community service. Somewhat unusually, in my experience, CYPS specifically requested that the Court consider a non-conviction order noting the possible impact of conviction for future employment.

Thomas cooperated with police through his first interview whilst hospitalised for injuries he suffered at the hands of another, by cooperating with a forensic procedure by consent, and through his second interview with police. He has expressed genuine remorse for his conduct; no doubt the depth of that remorse is reflective of the terrible consequences of the immature conduct he and others engaged in. He is to receive the benefit of his early plea of guilty and assistance to authorities in the region of 30 per cent.

There is no doubt that, having learned the most salutary of lessons, and otherwise being prosocial with extensive community support, Thomas has excellent prospects of rehabilitation. I balance the need for Thomas to take responsibility for his conduct, parity and considerations of individualised justice.

Orders

(a) In respect of the charge of affray, CH 150 of 2021, I record a conviction.

(b) I impose a Good Behaviour Order for a period of 8 months. No supervision requirement is imposed.

Alex Brown

Alex was also 16 at the time of the offending and is now 17 years old.

Like Thomas, as one of the instigators of the incident, Alex bears a significant degree of culpability for the affray. Although they were not communicating initially, Alex was privy to the conversation between Thomas and another young person. However, it was when he and Thomas engaged directly that things escalated. Thomas’ threat to kill Alex’s family and piss on his mother’s grave was provocative. Thomas had further goaded Alex stating that if he did not attend to fight, the fact would be made published on Thomas’s snapchat story.

Whilst Alex stupidly became involved in a matter that had nothing to do with him, and with a person he did not know, he was provoked. A more mature person would not have engaged in this exchange and may have reflected rather than responding irrationally to that provocation. A sober person may have reflected before acting. It was Thomas and Alex who agreed that they would meet to fight. Both enlisted others to attend with them. Whilst having no expectation necessarily of their involvement, they effectively instigating the affray.

Alex and his group arrived before Thomas and his. Alex moved quickly in concert with his friend, Matthew, and engaged immediately with Thomas before he was out of the car. This was a pre-emptive two on one attack, as opposed to the one to one fist fight which had been agreed to. In the process, Alex contributed to Thomas’ facial injuries, resulting in the charge of assault occasioning actual bodily harm. Thomas kneed Alex in the groin which took him down. This ended Alex’s active involvement in the affray. Alex was not responsible for, nor aware of, the knife wounds suffered by Thomas. However, the assault he effected on Thomas renders his offending more serious than Thomas’s.

Dr Ruefli, psychologist, commenced treatment of Alex in October 2020, soon after the incident, initially weekly and then fortnightly. His report dated 16 September 2021 records that Alex was experiencing psychological challenges before the incident, related to childhood trauma arising from his father’s alcohol-fuelled violence and emotional abuse to Alex and his mother. Although he later came to idolise his father, Alex’s trauma was added to when his father died alone on a farm from a heart attack in 2017, engendering a misplaced guilt in Alex. His father’s death followed the loss of two uncles and a grandfather to whom he was close and was in turn followed by the death of a close friend in a tragic accident soon after. These losses resulted in Alex suffering PTSD, major depression and persistent complex bereavement disorder. It is against this background that Thomas’ provocative comments must be considered. Alex’s psychological state has been further aggravated by Jonathan’s death.

Dr Ruefli notes that Alex was already engaging in risky behaviour before the incident, including substance abuse and ‘thrill-seeking’. He had engaged with a Menslink Mentor in April 2020, as reported by Peter Davis of Menslink, a program in which he will continue until April 2022.

Prakash K C of the Ted Noffs Foundation reported on 6 September 2021 that Alex had engaged actively in drug and alcohol (and related issues) counselling for 12 sessions from November 2020 through to April 2021. Alex reports that he has been abstinent from alcohol and drugs since the offending.

Dr Ruefli assesses Alex as ‘profoundly remorseful’, ‘deeply troubled’ and notes that he feels ‘deep shame’ as a result of his role in the incident. Alex has expressed remorse, through his statements to that effect and his plea of guilty. He did not seek a further discount for his assistance to the authorities, although if it is warranted it should be afforded whether sought or not. It is accepted that he was on the way to the police station when stopped by them and that his replies in interview were truthful so far as can be ascertained, being consistent with the prosecution case.

