R v An; R v LM; R v WD

[2022] NSWSC 1272

Supreme Court

New South Wales

Medium Neutral Citation:

R v AN; R v LM; R v WD [2022] NSWSC 1272

Hearing dates:

24 August 2022

Date of orders:

27 September 2022

Decision date:

27 September 2022

Jurisdiction:

Common Law - Criminal

Before:

Walton J

Decision:

Pursuant to s 19 of the Children (Criminal Proceedings) Act 1987 (NSW), I direct that the whole of the term of the sentence of imprisonment for each of the offenders be served as a juvenile offender.

AN

I sentence you to imprisonment for a non-parole period of 3 years and 10 months commencing on 13 February 2020 and expiring on 12 December 2023 and the balance of the term of 1 year and 10 months commencing on 13 December 2023 and expiring on 12 October 2025. Thus, you will be eligible for release on parole at the expiry of the non-parole period on 12 December 2023.

LM

I sentence you to imprisonment for a non-parole period of 2 years and 11 months commencing on 13 February 2020 and expiring on 12 January 2023 and the balance of the term of 1 year and 5 months commencing on 13 January 2023 and expiring on 12 June 2024. Thus, you will be eligible for release on parole at the expiry of the non-parole period on 12 January 2023.

WD

I sentence you to imprisonment for a non-parole period of 2 years and 7 months commencing on 13 February 2020 and expiring on 12 September 2022 and the balance of the term of 1 year and 3 months commencing on 13 September 2022 and expiring on 12 December 2023. Thus, you will be eligible for release on parole at the expiry of the non-parole period on 12 September 2022.

I recommend that the Parole Authority consider as soon as practicably possible whether to make a parole order in the case of WD.

Catchwords:

CRIMINAL LAW – sentence – victim impact statement – findings of fact – objective seriousness – subjective factors – young offender – psychological evidence – physical and mental health – lack of criminal history – reoffending – rehabilitation – Bugmy factors – remorse – general deterrence – planning and premeditation – nature and severity of assault – mental illness in mitigation – special circumstances – orders

Legislation Cited:

Children (Criminal Proceedings) Act 1987 (NSW), ss 19, 26, 27, 30, 132, 133

Crimes (Administration of Sentences) Act 1999), Div 2 Part 6

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 22, 26, 27, 30, 44, 54, 62

Crimes Act 1900 (NSW), s 86(3)

Evidence Act 1995 (NSW), ss 4, 65, 137, 191

Cases Cited:

Al Saidi v R [2017] NSWCCA 110

Al v R; R v SB and Al [2011] NSWCCA 95

Allen v R [2010] NSWCCA 47

BM v R [2019] NSWCCA 223

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

Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67

Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29

GG v R [2018] NSWCCA 280

Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49

Jackson v R [2022] NSWCCA 148

KT v R (2008) 182 A Crim R 571; [2008] NSWCCA 51

Lawson v R [2018] NSWCCA 215

Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25

Markou v The Queen (2012) 221 A Crim R 48; [2012] NSWCCA 64

Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39

Newman v R [2021] NSWCCA 101

Nykolyn v R [2021] NSWCCA 312

Postiglione v The Queen (1997) 189 CLR 295 at 301; [1997] HCA 26

R v AN; R v LM [2021] NSWSC 1657

R v AR [2022] NSWCCA 5

R v Borkowski (2009) 195 A Crim R; [2009] NSWCCA 102

R v De Simoni (1981) 147 CLR 383; [1981] HCA 31

R v Dodd (1991) 57 A Crim R 349

R v Geddes (1936) 36 SR (NSW) 554

R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111

R v Hines (No 3) [2014] NSWSC 1273

R v Isaacs (1997) 41 NSWLR 374

R v Jennar [2014] NSWCCA 331

R v JNN [2004] NSWCCA 426

R v JW (2010) 77 NSWLR 7; [2010] NSWCCA 49

R v Newell [2004] NSWCCA 183

R v NK(No 3) [2015] NSWSC 1257

R v Primmer [2020] NSWCCA 50

R v Scott [2005] NSWCCA 152

R v Speechly (2012) 221 A Crim R 175; [2012] NSWCCA 130

R v VL [2005] NSWCCA 301;

R v Wright [2009] NSWCCA 3

R v Zanker (No 2) [2017] NSWSC 1254

Sorensen v R [2016] NSWCCA 54

SW v R [2013] NSWCCA 103
The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48

The Queen v De Simoni (1981) 174 CLR 383

The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54

YS [2014] NSWCCA 226

Category:

Sentence

Parties:

Rex (Crown)
AN (Offender)
LM (Offender)
WD (Offender)

Representation:

Counsel:
N Keay (Crown)
C Steirn SC (AN)
C Davenport SC (LM)
R Wilson SC (WD)

Solicitors:
Office of Director of Public Prosecutions (Crown)
Boom Lawyers (AN)
Kennedy & Cooke Lawyers (LM)
KATSOOLIS + CO. Solicitors & Attorneys (WD)

File Number(s):

2020/47670; 2020/47688; 2020/47714

Judgment

1. AN and LM were committed for trial for the offence of murder on 20 October 2020 from Batemans Bay Children’s Court. They were charged that on 2 February 2020 at Broulee in the State of New South Wales, AN and LM did murder Peter Keeley (“the deceased”). No plea was entered by AN and LM in the Local Court.

2. On 5 March 2021, AN and LM were arraigned on an indictment issued on 1 March 2021 in this Court for that charge of murder. A plea of not guilty was entered on 5 March 2021.

3. On 8 November 2021, leave was granted to amend the indictment with respect to AN and LM. The indictment was amended to include an additional charge, Count 1, which charged each offender with an offence under s 86(3) of the Crimes Act 1900 (NSW) (“the Act”). The charge on the amended indictment was that AN and LM did, on 2 February 2020, detain the deceased without his consent and with intention of committing a serious indictable offence, namely, assault occasioning actual bodily harm, in circumstances of special aggravation, namely, AN, LM and WD, were in company of each other and, at the time of the detention, actual bodily harm was occasioned to the deceased.

4. AN and LM were also charged, by, Count 2 on the amended indictment, with the charge of murder. They each pleaded not guilty to this charge.

5. AN and LM pleaded guilty to the Count 1 offence on 8 November 2021.

6. Senior counsel for AN and LM accepted that they had participated in a joint criminal enterprise to detain the deceased and inflict actual bodily harm to him during the detention of the deceased whilst in the company of each other and WD.

7. Senior counsel for AN and LM also recognised that the offence charged in Count 1 was the foundational offence for the murder charge, which in substance, was a charge of constructive murder. That was the description given to the offence in the Statement of Agreed Facts which came before the Court in the trial of AN and LM pursuant to s 191 of the Evidence Act 1995 (NSW).

8. The Statement of Agreed Facts was before the Court for the purposes of sentencing of AN, LM and WD (collectively, “the offenders”). The Statement of Agreed Facts was in identical terms save for minor variations in paragraphs 2,8 and 26 of the Statement of Agreed Facts for WD. I shall, therefore, use a common descriptor of the “Agreed Statement of Facts” for the sentencing of the offenders.

9. AN and LM made an application for an order that they be tried jointly by a judge alone, pursuant s 132(1) of the Criminal Procedure Act 1986 (NSW) (“the Criminal Procedure Act”), which application was opposed by the Crown. On 16 December 2021, this Court ruled in favour of the application and, in the result, the trial before the Court proceeded as a judge alone trial: R v AN; R v LM [2021] NSWSC 1657 (“AN and LM (No 1)”).

10. On 16 June 2022, after the trial before a Judge alone, in which the central issue was whether the Crown had proved beyond reasonable doubt that the deceased died from a combination of craniofacial trauma with airways obstruction, AN and LM were found not guilty of the charge of murder. On their pleas of guilty to the foundational offence the Court convicted each of them and made arrangements for sentencing.

11. WD was committed for trial on 10 June 2021 from the Batemans Bay Children’s Court. No plea was entered by WD in the Local Court. He was arraigned in this Court on 2 July 2021 and entered a plea of not guilty.

12. The Crown sought a separate trial for WD. That application was granted by Wilson J on 2 July 2021 and a trial date was fixed for 19 April 2022 with a 15 day estimate.

13. On 3 March 2022, on application by the Crown, the trial of WD was vacated to allow AN and LM to be tried first. The trial for WD was relisted to commence on 7 November 2022 with a 15 day estimate.

14. After the judgment in AN and LM (No 1), discussions between the Crown and counsel for WD resulted in the murder charge being withdrawn on 19 July 2022. In the result the indictment for WD was amended to bring in a single count under s 86(3) of the Act.

15. The amended indictment in relation to WD is framed differently to the indictments for AN and LM. WD has pleaded guilty to detaining the deceased for the advantage of “the opportunity of assaulting, intimidating and humiliating Peter Keeley, in circumstances of special aggravation.” AN and LM pleaded guilty to detaining the deceased with the intention of assaulting him and causing him actual bodily harm, in circumstances of special aggravation.

16. WD pleaded guilty to the amended charge on 19 July 2022.

17. In the result, the offenders are to be sentenced for a single count of specially, aggravated detain contrary to s 86(3) of the Act (“the s 86(3) offences”), albeit with the difference in the indictment in relation to WD described above.

18. Section 86(3) provides as follows:

(3) Specially aggravated offence A person is guilty of an offence under this subsection if the person commits an offence under subsection (1)—

(a)  in the company of another person or persons, and

(b)  at the time of, or immediately before or after, the commission of the offence, actual bodily harm is occasioned to the alleged victim.

A person convicted of an offence under this subsection is liable to imprisonment for 25 years.

19. The s 86(3) offences have a maximum penalty of 25 years imprisonment and are a “serious children’s indictable offence” which requires sentencing according to law (ss 3 and 17 of the Children (Criminal Proceedings) Act 1987 (NSW)).

20. Specially aggravated detain for advantage is at the top of the hierarchy of offences in s 86 of the Act. The circumstances of aggravation (infliction of actual bodily harm) and special aggravation (being in the company of each other) are the same for each offender.

21. There is no standard non-parole period for the s 86(3) offences, although none would apply in any event due to the age of the offenders at the time of the offence (s 54D(2) Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Sentencing Act”)).

22. Each of the offenders were 17 years of age on 2 February 2020. WD was 17 years and 3 months old at the time of the offence. AN was 17 years and 6 months at the time of the offence. LM was 17 years and 8 months at the time of the offence.

23. The offenders were arrested on 13 February 2020 at their homes (there was a recording of the arrest played at the trial) and were taken into custody on that date. They have been in custody since that date. As at the date of the sentencing hearing, the offenders had been in custody for two years, six months, and 11 days.

24. The offenders’ sentence must be determined having regard to the maximum penalty for the offence with which they have been convicted.

25. The maximum sentence fixed defines the limits of sentence for the most serious class of case: R v Dodd (1991) 57 A Crim R 349 at [354], adopting the approach of Jordan CJ in R v Geddes (1936) 36 SR (NSW) 554 at [556].

26. In Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 (“Markarian”), the High Court stated (per Gleeson CJ, Gummow, Hayne and Callinan JJ) as follows (at [31]):

31. It follows that careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick.

27. In SW v R [2013] NSWCCA 103, Hall and Davies JJ stated, relevantly, at [149]:

149. In R v Harris Wood CJ at CL (with whom Giles JA and James J agreed) said:

[84] The features required for qualification in the "worst case category" were defined in R v Twala (Court of Criminal Appeal, 4 November 1994, unreported) where it was said (at 7):

“... in order to characterise any case as being in the worst case category, it must be possible to point to particular features which are of very great heinousness and it must be possible to postulate the absence of facts mitigating the seriousness of the crime (as distinct from the subjective features mitigating the penalty to be imposed) ...”

28. (In The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48 at [18]-[20], reference was made to the term “so grave as to warrant the maximum prescribed penalty”).

