R v Borja

[2024] NSWSC 44

Supreme Court

New South Wales

Medium Neutral Citation:

R v Borja [2024] NSWSC 44

Hearing dates:

05 December 2023
14 December 2023

Date of orders:

02 February 2024

Decision date:

02 February 2024

Jurisdiction:

Common Law - Criminal

Before:

Weinstein J

Decision:

The offender is sentenced to an aggregate term of imprisonment of 9 years and 6 months with a non-parole period of 5 years and 9 months.

Catchwords:

CRIME – sentencing – manslaughter – excessive self-defence – guilty plea on first day of trial –

effect of mental health and background of deprivation on moral culpability – youth

Legislation Cited:

Court Suppression and Non-Publication Orders Act 2010 (NSW)

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:

Bugmy v The Queen (1990) 169 CLR 525; [1990] HCA 18

Bugmy v the Queen (2013) 249 CLR 571

Byrne & Cahill v R (2021) 97 MVR 85; [2021] NSWCCA 185

Clarke-Jeffries v R [2019] NSWCCA 56

DH v R [2022] NSWCCA 200

Hoskins v R [2021] NSWCCA 169

Imbornone v R [2017] NSWCCA 144

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

Markarian v The Queen (2005) 228 CLR 357; (2005) 215 ALR 213; [2005] HCA 25

McCullough v R [2009] NSWCCA 94

Miller v R [2015] NSWCCA 86

Muldrock vThe Queen (2011) 244 CLR 120

Nasrallah v R (2021) 105 NSWLR 451; [2021] NSWCCA 207

Newburn v R [2022] NSWCCA 139

Perkins v R [2018] NSWCCA 62

R v Channels (unrep, 30 September 1997 NSWCCA)

R v Erazo [2016] NSWCCA 139

R v Millwood [2012] NSWCCA 2

R v MJB [2014] NSWCCA 195

R v Qutami (2001) 127 A Crim R 369; [2001] NSWCCA 353

R v Tuala [2015] NSWCCA 8

Yildiz v R [2020] NSWCCA 69

Category:

Sentence

Parties:

Rex (Crown)
Jacob Borja (Offender)

Representation:

Counsel:
A Morris (Crown)
C Wasley (Offender)

Solicitors:
Office of the Director of Public Prosecutions (Crown)
Khan Law & Associates (Offender)

File Number(s):

2021/365075

Publication restriction:

See [3]

JUDGMENT

1. The offender, Jacob Borja, is before the court for sentence for one count of manslaughter contrary to s 18(1)(b) of the Crimes Act 1900 (NSW) (Crimes Act) for which the maximum penalty is 25 years imprisonment and for which there is no standard non-parole period, and two counts of reckless wounding contrary to s 35(4) of the Crimes Act, for which the maximum penalty is 7 years imprisonment and for which there is a standard non-parole period of 3 years.

2. Mr Borja was 18 years old at the time of the offending, which occurred during a fight amongst two groups of males at Whalan Reserve, Whalan on 23 December 2021. Mr Borja pleaded guilty to these counts on 9 October 2023, which was the first day of his trial.

3. On 14 December 2023, on the application of the offender, I made the following non-publication order pursuant to the Court Suppression and Non-Publication Orders Act 2010 (NSW):

1. Pursuant to s 8(1)(c) and (e) of the Court Suppression and Non-Publication Orders Act 2010 (NSW) (the Act) there be non-publication of:-

1. Information that comprises the specific details of the disclosure of the childhood sexual abuse experienced by the offender disclosed in these proceedings, in particular the details recorded at paragraphs 6-10 of Dr Sam Calvin’s forensic report dated 27 November 2023; and

2. Any reference to evidence disclosing the name of the alleged perpetrator of the sexual abuse and the offender’s school in these proceedings.

2. Order 1 is to remain in force for 70 years or as the Court orders otherwise, pursuant to s 12(3) of the Act.

3. Order 1 applies throughout the Commonwealth of Australia pursuant to s 11(2) of the Act, the Court being satisfied that it is necessary for the order to apply outside New South Wales to achieve the purpose of ss 8(c) and (e).

Agreed Facts

4. The agreed facts can be summarised as follows:

5. On 22 December 2021, two groups of males arrived at Whalan Reserve at Whalan New South Wales at about 7:20 pm. One group of seven men arrived in two white Hilux utes. Two young women were with that group of seven men. Another group of six men arrived at the Reserve in a dark coloured Mitsubishi Triton ute. The offender, then aged 18 years and 3 months, arrived at the Reserve in the Mitsubishi Triton.

6. Shortly after the opposing groups arrived, a violent melee erupted between the two groups. There was fighting, punching, pushing and kicking. Three men were stabbed by the offender: Matthew Smale, Jaiden Smale and Robert Corrigan. The melee did not last long. The men who arrived in the Mitsubishi Triton left in the ute in which they had arrived.

What led to the fight at the park

7. The two groups of men met at the park because of a dispute between Jaiden Smale and Jhye Martin-Blackett. Mr Martin-Blackett was one of the men who arrived in the Triton ute. The offender did not know Jaiden Smale, the deceased Matthew Smale (who was Jaiden Smale’s father), or Robert Corrigan. The offender was a friend of the owner of the Mitsubishi Triton, Jacob Eid. Mr Eid associated with Mr Martin-Blackett and knew Jaiden Smale prior to the fight at the Reserve.

8. The dispute between Jaiden Smale and Mr Martin-Blackett arose as a result of a housing dispute. Jaiden Smale and his girlfriend Kaitlin Alderton had sublet a room of their unit to Jhye Martin-Blackett and his girlfriend Telise Sterba. There was a falling out between the two couples which resulted in Ms Sterba and Mr Martin-Blackett being told that they needed to vacate their room at the unit a few days prior to the fight at Whalan Reserve.

9. One reason for the falling out between the two couples was that Jaiden Smale believed that Mr Martin-Blackett stole his PlayStation and a cat belonging to Kaitlin Alderton. Mr Martin-Blackett refused to return a copy of the keys to the unit which had previously been given to him by Jaiden Smale. Jaiden Smale also owed some money to Mr Martin-Blackett.

10. The dispute became heated after Jaiden Smale sent some threatening messages to Mr Martin-Blackett over a number of days. The messaging culminated in a planned meeting between Jaiden Smale and Mr Martin-Blackett on the afternoon of 22 December 2021 so that Mr Martin-Blackett could return the property to Jaiden Smale.

11. In the afternoon of 22 December 2021 Jaiden Smale arranged via a phone messaging app to meet with Mr Martin-Blackett at Hickeys Lane in Penrith. Mr Martin-Blackett told Jaiden Smale that he would "not bring his boys" which gave Jaiden Smale the impression that he would be alone when they met.

Meeting at Hickeys Lane on 22 December 2021

12. Jaiden Smale asked Chloe Munns, a friend of Ms Alderton, to drive him to the meeting. Traveling with him was his girlfriend Ms Alderton, and his friends Johnny Refalo and Saxon Wilson. Ms Munns drove them all to Hickeys Lane for the meeting.

13. When they arrived at about 6:30 pm, they saw Mr Martin-Blackett at Hickeys Lane standing with five other males, including the offender. Jaiden Smale was not expecting Mr Martin-Blackett to be in the company of a group of males and so he told Ms Munns to leave without stopping. CCTV footage captured Mr Martin-Blackett in the company of five other males at Hickeys Lane, including the offender.

14. Ms Munns drove off without stopping at Hickeys Lane. After driving off, Mr Martin-Blackett sent a message to Jaiden Smale which said "why you such a cat". Jaiden Smale replied "I'll be back".

15. Jaiden Smale told Ms Munns to drive to his parents’ home at North St Marys. On the way, Jaiden Smale called the deceased and told him "there's a group of boys I'm gonna need your help”.