Alex commenced college this year. He has maintained schooling with support but has not been able to participate in the Australian School Based Apprenticeship program as anticipated, as evidenced in the letter of Kim Thomas dated 9 September 2021.

Alex has also suffered reprisal attacks, both directly in the form of an assault on him and indirectly, though his girlfriend Abby being subjected to a sustained campaign of vilification, stalking and property damage. I have no doubt that he would be anxious, as are the police, to a heightened risk of attack.

Alex’s early guilty plea and assistance to the police warrant a reduction in sentence in the region of 30 per cent.

Having regard to the youth justice principles legislatively applicable to Alex, I note that the offending was ‘archetypically juvenile’. By virtue of his age alone he lacked maturity but that was exacerbated by childhood trauma and debilitating grief which I am satisfied to some extent stunted his development and emotional maturity.

His drug and alcohol use, which would have increased disinhibition, although voluntary was a coping mechanism for his as then undiagnosed PTSD, depression and the complex bereavement that he was experiencing. Disinhibition brought about by the voluntary consumption of alcohol or other substances does not ordinarily reduce an offender’s moral culpability. However, in instances such as this where a young person had increased vulnerability to substance abuse in response to his mental state and childhood modelling by his father, the balance shifts somewhat.

The Bugmy principle is enlivened in that Alex experienced childhood trauma and early exposure to alcohol abuse, the effects of which are continuing as detailed by Dr Ruefli. The Verdins principles are enlivened as Alex suffers psychological conditions which caused him to be vulnerable to overreaction to a real, rather than perceived, slight, such that I assess his moral culpability is reduced.

These two principles align with the youth justice principles requiring consideration of an offender’s emotional maturity, state of development and family situation, both past and present. Dr Ruefli considered that imprisonment would adversely impact Alex’s mental health and could in fact lead to further ‘transgression’ through exposure to ‘negative ways of thinking and behaving’. Alex is not a suitable model for general deterrence.

Given the extensive supports now in place, and his acceptance of responsibility, Alex’s prospects for rehabilitation are good. There is likely a need for specific deterrence given that Alex will continue to face a challenging engagement with the world and may need encouragement to maintain the supports he is currently accessing, particularly in respect to substance abuse and his mental health.

Mr Whybrow submitted on Alex’s behalf that it is appropriate that no conviction be recorded. The prosecution have submitted to the contrary, but concede that a sentence of imprisonment is not warranted for this offender.

Orders

On balance, I conclude that it is appropriate that convictions are recorded on both offences.

(a) In respect of the charge of affray, CH 1086 of 2020, I impose a Good Behaviour Order for 8 months with supervision.

(b) In respect of the charge of assault occasioning actual bodily harm, CH 1087 of 2020, I impose a Good Behaviour Order for 10 months with supervision.

(c) The orders will be partially concurrent as to 2 months, resulting in an obligation to be of good behaviour for 16 months.

Montgomery White

Montgomery was 18 years and 5 months old at the time of the incident. Whilst still young, the 2 years he had on Thomas and Alex is not insignificant in terms of an expectation of greater maturity, albeit likely not fully developed adult sensibilities.

Montgomery had consumed alcohol before accompanying Emmanuel, Jaxson and Samuel to the incident in a Triton, Montgomery’s work vehicle which he used in his gardening business. It is not clear that Montgomery had any intention to engage in physical violence at the scene in advance of his arrival. However, he was an active instigator and participant in the affray throughout. He joined Jaxson in an immediate and unprovoked attack on Jonathan; a ‘pre-emptive strike’ from a perceived opponent. Montgomery punched Jonathan in the head and right rib.

This was an attack in company, to a vulnerable part of the body, in circumstances in which Jonathan was initially unable to retaliate. Jonathan was not injured before this attack and there is no evidence that he suffered significant injury as a result of it.

After becoming aware of Chris brandishing a machete, Montgomery responded by arming himself with a shovel from the tray of the Triton. There was no attempt to retreat. He used it to intentionally damage the front windscreen and side mirror of the 86. The damage was not premeditated; the presence of the tools, I find, was incidental. However, the damage was effected with significant violence, whilst Brett remained in the vehicle. It was also part of a concerted attack, albeit brief, by three people. It was in response to a perceived threat, being the machete, but appears to have been an attempt to intimidate the opponents rather than to ward off any immediate physical threat. The vehicle, having been written off as a result of the damage, was a significant loss.