29. The maximum penalty is a factor which must be taken into account on sentencing, together with other relevant matters, in the way discussed by the High Court in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 and as is provided in s 54B of the Sentencing Act.

30. In sentencing, the Court must also consider the aggravating and mitigating factors specified in s 21A of the Sentencing Act, as revealed by the evidence. Under s 21A, any other objective or subjective factors revealed by the evidence, which affect the relative seriousness of the offender’s offence, must also be taken into account.

31. The offender’s moral culpability for his offence must also be taken into account.

32. Questions of general and specific deterrence must also be considered.

33. Further, all of the relevant factors must be taken into account by way of the instinctive synthesis which the High Court discussed in Markarian at [51]. That requires that all of the factors relevant in the offender’s case be considered, their significance discussed and a value judgment as to the appropriate sentence for the offender’s offence be made. The result arrived at must also ensure that there is a reasonable proportionality between the sentence imposed upon the offender and the circumstances of the crime he committed: R v Scott [2005] NSWCCA 152 at [15].

34. The sentencing judge is required to find the facts material to the sentence which emerged during the trial or in the course of the sentencing proceedings: see Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 (“Cheung”) at [5] - [6] and [12] - [17]. In sentencing, it is for the Court to find the facts which are material to the exercise of the judicial discretion in sentencing (R v Isaacs (1997) 41 NSWLR 374 (“Isaacs”) at [378]) having regard to the provisions of s 21A of the Sentencing Act. The sentencing judge will determine the nature and gravity of the offending, including the facts which inform the offender's moral culpability: Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [70]. Any findings of fact that are adverse to the offender must be proved beyond reasonable doubt. Matters in mitigation must be proved on the balance of probabilities: The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 (“Olbrich”) at [27]

35. Given some issues were raised during the sentencing hearing as to the facts and circumstances the Court may have regard to for the purposes of sentencing, it is useful to draw attention to some particular aspects of the paragraphs of the passages in Cheung to which reference is made above at [5], [6], [12] and [14].

[5] The decision as to guilt of an offence is for the jury. The decision as to the degree of culpability of the offender’s conduct, save to the extent to which it constitutes an element of the offence charged, is for the sentencing judge. If, and in so far as, the degree of culpability is itself an element of the offence charged, that will be reflected in an issue presented to the jury for decision by verdict. In such an event, the sentencing judge will be bound by the manner in which the jury, by verdict, expressly or by necessary implication, decided that issue. But the issues resolved by the jury’s verdict may not include some matters of potential importance to an assessment of the offender’s culpability. That is not unusual. It is commonplace. …

[6] … A variety of questions of potential relevance to the duration and extent of his involvement were raised by the evidence; but some of them, although potentially significant for sentencing purposes, were not questions which the jury had to decide in order to reach a conclusion that the appellant was guilty of the offence charged. They were questions which, if capable of resolution at all, were to be resolved by the sentencing judge.

…

[12] … In sentencing for both offences, the trial judge made detailed findings as to the overt acts alleged by the prosecution, including the fact that heroin was imported and distributed pursuant to the conspiracy. This was for the purpose of assessing the degree of criminality involved in the appellant’s participation in the conspiracy. The findings were not necessarily implicit in the jury’s verdict. Nevertheless, the court held that it was proper to make them, and take them into account on sentencing in accordance with “the . . . principle that a sentencing judge may form his or her own view of the facts, so long as it does not conflict with the jury’s verdict”.

…

[14] In Isaacs the Court of Criminal Appeal summarised certain well-established principles concerning the law and practice of sentencing in New South Wales as follows11 (omitting references to authority):

1. Where, following a trial by jury, a person has been convicted of a criminal offence, the power and responsibility of determining the punishment to be inflicted upon the offender rest with the judge, and not with the jury . . .

2. Subject to certain constraints, it is the duty of the judge to determine the facts relevant to sentencing. Some of these facts will have emerged in evidence at the trial; others may only emerge in the course of the sentencing proceedings . . .

3. The primary constraint upon the power and duty of decision-making referred to above is that the view of the facts adopted by the judge for purposes of sentencing must be consistent with the verdict of the jury . . .

4. A second constraint is that findings of fact made against an offender by a sentencing judge must be arrived at beyond reasonable doubt.

5. There is no general requirement that a sentencing judge must sentence an offender upon the basis of the view of the facts, consistent with the verdict, which is most favourable to the offender . . . However, the practical effect of 4 above, in a given case, may be that, because the judge is required to resolve any reasonable doubt in favour of the accused, then the judge will be obliged, for that reason, to sentence upon a view of the facts which is most favourable to the offender . . .

36. Those principles are to be applied in this matter in the context of a judge alone trial.

37. As to the principles applicable to a judge alone trial, I repeat my observations in AN and LM (No 1) at [49] – [52]:

[49] In a criminal trial by judge alone, the trial is to be conducted in accordance with the requirements of s 133 of the Criminal Procedure Act which is in the following terms:

133   Verdict of single Judge

(1) A Judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury on the question of the guilt of the accused person. Any such finding has, for all purposes, the same effect as a verdict of a jury.

(2) A judgment by a Judge in any such case must include the principles of law applied by the Judge and the findings of fact on which the Judge relied.

(3) If any Act or law requires a warning to be given to a jury in any such case, the Judge is to take the warning into account in dealing with the matter.

[50] By s 133, a judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury on the question of guilt of an accused person and those verdicts have the same effect as a jury verdict.

[51] The requirements of s 133(2) and (3) are legal imperatives: Fleming v The Queen (1988) 197 CLR 250; [1998] HCA 68 at [27] considering its identical predecessor s 133(2); Spiteri-Ahern v R [2022] NSWCCA 56 (“Spiteri”) at [38]. I must set out the relevant principles of law and findings of fact upon which those verdicts are based (s 133(2)). I must take into account any warning that the jury would receive (s 133(3)).

[52] There must be more than a literal compliance with s 133(2) and the process of reasoning leading to the verdict must be clear. Thus, as was stated in Spiteri at [39], the requirements of s 133(2) are not satisfied merely by bare statement of the principles of the law that the judge has applied and the findings of fact that the judge has made. Rather, there must exposed the reasoning process linking them and justifying the latter, and ultimately, the verdict that is reached. The court must engage with the arguments made by counsel: AK v Western Australia (2018) 232 CLR 438; [2018] HCA 8.

38. As was stated in the directions in AN and LM (No 1) (and as stated in Markou v The Queen (2012) 221 A Crim R 48; [2012] NSWCCA 64 at [21] (“Markou v The Queen”)), the Court may, in a judge alone trial, draw inferences from direct evidence. So much was done in AN and LM (No 1).

39. Neither AN or LM suggested that the findings of the Court in AN and LM (No 1) were other than appropriate to be considered in the sentencing of the offenders for the s 86(3) offences. That position is appropriate as those offences were foundational offences for the murder count and there was a common substratum of facts.

40. As this was a judge alone trial it is unnecessary to delve into an inquiry into findings of fact implied in the judge’s verdict.

41. The findings made as part of the Court’s reasons for decision were findings made pursuant to s 133(2) and are applicable on sentencing to assess the degree of criminality involved in AN and LM’s participation in the s 86 offences: see Cheung at [12]. WD’s position is only slightly different by virtue of the identification of “relevant facts” in addition to the Agreed Statement of Facts in his sentencing proceedings.

42. In the context of written submissions directed to the question of parity, a number of propositions were advanced by senior counsel for AN which concern, more broadly, principles of sentencing applicable in the present matter:

1. In substance, it was submitted that, whilst the parity principle may depend upon findings of fact about the role of individual offenders in a crime, there was no basis to draw a distinction in assessing the objective seriousness of the offending as between the offenders for the purposes of sentencing in this matter.

2. A principal focus of that submission was a contention by the Crown that AN had played, an “organising role”, because he had lured the deceased to the crime scene.

3. I will turn to the actual question of planning or premeditation later in this judgment and turn at this juncture to consider the particular legal bases for this submission which are set out in the sub paragraphs following.

4. It was acknowledged by AN that it was appropriate to differentiate between the relative culpability amongst co-offenders by reference to the conduct of each in a joint criminal enterprise.

5. However, there were limits to undertaking such an exercise with respect to the objective seriousness of the offence because of the existence of the common purpose to commit the offence: R v Wright [2009] NSWCCA 3. Further, in assigning roles to the specific participants, the sentencing judge should be careful of the fact that the participants were all involved in the crime: R v JW (2010) 77 NSWLR 7; [2010] NSWCCA 49 at [213] (“R v JW”).

6. If the Court were to assign specific roles to specific participants adverse to an offender this must be proved beyond reasonable doubt.

7. The Crown cannot prove that AN played an organising role beyond reasonable doubt.

8. As the gravamen of the s 86(3) offence was to detain and inflict actual bodily harm whilst in company and is directed to the interference with a person’s liberty, the luring of the deceased by AN to the scene was subordinate to the gravamen of the actual offence committed by the offenders.

9. It is “implicit in the planning by the three offenders in luring [the deceased]” that it was agreed “beforehand” that AN would lure the deceased to the scene in order for the other offenders to take part in detaining the deceased and inflicting actual bodily harm on him during the detention whilst in company. Reference was made in this respect to paragraph [2] of the Agreed Statement of Facts. Hence, unless it was agreed beforehand amongst the three for AN to lure the deceased to the crime scene with promises of a sexual encounter, the offence could not have occurred.

10. Apart from AN actually luring the deceased to the scene, the evidence was silence as to when, how, and who formulated the plan. That is, the evidence was silent as to who instigated the plan.

11. A similar submission was made with respect to the deceased being struck on his forehead with an object by AN because, even though AN conducted a google search as to the use of such an object, it did not follow that AN alone initiated that search.

12. Submissions were also advanced in this respect regarding the receipt of Background Reports as to the offenders from Youth Justice of Communities and Justice, each dated 19 August 2022 (“the Background Reports”). I will return to particular issues regarding those Reports and confine myself at this point to broader aspects of the AN submissions.

13. A common submission was made, both with respect to the Crown submission that AN played an organising role (and lured the deceased), had struck the deceased with an object leaving a patterned injury and had attempted to knock out the deceased. It was contended that the Court was not entitled to make findings of fact for the purposes of sentencing in those terms because those facts did not form part of the Agreed Statement of Facts. It was submitted that the Court may not consider matters not contained in the Agreed Statement of Facts. That proposition was predicated upon the decision of the High Court in The Queen v De Simoni (1981) 174 CLR 383.

14. In oral submissions senior counsel modified AN’s submission to contend that any findings by the Court contrary to, or inconsistent with, the Agreed Statement of facts which is adverse to the accused may not be adopted by the Court. It was submitted that the Court may not draw inferences which were incompatible with the Agreed Statement of Facts.

15. When asked to identify whether any findings of fact made by the Court in AN and LM (No 1) were incompatible with the Agreed Statement of Facts, senior counsel responded: “I don’t know that there are, your Honour”. Later in submissions senior counsel emphasised that the evidence was silent as to whether the plan to lure the deceased was AN’s “idea”.

43. It is true, as submitted by the Crown, that the offenders are each responsible in a legal sense for the acts of the others committed, that is, in this case in the course of a joint criminal enterprise. As Spigelman CJ observed in R v JW at [161] it may be the case that “the particular role of a person engaged in a joint criminal enterprise does not always need to be identified with ‘precision’, because of the responsibility of each participant in such a joint criminal enterprise must bear for the acts of any other participant in carrying out that enterprise.”

44. Further, as was identified by McClellan CJ at CL, Howie and Johnson JJ, in the same judgment, in assigning roles to specific participants, “the sentencing judge should not lose sight of the fact that they were all participants in the crime” at [213].