16. After arriving at Jaiden Smale's parents’ house in North St Marys, they went inside. After speaking to Jaiden, his father Matthew (the deceased), then aged 40, called his brother-in-law Robert Corrigan (then aged 25) and asked him to come to the house. Mr Corrigan is the brother of the deceased's wife, Kylie Corrigan. After receiving the call from the deceased, Mr Corrigan arranged to pick up a friend, Jared Trindall, then aged 25. In the meantime, the deceased contacted his friend David O’Neill and asked him to come to his house. Not long thereafter, Mr Corrigan, his partner Claude De Roit, Jared Trindall, and Mr O'Neill arrived at the deceased's house.

17. At the deceased's house, there was a discussion about the situation between Jaiden Smale and Mr Martin-Blackett. It was arranged between Jaiden Smale and Mr Martin-Blackett that they would meet at Whalan Reserve. Shortly thereafter, seven men and two young women left the deceased’s house in two white Hilux utes and drove a short distance to Whalan Reserve.

18. In one white Hilux ute, owned and driven by David O'Neill, was Jaiden Smale and Johnny Refalo. Ms Alderton and Ms Munns sat in the back of the ute. In the second white Hilux ute, owed and driven by the deceased was Robert Corrigan, Jared Trindall and Saxon Wilson.

19. The seven men and two women arrived at Whalan Reserve at about 7:20 pm. The deceased drove his ute onto an "offshoot gravel road" at the Reserve. The other ute was parked by Mr O'Neill on the southern side of the gravel road.

Whalan Park 7:20 pm

20. Shortly thereafter, the Mitsubishi Triton, which contained six men including the offender, who had been at Hickeys Lane earlier, arrived at Whalan Reserve and parked at a close distance to Mr O’Neill’s ute. Those in the Mitsubishi Triton included Mr Eid, who was driving, Mr Martin-Blackett, Maley Hunter (then aged 19), Jack Tozer (then aged 20) and Gage Buckley (then aged 19), as well as the offender.

21. At about the time the Mitsubishi Triton arrived at the Reserve, the ute driven by the deceased drove in at speed and parked behind and to the side of the Mitsubishi Triton. The men from Mr O'Neill's ute got out, as did the men from inside the Mitsubishi Triton and the men from the deceased's ute.

22. A fight then broke out between the two groups of men. People were punching, kicking and pushing. Ms Alderton and Ms Munns remained in the back of the ute driven by David O'Neill.

23. Shortly after the fight broke out, the offender exited the Triton wearing a cloth face mask and armed with a knife which was about 30 cm in length (inclusive of the blade). The offender was armed with the knife when he attended Whalan Reserve in the Triton, including when he exited the vehicle. The offender was armed with the knife in contemplation that he may use it during the intended violent altercation.

Reckless wounding – Robert Corrigan

24. A short time after getting out of the Triton ute, the accused used the knife with which he was armed and inflicted a wound to the right arm of Robert Corrigan. Mr Corrigan was not armed with any weapon and the offender was not acting in self-defence.

Manslaughter of Matthew Smale

25. Shortly after Mr Corrigan was wounded by the offender, the deceased became aware that Robert Corrigan had been stabbed and armed himself with a reciprocating saw that was in a lockbox on the back of his ute. Although the reciprocating saw was not powered in any way and was not operational during the relevant period, it was a weapon.

26. The deceased and the offender confronted each other. During the confrontation, the offender stabbed the deceased in the neck once with the knife with the intention of inflicting grievous bodily harm.

27. The Crown accepts that the offender's liability for the manslaughter of Matthew Smale is on the basis of excessive self-defence.

Reckless wounding – Jaiden Smale

28. After stabbing the deceased, the offender confronted Jaiden Smale and stabbed him twice with the knife. The offender was not acting in self-defence. The offender stabbed Jaiden Smale once to the left scapula and once to the left chest. Jaiden Smale was armed with a taser that he had been operating during the melee.

29. At a point in the melee, Mr O'Neill got back into his ute. He drove the ute, with Ms Alderton and Ms Munns still in the back, largely around in circles and which included some zig zagging. Mr O'Neill drove his ute in this manner in an effort to scare everyone off. That part of the melee was captured on a mobile phone recording from a witness in the Reserve. Shortly thereafter, Mr O'Neill flipped over the ute that he was driving, and he and the two young women had to climb out of the ute. At another point in the melee, Johnny Refalo was in possession of a ratchet strap.

30. At about the time that the ute flipped over, the six men from the Mitsubishi Triton, including the offender, re-entered the Mitsubishi Triton and left the Reserve. At some point during the melee the offender dropped his phone at the Reserve. It was subsequently found and handed to police together with a debit card in the name of the offender in the back of the phone case. They drove off, and after driving a short distance on a neighbouring street the Triton stopped, Marley Hunter got into the rear tray, and Gage Buckley closed the hard lid. This was captured on a home CCTV system from a neighbouring house. The Triton then drove off.

31. Police and ambulance were called to the Reserve. Despite attempts to perform CPR on the deceased, he died at the scene as a result of the stab wound he received to his neck.

32. When police arrived, Jaiden Smale was collapsed on the ground and was struggling from the two stab wounds he had received. He was treated at the scene, initially by police and later by ambulance personnel. Jaiden Smale was then transported to hospital so that he could receive treatment for his injuries.

33. Mr Corrigan was also treated by police and ambulance officers at the scene with respect to the stab wound he had received to his right forearm. He was also taken by ambulance to hospital for further treatment.

34. When the ambulance personnel arrived at the scene, they confirmed that Matthew Smale was deceased.

Video footage of the melee

35. Part of the melee was captured on a mobile phone by a boy who had been at the BMX track. The mobile phone footage does not capture the offender stabbing the deceased, Jaiden Smale or Mr Corrigan and was played during the sentence proceedings. The footage does capture Jaiden Smale being knocked to the ground by persons who were travelling in the Triton ute and being kicked whilst on the ground. It also captures Mr O'Neill driving his ute around including when he then flipped the ute with the two young women in the back. Mr Refalo can be seen in possession of a ratchet strap.

After the melee

36. A crime scene was established by police and the following day a search of the Reserve was conducted. Police never recovered the knife used by the offender in the melee.

37. At a point after Mr Hunter got into the rear tray, Mr Hunter, Jack Tozer and Jhye Martin-Blackett were dropped off by Jacob Eid. Mr Eid, the offender and Gage Buckley continued in the Triton and Mr Eid drove to his residence at Schofields where he lived with his girlfriend. CCTV footage captured the Triton arriving at approximately 7:58 pm. At about 8 pm, CCTV from that unit block captured the three men entering the lifts and travelling up to Mr Eid’s unit.

38. Mr Eid and Mr Buckley were captured on CCTV carrying some items up to the unit. The offender was not depicted carrying the knife from the melee.

39. Whilst upstairs in the unit where Mr Eid lived with his girlfriend, Mr Eid, the offender and Mr Buckley changed the clothing, which they were wearing at the fight. About 20 minutes after arriving at the unit, the three men were again captured on CCTV leaving the unit and wearing the change of clothing.

40. At about 9 pm, Mr Eid dropped the offender close to the unit block where his girlfriend lived at Rosehill. Shortly after arriving at her unit, the offender told his then girlfriend Ms Efras to book a room at the Mercure Hotel in Parramatta for one night with an estimated arrival time of 9:30 pm. The offender and Ms Efras entered the Mercure Hotel at about 9:30 pm.

41. After dropping the offender at Rosehill, Mr Eid then drove himself and Mr Buckley to an associate's unit at Homebush and parked the Triton in the underground carpark.