These offences of violence occurred in the context of the broader offence of affray. There is no evidence that the affray was observed by anyone other than those participating in it or facilitating the attendance of participants. However, the congregation of 12 people, albeit young, in a public place late at night, the escalation of violence to the use of weapons, and significant damage to property are circumstances such that a reasonable person would indeed have likely been put in fear had they been proximate to the incident.

Montgomery’s role in the affray is on par with Jaxson’s. He and Jaxson were equally culpable in the assault on Jonathan, and more culpable than Emmanuel. All three are comparably culpable for the damage property offence.

Montgomery is a third year apprentice plumber. His employer speaks well of him. He has a very supportive family. He is well regarded by eminent referees who, to a tee, considered that Montgomery is remorseful and has learned from his involvement in the incident. He has engaged in one day of charitable work; he has tried to engage with other organisations but says these pending charges have precluded that.

He has no significant physical health concerns. He contends that he is afflicted by a psychological condition which his counsel submits enlivens the Verdins principles and reduces his moral culpability.

Ms Vanessa Quigley detailed her engagement with Montgomery as a treating practitioner in her report dated 5 September 2021. She diagnosed acute stress disorder, reactive to the aftermath of the incident. She noted that Montgomery’s presentation was consistent with Attention Deficit Hyperactive Disorder (ADHD). The condition was likely relevant to his offending, as people suffering that condition suffer slower brain maturation and development. Whilst she noted that ADHD would likely have contributed to Montgomery’s alcohol use, she did not otherwise comment on the interplay between the two and the role of intoxication in his offending. She opined that Montgomery’s remorse and insight rendered his risk of recidivism low.

Ms Jenna Bollinger, psychologist, provided an independent expert report on 10 September 2021. She caveated her opinions noting that the interpretive hypotheses provided in the report should be reviewed cautiously in light of certain idiosyncratic responses by Montgomery on the Personality Assessment Inventory. She noted that his response may not have been completely forthright. She diagnosed Montgomery as suffering ADHD which was likely existing at the time of offending and may be lifelong. She noted associated impulsivity and lack of consequential thinking. She opined that his intoxication at the time of the incident could lower inhibition and increase impulsivity. Fear of abandonment may have contributed to his willingness to engage in out of character behaviour.

Dr Bollinger concluded that Montgomery ‘failed to consider the consequences of his actions, which likely relates strongly to his intoxication and having ADHD’. I note that Montgomery was already affected by ADHD at the time of offending, yet this behaviour was out of character for him. The differential is his use of alcohol and the known disinhibition which flows from that. There is nothing in his background to indicate that Montgomery’s use of alcohol was anything other than voluntary, although he did commence its regular use as young at 16 and the use of cannabis at 15 years old. He also commenced recreational cocaine and MDMA use in year 10. He was supported by parents who discouraged both drug and alcohol use. He appears to have been privileged rather than disadvantaged.

Whilst he is not to be punished for this, the circumstances lack those considerations which arise in Bugmy. Nor am I satisfied that the Verdins principles are enlivened by his experience with ADHD. Ms Bollinger also noted that ‘fear of abandonment may have contributed to his willingness to engage in behaviours that appear to be typically out of character for him.’ It is not clear how that fairly typical desire to ‘fit in’ relates to mental illness as opposed to immaturity. Ms Bollinger also identifies impulsivity and the lack of consequential thinking as factors which may relate to Montgomery’s experience of ADHD, however it is the strong correlation to his voluntary intoxication which I consider the more relevant factor in his offending.

Ms Bollinger assessed him as genuinely remorseful and willing to accept help to address his problems, but considered that he lacked insight into his offending. This is concerning although his apparent willingness to accept the need for change and personal responsibility is positive. She noted that his youth would make imprisonment stressful and that due to his ADHD it was likely to weigh more heavily on him than someone without that condition. I am not persuaded that the possible impact of imprisonment is such as to exclude it being an appropriate sentence. Whilst his youth demands that it must be a sentence of last resort, because of the potential impact of such a sentence on any impressionable young person, I am not persuaded that he is significantly more vulnerable in that environment than most young people would be.