45. Their Honours did not accept a submission advanced on appeal that the possession of a knife by one of the co-accused in a robbery would necessarily diminish the respondent’s culpability because there was no suggestion that the co-offenders overbore the respondent in anyway or “that his culpability in being a participant in such a serious offence was diminished”. In such circumstances, the fact that an offender might not be more culpable than another offender was of limited significance.

46. It may be noted in that respect that the three co-offenders in R v JW were sitting together when the deceased walked past, in the first offence, after which one of the offenders kicked the deceased. A robbery then ensued. The first offender put a knife to the deceased’s throat and kneed the deceased in the right side. The second offender put a knife to the throat of the deceased and the deceased’s hand was cut. The third offender demanded money.

47. As the Chief Justice observed in R v JW, it is relevant to refer to the particular conduct of each participant with a view to identifying the level of culpability for which each must be sentenced (at [161]) although, plainly the Court may not have regard to conduct which itself constitutes an element of the offence. In that respectthe conduct cannot aggravate the objective seriousness of the offence.

48. Having regard to these considerations and the discussion of principle applicable to the s 86(3) offence below, I am of the view that it is appropriate to have regard to the respective roles of the offenders, subject to the caveat to which I refer at the end of the preceding paragraph.

49. There are various factors which may, therefore, bear upon the objective seriousness of the offence under s 86(3) of the Act, noting that the gravamen of the offence for the purpose of sentencing is the unlawful detaining of a person and s 86(3) brings in elements of special aggravation to which I have earlier referred.

50. In Newell, Howie J (with whom Bell J and Hislop J agreed) discussed factors that may be relevant in making an assessment of the seriousness of an offence under s 86 of the Act at [32]. Whilst His Honour was concerned with an offence under then s 86(2)(b) of the Act (now s 86(1)(b)), the observations nonetheless hold good in my view, for an offence under s 86(3).

51. His Honour referred to “the period of detention, the circumstances of detention, the person being detained and the purpose of detention” at [32]. The mere absence of one specific type of advantage, that is ransom, was not decisive of the determination of the seriousness of a particular offence.

52. Later, in Allen v R [2010] NSWCCA 47 (“Allen”), Latham J (with whom McClellan CJ at CL and Schmidt J agreed), dealt with a s 86(1)(b) offence. His Honour described factors relevant to objective gravity for the offence as including “the duration of the detention, the extent of fear or terror occasioned, the manner of treatment and what is demanded of the deceased by the offender, the purpose of the detention, and the extent (if any) to which third parties were subject to ordeal or anguish by reason of fear for the welfare of the victim” at [20].

53. Counsel for AN placed reliance on the seminal decision of the High Court in R v De Simoni (1981) 147 CLR 383. The circumstances in that case related to whether, in dealing with a robbery, where the indictment charged the use of actual violence, a sentencing judge was entitled to take into account the wounding that was occasioned by the violence, in circumstances where robbery with wounding was a more serious offence.

54. Gibbs CJ (with whom Mason and Murphy JJ, as Mason CJ then was, agreed) said (at 389):

[T]he general principle that the sentence imposed on an offender should take account of all the circumstances of the offence is subject to a more fundamental and important principle, that no one should be punished for an offence of which he has not been convicted … The combined effect of the two principles, so far as it is relevant for present purposes, is that a judge, in imposing sentence, is entitled to consider all the conduct of the accused, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence.

55. De Simoni thus established the principle that where an indictment does not refer to particular circumstances of aggravation, a judge in imposing a sentence may have regard to those circumstances only if they would not render the accused liable for an offence that involves a greater punishment: Nykolyn v R [2021] NSWCCA 312 at [20] (Rothman J with whom Bathurst CJ and Dhanji J agreed).

56. Counsel for AN submitted that De Simoni is authority for the proposition that a fact adverse to an offender cannot be considered in sentencing if the fact did not form part of the agreed facts in the Crown case.

57. This submission is misconceived. De Simoni does not stand for the proposition that adverse facts not included in the agreed facts cannot be considered by the sentencing court. Indeed, the submission by counsel for AN is contrary to the “general principle” that sentences should take account of “all the circumstances of the offence”, subject to the more “fundamental and important principle” that “no one should be punished for an offence of which the person has not been convicted”.

58. It is clear that the application of this latter principle, however, directs attention to what is in the indictment that the offender has been convicted, not, as counsel for AN submits, what is in the agreed facts between the parties.

59. Indeed, Brennan J (albeit in dissent but not on this point) stated (at 407):

Where there is a contested issue of fact affecting the sentence which ought to be imposed it would be wrong to deny an offender the right to have a jury's verdict upon the contested issue, and to sentence him as though the issue had been resolved adversely to him.

60. Three matters should be made clear about the adverse facts that are sought to be relied on by the Crown (and are resisted by counsel for AN) – including that AN had played an “organising role” for the offences; assaulted or struck the deceased with an attempt to knock him out; and, in committing the assault or strike, used an object. First, none of these facts are “circumstances of aggravation which would have warranted a conviction for a more serious offence”. They thus do not contravene the De Simoni principle. Secondly, none of these facts are inconsistent with the evidence consisting of the Agreed Statement of Facts, the findings made in the trial or the Background Report concerning AN. Save for the proposition that AN used an object to strike the deceased, I am satisfied that these facts have been proven beyond a reasonable doubt. Lastly, I do not consider that the matter sought to be brought to bear by the Crown with respect to AN offend the principles in R v JW, Newell and Allen.

Victim Impact Statements

61. In a directions hearing on 19 July 2022, the Crown raised the potential of victim impact statements from the family of the deceased being served in the Crown material.

62. The Crown made an application that Kerrie Keeley, the former wife of the deceased and the mother of his three children, and his brother Mark Keeley ought to be permitted to read their victim impact statements to the Court in the sentence hearing.

63. The Crown relied upon the provisions of s 30 of the Sentencing Act to support the application. This was opposed by the offenders.

64. I determined to reject the application and gave short reasons at the time. They were as follows:

HIS HONOUR: In a sense, regrettably, in my view the construction of the provisions of section 30 as contended for by Mr Wilson when read with the entirety of the provisions and particularly the definition of “family victim” in section 26 of the Crimes (Sentencing Procedure) Act does not permit the victim impact statements in question, being victim impact statements from a representative of a primary victim as that is defined in the regulations, to be read as a victim impact statement pursuant to s 30(2) of the Crimes (Sentencing Procedure) Act.

The provisions of the Act thereby preclude the victim impact statement coming before the court unless there is some other evidentiary basis for the receipt of the victim impact statement. None has been identified either in the Crown’s case or the [offenders’] case, and in the circumstances, subject to hearing from you, Madam Crown, I propose to receive the victim impact statements in the manner proposed by the counsel for the accused as MFIs in the proceedings, to read them myself, (I have already read them), for the purposes of expressing any sympathies that I may have to the representatives in question and then return them to the Crown in the manner proposed by Ms Davenport.

65. I indicated at the time that the Court may provide further reasons in its sentencing judgment. These are those reasons.

66. The provisions of ss 26, 27 and 30 of the Sentencing Act are as follows:

26   Definitions

In this Division—

closed-circuit television arrangements means the arrangements for giving evidence provided for by section 294B or Division 4 of Part 6 of Chapter 6 of the Criminal Procedure Act 1986.

family victim means any of the following persons, whether or not the person suffered personal harm as a result of the offence—

(a)  in relation to an offence as a direct result of which a primary victim has died—a person who was, at the time the offence was committed, a member of the primary victim’s immediate family,

(b)  in relation to an offence committed against a primary victim who was pregnant at the time the offence was committed and as a result of which the foetus was lost, regardless of the gestational age of the foetus—a person who was, at the time the offence was committed, a member of the primary victim’s immediate family, whether or not the primary victim died.

member of the primary victim’s immediate family means any of the following—

(a)  the victim’s spouse,

(b)  the victim’s de facto partner,

Note—

“De facto partner” is defined in section 21C of the Interpretation Act 1987.

(c)  a person to whom the victim is engaged to be married,

(d)  a parent, step-parent or guardian of the victim,

(e)  a grandparent or step-grandparent of the victim,

(f)  a child or step-child of the victim or some other child for whom the victim is the guardian,

(g)  a grandchild or step-grandchild of the victim,

(h)  a brother, sister, half-brother, half-sister, step-brother or step-sister of the victim,

(i)  an aunt, uncle, niece or nephew of the victim,

(j)  in the case of a victim who is an Aboriginal person or a Torres Strait Islander—a person who is or has been part of the close family or kin of the victim according to the Indigenous kinship system of the victim’s culture,

(k)  any person who the prosecutor is satisfied is a member of the victim’s extended family or culturally recognised family to whom the victim is or was close,

(l)  any person who the prosecutor is satisfied is a person with whom the victim had a close relationship analogous to a family relationship, or whom the victim considered to be family.

personal harm means actual physical bodily harm or psychological or psychiatric harm.

prescribed sexual offence has the same meaning as it has in the Criminal Procedure Act 1986.

primary victim, in relation to an offence, means—

(a)  a person against whom the offence was committed, or

(b)  a person who was a witness to the act of actual or threatened violence, the sexual offence, the death or the infliction of the physical bodily harm concerned,

being a person who has suffered personal harm as a direct result of the offence.

victim means a primary victim or a family victim.

victim impact statement has the meaning given by section 28 (1) and (2).

27 Application of Division

(1) This Division applies only in relation to an offence that is being dealt with by the Supreme Court, the Industrial Relations Commission, the District Court, the Local Court or the Children’s Court, and only as provided by this section.

(2) In relation to an offence that is being dealt with by the Supreme Court or the District Court, this Division applies only if the offence is being dealt with on indictment in the Supreme Court or on indictment or summarily in the District Court and is—

(a) an offence that results in the death of, or actual physical bodily harm to, any person, or

(b) an offence that involves an act of actual or threatened violence, or

(c) an offence for which a higher maximum penalty may be imposed if the offence results in the death of, or actual physical bodily harm to, any person than may be imposed if the offence does not have that result, or

(d) a prescribed sexual offence, or

(e) an offence against section 91H, 91J, 91K, 91L, 91P, 91Q or 91R of the Crimes Act 1900.

(3) In relation to an offence being dealt with by the Industrial Relations Commission, this Division applies only if—

(a) the offence is an offence against Division 5 of Part 2 of the Work Health and Safety Act 2011 or Subdivision 3 of Division 3 of Part 3 of the Rail Safety National Law (NSW), and

(b) the offence results in the death of, or actual physical bodily harm to, any person.

(4) In relation to an offence that is being dealt with by the Local Court, this Division applies only if the offence is—

(a) an offence that results in the death of any person, or

(b) an offence for which a higher maximum penalty may be imposed if the offence results in the death of any person than may be imposed if the offence does not have that result, or

(c) an offence that is referred to in Table 1 of Schedule 1 to the Criminal Procedure Act 1986 and that—

(i) results in actual physical bodily harm to any person, or

(ii) involves an act of actual or threatened violence, or

(d) a prescribed sexual offence that is referred to in Table 1 of Schedule 1 to the Criminal Procedure Act 1986, or

(e) an offence against section 91H, 91J, 91K, 91L, 91P, 91Q or 91R of the Crimes Act 1900.

(4A) In relation to an offence that is being dealt with by the Children’s Court, this Division applies only if—

(a) the offence is an offence against section 91H, 91J, 91K, 91L, 91P, 91Q or 91R of the Crimes Act 1900, or

(b) the offence is not an offence referred to in Table 2 of Schedule 1 to the Criminal Procedure Act 1986 and the offence is—

(i) an offence that results in the death of, or actual physical bodily harm to, any person, or

(ii) an offence that involves an act of actual or threatened violence, or

(iii) an offence for which a higher maximum penalty may be imposed if the offence results in the death of, or actual physical bodily harm to, any person than may be imposed if the offence does not have that result, or

(iv) a prescribed sexual offence.

(5) Nothing in this Division limits any other law by or under which a court may receive and consider a victim impact statement in relation to any offence to which this Division does not apply.