42. Shortly after he dropped off the offender, Mr Eid called the offender at 9:15 pm and 9:17 pm. The offender tried to call Mr Eid's phone at 9:35 pm from Ms Efras's phone and sent Mr Eid a number of messages from her phone.

Next day and arrests

43. On the morning of 23 December 2021, the offender and Mr Eid exchanged several text messages with the offender using his girlfriend’s phone, which included the following:-

Mr Eid:    oi lad I need your story so I can get it around to the boys

Offender:   Where r u

Offender:   Your my brother I trust you so much bro I don’t know what’s ahead of me I’m scared for my freedom even though I’m not wrong.

Offender:   We had went with jihye to Whalan reserve because he had to give house keys back to his previous house mate. The reason we had went was because jihye was unsure about his safety and wanted some support. We got there and stepped out of the car when another Ute come flying in and other grown men jumped out. They all tried to rush us fighting and with weapons tazers and work tools as we tried to escape back to the car they were drifting around us with the Ute and charging me with a taser and work tool so I’d went to the back door and quickly got the weapon and defended myself.

Offender:   Is this ok

Mr Eid:   cuz answer

Mr Eid:   say that you had the knife on you to scare them cause you live in mount druitt anything can happen

Offender:   Yeah

Mr Eid:   you need to go asap cuz before they come to you

Mr Eid:   they want me in there

Offender:   I’m trying to think if picked it up could be better for me instead of saying I brought it

Offender:   Can u send money to this number

Mr Eid:   say whatever you want I’m gonna say I don’t know where it come from

Mr Eid:   I’ll say there was too much going on for me to

Mr Eid:   see

Mr Eid:   it’s sent

Mr Eid:   it’s all gonna be sweet bra

Mr Eid:   it’s coming to us anyways

Police investigation

44. The police commenced an immediate investigation after arriving at Whalan Reserve at around 7:35 pm on 22 December 2021.

45. The following day, about 30 minutes after exchanging the messages with Mr Eid, the offender presented himself to Granville Police Station. He told police words to the effect of "I stabbed someone, but it was self-defence". He was then arrested and cautioned by police. After his arrest, the offender’s height was measured to be approximately 174 cm.

46. Whilst at the police station, the offender took part in an interview with police. Some of what the offender told police included the following:-

• On the morning of 22 December 2021, he received a message from a person he did not name that caused him to become involved in this matter. Prior to receiving the message, he had been at his grandmother's home in Whalan doing haircutting work.

• He went in a utility vehicle that had "only five" people in it to Whalan Reserve.

• The offender said: "We stop ...the person that has to give the keys back was, got out of the car, and then, right then, them people got out of their ute, that whole, them, all them people got out of their ute. And then our ute pulled up .."

• Mr Martin-Blackett got out of the grey ute and was "...just walking normal.." over toward the others and six people jump out of the other ute.” The offender also told police: "... but there six people aren't as, like, aggressive as the... other ones that came…those people have jumped out, and there's no aggression whatsoever at this point in time?...like, there's, you can see the tension --- but nothing yet… another ute arrived ... drifted in, boom, and then just skidded to a stop."

• When police asked what happened as soon as the car that came stopped, the offender said: “they just all jumped out…started swingin'...they started trying to fight."

• When asked “with who?”, the offender said “"Like ...whoever was there, just got out of our car, and...Jhye, that was up the front, trying to, going to give the keys ...there was a group there, and he was there, and then they came, so we're kind of squashed, and then those were all fighting, and then those were all fighting, and then, you know, fighting... in between the cars…They had weapons, had a taser, they had construction, like, tools from, like, um, construction in the back of their tray that they were using. They were fighting, they were throwing punches, kicks, trying to hit with, like, a rope, like, a metal, a metal rope. Um, while this was going on, they had left one of the cars unattended, and there was a knife in the back seat. So I went there to retrieve it, and then I went back to my car, not my car, but the car, to escape. And then as I got to the car, uh, three people come up to me, one with the construction tool, like, to chop through wood, and it had, like, a, like, a sharp edge to the end of it, and he was tryin' to thrust it towards my face, towards my chest. The other guy had the taser. He was tasing people around me. Tried to tase me. And then, as I was trying to get into the door, he slammed the door in front of me, so I couldn’t enter that door, and he came towards me with the construction tool, so close, like, almost to the point, it almost touched my face. And then the other guy came behind me with a taser, and at the same time, the other, they had got back in that, and then started driving around our car at high speed, almost drifting. And while that's happening, they approached me closer and closer, and I’m just kind of walking backwards. And at that point, I thought I was gunna get something happened to me, that I was gunna get stabbed, that I was, you know, in my face, or the people that was there were gunna get hurt, and so I defended myself, and I used the weapon that I got from the car, and then after that, their car had flipped from the drifting, and it landed onto the, on their roof. And then I got back into the vehicle, and then I left... I went back home ... James Ruse Drive ..."

• The offender showed police some minor injuries he sustained during the melee, including a graze to his forearm, a 5cm slash mark under his shoulder blade, and a scratch along his backbone which were photographed by police. He said that he threw his clothes and shoes in the bin because: "... my clothes were messed up, my shirt was all ripped and that. Had no point ---to keep it, so I just chucked it all out."

• The offender did not remember what he did with the knife, but he said that he did not take the knife in the car when he left the scene.

• He lost his phone in Whalan Reserve and noticed that “... when I got back in the car and felt my pocket, it was gone."

• He was dropped at his mother's place in Mount Druitt. He did not tell her what happened.

• He only stabbed each of the three once. He denied that it was his intention to go to Whalan Reserve for the purpose of a “straight-out” fight.

• The following questions and answers were given:

Q: "Did you, at any time, before stabbing any of these people, warn them that you what you're about to do?"

A: "mmm, like, I would tell 'em, Get back, get back..."

Q: "Ok. When you were saying that, where was that knife?"

A: "Just, like, holding it in my hand."

47. Police recovered from the offender’s mobile phone the following text message exchange between him and an unknown person sent shortly before the planned meeting at Hickeys Lane:

Unknown Person:   What’s that

Unknown person:   Yo

Offender:      im going to go pump someone m

Unknown person:   Who?

Unknown person:   

Offender:      Idk someone with Jacob eid n dat

Offender:      owes his runner

Offender:      so we gana pump him

Unknown person:   Fucken oath

Offender:      

Unknown person:   See ya after that cuzzy

Unknown person:   Ahmed coming my crib

Offender:      yea easy

Unknown person:   Ettsaw take care uce

Offender:      fuckn oath n too ghee

Forensic examination of the deceased’s ute

48. As part of the police investigation the deceased's ute was seized by police and forensically examined. Inside the rear of the cabin police located a taser. There was blood staining on the taser. Forensic examination of the taser included a number of results showing a DNA profile consistent with the DNA profile of Jaiden Smale.

49. Police also examined the contents of the lockboxes on the rear tray of the deceased's ute. Inside the driver's side lockbox, police found a reciprocating saw. There was bloodstaining on it. DNA testing of the reciprocating saw included results showing a DNA profile consistent with the DNA profile of the deceased.

Injuries to Robert Corrigan

50. The injuries which Mr Corrigan presented to hospital with were described by Dr Zhang as follows:

“His main injury was a single stab wound to the upper arm that breached dermis extending deep into underlying muscular structures. He was taken for an exploration and closure on 24/12/21 in operating theatres, where I first viewed him.

He was found to have a deep wound that extending [sic] through muscle, but did not have any damage to underlying nerves, major blood vessels, or bone. He had a debridement and closure and was neurovascularly intact post• operatively. We expect him to make a full recovery, though the muscle may be painful for many months”.