Nonetheless, Montgomery’s ADHD and mental state are the background against which his offending occurred and are relevant in assessing his state of development along with his maturity, or lack thereof. The offending is a typical expression of bravado, peer pressure and a lack of consequential thinking often found in immature young men.

Montgomery clearly has some very positive factors in his life; family support, employment and the capacity to access psychological support amongst them. He has not offended further whilst on bail nor has he breached his somewhat onerous of bail conditions. He has been proactive in addressing his mental health and substance abuse, matters relevant to his prospect of rehabilitation. He has participated in alcohol and drug counselling. He told Dr Bollinger that he had been abstinent of drugs since November 2020. He told his Directions counsellor, Ms Tina Dowse, that he ceased use in December 2020. Accepting these reports as accurate, this augurs well for his rehabilitation as continued substance abuse may well lead to further ill-though out offending.

Montgomery has been subjected to significant extra curial punishment in the form of reprisal attacks on his home and family vehicles, with a very significant impact on his family. This is to be reflected in his sentence.

He has expressed remorse to his family and friends, to his treating psychologist, in his letter to the court and by his relatively early guilty plea. This will be reflected in a 25 per cent discount on sentence. His assistance to authorities is described with the generality above. It warrants a further 5 per cent discount.

The prosecution submit that a sentence of imprisonment is required, although it could be served in the community in some form. The defence submit that imprisonment is not warranted in all the circumstances and that supervision under a good behaviour order will satisfy the purposes of sentencing.

In light of the protracted course of conduct and the extent of violence involved, I conclude that a sentence of imprisonment is necessary to balance the need for general deterrence and to promote effective and sustained rehabilitation.

Orders

I record convictions on each offence.

(a) In respect of the charge of affray, CC 14061 of 2020, I impose a sentence of 2 months imprisonment.

(b) In respect of the charge of common assault, CC 14062 of 2020, I impose a sentence of 2 months imprisonment, concurrent with the sentence on CC 14061.

(c) In respect of the charge of damaging property, CC 14063 of 2020, I impose 4 months imprisonment. I would have required that the sentence for the damage property offence be served cumulatively, but in light of the extra curial punishment Montgomery has been exposed to, and the impact on his family, I order that it be served concurrently.

(d) This results in a total sentence of 4 months imprisonment, to be fully suspended on entering into a Good Behaviour Order for 12 months with supervision.

Jaxson Kirkwood

Jaxson is the oldest of the offenders, being aged 25 at the time of the offending and now 26 years old.

There is no evidence that Jaxson planned to engage in violence before attending the incident. However, he was an active instigator and participant in the entirety of the short-lived affray on arrival at the scene. His assault on Jonathan consisted of about five blows to the head. No particular injury is attributable to his conduct.

Presented with a machete wielding opponent, Jaxson armed himself with a pickaxe. He used this to puncture the bonnet of a motor vehicle five times whilst Brett was still in the vehicle. Jaxson’s involvement in the affray, the common assault and the damage property offences is on par with Montgomery’s.

Jaxson made admissions to police early on as to his role in the incident. His admissions and the further information he provided assisted the police, both in prosecution of these offences but also in investigating the more serious offences arising from the incident. The admissions were extensive but did not extend to acceptance of responsibility for the property damage offence. Nonetheless, they have been of assistance and attract a 5 per cent discount on the penalty to be imposed.

His guilty plea has had significant utilitarian value in obviating the need for a contested hearing. This attracts a discount of 25 per cent on the penalty to be imposed.

However, I have some reservation about the extent of Jaxson’s insight and thus remorse for his involvement. This arises primarily from comments attributed to him in the court duty report prepared by Ms Lucy O’Brien for these proceedings. He expressed remorse in respect to Jonathan’s death, for which he is not responsible. This was conveyed to the author of the pre-sentence report and also in a letter directed to Jonathan’s family. The letter appears to minimise his role in the incident whilst expressing regret for the grief that he has caused. But to Ms O’Brien, he explicitly stated that he did not feel remorse for others involved in the incident and would engage in similar conduct if necessary in the future.

Mr Edmonds, on his behalf, invited the Court to interpret Jaxson’s comments as a simple statement of his willingness to defend a friend if necessary. I reject that interpretation. Jaxson has demonstrated by his comments that he simply does not get how unacceptable violence in any form is to the community.