(6) This Division extends to any offence referred to in subsection (1)–(4A) that is dealt with under section 33.

30   Victim may be assisted

(1)  A representative of a primary victim may (subject to the regulations) do any of the following on behalf of the victim, but only if the primary victim is incapable of doing so because of age, impairment or otherwise—

(a)  provide information for the preparation of a victim impact statement,

(b)  object to the tendering of a victim impact statement.

(2)  A representative of a victim may (subject to the regulations) do any of the following on behalf of the victim—

(a)  prepare a victim impact statement,

(b)  read a victim impact statement.

(3)  Anything done by a representative in accordance with this section is taken to have been done by the victim.

(4)  The regulations may specify the persons or classes of person who may be a representative of a victim for the purposes of this section.

(5)  A representative of a victim who provides information for the preparation of a victim impact statement or prepares a victim impact statement for the victim is not precluded from providing information or preparing a victim impact statement on the representative’s own behalf in relation to the same offence if otherwise eligible.

67. The Crown made written submissions in support of the application dated 18 August 2022. A summary of those submissions is as follows:

1. Each of the three offenders are to be sentenced for s 86. This is an offence involving actual violence where the Act provides for the Supreme Court to receive a victim impact statement: s 27(2)(b).

2. In the circumstances of this case, the offence is not an offence where the deceased died as a direct result of the offence and the family of the deceased are not family victims as defined: s 26.

3. The deceased died soon after a serious crime was perpetrated on him. As he is dead, he is incapable of providing a victim impact statement. Incapacity can be established by “age, impairment or otherwise:” s 30(1).

4. Section 30(2) provides –

A representative of a victim may (subject to the regulations) do any of the following on behalf of the victim—

(a) prepare a victim impact statement,

(b) read a victim impact statement.

5. The regulations provide a broad definition of who is a representative of a victim. It includes a member of the victim’s immediate family or a person who is important in the victim’s life: Reg 9.

68. Counsel for WD made written submissions dated 23 August 2022, which senior counsel for AN and LM adopted. A summary of those submissions is as follows:

1. As unfortunate as it is for the family of the deceased, this is not a homicide case and neither of them is a “primary victim” or a “family victim” under s 26 of the Act. Given the definition of “family victim” and the requirement that the death of the primary victim is a direct result of the offence, it is clear that the provisions of a victim impact statement by a family victim is a direct result of the offence. It is also clear that the provision of a victim impact statement by a family victim is the only mechanism for family members of a deceased victim to provide a victim impact statement.

2. Section 30 relates to the incapacity of a primary victim, not unavailability. There is no analogy with, for example, s 65 of the Evidence Act 1995 which, in certain circumstances, permits the adducing of evidence of prior representations made by a deceased person when they were alive. The unfortunate reality is that the victim is deceased, not incapacitated, and nothing can be done on his behalf, only on behalf of his estate.

3. Further, the two documents which the Crown wishes to tender are almost solely about the impact of the death of the deceased. As tragic and painful as it undoubtedly is for the authors of the documents, this is not relevant to the offence for which the offenders face sentence.

4. Unfortunately for the family, who naturally wish publicly to express their grief and anger at the death of the deceased and their mistaken but understandable belief (contrary to the verdict) that the offenders are legally responsible for causing it, this is the inevitable consequence of the verdicts in the trial of AN and LM and the Crown’s principled acceptance of WD’s plea in the light of those verdicts.

69. Section 30 of the Act uses the language, “a representative of a primary victim may (subject to the regulations) do any of the following on behalf of the victim, but only if the primary victim is incapable of doing so because of age, impairment or otherwise”.

70. The Crown submitted that that s 30 must exist to provide a mechanism whereby victims who are unable to attend proceedings can be represented and spoken on their behalf as the primary victim of the s 86(3) offence. The deceased is incapable of attending because he is deceased and so his representatives can speak on his behalf.

71. However, as counsel for WD correctly submitted, if s 30 of the Act was intended to provide such a mechanism, then Parliament would not have included the family victim definition in s 26. Parliament has chosen to very clearly differentiate between a situation where somebody has been killed as a result of an offence, and, therefore, those left behind are specifically defined as family victims whether or not they witnessed in any way anything to do with that or saw the person in a grievous state.

72. The legislation provides for families to read a victim impact statement only where the deceased person is deceased as a result of the offence. Section 26 specifically provides for family victims and, as such, it is straining s 30 beyond what it could possibly have been intended so as, in essence, to embody a reference to a family victim in that provision.

73. Nonetheless, as foreshadowed in my earlier remarks, something more should be said regarding the deceased’s family members.

74. After reading the victim impact statements, the Court expresses its sympathy to Kerrie Keeley and Mark Keeley for their loss and the despair they are experiencing. Those observations cannot contribute to the sentencing of the offenders. The Court would wish to emphasise the fundamental and guiding principle that all life is sacred and of equal value and that equality before the law means that courts should not put a value on one life that is greater than another: see R v Hines (No 3) [2014] NSWSC 1273 at [78]-[84] (per Hamill J).

Objective Facts

AN and LM

Agreed Statement of Facts: Paras 1 - 23

75. The starting point for findings as to the objective factors, is the Agreed Statement of Facts between paragraphs 1 to 23. Those paragraphs are extracted below and converted to a form consistent with the style used in the body of this judgment, (absent reference to tender material and with times rounded).

76. On Saturday 1 and Sunday 2 February 2020, AN used the social networking application Grindr to engage in messaging the deceased and thereby lured the deceased from Canberra, ACT, to Broulee on the NSW south coast, with the promise of a sexual encounter.

77. AN and LM and co-offender WD (known by the nickname “Grimbo”) then participated in a joint criminal enterprise to detain the deceased and inflict actual bodily harm to him during that detention, whilst in the company of each other (s 86(3) offence or “the foundational offence”).

78. The Grindr messaging commenced with a picture message (detail unknown) sent by the deceased using the Grindr profile name “OLDA4YOUNGER” (with profile ID xxxxxxxxx) to the profile name “Kodo” (the Grindr profile name used by AN, with profile ID xxxxxxxxx) at 1.00pm on Saturday 1 February 2020. At 2.00pm on the same day “Kodo” replied with a picture message (detail unknown). At 3.43pm the deceased sent a message to AN saying, “I’m in Canberra and where you located? Do u host? Drive?”. At 3.45pm AN replied saying, “Hi I’m at Batemans Bay here I can’t drive would you e (sic) able to travel here”. The deceased replied at 3.46pm saying, “Can you host or can you share the cost of a hotel” and “I could travel”. At 4.20pm the deceased enquired of AN “Gay or bi?” and at 4.23pm “You 18 or younger”. At 4.24pm AN responded “Im gay and 18”.

79. The Grindr chat, including the arrangement to meet in Broulee, continued throughout the night on Saturday 1 February and into Sunday 2 February 2020.

80. Shortly before 3:00am on Sunday 2 February 2020, the deceased left the apartment in Canberra he was temporarily residing in. Later that morning, precise time unknown, he commenced his journey to Broulee. At approximately 9:30am the deceased arrived at Braidwood where he stopped for some time (CCTV footage captured him at the Braidwood Bakery between 9:37-10:18). At 11:24am the deceased sent a message via Grindr to AN saying, “I’m leaving Braidwood now”. At 11:26am AN responded saying, “Okay cook (sic) see you soon”. Immediately after this, at 11:26am, AN attempted to call WD on his mobile phone, but there was no answer.

81. The deceased travelled from Braidwood to Batemans Bay (approximately 50 mins drive). At 12:46pm he messaged AN “i’m in the bay now I'll be about 10 minutes before I leave”. There were no further messages sent by the deceased to AN until 2:30pm. In the meantime, the deceased communicated with a friend in Canberra about borrowing some money to book a motel. Whilst the deceased was in Batemans Bay making these arrangements, AN continued to send the deceased Grindr messages to ascertain his whereabouts between 12:49pm and 2:25pm (see Grindr message log).

Communication between offenders

82. Meanwhile, at 12:35pm, WD sent a text to LM asking him whether he wanted to “pop by for a training session”. A short time later LM went to WD’s house on Massey Street, Broulee. After the deceased sent the message to AN at 12:46pm saying he was “in the bay” and would “be about 10 minutes”, AN replied at 12:49pm saying, “Okay cool”. At 1.02pm AN performed an internet search for “Does holding a metal object in your hand make a difference to your punch”. At 1.04pm, AN again called WD on his mobile phone. This conversation lasted 1 minute and 13 seconds. AN then went to join LM and WD at Massey Street, Broulee.

83. At some stage during these interactions, the offender’s discussed the plan for the three of them to tie up (detain) and “bash” (inflict actual bodily harm to) the deceased along a powerline easement south of the Broulee township.

84. The offenders discussed meeting at the “3rd or 4th power pole” along the powerline easement. AN was to meet with the deceased at the Imlay Street tennis courts and bring him down to the “3rd or 4th power pole”. There LM and WD would join AN in carrying out the agreed enterprise.

85. In addition to mobile phone contact, the offenders exchanged messages on Snapchat. This was the main application accessed by the offenders to communicate on this date. The data indicates that there were several communications sent from LM’s phone, including to AN at 3.16pm and 3.27pm. The contents of Snapchat messages were not available. There was no further communication after 3:27pm, which was the time that the deceased arrived in Imlay Street Broulee (see paragraph [19]).

Meeting between AN and deceased

86. At 2:30pm the deceased sent a message to AN on Grindr that said, inter alia, “...I am on the way to pick you up…”. AN responded at 2:34pm saying, “Okay cook (sic - cool) sounds good when you come to Broulee and meet me on Grant Street”.

87. At an estimated time of 2:40pm, the offenders were witnessed leaving the vicinity of Massey Street, Broulee. At the intersection with Grant Street, two males (LM and WD) turned southwest along Grant Street towards the McNee Street intersection and the powerline easement. One of these males was seen carrying a bag. LM had his mobile phone on him. AN walked in the opposite direction, northeast along Grant Street towards the Imlay Street intersection. (Witnesses Owen Keane, Melinda Keane and Kiara Keane).

88. At 2:41pm AN sent a message to the deceased on Grindr saying, “Actually no meet me at Imlay Street”.

89. Between 2:43pm and 2:44pm a CCTV camera attached to The Lodge at 18 Imlay Street, Broulee (“The Lodge CCTV”) captured AN walking northeast along the eastern side of Grant Street before crossing Grant Street at the intersection and walking west along Imlay Street in the direction of the tennis courts. At 2:45pm, AN sent a message to the deceased on Grindr saying, “I’m waiting at a bench next to the tennis courts that are on Imlay Street Broulee”.

90. At 2:51pm, the deceased sent a message to “Kodo” on Grindr saying, “Leaving now” and AN responded “Okay see you soon”.

91. At 2.51pm and 2:52pm, AN phoned telephone number XXXXX X0894 (missed call). This was an attempt to call LM, but the wrong number was dialed. At 2:53pm AN called XXXXX X0094 (WD’s number) but the call went unanswered.

92. Between 2:53pm and 3:11pm, the deceased and AN continued to exchange messages over Grindr. The deceased suggested going straight to a hotel, but AN pleaded with him to instead go to a location where he had “a little stash hidden”. At 3:04pm AN sent a message to the deceased saying, “but pleaaaasee I wanna do it here and then suck you off I’ve always wanted to in this spot”. At 3:10pm the deceased agreed.

93. At 3:25pm, the deceased’s purple-coloured Honda Jazz was captured on The Lodge CCTV. The Honda was turning into Imlay Street from Grant Street and travelling west towards the tennis courts.

94. Further messages were exchanged between AN and the deceased. At 3:26pm AN wrote, “did you just go past?” and at 3:27pm, “You went past me”. At 3:27pm the deceased responded, “yeah I thought you may want to avoid…..so if you’re cool to walk across this walk across now”. AN got into the deceased’s car.