51. The length of the wound was approximately 15-20cm.

Injuries to Jaiden Smale

52. Jaiden Smale had two penetrating injuries on arrival at hospital, one to his left scapular region which was approximately 20cm, and one at his left lateral chest. The left scapular region laceration was noted to have penetrated through subcutaneous fat with latissimus dorsi muscle visible. The left lateral chest laceration was assessed to be approximately at the level of the 6^th intercostal space with bubbling present. A small left pneumothorax was identified in a chest CT with a small haemothorax. He was transferred to the close observation unit at Westmead Hospital. Surgery was performed on him on 23 December 2021 for exploration and repair of his wounds. During the surgery, the left chest wound was explored and a palpable injury to the rib was identified breaching the dermis and epidermis. The left scapular region laceration was explored and injuries were identified to teres major and latissimus dorsi muscles breaching the dermis and epidermis. There was an injury to a small unnamed vein which was ligated. All wounds were washed out and repaired. An intercostal catheter was removed on 24 December 2021 and a follow up x-ray showed no residual pneumothorax.

53. Mr Smale was discharged against medical advice on 24 December 2021.

Injuries to the deceased

54. An autopsy was performed on the deceased. The cause of death was a stab wound to the neck. The stab wound to the neck was described as a gaping stab wound on the anterolateral inferior left neck centred 4.5cm to the left of the midline and 26cm below the top of the head. When the sides of the wound were apposed, the wound measured 40mm in length. It was diagonally oriented downwards medially at approximately 45 degrees to the horizontal. Its proximal end had a squared appearance and its distal end a pointed appearance. Inferolateral to the stab wound, there was bruising of the skin over an irregular area that measured 80mm in length x 40mm in width.

55. The stab wound extended through the medial part of the inferior portion of the left sternocleidomastoid muscle, passing behind the left carotid artery and jugular vein to incise the left subclavian artery approximately 1cm from its origin. The subclavian vein and left brachiocephalic vein were intact. The wound continued downwards and slightly into the apex of the left pleural cavity and terminated at the left upper lobe of lung near the apex posteriorly in a wound which was vertically oriented and measured 30mm in length x 4mm in depth. The direction of the stab wound was downwards and slightly to the left, and it had a depth of approximately 8cm from the skin to the entry point into the left pleural cavity.       

Exhibits

56. Before me are five exhibits. Exhibit 1 is a bundle of documents prepared by the Crown, tendered without objection. The bundle includes:

1. The offender’s criminal and custodial histories;

2. Victim impact statements;

3. Sentencing statistics for the offences of wounding and reckless as to causing actual bodily harm.

4. Twenty-nine pages of documents produced pursuant to a subpoena issued to Corrective Services that disclose institutional offences by the offender.

57. Exhibit 2 is a bundle tendered without objection by the offender. The bundle contains:

1. A report of Dr Sam Calvin, forensic psychiatrist dated 27 November 2023. Dr Calvin was cross-examined by the Crown;

2. A report of Mr David Felice, the offender’s treating psychologist, dated 21 November 2023. Mr Felice was cross-examined by the Crown;

3. An affidavit of Tina Pepper sworn on 29 November 2023. Ms Pepper was cross-examined by the Crown;

4. An affidavit of Sarah Khan, the offender’s solicitor, dated 28 November 2023 annexing inter alia two reports of Dr Andrew Ellis, which was read in the proceedings without objection. Ms Khan was not required for cross-examination;

5. A letter to the court under the hand of the offender, dated 28 November 2023; and

6. A bundle of seven character references from Hajir Ali, Carla Barnes, Jacob El-Saidy, Issa Dababneh, Jade Macapinlac, Katya El-Saidy and Kamal Hamdani.

58. Exhibit 3 is a reception screening assessment with respect to the offender prepared by Justice Health upon the offender’s entering into custody, completed on 25 December 2021.

59. Exhibit 4 is a Custody Management Record from Granville Police Station with entries on 23 and 24 December 2021.

60. Exhibit 5 is a file from Headspace, National Youth Mental Health Foundation which contains entries of the offender’s interactions with that service on 19 February to 25 June 2019.

Evidence

61. I will now summarise some of the documents which have been placed before me.

Exhibit 1

62. The Crown Sentence Summary contains the criminal and custodial history of the offender. He has no prior criminal history. The offender’s custodial history demonstrates that he has been sanctioned on four occasions for failing to comply with corrective centre routine, disobeying directions, fighting other inmates and possess offensive weapon or instrument.

Victim impact statements

Statement of Kylie Corrigan

63. Ms Corrigan is the partner of the deceased, the mother of Jaiden Smale and the sister of Robert Corrigan. She read her statement in court.

64. Ms Corrigan and Matthew Smale were together for 21 years and had three children. She said that her partner was hard-working, a wonderful father and was loved by everyone. He loved life. She still imagines that he is away and waits for his return though their door on a Sunday afternoon after a weekend away with their daughter.

65. Ms Corrigan says that the events of 22 December 2021 have ruined their perfect family. She had to watch her son Jaiden and her brother Robert being driven away by ambulance without knowing their condition, and she saw her partner lying on the ground with a blanket covering his body.

66. Ms Corrigan says that she can still hear the screams of her daughters as she told them what happened to her father. She will never forget waiting for someone to tell her that her son Jaiden was alive. Every day she watches her children struggle. They have had to celebrate milestones without their father present. Ms Corrigan says that they now must live a life where they will never see Mr Smale’s smile or hear his laugh again. She feels that the best part of her life has been stolen.

67. On behalf of the community, the Court extends its sincere condolences to Ms Corrigan, who has lost the person she loved dearly and with whom she shared her hopes and dreams. The community is less for the senseless death of her partner.

Statement of Janai Smale

68. Ms Smale is one of Matthew Smale’s and Kylie Corrigan’s daughters. She is 17 years old. Her statement was read on her behalf by a person from Victims and Witnesses of Crime Court Support. Janai says that her father’s death has impacted her life in many ways. She has not had a father to watch her achieve her goals for almost 2 years now. He was not there to watch her Year 12 graduation.

69. Ms Smale said that she tries to write her feelings down so that she does not turn to rage or hatred. She said that her father should be around and because of the offender’s actions, she has to grow up without a father. She now has to visit him at a cemetery and because of the offender, she is stuck in a world that she cannot escape.

70. The Court likewise extends its condolences to Ms Smale for the senseless loss she has suffered. Annexed to her statement was a photo of her and her father at her Year 10 formal which demonstrates the great love that they had for one another.

Statement of Robert Corrigan

71. Mr Corrigan is one of the victims in this matter and was the brother-in-law of the deceased. His statement was read out on his behalf by a person from Victims and Witnesses of Crime Court Support. Mr Corrigan says that losing Mr Smale has had a big impact on him and his family, as their families were very close. His kids very much loved their uncle, and they often cannot sleep and cry asking when they will see him again.

72. Mr Corrigan says that on the night of the incident, he tried to protect Matthew. He had to watch him bleed out as they tried to save him. Mr Corrigan says that the trauma eats him alive and he feels alone.

73. The Court acknowledges the trauma suffered by Mr Corrigan and extends its condolences to him for this senseless loss of life.

PowerPoint presentation by Siennah Smale

74. Ms Siennah Smale is another daughter of the deceased. She prepared a PowerPoint presentation of photographs of her family, including her father. It was played before the court. It was a very moving portrait of a man dedicated to his family. The court expresses its condolences to Siennah for the loss of her beloved father.

Statement of Tracy Sykes

75. Ms Sykes read out her statement in court. She is the sister of the deceased. She says that her brother was loved, valued and needed. She said that his once solid family unit is now a single parent family, which is something that her brother did not want for his family. Ms Sykes says that the deceased’s family and friends struggle with the loss and are tormented by what happened. Ms Sykes emotionally shuts down and cannot share her loss with anyone. Even though she has been a front-line worker for 33 years, she was not prepared for the impact of her loss.