At 25, now 26, years of age, the community would expect a greater level of maturity and insight than Jaxson has displayed and in particular more than his younger co-offenders. Whilst youth justice principles are not entirely irrelevant, they are of much less weight for Jaxson than for his co-offenders. His concerning lack of insight highlights a need for specific deterrence from future offending. This must be balanced against the fact that he has demonstrated a longer period of crime free life than his younger counterparts.

Jaxson was affected by both drugs and alcohol at the time of the offences, self-induced. He stated in interview with the police that his recollection was impacted by this. It is encouraging that he has engaged regularly with Directions ACT for counselling since November 2020. He reports abstinence from drugs and alcohol since December 2020. No mental or physical health issues have been disclosed relevant to this offending. Family friend, Mr Marluce Peters, describes Jaxson’s positive home environment and a cohesive and nurturing family. Neither the Bugmy nor Verdins principles apply to this offender.

Jaxson’s prospect for rehabilitation must be considered reasonable. However, in his particular circumstances, it should be given equal weight with other purposes of sentencing, especially general deterrence and the protection of the community.

Orders

I record convictions on each of the offences.

(a)In respect of the charge of affray, CC 14051 of 2020, I impose a sentence of 3 months imprisonment.
(b)In respect of the charge of common assault, CC 14053 of 2020, I impose a sentence of 3 months imprisonment, concurrent with the sentence on CC 14051.
(c)In respect of the charge of damaging property, CC 14052 of 2020, I impose a sentence of 5 months imprisonment, concurrent as to 1 month with CC 14051.
(d)This results in a total sentence of 7 months imprisonment, which will be fully suspended on Jaxson entering into a Good Behaviour Order with supervision for a period 12 months.

Emmanuel Umunakwe

Emmanuel was 19 at the time of the offending and is now 20 years old.

His role in the incident was to attend as back up for Alex. He felt a misplaced sense of obligation to do so because he was being accommodated by Alex’s family following his recent decision to leave his own family home when his parents separated. He was made aware of the threats to Alex’s family and felt protective towards him. He was intoxicated when he agreed to go to the scene of the fight. He was wearing slides, which he relies upon as an indication that he had no active plan to fight. However, he attended the scene fully aware that a fight was planned, that others would be present and that he may be required to take some part. His involvement was premeditated but not well thought out.

He does not appear to have engaged immediately in the affray, although he approached a would be opponent with Montgomery and Jaxson. His role in the assault on Jonathan was relatively minor. He was not involved in the start of the attack. His involvement was limited to holding Jonathan back in order to assist Montgomery for a short period until he was satisfied that it was a one-on-one at which point he removed himself. There is no indication that he caused any injury to Jonathan.

He then became aware of Chris wielding a machete. He retrieved a rake from the back of the Triton and used it to smash the rear window of the 86. He said he did this in order to scare Chris and others.

Emmanuel is the only son of a Nigerian family who were granted asylum in Australia because of the father’s political views. They came to Australia when he was nine years old. His childhood is otherwise unremarkable. He finished school to year twelve and has been engaged in various employments since then. He was distressed by his parent’s separation. He was unemployed at the time of the incident and for some months thereafter. He is currently working as a tyre fitter on a casual basis but is hopeful of securing full-time employment.

Whilst he was living with Alex’s family at the time of the incident, he then moved in with the parents of another childhood friend. He is well regarded by them, paying his way, helping out in the home and abiding by household rules including keeping them informed of his whereabouts. They expressed the view that Emmanuel had found an ‘inner calm’ and had grown in confidence. This is at odds with the professional opinion of Ms Bollinger, but may reflect a level of comfort in that positive home environment.

Around the time of the incident, Emmanuel was spending time with a number of people whom he no longer sees. He was using cannabis and alcohol regularly. He has given up drinking alcohol since it was made a condition of his bail. He has not struggled with this. He breached a bail condition not to use cannabis. The condition was then removed by the Court, in recognition of the current status of cannabis in the community. He continues to use the drug, although the level of his use is not considered problematic by the adults he resides with.

His mental health was sound prior to his parent’s separation. He used alcohol and cannabis to deal with his distress. That increased significantly after the media attention associated with this incident. He engaged with a psychologist in July 2021 and continues to do so. He is physically fit and active.