95. At 3:29pm, the deceased’s car was captured again on The Lodge CCTV leaving Imlay Street and turning south onto Grant Street (in the direction of the crime scene).

96. A subsequent drive through performed by investigating police via George Bass Drive demonstrates the route travelled by the deceased and AN in the deceased’s car from their meeting point at the tennis courts in Imlay Street to the crime scene (via Grant Street, Broulee Road and then George Bass Drive and a fire trail off George Bass Drive leading to the powerline easement “the fire trail”), a total distance of 1.85km, driven at an average speed of approximately 28 km/h, takes approximately 4 minutes (4 minutes, 2 seconds).

97. At about 3:33pm, the deceased and AN arrived at a location on the powerline easement running off Grant Street, Broulee, near to the third power pole from the Grant Street end. The location is approximately 300 metres southwest from the Grant Street intersection and approximately 220 metres northeast of the fire trail intersection (“the crime scene”).

98. Meanwhile, after leaving WD’s home at around 2:40pm, LM and WD walked from WD’s home at Massey Street, Broulee, turned left onto Grant Street and continued in the direction of the powerline easement. The movements of LM (and WD) were recorded by an application and GPS location data on LM’s mobile phone.

Further Findings in AN and LM (No 1)

99. As earlier mentioned, findings of fact were made in AN and LM (No 1) which are applicable to the sentencing of AN and LM. Substantial aspects of those findings are derived from the Agreed Statement of Facts. However, the Court also made findings based upon the evidence called at the trial including inferences drawn by the Crown from that evidence and the Agreed Statement of Facts. Those findings only apply to AN and LM, but some, as I will later describe, were incorporated, in substantial part, into the objective facts applicable to WD.

100. Relevant aspects of the findings of the Court in AN and LM (No 1) in that respect appear below together with some further assessments deriving from submissions by the parties.

101. Sergeant Adam Catto-Pitkin in the Digital Forensics Unit High Tech Crime Branch with NSW Police gave evidence on 9 May 2022. He has specialist training in relation to electronic evidence and examined the handset that was seized from LM. He extracted information contained on LM’s handset via the Cellebrite program, in particular, the information from an Apple health application (“Health App”) installed on LM’s mobile phone.

102. The Health App tracks information relating to the physical activity of a user (“activities”) including steps taken (walked or run), flights of stairs climbed, distance in metres and the length of time the activity took. When data was downloaded by investigating police from the phone following its seizure, there was data from the Health App (eight activations) as well as GPS location data (three activations) relating to movements of the handset on 2 February 2020 between 1.21pm and 4.30pm.

103. Locations of the handset at three different times as indicated by the three GPS location activations were:

1. The first GPS location activation at 1.21pm places LM’s phone handset in Massey Street, Broulee at a location close to WD’s home.

2. The second GPS location activation at 3.03pm places the handset approximately 8m into the bush to the northern side of the powerline easement, approximately 130m southwest of the crime scene.

3. The third GPS location activation at 4.30pm was on the driveway of the property adjacent to WD’s home.

104. Between 2.34pm and 2.53pm (that is, during the time when the offenders were seen by the Keane Family on Massey Street), the Health App on LM’s phone recorded 992 steps (589.41m) of movement and then a further 12 steps (5.44m) taken at 2.55pm. As mentioned, the GPS location data at 3.03pm has the phone located on the powerline easement around the area of the 4th power pole in the bush off to the side. This distance of 594.85m (589.41 + 5.44m) together with the GPS location, records LM and WD walking from the vicinity of WD’s home to the area of the 4th power pole on the powerline easement. Further, having regard to the submissions of the parties in the sentencing hearing, a further finding of fact may be made. When AN arrived at the crime scene he was separated from LM and WD as the deceased’s car was parked, as mentioned, at the third power pole. There is about 130 metres between these power poles.

104. Returning to An and LM (No 1), movement recorded by the Health App at 3.33pm (which is the time the deceased and AN arrived at the crime scene) until 4.24pm involved a total 3123 steps/2141.77m (with a further 359 steps/252.21m between 4.24pm and 4.30pm). This cessation of activity corresponds with the time of the third GPS location activation at 4.30pm, which placed the handset back at Massey Street. As the Crown submitted, the tracker shows LM in a long period of continuous activity from 3.33pm until 4.30pm.

105. During this period, LM and WD left their location in the bush off to the side of the easement around the 4th power pole and joined AN at the crime scene, where together the three offenders carried out the agreed foundational crime by detaining the deceased, tying his wrists and ankles, taping his head/face/mouth with brown coloured packaging tape, and inflicting actual bodily harm upon him. (I will return to this question of the tape covering the deceased’s mouth.)

106. The body worn video by Senior Constable Harries shows a disturbed circular patch of dirt near the driver’s door of the deceased’s car. As I will discuss, Senior Sergeant Moon described multiple partial shoe prints in that area.

107. Given that LM and WD had moved from their concealed position in the bush to confront the deceased and the deceased had driven his car to the location where these marks were found (AN had driven to the location with the deceased), I agree with the Crown that an inference is available that an assault occurred at or about the circular area. It may be expected that the assault commenced shortly after the deceased’s arrival – it was plain the offenders were motivated to assault the deceased, his keys were in the ignition of the car and his phone remained also inside.

108. The offenders then departed the crime scene and returned to WD’s home via the bush and the beach. The Court was played a recording (Tender 7 in Exhibit 4) of police officers conversing with Kenneth Norman Chapman, (“Mr Chapman”) who contacted the police in relation to seeing three young men (the offenders) walking along Bengello track on the afternoon of 2 February 2020. The recording showed Mr Chapman talking to police at the gate to the start of the fire trail (Bengello track), approximately 100m east of the powerline easement. The police officers placed two markers on the fire trail between where Mr Chapman indicated the youths entered, crossed, and exited the fire trail.

109. The Bengello track runs from the beach carpark “Sand Mines” (just beyond the commencement of the powerline easement) to the Northern end of the Moruya airport, is 3.4km long (6.8km return) and takes an average of 15 minutes to ride one way (average 30 minutes return).

110. On 2 February 2020, Mr Chapman had ridden to the start of the track via Grant Street and had seen the deceased’s car parked on the right-hand side of the powerline easement at the crime scene. Mr Chapman had then ridden the Bengello Track to the airport and returned to the commencement where he was waiting for his son at the gates at the commencement of the track. While he was waiting there, he saw three young males (the offenders) come out of the bush on the powerline side of the Bengello track about 50m away from him.

111. In the Agreed Facts, it was stated that that the males turned to walk along the track in a northerly direction towards Mr Chapman, they saw him and stopped, looked startled, and immediately turned and began to walk quickly in the opposite direction for a short distance and then they left the track and headed through the bush on the other side of the track towards the beach.

112. In the walkthrough video, Mr Chapman stated that the three youths looked toward him. He stated:

“… the thing that was odd was that they started to come this way and then saw me on my bike and then turned and went the other way straight away.”

114. Mr Chapman gave a statement in which he identified the approximate locations where he saw the three males emerge from the bush on the easement side of the track and where they re-entered the bush on the beach side of the track.

115. After seeing Mr Chapman and re-entering the bush, the offenders walked through the bush to the beach, then along the beach before walking up the sand dunes to the Massey Street beach access path and returned to WD’s house. As I will mention, this route was filmed by police on 30 April 2021.

116. During tests conducted by Sergeant Catto-Pitkin on 7 and 8 April 2021, the above-mentioned route (“Route 5”) was walked from the 4th power pole in the powerline easement southwest of Massey Street, to the crime scene and then across the easement, through the bush to the Bengello Track, through the bush to the beach, north along the beach to Massey Street beach access path and back to WD’s home. This route is depicted in figure 1.5 in Annexure D to the statement of Sergeant Catto-Pitkin dated 7 June 2021. The total distance is 2.144km (2,144m). It took Sergeant Catto-Pitkin between 35 minutes 30 seconds and 40 minutes 30 seconds to walk this route.

117. Crime Scene officers Detective Senior Sergeant Moon and Senior Constable Cajna attended the scene.

118. I will deal firstly with some observations made by Detective Senior Sergeant Moon:

1. On the ground in front of and to the right-hand side (offside) of the deceased’s vehicle was disturbance of the soil substrate (represented by Markers R and S and depicted in Detective Senior Sergeant Moon’s photographs 7, 8, 20, 21, 25-28). From this area of disturbance were two linear impressions in the dirt leading in the direction of the body of the deceased.

2. The deceased was lying partially on his back and left side. His head was turned with the left side facing down and right cheek exposed. There was a large amount of sand and soil adhering to the front part of his face. Further sand was evident within the nostrils and mouth. Body fluids were leaching from the nose.

3. Located around the deceased’s head was brown coloured packaging tape. The tape had been wrapped multiple times around the head. The arrangement of the tape had separated at a point near the right side of the face or right ear. The section of tape originally positioned over the face was lying on the ground on the left side of the head. This tape was collected as an exhibit.

4. The deceased was wearing jeans which were folded at the ankles and torn around the knees. The jeans were dirt stained, mostly on the front and upper thigh areas.

5. The deceased’s legs were secured at the ankles with brown coloured tape. It was examined and found to consist of several pieces of overlapped brown tape. There were areas of sand and grass material on the adhesive side of the tape. The tape was tightly secured and had been wrapped numerous times around the ankles with the end section showing evidence of extreme stretching, creating a skinny thread-like piece of the tape, consistent with the tape being pulled to break.

6. The deceased’s wrists were located across each other and positioned behind his back. Brown packaging tape secured the wrists tightly with many returns of the tape wrapped around his lower arms. His hands were extremely dirty. A small amount of sand and a substantial amount of dried grass was located on the adhesive section of the tape. Many sections of the tape showed evidence of stretching. The tape was cut off prior to collection as an exhibit.

119. The forensic examination of various aspects of the tape and the deceased’s car and clothing undertaken by Detective Senior Sergeant Moon was summarised in the Agreed Facts as follows:

1. The tape from the deceased’s head/face was examined.

2. An examination for fingerprints was conducted on this tape, but no suitable prints were developed. Confirmatory tests conducted on areas of apparent blood staining were all positive for human blood.

3. An examination for fingerprints was conducted on the tape around the deceased’s ankles. Several fingerprints were developed that were compared with a set of record fingerprints of LM. A fingerprint developed from the adhesive side of the tape around the deceased’s ankles matched the left ring finger of LM. Two other fingerprints developed from that same section of tape could not be ruled out as being the fingerprints of LM’s left ring and left little fingers. Another fingerprint was developed from the adhesive side of the tape around the deceased’s ankles that also matched the fingerprint of LM’s left little finger.

4. An examination for fingerprints was conducted on this tape. Several fingerprints were developed that were compared with a set of record fingerprints of LM. A fingerprint developed from the non-adhesive side of the tape around the deceased’s wrists matched the left palm of LM.

5. Tape lifts and swabs were collected from various parts of the deceased’s car identified as likely DNA targets. No results of interest were identified.

6. Tape lifts were collected from various areas of the deceased’s jeans, Nike branded (wrist) sweat band, light blue singlet, socks, and shoes.

7. A tape lift collected from the external front left side of the deceased’s singlet contained DNA with a mixed profile originating from at least three individuals. The major contributor to the mixture has the same profile as the deceased and AN could not be excluded as a minor contributor. Assuming there were three contributors, and that the deceased was one, it is greater than 100 billion times more likely to obtain this mixed profile if it originated from the deceased, AN and an unknown, unrelated individual, rather than if it originated from the deceased and two unknown, unrelated individuals in the Australian population. The DNA from the additional minor contributor/s was not suitable for comparison due to low level.

8. A tape lift taken from the top front of the deceased’s right shoe was found to contain a mixed DNA profile originating from at least two individuals. The major contributor to the mixture has the same DNA profile as AN. It is greater than 100 billion times more likely to obtain this major DNA profile from AN, rather than if it originated from an unknown, unrelated individual in the Australian population. The DNA from the minor contributor was not suitable for comparison due to the low level.