76. Ms Sykes says that the offender is worse than an enemy to her. She believes that the offender showed little regard to the deceased after stabbing him and chose to leave with his friends rather than help the victims. The offender will never have her forgiveness for his actions. She wants the offender to feel the pain that her and her family feels. She says that what happened is not fair.

77. On behalf of the community, I acknowledge Ms Sykes’s loss of her beloved sibling in senseless tragic circumstances. When the community loses one of its contributing members, it is less as an entity. On its behalf I recognise the continuing pain and anguish caused by the offender’s actions on 22 December 2021.

Corrective Services documents

78. The documents produced under subpoena disclose that Mr Borja has been punished for institutional offences. In one instance, the offender was noted to be subject to the use of force. In another he was suspected of participating in physical combat. In another, a shiv was found in a cell he shared with three other inmates.

Exhibit 2

Report of Dr Sam Calvin

79. Dr Calvin is a forensic psychiatrist who prepared a report for the sentencing hearing. He assessed the offender on 26 October 2023 via AVL. Dr Calvin has a private practice and has an appointment as a senior staff specialist with the Justice Health and Forensic Health Network.

80. Dr Calvin reported that the offender described his mood as “okay” and that he appeared to have reasonable insight into his mental health problems.

81. Dr Calvin noted that before his arrest, the offender was living with his girlfriend and was working as a hairdresser. Recently, he has commenced a new romantic relationship.

82. Mr Borja reported a complex psychiatric history which Dr Calvin observed was marked by mood dysregulation, chronic depression, heightened anxiety and post-traumatic stress disorder (PTSD) originating from childhood trauma. This trauma included two incidents of sexual assault when he was a boy. The offender described these assaults to Dr Calvin in graphic detail which I do not repeat in this judgment, because of the non-publication order I made on the application of the offender. Suffice it to say that significant detail as to time, place, and nature of the assaults and identification of the perpetrator were disclosed to Dr Calvin. Dr Calvin expressed a view that the sexual abuse precipitated profound emotional upheaval and disturbances in the offender’s identity formation and self-worth.

83. The offender told Dr Calvin that the sexual assaults left him feeling alienated, insecure, unloved and took a considerable psychological toll. He described periods of depression and suicidal ideation, although he has never attempted suicide. The offender never told anyone about the assaults, after which he felt dehumanised, plagued by nightmares and daytime flashbacks. He described a sensation of perpetual re-experiencing, as if trapped in a continuous loop of trauma. He told no one because of shame and a fear that he would be further assaulted.

84. In Year 7, a doctor diagnosed the offender with anxiety and depression. He had profound mental health struggles. He commenced seeing a school counsellor. The offender engaged in psychological therapy whilst in High School and was prescribed Lovan (Fluoxetine) in Year 7, but he took the drug sporadically. He initially refused the drug when he was incarcerated. The offender told Dr Calvin that since being in custody, he has engaged in therapy sessions (with Mr Felice) paid for by his mother which has resulted in alleviation of some of his distress. He is willing to seek further treatment.

85. Mr Borja reported a history of addictive behaviours from about 15 years old. He began to regularly consume alcohol and cannabis to mitigate distress, which escalated to drinking from Friday through Sunday and during school holidays to the point of losing consciousness. By age 17, he said that he began to abuse Xanax and experiment with MDMA sporadically. He reported finishing Year 12, but his drug and alcohol use continued. Dr Calvin observed from documents provided to him that the offender appears to have experienced withdrawal symptoms upon entering custody.

86. The offender reported a family psychiatric history that included an uncle diagnosed with attention deficit hyperactivity disorder (ADHD) and obsessive-compulsive disorder (OCD). As to his family history, the offender reported that his parents divorced when he was a baby. He lived primarily with his father, a half-brother and his maternal grandmother. He visited his mother’s household twice per week and every second weekend until high school, in her home with her new family unit. He reported significant domestic violence in his father’s home, and Dr Calvin said that Mr Borja alluded to physical and verbal abuse. His father and maternal grandmother would often argue and she would accuse his father of neglect as he often travelled abroad.

87. Dr Calvin noted that the offender told him that he reflects daily on the offending and the repercussions that it has had on him and the families of the victims. He said that at the time, he was influenced by his peers and felt perpetually threatened by his environment. He carried a knife for protection and recounted to Dr Calvin a past incident where he was attacked.

88. With respect to the fight at Whalan Reserve, the offender said that it had unfolded following a phone call from a close friend. He told Dr Calvin the incident left him feeling profoundly distressed and physically ill. Afterwards, he was in a state of shock, experienced a blackout and found solace in the car. He stated that he is remorseful and recognises the harm that his actions have caused.

89. Mr Borja reported that he has found it difficult being held in custody for the first time. He is of small stature and has been the target of multiple assaults. The Covid-19 pandemic exacerbated his isolation as he was unable to communicate with family and was in prolonged isolation. However, he has since taken up work and embraced religion. He provides haircuts to other inmates and participates in educational activities and Aboriginal art classes.

90. In Dr Calvin’s opinion, the offender’s history suggests a complex interplay of early trauma, substance abuse and social disadvantage that have collectively shaped his life trajectory. It is characterised by a prolonged struggle with depression, anxiety, and symptoms consistent with PTSD. These manifestations are consequences of his childhood trauma. In Dr Calvin's opinion, the offender's mental health challenges are best conceptualised as complex PTSD resulting from his childhood trauma. He has a lengthy history of emotional instability, enduring low self-esteem, a negative self-concept, difficulties in relationships, and persistent symptoms of PTSD. Dr Calvin observes that complex PTSD is a condition specific to severe and recurring trauma, typically occurring during childhood. Individuals exposed to prolonged trauma often exhibit more complex reactions that go beyond what is commonly observed in PTSD, which typically arises from a single traumatic event. A diagnosis of complex PTSD is made when PTSD symptoms coexist with challenges in emotional regulation, interpersonal dysfunction, and diminished self-worth.

91. In Dr Calvin’s opinion, Mr Borja reports symptoms aligning with the core features of complex PTSD, including recurrent nightmares, childhood trauma related flashbacks, intrusive recollections and heightened psychological responses to cues reminiscent of past abuse. He displays emotional numbness, avoidant behaviours, hypervigilance, and pervasive mistrust of others. The lack of support in his life has led to guilt, shame, and self-blame indicating a negative self-concept, which is another core component of complex PTSD.

79. Mr Borja reported a significant history of substance addiction, which appeared to be a consequence of maladaptive coping. Dr Calvin believed that there were lifetime diagnoses of alcohol, cannabis and sedative dependence. It was noted that the offender had remained abstinent over two years in the custodial setting and his addiction therefore appears to be in remission in a protected environment. In Dr Calvin’s opinion, the offender's early life trauma has impaired his capacity to establish stable relationships and trust others, ultimately leading him down a self-destructive path of substance abuse. His childhood adverse experiences, early parenting factors, lack of positive role models, isolation and a desire to escape the emotional distress of trauma have contributed to early onset of drug dependence.

80. Dr Calvin notes that the prison setting poses formidable challenges for individuals with such traumatic backgrounds. He observes that Mr Borja is vulnerable in custody due to his youth, lack of life experience and social awareness. Addressing Mr Borja’s complex trauma symptoms in the custodial environment will be challenging.

81. In Dr Calvin’s opinion, Mr Borja’s regret regarding the offence and self-awareness about his actions’ negative impact on his life and that of the victim’s family hint at a capacity for introspection and a potential for rehabilitation. He presents with numerous static risk factors for violence, such as a history of violent and anti-social behaviour, strained relationships, unemployment, substance abuse, mental health challenges, personality vulnerabilities and traumatic experiences. Dynamic factors that mitigate these risks are less prevalent, and thus Mr Borja would benefit from a multidisciplinary approach to address his substance abuse issues and his psychological vulnerabilities from childhood trauma.