He was independently assessed by Ms Jenna Bollinger, psychologist, who provided a report dated 6 August 2021. Emmanuel did not return his responses to the Personality Assessment Inventory questionnaire despite repeated requests from her. He had limited recollection of his life in Nigeria and expressed the view that life in Australia was better. Despite that, he had experienced bullying and racial profiling at school from both students and teachers. By his college years that appears to have alleviated. He reported his first experience of drinking alcohol led to him being placed in an ambulance in about year eight or nine. He did not drink again until his 18^th birthday. He said he was intoxicated on the night of the incident. He has been impacted by the experience of stress, suffering psoriasis, hair loss and heart issues. The report does not say whether the symptoms predate the incident. He described the period after his parents’ separation as a ‘dark time’. He was grateful for the kindness showed to him by Alex’s family.

Emmanuel’s response on psychological testing put him in the bracket of likely suffering with post-traumatic stress disorder (PTSD), severe levels of depression, extremely severe levels of anxiety and mild levels of stress. Dr Bollinger attributes the PTSD diagnosis to Emmanuel’s childhood experiences of witnessing verbal and physical violence between his parents and growing up in an environment of fear in Nigeria. She therefore opines that he was likely suffering that condition at the time of the offence.

She assessed the PTSD as mild and she concluded that ‘based on Emmanuel’s description of the night of the offence … there does not appear to be a significant link between his mental health condition and his participation the fight’. She placed significant emphasis on the fact Emmanuel chose a plastic rake to defend himself, with a view to keeping the machete-wielding Chris at bay, rather than a more lethal weapon. She concluded that this evidences both insight as to the situation and a desire to keep safe rather than cause specific harm. She felt that Emmanuel would benefit from trauma focused therapy. She opined that imprisonment would likely worsen his mental health and that he would be vulnerable by virtue of his age. She felt that it would weigh more heavily on him than on a person not suffering PTSD.

Emmanuel has been somewhat unreliable in his commitment to treatment with Mr David O’Donoghue, failing to return a questionnaire that had been requested by Mr Donohue prior to the commencement of treatment, and missing two of four appointments which had been made. No further appointments were planned.

Emmanuel attended Directions ACT in relation to substance abuse late last year and early this year. A letter dated 12 February 2021 referred to four counselling sessions. There has been no update.

He seems to struggle with commitment to psychological treatment and its demands.

He has expressed profound regret about his involvement in the incident, Jonathan’s death, and Thomas’ injuries. His remorse has also been noted by Pastor Jonathan Downes in his letter dated 14 September 2021. His guilty plea, reflecting both remorse and the utilitarian benefit, attracts a discount on penalty of 25 per cent.

Emmanuel provided assistance to the police akin to the other offenders. This should attract a 5 per cent discount on penalty.

Emmanuel was assessed by the pre-sentence report author as at medium-to-low risk of future offending. He was also found suitable to perform community service. The prosecution submit that imprisonment is required in respect to affray and damage property offences.

Ms Jones, on behalf of Emmanuel, invited the Court to dismiss the charges against him pursuant to s 17 of the Sentencing Act. The special consideration relied upon is the risk that Emmanuel will be deported. The evidence addressing this issue is the unchallenged statement of Pierre Johannessen, lawyer, dated 6 September 2021. Emmanuel is subject to a protection visa which grants permanent residency to the holder. He is eligible to apply for citizenship, but the family cannot access the necessary paperwork and so have not made that application.

In what presents as a careful and balanced consideration, Mr Johannessen concludes that ‘Emmanuel faces a reasonable prospect of deportation and a high prospect of immigration detention should deportation not currently be possible’. He further notes that ‘given the seriousness of the charges and the penalties to be imposed’, should Mr Emmanuel be convicted, his opinion and experience concludes the following will result:

(a)Emmanuel’s visa will be cancelled;
(b)no other visa options will be available;
(c)a deportation notice will be issued by the Minister;
(d)given the current socio-political climate in Nigeria, immigration detention order is more likely in a deportation.

I accept Mr Johannessen’s opinion that a conviction will likely lead to Emmanuel’s detention and possibly deportation. That is a very harsh outcome. However, that is how the Commonwealth legislature has chosen to deal with criminal conduct by non-citizens.