120. A tape lift taken from the top outer side of the deceased’s left shoe was found to have a mixed DNA profile with the major contributor having a DNA profile matching WD. It is greater than 100 billion times more likely to obtain this major profile if it originates from WD, rather than if it originates from an unknown, unrelated individual in the Australian population. The deceased cannot be excluded as a minor contributor to this mixture. The DNA from the additional minor contributor/s is not suitable for comparison due to the low level.

121. Other DNA results (swabs and samples) were taken from the deceased at autopsy. They were as follows:

1. DNA swabs were taken from fingernail clippings of the deceased’s right hand at autopsy. These swabs were taken from the upper edge of the right fingernail clipping and the inside lower surface of the right fingernail clipping. Both swabs returned a positive screening for blood.

122. In each swab the DNA recovered was a mixture originating from at least two individuals. The deceased and AN could not be excluded as contributors to each mixture. Assuming there are two contributors and that the deceased is one of the contributors, it is greater than 100 billion times more likely to obtain this mixed profile if it originates from the deceased and AN, rather than if it originates from the deceased and an unknown, unrelated individual in the Australian population.Following AN’s arrest, police seized a computer from his bedroom which was forensically analysed and the following searches were identified:

1. At 13.02 on Sunday 2 February 2020, “Does holding a metal object in your hand make a difference to your punch”. This search was conducted a short time before AN attended WD’s home;

123. The evidence of Mr Blake Motbey, a classmate of AN, was that in English class with AN “a couple of days after hearing about the (deceased’s) death”. AN was talking about his knuckles and fist hurting and was rubbing his knuckles of one hand into the palm of the other hand.

124. On 5 February 2020 at 2.02pm-2.10pm, police attended WD’s home where they spoke to WD and his father. Shortly after they left, at 2.15pm, WD attempted to call LM three times (at 2.15, 2.20 and 2.56pm), but there was no answer. WD then attempted to call AN twice at 2.25pm but there was no answer. The next morning at 11.47am, LM called WD (duration 1 minute, 57 seconds).

125. AN was arrested at 6.05am on 13 February 2020. AN made the following admissions at the time of his arrest: “Dad, I’m sorry Dad … I didn’t do it on purpose, it was an accident, I didn’t mean it to happen, I didn’t mean to Dad … I didn’t want it to happen”.

126. Police attended LM’s home at 6.55am on 13 February 2020. Admissions by LM after caution and in the presence of his father as a support person (recorded on BWV) were as follows:

In all truth, I knew it was gonna happen but I didn’t know he was gonna kill him …

I think that was an accident …

[AN] just said he was gonna ... you know like ... bash him. He wasn’t gonna kill him or anything.

127. Admissions by LM in a record of interview conducted by Detective Senior Constable Brendan Gunn and Detective Senior Constable Andrew Tyler on 13 February 2020, included:

… we was just gunna like scare him, or whatever …

Intimidate, I guess, is the word …

[AN just] mentioned that that he was gunna meet him, and he just wanted to intimidate him, scare him, because we were all under the impression that he was a paedophile …

LM said it was nothing to do with meeting up to use drugs or to steal drugs:

… it was just because [AN] is underage, and he wanted to meet up with [AN] to have sex, from what I’ve heard, and that he has had sex with a 14 year old in the past. That is, what was also mentioned …

… the plan was to take [the deceased] down there. So we already knew that this was where [AN] was gunna be. So we waited here. And I think it was … the 4^th or 3^rd power line that we agreed on. And when [AN] got there and what not, so I messaged him, or, actually, I did message him when he was at Imlay Street, and he said, I think he just got picked up and what not. And then that’s when he came down there. We waited about ... a couple of minutes, I guess, until we started walking down there.

LM said that AN “mentioned” the tying up. He said that at WD’s house beforehand, AN:

… just said that, that he was gunna bash him ... I didn’t think he was gunna bash him so much that he fuckin’ died, though.

128. In an intercepted phone call on 9 June 2020 at 3.30pm between LM (in custody) and his parents about only having two days to receive the Autopsy Report, LM said:

I reckon it’s going to be suffocation … but that’s all good … because that means um his death was inadvertent, so it will get dropped from murder.

129. Further findings were made by the Court under the heading “Deliberations”, as follows:

474   The deceased’s vehicle was driven by the deceased in the company of AN and parked on the powerline easement at 3.33pm on 2 February 2020. The deceased was assaulted at or about the circular area where the soil had been disturbed near the driver’s side door of the deceased’s car. In particular, the assault by the accused and WD upon the deceased occurred between an area of new disturbance in the soil substrate identified by Marker R and the area of live and dead grass at Marker S, as per the analysis of Detective Senior Sergeant Moon.

475   There was DNA material in the deceased’s fingernails and on the singlet of AN. It should be noted there was an injury on AN in the photograph of him taken the next day. The Crown correctly submitted that that photograph shows a swollen right hand and a mark on AN’s chest. LM’s fingerprints were found on the tape around the deceased’s ankles.

476   The assault upon the deceased by the accused and WD was extensive, with most of the blows occurring to the deceased’s head, resulting in craniofacial trauma. Dr I’Ons described the multifocality of the injuries. The deceased was also struck by a shoe or a stick.

477   As was discussed in the second issue for concurrent expert evidence, the deceased suffered mild, traumatic axonal injury to the brain caused by the brain rotating within the skull as a result of significant blunt force trauma. It is likely that the brain injury would have resulted in the deceased being concussed, although the degree of concussion is unknown. Typically, a person who experiences trauma of this kind may be either unconscious, albeit briefly, or dazed. The Crown submitted that this could have happened early in the assault, which is a plausible proposition, but just how easy is unknown.

478   There was an injury to the deceased’s forearm that was a classic defensive injury. It may be inferred that the defensive injury must, therefore, have occurred prior to the deceased’s arms being bound behind his back.

479   The photographic evidence and the evidence of Detective Senior Sergeant Moon revealed that there was dirt, sand and vegetable matter on the deceased’s face, in his nostrils and his teeth (ingrained near the area of his gums).

480   The deceased’s hands and knees had extensive exposure to dirt, as demonstrated by photographic evidence. A reasonable inference that can be drawn from that evidence is that the deceased’s hands were in the dirt prior to him being bound. It may well be that he was on his hands and knees at some stage during the assault.

481   Senior Detective Sergeant Moon also opined that the transfer of sand and grass onto the adhesive section of the tape occurred after the deceased’s face came into contact with the sand and grass. Bodily fluids and/or sweat would need to be present on the deceased’s face for a large quantity of sand and grass debris to adhere to the face and subsequently transfer onto the tape.

482   The Crown submitted that the Court should infer that the deceased was assaulted leading to sweat and blood coming to his mouth and face. The deceased’s mouth and nose were wet when his face went into the dirt and, thereafter, packing tape was placed over his mouth. That explains why the dirt was on the adhesive side of the tape. I accept that submission.

483   I also accept Senior Detective Sergeant Moon’s evidence that the substances transferred from the deceased’s head and face to the tape came from the ground located near the front side of the vehicle, most probably in or about the area identified by Marker Q, whereas the soil and dirt transfer located on the front of the deceased’s knees and lower legs were consistent with the area identified by Marker R.

484   I reject, however, that the presence of dirt in the deceased’s teeth would give rise to an inference, which the Crown sought to be drawn, that his face was “pushed” into the ground. The location of the dirt in his teeth is also consistent with him falling hard, face first into the ground. This conclusion is, nonetheless, consistent with the deceased having been in a prone position at some stage or him falling onto his hands and knees during the assault.

485   It is logically inconsistent for the dirt, sand and vegetable matter to have come into contact (and remain on) the deceased’s mouth and teeth if the packing tape was on the deceased’s mouth from the beginning to the end. This much was accepted by Dr I’Ons and Professor Duflou.

486   The deceased was in a prone position at some stage between his arrival at the crime scene and the departure of the accused. This may be inferred, having regard to the following evidence:

(1)   The appearance of the front of the deceased’s trousers (the top half of the trousers at the front of this thighs were extremely dirty) and his exposed knee areas;

(2)   The upper singlet worn by the deceased showed contact with the ground. Detective Senior Sergeant Moon gave evidence that the grass located on the front of the deceased’s singlet was possibly transferred from the area identified by the Marker S;

265. Further, the offender's abuse of substances commenced at a very young age and in the context of his deprived background. I accept that his rehabilitation from substances should be given significant weight in the sentencing exercise (See Fernando (1992) 76 A Crim R 58 and Wood CJ in Henry & Ors (1999) 46 NSWLR 346 at [373]). WD has sought appropriate help in custody and now has an understanding of his need for treatment.

266. WD has expressed and has remorse. He expressed remorse to his mother and has acknowledged his problematic thinking in participating in the offence in the Background Report.

267. I agree that the reluctance demonstrated by WD in describing in detail the actions of each offender (as was demonstrated by AN) is consistent with loyalty to his friend, AN, and full acceptance of responsibility for what happened rather than attempting to shift blame.

268. WD is of prior good character and well behaved in custody. This is to his credit in the face of his disadvantaged childhood and the difficulties he has experienced in detention, including social isolation, being assaulted and having a severe episode of mental illness requiring hospitalisation.

269. Further, despite these disadvantages and difficulties, he has managed to achieve a reasonable level of education, to improve upon that in detention, and has mapped out a realistic career path. He has work available as an arborist with Kelvin Wright's business upon release.

270. He has insight into how he came to offend and appears to have been deeply affected by being involved in it.

271. I consider that WD has good prospects of rehabilitation and is unlikely to reoffend.

Discount for Guilty Plea

274. The mandatory limits on discounts for the utilitarian discounts under the Early Appropriate Guilty Plea scheme ("EAGP") do not apply to an offence committed by an offender who was under 18 at the time of the offence and when charged: s 25A(l)(b) Sentencing Act. The applicable law is, therefore, s 22 of the Sentencing Act, as interpreted by the authorities summarised in R v Borkowski [2009] NSWCCA 102 (“Borkowski”) at [32].

275. The primary determinate for the amount of discount for the utilitarian value of the plea in the common law environment was the timing of the plea. Howie J stated in Borkowski at [31] and [32] as follows:

31 As a matter of general practice, the maximum discount for the utilitarian value of the plea of guilty should be awarded only to those accused persons who plead guilty in the Local Court and continue that plea of guilty in the District Court. There may be a valid reason in the exercise of discretion for awarding the maximum discount where the plea of guilty does not occur until the District Court but that would be exceptional and arise from the peculiar factual situation in a particular case. The amount of the discount cannot depend upon the practice of the particular court based upon its administrative arrangements. It is difficult to see how, in the usual case, a plea of guilty on arraignment could justify a discount of more than about 15 per cent. There was nothing in the present case that justified a discount above that range.

32 It should not be necessary to do so, but, because there appears to be discrepancies in the application of the discount for the utilitarian value of the plea, it is apposite to set out in point form the principles laid down by this Court and to be applied by sentencing courts. Of course these are principles of general application and are subject to the scheme set out in Criminal Case Conferencing Trial Act 2008 and regulations made under that Act:

1. The discount for the utilitarian value of the pleas will be determined largely by the timing of the plea so that the earlier the plea the greater the discount: Thomson at [154]; Forbes [2005] NSWCCA 377 at [116].

2. Some allowance may be made in determining the discount where the trial would be particularly complicated or length: Thomson at [154].

3. The utilitarian discount does not reflect any other consideration arising from the plea, such as saving witnesses from giving evidence, but this is relevant to remorse: Thomson at [119] to [123]; nor is it affected by post-offending conduct: Perry [2006] NSWCCA 225.