82. In evidence in chief, Dr Calvin said that the state of the pandemic is different today than it was at the time Dr Ellis’s reports addressing Covid-19 were prepared in 2020 and 2021. However, Dr Calvin observed that there is currently a surge in reported cases of Covid-19. It remains an issue and has a continuing impact on persons in custody.

83. In cross-examination, Dr Calvin confirmed that the offender reported to him that he was using Xanax up until the date of his incarceration. He said that symptoms of withdrawal from Xanax would manifest approximately 24-48 hours after ceasing to consume the drug. As to his cannabis use, Dr Calvin believed that the offender had told him that he commenced using it at about age 15 and that by age 17, he was using it on a daily basis. Dr Calvin accepted that the offender had told him that he had ceased using alcohol at about age 17.

84. Dr Calvin accepted that the drug history reported in Justice Health reception screening assessment documents was different to that reported to him by the offender. Specifically, the history taken by Justice Health did not disclose as extensive a history of drug use as the offender had reported to Dr Calvin. Dr Calvin said that it was not uncommon for there to be a difference between a report in a screening assessment and a history taken by a psychiatrist. However, he accepted the two histories are different. I observe that the document did not disclose who conducted the screening assessment and if that person was a medical professional.

85. Mr Morris, who appeared for the Crown, suggested that Dr Calvin’s diagnosis of Substance Use Disorder could not be maintained. However, Dr Calvin said that when making such a diagnosis, one looks at the history, and not a short period. It is a lifetime diagnosis viewed across a person’s history. In his opinion, whilst there was no direct link between substance abuse and the offending, there is an indirect link in the sense that a person with a history of trauma can have dysfunctional methods of coping, such as the abuse of substances.

86. As to Mr Borja’s report to Dr Calvin that his household was plagued by significant domestic violence, Dr Calvin said that the offender implied physical abuse but did not directly report it. Dr Calvin explained that the offender’s family dynamic was complex. He recalled that the offender said that there would be arguments because his father would go abroad and his grandmother would accuse his father of neglect. They would argue a lot.

87. Dr Calvin agreed, unsurprisingly, that his opinion as to the trauma suffered by the offender was based entirely on the offender’s self-report, although I observe that he was provided with a good deal of collateral information which was in evidence. Dr Calvin said that his diagnosis of complex PTSD was based on the offender’s reporting of a prejudicial or compromised childhood and his experience of sexual abuse at a young age. In Dr Calvin’s opinion, at a vulnerable age Mr Borja was exposed to an unstable home environment and then sexual abuse which caused psychological issues, which in his view were corroborated by the notes of Headspace in 2019.

88. Dr Calvin confirmed that he was the second person to whom the offender disclosed the sexual abuse (after Mr Felice). He said that he diagnosed complex PTSD rather than PTSD because the offender was subject to significant trauma in the form of sexual abuse and had to live in an environment with few protective factors. Dr Calvin explained that if he had a stable home life, the offender may have coped better with the sexual abuse that had occurred.

89. Dr Calvin confirmed that the offender had expressed remorse, but that it was not within his expertise to evaluate remorse, as it was not a psychiatric concept.

90. In re-examination, Dr Calvin confirmed that the offender had told a practitioner at Headspace in 2019 that he worried excessively, that he had high levels of anxiety and low self-esteem, that he had been previously prescribed anti-depressant medication, that he had experimented with alcohol and cannabis, that his parents separated when he was very young and that he lived with his father who was then overseas and with whom he was not close, that he did not feel welcome at school, that he had been previously seeing a school counsellor and that he had recently lost five kilograms. Dr Calvin said that his opinion that Mr Borja’s psychiatric history was characterised by a prolonged struggle with depression, anxiety and symptoms consistent with PTSD, manifested as a consequence of his childhood trauma, was based on Mr Borja’s self-report to him and the collateral reports such as the documents from Headspace. In his view, Mr Borja’s disclosure of sexual abuse some 10 years or so after it occurred was not uncommon.

91. Dr Calvin is of the view that Mr Borja’s psychiatric history as reflected in the Headspace documents, the fact that he had been previously medicated and treated for anxiety and depression, his reported symptoms and his report of sexual abuse was sufficient to found a diagnosis of complex PTSD. He confirmed that he arrived at this diagnosis by applying his expertise and by analysing what Mr Borja said and by verifying his symptoms.

92. I found Dr Calvin to be a very thoughtful and impressive witness. He made appropriate concessions, in particular about the offender’s Xanax use and the fact that Mr Borja had not disclosed physical domestic violence in the household in which he was raised.

93. I accept Dr Calvin’s diagnosis of complex PTSD based on the self-reports of the offender (corroborated by the Headspace documents) and the self-report of the offender that he was sexually abused as he alleged. I give reasons for that finding below.

Report of Mr David Felice

107. Mr Felice, psychotherapist and counsellor, has been treating the offender since May 2022. At the date of hearing, he had seen the offender via AVL on 20 occasions. These sessions have been paid for by the offender’s mother.

108. Mr Felice reported that his treatment has initially focussed on the developmental trauma that the offender suffered in childhood. Whilst exploring the offender’s childhood, Mr Borja disclosed the sexual abuse for the first time. At that point, the offender's psychological safety was of most importance to Mr Felice, and so he aimed not to re-traumatise the offender by going into detail of the abuse, but rather assisted him to regulate himself physically and emotionally around the abuse which he had disclosed. He believed that being incarcerated and disclosing the abuse for the first time left the offender extremely vulnerable to further emotional dysregulation due to a lack of support in custody with respect to his trauma. In the family home, the offender dealt with his abuse on his own as a child which resulted in him suppressing somatic and emotional symptoms of trauma.

109. Mr Felice reported that the offender showed signs of disassociation in therapy, which Mr Felice said was a common coping mechanism in victims of sexual assault.

110. Mr Felice said that cognitive behavioural therapy (CBT), motor sensory psychotherapy and sensorimotor psychotherapy (SP) has been implemented in treatment to integrate the body and movement into traditional talk therapy. Mr Felice reported that SP has enabled Mr Borja to connect to previously unexpressed emotions. CBT has led to the offender’s awareness of how his dysfunctional beliefs relate to childhood. Mr Felice says that the offender has shown genuine remorse for his actions, which was seen in therapy when conducting role play exercises, which are therapeutic exercises to aid people to express remorse and grief.

111. Mr Felice said that the offender has taken the opportunity to improve himself and is committed to ongoing self-care. He has demonstrated an ability to manage his symptoms of PTSD. It is anticipated that sessions with Mr Felice will continue on a monthly basis whilst Mr Borja is in custody.

112. In evidence-in-chief, Mr Felice said that the offender was unable to express emotion during his initial therapy, and when he asked the offender about his childhood, it became clear to him that the offender was unable to express emotion in childhood due to the nature of his upbringing. He was told by the offender that there had been arguing and conflict between his father and grandmother, as a result of which he felt unsafe and unable to express his own feelings. Mr Borja disclosed childhood sexual abuse to Mr Felice on 14 September 2022.

113. In cross-examination, Mr Felice agreed that he had experience with persons with alcohol and drug dependence issues. He said that the initial sessions focused on the offender’s use of drugs and alcohol as a coping mechanism for what was eventually revealed to be a reaction to childhood sexual abuse and a dysfunctional home life. Mr Borja said that he used marijuana to suppress his emotions and symptoms of anxiety. Mr Felice was unable to recall exactly how much marijuana the offender said that he was using. Mr Borja had also disclosed one occasion of abusing Xanax. Mr Felice did not engage with the offender as a drug and alcohol counsellor and it was not part of his practice to take a detailed history about drug abuse in such circumstances.