Applying R v Butters [2019] ACTSC 143 Loukas-Karlsson J at [103] stated “it is clear that the prospect of deportation may be relevant to sentencing but that a sentence may not be crafted in such a way as to avoid the migration legislation (Saran, Islam)” (as cited with approval in Ngata v R [2020] ACTCA 18).

A determination as to the appropriateness of a non-conviction order, as with any sentencing disposition, must be made having regard to all of the relevant circumstances of the offence and the offender, the risk of deportation being but one of those. Even having regard to this circumstance, I cannot conclude that a s 17 disposition is appropriate; the rationale if it were to be granted is solely that it would avoid the awful consequence which may face Emmanuel. I decline to make a non-conviction order.

In MAC v Tasmania [2018] TASCCA 19, having regard to the possibility of imprisonment in a similar situation to Emmanuel, Martin J at [196] accepted that the prospect of deportation would cause anxiety during incarceration and ‘could reasonably be viewed as a form of additional punishment’.

I accept Dr Bollinger’s opinion that a sentence of imprisonment would weigh particularly heavily on Emmanuel given his already severe anxiety, now exacerbated by the risk of deportation.

The prospect of immigration detention and/or deportation is also a factor to consider pursuant to s 33(o) of the Sentencing Act, that is the probable effect that any sentence or order under consideration would have on any of the offender's family or dependants. Emmanuel’s father has expressed the great fear he holds for his son’s life if he is sent back to Nigeria. As asylum seekers themselves, he and Emmanuel’s mother would be unable to visit their son should he be returned to Nigeria as it would be unsafe for them to do so.

Despite the assessment of the pre-sentence report author that Emmanuel’s prospect of further offending is medium-low, I anticipate that it may be reduced further by a strong motivation to avoid the risk of deportation. He also appears to have good insight into the nature of the offending behaviour and its impacts and is taking steps to ensure it is not repeated.

Objectively, his involvement in the affray and damage property deserve a similar condign punishment to that imposed on Montgomery and Jaxson. There are factors which differentiate his position though.

(a)Firstly, he was acting under a misguided although understandable sense of moral compulsion in attending the incident at all.
(b)Secondly, his role in the assault on Jonathan was minor compared to that of Montgomery and Jaxson.
(c)Thirdly, the Verdins principles are enlivened, in that his mental state, particularly his extreme anxiety as exacerbated by the risk of deportation, means that prison will weigh particularly heavily on him.
(d)Fourthly, I am mindful that imprisonment increases the risk of deportation and the consequent impact on his family.

Were the likelihood of deportation the only factor derogating from the appropriateness of a penalty of imprisonment, it would amount to an improper exercise of discretion in an attempt to subvert the operation of the immigration law. However, as one of a number of relevant factors, it is an appropriate consideration in determining whether imprisonment is required in this offender’s case.

In all the circumstances, I do not consider that a sentence of imprisonment is called for. Noting the degree of lenience that this reflects compared to Montgomery and Jaxson, I will allow no further reduction in penalty for the guilty plea or assistance to the police, factors which are properly reflected in the otherwise more lenient penalty.

Orders

I record convictions on all charges.

(a)In respect of the charge of affray, CC 14076 of 2020, I impose a Good Behaviour Order with supervision for 12 months.
(b)In respect of the charge of common assault, CC 14078 of 2020, I impose a Good Behaviour Order with supervision 12 months, to run concurrently to the order on CC 14076.
(c)In respect of the charge of damaging property, CC 14077 of 2020, I impose a Good Behaviour Order with supervision for a period of 18 months, also to run concurrently to the order on CC 14076.

Samuel West

Samuel was 17 years old at the time of the offending and is now 18 years old.

He pleaded guilty to being knowingly concerned with the affray. He was sober on the evening and for this reason drove Montgomery’s vehicle to the scene, the others all having consumed alcohol. He did not engage in any violent conduct and indeed called Montgomery, Jaxson, and Alex to leave when he became aware of the machete being wielded by Chris.

‘Knowingly concerned’ is a form of extended liability incorporated in the Criminal Code 2002 (ACT). It does not require that the offender personally engages in the conduct required for the offence. Samuel’s culpability arises because he drove his co-accused to the location knowing that a fight was planned and that he was there to assist if necessary. He did not engage in any violent conduct. His offending is somewhat peripheral.