4. The utilitarian discount does not take into account the strength of the prosecution case: Sutton [2004] NSWCCA 225.

5. There is to be no component in the discount for remorse nor is there to be a separate quantified discount for remorse. MAK and MSK [2006] NSWCCA 381; Kite [2009] NSWCCA 12 or for the ‘Ellis discount’; Lewins [2007] NSWCCA 186.

6. Where there are multiple offences and pleas at different times, the utilitarian value of the plea should be separately considered for each offence: SY [2003] NSWCCA 291.

7. There may be offences that are so serious that no discount should be given: Thomson at [158]; Kalache [2000] NSWCCA 2; where the protection of the public requires a longer sentence: El-Andouri [2004] NSWCCA 178.

8. Generally the reason for the delay in the plea is irrelevant because, if it is not forthcoming, the utilitarian value is reduced: Stambolis [2006] NSWCCA 56; Giac [2008] NSWCCA 280.

9. The utilitarian value of a delayed plea is less and consequently the discount is reduced even where there has been a plea bargain: Dib [2003] NSWCCA 117; Ahmad [2006] NSWCCA 177; or where the offender is waiting to see what charges are ultimately brought by the Crown: Sullivan and Skillin [2009] NSWCCA 296; or the offender has delayed the plea to obtain some forensic advantage: Stambolis [2006] NSWCCA 56; Saad [2007] NSWCCA 98, such as having matters put on a Form 1: Chiekh and Hoete [2004] NSWCCA 448.

10. An offer of a plea that is rejected by the Crown but is consistent with a jury verdict after trial can result in a discount even though there is no utilitarian value: Oinonen [1999] NSWCCA 310; Johnson [2003] NSWCCA 129

11. The discount can result in a different type of sentence but the resulting sentence should not again be reduced by reason of the discount: Lo [2003] NSWCCA 313.

12. The amount of the discount does not depend upon the administrative arrangements or any practice in a particular court or by a particular judge for the management of trials or otherwise.

The last of these principles is derived from the present judgment and is included for completeness.

276. Having made those observations, I should turn to each offender’s case in turn.

AN

277. Senior counsel for AN submitted that AN was entitled to the full discount of 25% because “there was always an intention to plead guilty to the present charge and accordingly the matter was not set down for trial”.

278. The submission advanced by AN in this respect was as follows:

35. Case conferencing took place at the Local Court and prior to [AN] being committed for trial. It was always the intention by [AN] to plead guilty to the present offence at the first available opportunity. Telephone discussions took place to that effect between the Crown and the Defence on two separate occasions. On the first occasion the offences of both the charge of murder, and the current offence of kidnapping were discussed. The matter was further adjourned in order to obtain further instructions. As a result of COVID restrictions a conference with [AN] was terminated. However, on the second occasion, the offer of the charge of kidnapping was withdrawn by the Crown and accordingly [AN] was committed for trial on the charge of murder. There was no explanation by the Crown as to why the present charge was withdrawn…

36. Upon receipt of the medical reports from Professor Duflou, dated 30 May 2021, a decision was taken to plead guilty to the present charge of kidnapping and defend the charge of murder. This intention is manifested in the s143 Response by the Defence dated 4 June 2021.

37. On or about 7 July 2021 application was made on behalf of [AN] for a judge alone trial which was opposed by the Crown based substantially on the medical evidence as to the cause of death being the only issue in dispute. In support of the application the defence conceded the proposed agreed facts relating to the current offence and indicated a plea of guilty would be entered in relation to the current charge once the indictment was presented. The Court record will reflect this was in fact done. It follows that in the facts and circumstances of the present charge, a plea of guilty was entered at the first available opportunity and in circumstances where a trial for the present charge would not have eventuated give the intention of [AN] to enter a plea of guilty at the first available opportunity. In these circumstances [AN] is entitled to a full discount.

279. The Crown submitted that all of the evidence relevant to the commission of the s 86(3) offence was served on the offenders in the Local Court. The Crown’s case was constructive murder, namely, that the deceased died during or immediately after the commission of an offence under s 86(3) as a result of acts of the offenders. Neither AN or WD offered to plead guilty to the foundational offence when the matter was in the Local Court.

280. As was made clear in Borkowski, the primary consideration in assessing the utilitarian discount is the timing of the plea. The effects of the plea bargaining or where there are delays in pleading, whether an accused waits for the ultimate form of charge do not substantially mitigate the effect of a delayed plea on the utilitarian value: Bae v R [2020] NSWCCA 35 at [58] ( Johnson J with whom Bell P and Walton J agreed) (Bae concerned Commonwealth offences but the principles there discussed were found to be applicable to State and Federal offences).

281. It is true that the s 86(3) offence was withdrawn at one stage by the Crown. However, as was contended by the Crown, all the evidence relevant to the commission of the s 86(3) offence was served on the offenders in the Local Court. The Crown’s case had been constructive murder, namely that the deceased died during or immediately after the commission of the offence under s 86(3) as a result of the acts of the offenders. The s 86(3) offence was a foundational offence.

282. AN did not offer a plea of guilty to the foundational offence in the Local Court. That AN may have intended to do so, in my view does not warrant a different approach to the discount then stated in the decision in Borkowski. I agree with the submission of the Crown that the plea to the foundational offence could have been made in the Local Court to form a basis for the maximum discount for the utilitarian value of the plea. It was not.

283. In my view, the discount for the plea of guilty in the case of AN should be 12.5%.

WD

284. A different factual background needs to be taken into account in the case of WD.

285. There is no evidence that WD was unfit during the committal proceedings and, with the Crown, was engaged in genuine negotiations which ultimately did not lead to any agreement. Contrary to the submission of senior counsel for WD, I consider is a detriment to WD necessary a more substantial discount.

286. WD submitted that the delay in the Local Court ought not be held against him and, under current committal scheme, was understandable.

287. It is conceded that WD did not plead guilty until after arraignment and after one trial date had passed. However, I agree that relevant to the assessment of the utilitarian discount for the plea was the fact the April trial was vacated well in advance, and on the application of the Crown. and there is no suggestion that this caused any difficulties to the Crown, the police, witnesses or the court. I accept that agreeing to the Crown's application to vacate the April trial date permitted the trial of the co-offenders to proceed expeditiously.

288. Further, WD's plea of guilty was entered many months before the November trial date and has utilitarian value. Had the trial proceeded before a jury on a broader basis than that of the co-offenders, it would likely have occupied three weeks.

289. There is a further consideration. In the opinion of Dr Nielssen, WD would have been unfit for trial ''especially in the period leading up to his admission to the adolescent ward of Long Bay Hospital and the initiation of treatment of anti-psychotic medication".

290. WD was admitted to that ward on 20 September 2021 but the referral had been made on 26 August2021. It is therefore, likely that WD became unfit not long after his arraignment on 2 July 2021 and may even have been unfit at that time. By 24 November 2021 Dr Neilssen considered that WD had become fit and, on 14 December 2021, WD was returned to Cobham Youth Justice Centre. It was correctly submitted that he should be considered unfit for at least the four months from referral on 26 August2021 to Dr Neilssen’s advice on 24 November2021. and probably for some period of time before the referral.

291. In May 2022, WD's solicitor sought confirmation that WD was fit to plead and be tried, and confirmation was received on 13 June 2022. The plea was entered within weeks of this confirmation, following the acquittal of the co-offenders of murder.

292. Given the utilitarian value, in the context of the Crown having WD being tried separately from the others, WD’s mental health issues and the period of unfitness to plea and the circumstances in which he came to plea, after the verdicts in the trial of the co-offenders, the appropriate discount to the utilitarian value of his plea should be 15%.

LM

293. LM offered to plead guilty to an offence of manslaughter in the Local Court. This offer was not accepted by the Crown. The Crown acknowledged that manslaughter is as serious offence as s 86(3).

294. The offer to plead to that offence broadly encompassed an admission to LM’s involvement in the foundational offence. The Crown accepts that in these circumstances LM is entitled to a greater discount: Borkowski at [32].

295. The appropriate discount for the utilitarian value of the plea in the case of LM should be 20%.

COVID-19

296. AN made the following submissions in this respect:

31. Both of [AN’s] parents indicate the effect of the COVID pandemic has had in relation to the family and their ability to maintain contact with [AN] during his incarceration. Because of the COVID restrictions, visiting was restricted to the parents only, which meant [AN] was unable to see his brother, Jack (Downs Syndrome) which was emotionally challenging for both [AN] and his brother.

32. Accordingly, the effect of COVID restrictions in relation to social and family visits were suspended for extensive periods of time whilst in custody. This aspect should be taken into account on sentence as a further mitigating factor. See McKinnon v R [2020] NSWCCA 106 (27 May 2020) at [32]; Scott v R [2020] NSWCCA 81 (30 April 2020) at [166]; R v Despotovski [2020] NSWDC 110 (15 April 2020): at [36].

33. Further, combination of restrictions and limited visitation renders incarceration more onerous and it will remain more onerous for some period of time: R v Tangi (No 12) [2020] NSWSC 547 (13 May 2020) at [57]-[58]. Custodial orders may require isolation of inmates causing additional hardship: R v Kelso [2020] NSWDC 157 (17 April 2020) at [46]. It is submitted that such a restriction is even more onerous on young offenders where contact with their parents is paramount in terms of rehabilitation.

297. It appears to me that a factor that should be taken into account in sentencing the offenders is the impact of COVID-19 as a mitigating factor, but varied over time depending upon the restrictions and health risks produced by the pandemic.

298. I will also have regard to COVID-19 in my finding of special circumstances.

General Deterrence

299. General deterrence must still feature in this matter given the vigilantism of the offenders who suspected the deceased to be a paedophile. The weight to be given to general deterrence is, however, significantly reduced for WD having regard to factors of mental illness and the Bugmy considerations discussed in the judgment.

300. A good deal of attention was paid to issues of parity in the submissions advanced for AN.

Parity

301. The parity principle is well established (Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46). Whilst like should be treated as like, due allowance should also be made for differences (Postiglione v The Queen (1997) 189 CLR 295 at 301; [1997] HCA 26). As was observed in Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 (“Green”) at [28]:

“[T]he parity principle allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different circumstances.”

302. I have taken into account these principle in sentencing the offenders and in particular, the differing roles of AN from LM and WD in the offending and greater objective seriousness of AN’s offending.

303. I have also taken account of the different charge faced by WD and the significance of WD’s mental illness in reducing the objective seriousness of his offending and his moral culpability.

304. I have also taken into account the differing subjective circumstances of the offenders and the different discounts for the pleas of guilty.

Comparable cases and JIRS Statistics

305. It was correctly submitted for the Crown that all of the purposes of sentencing, including the objective seriousness of the offence and the subjective factors, should be reflected in the non-parole period which is the minimum period of actual imprisonment that justice requires.

306. I also note the submission of the Crown as follows:

Supervision in the community is expected to ensure continuance of progress by monitoring as well as providing support and assistance. A substantial period of supervision, with the knowledge that failure to comply could result in a return to custody, should serve to ensure that the three young men return to being pro-social members of the community.

307. Notwithstanding the availability of favourable findings for each offender, the Crown submits that justice requires a substantial sentence in each case.

308. Senior counsel for WD provided sentencing tables prepared by the Public Defenders for the offences contrary to ss 86(2) and 86(3) which provided an overview of the types of sentences which have been found to be appropriate in a variety of different circumstances but not a range. Senior counsel made reference to a number of authorities: R v JNN [2004] NSWCCA 426; R v VL [2005] NSWCCA 301; Al Saidi (2017) NSWCCA 110; R v AR [2022] NSWCCA 5; Jackson v R [2022] NSWCCA 148.

309. It was properly accepted by senior counsel for WD that the circumstances in which this type of offence can occur are manifold and statistics will only provide a limited guidance to the Court.

310. Nonetheless, it was submitted that the principle of reasonable consistency supported the submission, that in the circumstances of this case for WD, a discounted starting point of no more than 3-4 years should be appropriate.