114. Mr Felice said that he observed through the offender’s body language that he was hyper-vigilant, and in fear of being “hurt”. Mr Felice explained that his remit was to bring the offender back to regulation, which he explained meant to stop the offender from being either hyper-vigilant or dorsal vagal, which is a shutting down of the nervous system and which manifests in depressive symptoms. Mr Felice said that the therapy was at all times focussed on regulating the offender.

115. Mr Felice told the Court that Mr Borja described being in fear at home, as he witnessed conflict at home between his father and maternal grandmother. He was unable to say for how long the offender said that the conflict at home continued.

116. Mr Felice gave evidence that part of his therapy with the offender included role-playing exercises. These exercises included imagined conversations with the victim and his family. Mr Felice agreed that he had a limited recollection of what was actually said by the offender during these exercises, but he said that the offender was extremely remorseful and showed grief.

117. In re-examination, Mr Felice explained he was engaged to assist Mr Borja with specific trauma-based counselling so that he could live in a calm and regulated manner whilst in custody.

Affidavit of Tina Pepper sworn 29 November 2023

118. Ms Pepper is the offender’s mother. She deposed to her contact with the offender since his arrest. She has found it difficult to keep in regular communication due to his movements, lockdowns caused by the Covid-19 pandemic and administrative errors within Corrective Services. She was first able to book an AVL conference with her son on 18 March 2023, and her first in person visit was on 16 July 2023 at Kempsey.

119. Ms Pepper said that since her son’s arrest, she has struggled to cope. She has suffered from anxiety and depression from a young age which she manages with prescription medication. She is unable to afford a therapist for herself but pays $200 per session for her son’s therapy with Mr Felice.

120. Ms Pepper became aware of her son’s anxiety and depression at a young age and she attempted to find him treatment through Headspace at Mount Druitt where he attended between February 2019 and June 2019. Unfortunately, his issues persisted. Although he was prescribed medication, there were times that he stopped taking it, including about one year prior to his arrest.

121. Ms Pepper said that she did not become aware of her son’s sexual abuse until he disclosed it to her during one of her first visits to see him in custody in 2023. He did not disclose the details, which she became aware of only when she read the report of Dr Calvin. She remains concerned for his mental health because he has been currently unable to access medication. Ms Pepper recently spoke with Justice Health who informed her that it is “sadly not uncommon” to have to wait for assistance. Ms Pepper is worried that her son might return to substance abuse if he is not prescribed appropriate medication.

122. Ms Pepper separated from her son’s father when he was one year of age. When she re-partnered, her mother chose to stay living with Mr Borja’s father and Mr Borja stayed living with his father and grandmother. She saw him every Monday and Wednesday after school and every second weekend. She recalled that her son shared the same bed as his father until about year 7 or 8. When she found this out, she purchased a bed for her son. She says that her son described his relationship with his father as lacking emotional connection. He has only had contact with his father a couple of times since his incarceration. He has recently told Ms Pepper about the violence between his father and his maternal grandmother growing up.

123. Ms Pepper is aware of and supports her son’s conversion to Islam. She says that the offender has spoken of his desire to stay on the right path and be a good human. He enjoys visits by an Imam. Ms Pepper supports the offender’s new relationship with a former acquaintance. She believes that her son is motivated to make the most of his time in custody, but she remains concerned that his mental health needs are not being met.

124. In cross-examination, Ms Pepper clarified that she attended the Headspace sessions with Mr Borja on all occasions, as he gave permission for her to be there with him. Ms Pepper explained that when Mr Borja was about 15 years of age, he was crying, unable to attend school and constantly worrying about things. It was her idea to seek counselling at Headspace. She confirmed that her son had been seeing a counsellor at school since about age 13.

125. Ms Pepper confirmed that Mr Borja had been seeing the school counsellor from Year 7 because he was “sad” and losing interest in school, but she was not sure why. Mr Borja attended the school counsellor until Year 9 when he changed schools. Ms Pepper also recalled that Mr Borja began taking Lovan in about Year 9, at about the same time that he was refusing to go to school and stopped seeing his school counsellor. She confirmed that she was shocked to learn that Mr Borja was sleeping in the same bed as his father when he was in Year 7, as it was not normal. She said that she believed that her son had been using drugs and alcohol. She said that he had been using drugs from the age of about age 13.

126. In re-examination, Ms Pepper was asked about her contact with Justice Health. She said that she engaged with Justice Health because she was concerned about her son’s mental health as he would cry on the phone to her, have panic attacks and tell her that he was having repetitive fearful thoughts. Ms Pepper confirmed that she has arranged for Mr Felice to engage with her son as he was not receiving treatment in custody.

127. I accept that Ms Pepper now has a close relationship with her son, although I do not accept that the relationship was close and loving during his years growing up when she was seeing him two days per week after school and on every second weekend. In saying that, I mean no disrespect to Ms Pepper. I do not doubt that she believed that she was doing her best. However, in my opinion the absence of a mother for the greater part of each week is highly unusual and materially contributed to the offender’s compromised childhood, to which see below. I accept that Ms Pepper was informed, belatedly, about her son being sexually abused and that she was filled with remorse and guilt. It is to her great credit that she has paid for and continues to pay for her son’s counselling sessions with Mr Felice.

Affidavit of Sarah Khan sworn 28 November 2023

128. Ms Khan is the offender’s solicitor. Ms Khan’s affidavit summarises some of the factual matters contained in Corrective Services and Justice Health records produced under subpoena. Her review of Justice Health records indicates that on 25 December 2021, 3 days after the offending, Mr Borja measured 175 cm tall and weighed 54 kilograms.

129. The Corrective Services documents demonstrate that the offender has been subjected to various restrictive procedures in custody due to the Covid-19 pandemic. He contracted Covid-19 twice in 2022. He received no visits from family or friends for the first four months of his remand. His first in person visit with his mother was in July 2023. Case notes disclose that the offender was considered vulnerable and that he requested mental health assistance. He is noted to be hardworking, polite and well-mannered. Whilst in custody, the offender has worked in the furniture unit and engaged in education programs. He has received generally positive reports with respect to his work ethic and engagement. He obtained a Certificate 1 in Access to Vocational Pathways and a Certificate 1 in Skills for Vocational Pathways in 2023. He participated in a NAIDOC week painting project in May and June 2023.

130. Ms Khan annexed to her affidavit two reports of Dr Andrew Ellis dated 9 April 2020 and 29 August 2021, which set out his opinion as to the effects of the pandemic on the mental health of people in custody in NSW at those dates.

Letter from Mr Borja to the Court

131. The offender provided a letter to the Court dated 28 November 2023. Mr Borja writes that he made a terrible and tragic mistake which he has thought about and regretted every day. He thinks daily about the pain he has caused the victims, their families and his own family. He says that he will never forgive himself and looks back on the things he should have and should not have done on that day.

132. Mr Borja said that prior to his incarceration, he had just finished school and was abusing drugs and alcohol as a coping mechanism for the trauma caused by the sexual abuse perpetrated upon him and his experiences at home, where he says he witnessed domestic violence between his father and his grandmother. He says that his father did not provide him with much parental guidance. He says that he was diagnosed with depression and anxiety about three years after being sexually abused. The offender says that since being in custody, he has commenced therapy which has allowed him to start confronting his trauma.

131. Since being in custody, the offender writes that he has found religion and converted to Islam, which is the religion of his mother and her family. He prays for his sins to be forgiven. He says that his time in custody has been hard but that he has stayed drug free, and he focuses on his faith. He has worked and studied and wants to enrol in a university course. He wants to further his rehabilitation and ensure that he does not return to custody after his eventual release. He expresses a desire to contribute to the community.