Samuel is a well-regraded young man who is undertaking a mechanic’s apprenticeship. He lives at home. His physical and psychological health are good although I note that he was, and remains, highly distressed by Jonathan’s death and its impact. He was compliant with all conditions of his strict bail.

His plea was at a relatively early stage. He is to be afforded a 25 per cent discount on penalty. He cooperated fully with police, giving a frank account of events when he attended on 28 September 2020, the date that he became aware of Jonathan’s death. He consented to a forensic procedure. He is to be afforded a further 5 per cent discount on penalty.

He too has suffered extra curial punishment in the form of arson on his parent’s home on 24 December 2020 and further incidents in January and June of this year. The matters are being investigated by police. The prosecution accept that these incidents are a form of reprisal for Jonathan’s death. The impact on Samuel and his family has been significant.

The prosecution concur with the submission that a non-conviction order is an appropriate consideration for this offender.

Orders

Having regard to Samuel’s youth, good character, minimal criminal culpability and the extenuating circumstance of having been subjected to vicious ‘reprisal’ attacks, I am satisfied that this is an appropriate case in which to dismiss the charge pursuant to s17 of the Sentencing Act, upon Samuel giving his undertaking to be of good behaviour for 8 months without supervision.

Given the number of offenders, I include a table of the charges and penalty imposed with respect to each:

Charges	Offence	Provision	Penalty Imposed
Thomas SMITH
CH21/150	Affray (5 or more other people present)	S 35A(3) Crimes Act 1900	Convicted and required to enter into a Good Behaviour Order for 8 months.
Alex BROWN
CH20/1086	Affray (5 or more other people present)	S 35A(3) Crimes Act 1900	Convicted and required to enter into a Good Behaviour Order for 8 months.
CH20/1087	Assault occasioning actual bodily harm	S 24 Crimes Act 1900	Convicted and required to enter into a Good Behaviour Order for 10 months, concurrent as to 2 months.

Charges		Offence		Provision		Penalty Imposed
Montgomery WHITE
CC20/14061	Affray (5 or more other people present)		S 35A(3) Crimes Act 1900		Convicted and sentenced to 2 months imprisonment, fully suspended on entering into a Good Behaviour Order for 12 months.
CC20/14063	Joint commission damage property		S 403 Criminal Code 2002 by virtue of s 45A Criminal Code 2002		Convicted and sentenced to 2 months imprisonment (concurrent), fully suspended on entering into a Good Behaviour Order for 12 months.
CC20/14062	Joint commission common assault		S 26 Crimes Act 1900 by virtue of s 45A Criminal Code 2002		Convicted and sentenced to 4 months imprisonment, (concurrent), fully suspended on entering into a Good Behaviour Order for 12 months.
Jaxson KIRKWOOD
CC20/14051	Affray (5 or more other people present)		S 35A(3) Crimes Act 1900		Convicted and sentenced to 3 months imprisonment, fully suspended on entering into a Good Behaviour Order for 12 months.
CC20/14052	Joint commission damage property		S 403 Criminal Code 2002 by virtue of s 45A Criminal Code 2002		Convicted and sentenced to 3 months imprisonment (concurrent), fully suspended on entering into a Good Behaviour Order for 12 months.
CC20/14053	Joint commission common assault		S 26 Crimes Act 1900 by virtue of s 45A Criminal Code 2002		Convicted and sentenced to 5 months imprisonment (concurrent as to 1 month), fully suspended on entering into a Good Behaviour Order for 12 months.
Emmanuel UMUNAKWE
CC20/14076	CC20/14076		CC20/14076		Convicted and required to enter into a Good Behaviour Order for 12 months.
CC20/14077	CC20/14077		CC20/14077		Convicted and required to enter into a Good Behaviour Order for 12 months (concurrent).
CC20/14078	CC20/14078		CC20/14078		Convicted and required to enter into a Good Behaviour Order for 18 month (concurrent).
Samuel WEST
CH20/1035	CH20/1035		CH20/1035		Charge dismissed pursuant to s 17, required to enter into a Good Behaviour Order for 8 months.

I certify that the preceding two hundred and eight [208] numbered paragraphs are a true copy of the reasons for sentence of Her Honour Chief Magistrate Walker.

Associate: S Corish

Date: 19 October 2021

[2021] ACTMC 13

30 September 2021