311. It was suggested that an appropriate sentence of imprisonment, after discounts, might be in the order of about 2 years 6 months to 3 years 6 months with a non-parole period of about 18 months to 2 years (and, in any case, no longer than the time already served) commencing on 13 February 2020.

312. Should the term of the sentence imposed be 3 years or less, the Court should order immediate release to parole. If greater than 3 years, it is submitted that the Court should order that the sentence be served as a juvenile offender.

313. AN adopted the same submission as WD submitting that an appropriate period of imprisonment, after discount “might amount to about 2.5 to 3.5 years with a non-parole period of 18 months to 2 years”. Any sentence imposed should be no longer than the time already served commencing 13 February 2020. Should the term sentenced by the Court be 3 years or less, the Court should order the immediate release to parole. If greater than 3 years, it was submitted that the Court should order that the sentence be served as a juvenile offender.

307. As was previously mentioned, Ms Davenport SC who appeared on behalf of LM, submitted that the non-parole period should end before LM turns 21 otherwise, he will have to attend an adult prison.

Commencement Date for Sentence

315. The offenders have been in custody, referable to allegations concerning the deceased, since their arrest on 13 February 2020. Any sentence should commence from that date. No party suggested that the offenders should not receive a full-time custodial sentence: a position which is in my view, on the circumstances of the offence and the offending, is correct.

Special Circumstances

316. The Crown submitted that in terms of non-parole period, the Court can vary the ratio between the total sentence and the minimum period of custody, if there are special circumstances: s 44(2) of the Sentencing Act.

317. There are factors which warrant a finding of special circumstances for the offenders as follows:

1. The age of the offenders;

2. Their otherwise good character and demonstrated remorse;

3. The prospects of rehabilitation as found above;

4. The historic and continuing impact of COVID-19 on limiting face to face visits: see R v Macdonald; RI v Edward Obeid; RI v Moses Obeid (No 18) [2021] NSWSC 1343 at [148]-[150]; Toller v R [2021] NSWCCA 204 at [25].

318. In the case of WD, there are additional factors warranting a finding of special circumstances.

1. The hardship the offender has suffered, and will likely continue to suffer, in custody as a result of assaults upon him and ongoing fear of further assaults;

2. The particular vulnerability of the offender as a result of his mental conditions.

319. I find there are special circumstances in the case of all offenders.

Order for serving the sentence of Juvenile Detention

320. The Crown submitted that, in terms of in which facility each is to serve the remainder of their sentence, the Court is required to consider s 19 of the Children (Criminal Procedure) Act 1987 (NSW). That provision is in the following terms:

19 Court may direct imprisonment to be served as a juvenile offender

(1) If a court sentences a person under 21 years of age to whom this Division applies to imprisonment in respect of an indictable offence, the court may, subject to this section, make an order directing that the whole or any part of the term of the sentence of imprisonment be served as a juvenile offender.

Note 1 : The effect of such an order is that the person to whom the order relates will be committed to a detention centre (see subsection (6)). There he or she will be detained as specified in the order. In certain circumstances, he or she may subsequently be transferred to a correctional centre pursuant to an order under section 28 of the Children (Detention Centres) Act 1987 .

Note 2 : Section 9A of the Children (Detention Centres) Act 1987 provides that persons who are 18 years of age or older are not to be detained in a detention centre in certain circumstances.

(1A) In the case of a person of or above the age of 18 years who is serving, or has previously served, the whole or any part of a term of imprisonment in a correctional centre, such an order may not be made unless the court decides that there are special circumstances justifying detention of the person as a juvenile offender.

(2) A person is not eligible to serve a sentence of imprisonment as a juvenile offender after the person has attained the age of 21 years, unless--

(a) in the case of a sentence for which a non-parole period has been set--the non-parole period will end within 6 months after the person has attained that age, or

(b) in the case of a sentence for which a non-parole period has not been set--the term of the sentence of imprisonment will end within 6 months after the person has attained that age.

(3) A person who is sentenced to imprisonment in respect of a serious children's indictable offence is not eligible to serve a sentence of imprisonment as a juvenile offender after the person has attained the age of 18 years, unless--

(a) the sentencing court is satisfied that there are special circumstances justifying detention of the person as a juvenile offender after that age, or

(b) in the case of a sentence for which a non-parole period has been set--the non-parole period will end within 6 months after the person has attained that age, or

(c) in the case of a sentence for which a non-parole period has not been set--the term of the sentence of imprisonment will end within 6 months after the person has attained that age.

This subsection is subject to subsection (2).

(4) A finding of special circumstances for the purposes of subsection (1A) or (3) may be made on one or more of the following grounds, and not otherwise--

(a) that the person is vulnerable on account of illness or disability (within the meaning of the Anti-Discrimination Act 1977 ),

(b) that the only available educational, vocational training or therapeutic programs that are suitable to the person's needs are those available in detention centres,

(c) that, if the person were committed to a correctional centre, there would be an unacceptable risk of the person suffering physical or psychological harm, whether due to the nature of the person's offence, any assistance given by the person in the prosecution of other persons or otherwise.

(4A) In particular, a finding of special circumstances may not be made simply because of the person's youth or simply because the non-parole period of the person's sentence will expire while the person is still eligible to serve the sentence as a juvenile offender.

(4B) A court that makes a finding of special circumstances must make a record of its reasons for making that finding in the particular case.

(5) A person who is subject to an order under this section that ceases or ceased to apply on the person attaining the age of 18 years may apply to the sentencing court for a further order under this section. Any such application requires the leave of the court.

(6) The warrant of commitment that is issued under section 62 of the Crimes (Sentencing Procedure) Act 1999 in relation to a sentence of imprisonment the subject of an order under this section--

(a) must indicate that the sentence is the subject of such an order, and

(b) must specify how much of the sentence is to be served as a juvenile offender, and

(c) must, despite the provisions of that section, commit the person to whom it relates to a detention centre.

(7) Nothing in this section, or in any order under this section, limits the operation of section 9A or 28 of the Children (Detention Centres) Act 1987 .

(8) In this section--

"correctional centre" has the same meaning as it has in the Crimes (Administration of Sentences) Act 1999.

321. As the offenders have been convicted of a serious child indictable offence and are over 18 years of age the provisions of s 19(3) of the Children (Criminal Procedure Act 1986 (NSW) apply.

322. The offenders cannot serve the remainder of their sentence in juvenile detention unless the Court finds there are special circumstances justifying such an order (s 19(3)(a)), and the non-parole period expires within 6 months of their 21st birthday (s 19(3)(b)). Special circumstances must be more than the offender’s youth (s 19(4A)). The Court is required to note its reasons for a finding of special circumstances (s 19(4B)).

323. Each of the offenders submitted that they should serve the remainder of their sentence in a juvenile facility.

324. Section 19(4) relevantly provides:

A finding of special circumstances for the purposes of subsection… (3) may be made on one or more of the following grounds, and not otherwise:

a. that the person is vulnerable on account of illness or disability (within the meaning of the Anti-Discrimination Act 1977);

b. that the only available educational, vocational training or therapeutic programs that are suitable to the person's needs are those available in detention centres,

c. that, if the person were committed to a correctional centre, there would be an unacceptable risk of the person suffering physical or psychological harm, whether due to the nature of the person's offence, any assistance given by the person to the prosecution of other persons or otherwise.

325. WD correctly submitted that each of the grounds in s 19(4) were applicable to WD and would support an order under s 19(1) as follows:

Ground 1: vulnerability on account of illness or disability

67. The offender's mental conditions make him particularly vulnerable in custody. (Dr Nielssen p13 Qs 6, 7 and 8.) There is no definition of 'illness" in either the Children CPA or the Anti-Discrimination Act 1977. It is submitted that, based on the text, context and apparent purpose of the provision there is no reason to exclude mental illness from the definition. In any event, one of the definitions of "disability" in s4 of the Anti-Discrimination Act 1977 is 'a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour." WD's mental conditions fall within this definition.

Ground 2: availability of suitable educational, vocational or teletherapeutic programs

68. There is limited evidence on this ground. Significantly, the offender has been attending school in custody and, despite setbacks including a stint in a mental health facility, has completed some Year 11 and Year 12 subjects. There is no face-to-face school available in adult custody. Further, Dr Nielssen is of the opinion that there is a lower standard of mental health services and less attention to preparation for release in the adult prison system.Ground 3: unacceptable risk of physical or psychological harm

69. The offender has already been assaulted multiples times in custody and is vulnerable to further assault because of his mental illness (Dr Nielssen p13 Q6. 8). In juvenile custody he would be one of the older detainees, while in adult custody he would be one of the younger inmates. He has spent the last almost three years in the environment of juvenile detention and has not coped well. The court would readily infer that a further assault is likely to cause both physical and psychological harm and that there is an increased, appreciable, and unacceptable risk of this occurring were he to be transferred to adult custody.

326. I find special circumstances in the case of WD based upon each of these grounds.

327. Special circumstances should be found in the case of LM and AN essentially upon the same bases relied upon by WD under Ground 2. I note particularly the evidence of Dr Furst as to LM’s need for educational, vocational, and psychological supports specifically available in a juvenile correctional setting. AN is completing his HSC and requires face to face study.

328. Senior counsel for WD also submitted that if the Court were to make the order sought, WD would be eligible to continue to serve his sentence as a juvenile offender after his 21st birthday if any non-parole period set by the court expires within 6 months after that birthday (i.e., before 20 April 2024). Otherwise, if he is still in custody, he will be transferred to a correctional centre upon attaining the age of 21: see s 19(2) Children (Criminal Procedure) Act 1987 (NSW).

329. If the sentence imposed by the Court exceeds three years, the offender cannot be released to parole except by the State Parole Authority: see Div 2 Part 6 of the Crimes (Administration of Sentences) Act 1999 (NSW).

CONCLUSION

330. In all the circumstances, the only appropriate penalty is fulltime incarceration. In sentencing of the offenders, I have had regard to the statutory guidelines of the maximum sentence (Muldrock at [27]) together with the circumstances bearing upon the objective seriousness of the offence and subjective features. I have also taken into account general deterrence in the manner discussed in my judgment, but I have not found the need for specific deterrence.

ORDERS

331. For the reasons I have given, I now make the following orders.

332. AN, I sentence you to imprisonment for a non-parole period of 3 years and 10 months commencing on 13 February 2020 and expiring on 12 December 2023 and the balance of the term of 1 year and 10 months commencing on 13 December 2023 and expiring on 12 October 2025.

333. Thus, you will be eligible for release on parole at the expiry of the non-parole period on 12 December 2023.

334. LM, I sentence you to imprisonment for a non-parole period of 2 years and 11 months commencing on 13 February 2020 and expiring on 12 January 2023 and the balance of the term of 1 year and 5 months commencing on 13 January 2023 and expiring on 12 June 2024.

335. Thus, you will be eligible for release on parole at the expiry of the non-parole period on 12 January 2023.

336. WD, I sentence you to imprisonment for a non-parole period of 2 years and 7 months commencing on 13 February 2020 and expiring on 12 September 2022 and the balance of the term of 1 year and 3 months commencing on 13 September 2022 and expiring on 12 December 2023.

337. Thus, you will be eligible for release on parole at the expiry of the non-parole period on 12 September 2022.

338. Pursuant to s 19 of the Children (Criminal Proceedings) Act1987 (NSW), I direct that the whole of the term of the sentence of imprisonment for each of the offenders be served as a juvenile offender.

339. In relation to WD, the sentence I have imposed is for greater than 3 years. Therefore, s 158 of the Crimes (Administration of Sentences) Act 1989 (NSW), which provides for a statutory parole order in certain circumstances, does not apply. The offender may be released by a parole order made by the Parole Authority. I recommend that the Parole Authority consider as soon as practicably possible whether to make a parole order in the case of WD.

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Decision last updated: 27 September 2022