132. Mr Borja acknowledges that he may never be forgiven for his actions but that he prays for the victims’ and God’s forgiveness. He has read the victim impact statements and acknowledges that he is the sole cause of the victims’ grief as he has taken away someone dear and precious to them.

Character references

135. A number of letters in support of the offender were included in the defence bundle.

Letter of Hajir Ali dated 21 November 2023

136. Ms Ali has been the offender’s girlfriend for about one year. She has known the offender for six years, as their families are friends. She has always viewed the offender to be a nice, kind, caring and respectful person. They intend to be engaged. She was shocked about the offending, which she believes it to be out of character.

137. Ms Ali says that the offender has spoken to her of his regret for his actions. He is scared for his future and prays for forgiveness. He is striving to be a role model for his younger siblings and has empathy for others. Ms Ali also says that the offender has struggled in custody and with his mental health. However, he engaged with courses and work and has created a daily routine of self-reflection, exercise and prayer.

138. The offender has told Ms Ali that he never wants to be around the people he was involved with at the time of the offending. He says that he is on a new path. Ms Ali says that the offender is interested in one day opening his own barber shop and talks a lot about social work. She believes that with continued support and psychological assistance, he will succeed at being the best version of himself.

Letter of Carla Barnes-Rudmann dated 22 November 2023

139. Ms Barnes-Rudmann was a teacher at the offender’s High School and has known the offender for four years. She did not teach him but was his mentor. She was aware of his mental health issues and some of the issues at home. Ms Barnes-Rudmann described the offender as someone with a kind heart, who was honest and considerate. He had been interested in study that would involve working with young people. She has always admired the offender’s emotional intelligence.

140. Ms Barnes-Rudmann contacted Mr Borja upon learning that he was in custody, and they are now in regular phone contact. She is aware of his issues in custody, including with his mental health. He speaks to her about his will to continue bettering himself and tells her that that he does not want anything to do with his previous life. She believes that the offender is taking every opportunity to continue on the right path and making the most of his time in custody.

Letter of Jacob El-Saidy dated 23 November 2023

141. Mr El-Saidy is the offender’s stepbrother. He is employed as a business analyst at Westpac Bank. He has been unable to visit the offender whilst in custody. He says that since his incarceration, the offender has missed many significant family events. His family have been significantly impacted by his incarceration.

142. Mr El-Saidy says that the offender is a strong individual who has always been dedicated to self-improvement and reflection. He believes that rehabilitation can be a powerful tool and that his stepbrother has demonstrated a willingness to make amends.

Letter of Issa Dababnen dated 22 November 2023

143. Mr Dababnen is a barber in Mount Druitt. He has known the offender since he was a baby and is a close friend. He says that he was shocked to learn of the offending, as he has always had a high opinion of the offender. Mr Dababnen says that the offender has developed a passion for the barbering industry and has told him of his aspiration to own his own shop one day.

Letter of Jade Macapinlac dated 23 November 2023

144. Ms Macapinlac is the offender’s cousin and is aware of the offences for which he is being sentenced, and for which he has expressed remorse. She says that she has always known the offender to be loving, humble and sensitive. She says that her and her family experienced shock, disappointment and deep sorrow when they learned what he had done and that they all believe it is out of character. Ms Macapinlac says that her family will continue to support the offender on his journey of atonement and with his future endeavours.

Letter of Katya Izci dated 21 November 2023

145. Ms Izci is the offender’s older stepsister. She writes that as a child the offender was happy and charismatic and that he was a popular student in high school. However, she observed a change in his demeanour when he began dating and became friends with his girlfriend’s older brother.

146. Ms Izci believes that the offending behaviour is out of character and is not a true reflection of her stepbrother. She believes that the offender has a strong desire to make amends and turn his life around. She will support the offender on his journey of rehabilitation.

Letter of Kamal Hamidani dated 27 November 2023

147. Mr Hamidani is a Corrective Services NSW Chaplain who knew the offender whilst he was housed at Mid-North Correctional Centre between February 2022 and September 2023. During this time, Mr Hamidani came to know that Mr Borja was a recent convert to Islam who sought guidance in exploring his new faith. Mr Hamidani says that he found the offender to be interactive in conversation, that he demonstrated a genuine interest in positive discussion and that he brought a polite and steady dynamic to group programs.

Exhibit 3

148. The Justice Health reception screening assessment of 25 December 2021 discloses that the offender reported that he was using cannabis 2-3 times per week, but no other drugs (including benzodiazepines) or alcohol in the 4 weeks prior to incarceration. He disclosed experiencing symptoms of depression and anxiety in the month prior to the assessment and reported that he was prescribed fluoxetine.

Exhibit 4

149. The Granville Police Station Custody Management Record of 23 December 2021 discloses that the offender said that he smoked cannabis on a semi-regular basis, that he had been diagnosed with depression and anxiety and had previously been medicated for those conditions.

Exhibit 5

150. Documents produced by Headspace, National Youth Mental Health Foundation disclose that the offender had interactions with that organisation between 19 February 2019 and 13 June 2019. He was brought to Headspace by his mother. He had engaged with a school counsellor since Year 7, but both the offender and his mother did not believe that the counsellor was meeting his needs. He was experiencing high levels of anxiety. He did not feel that he fit in at school. He reported a history of cannabis use.

Some conclusions

151. The Crown submitted that I would not find on the balance of probabilities that Mr Borja had been sexually abused as a child. He submitted that there was not enough evidence for me to make any finding one way or another, in particular because Mr Borja chose not to give evidence. He submitted that I ought not to make that finding based on his self-report to others and because of objective difficulties with his credibility. He pointed to what he submitted were exaggerations or untruths about his drug intake and the report of domestic violence in the home, and conflicting hearsay histories given to Mr Felice and Dr Calvin. He said further that the timing of the complaint of sexual abuse and violence in the household to the offender’s mother was odd, and that the detailed disclosure to Dr Calvin just before sentence would cause me not to be satisfied on the balance of probabilities that it occurred.

152. In my opinion, there is sufficient evidence to make the finding that the offender was sexually abused on the balance of probabilities, notwithstanding that Mr Borja chose not to give evidence in these proceedings, as was his right.

153. I make that finding for the following reasons. Mr Borja first disclosed the abuse to Mr Felice in September 2022. Mr Felice was engaged for treating purposes rather than for medico-legal purposes. At the time of the disclosure, Mr Felice was providing trauma-based counselling and I accept his evidence that he did not pursue the matter to avoid traumatising Mr Borja. The graphic details that were disclosed later to a psychiatrist, Dr Calvin, about person, place and event, abuse of trust and authority and grooming all have the ring of truth. Further, there is the offender’s well documented psychological issues which commenced at a time not long after the alleged sexual abuse, and which continued and caused Mr Borja to be medicated from a young age.

Objective Seriousness

Manslaughter

154. The Crown relied upon a combination of features to submit that this manslaughter, based on excessive self-defence, was objectively very serious. I observe that the maximum penalty of 25 years imprisonment reflects the seriousness of the offence generally. The Crown submitted that the offender’s conduct was a significant departure from what would have been a reasonable response in the circumstances, taking into account that the offender stabbed the deceased once to the neck intending to inflict grievous bodily harm, and that the knife with which the offender was armed was approximately 30 cm in length.

155. In making this submission, Mr Morris relied upon Newburn v R [2022] NSWCCA 139 (Newburn), where the Court (Leeming JA, Garling and Lonergan JJ) summarised the authorities with respect to sentencing for manslaughter on a finding of excessive self-defence at [39]:

“It is clear from the authorities that:

(1) A conviction of manslaughter based on a finding of excessive self-defence carries with it the implication that the offender perceived that he or she was in a position in which it was necessary that they act in order to defend himself or herself: Smith v R [2015] NSWCCA 193 at [44]; Patel v R [2019] NSWCCA 170 at [14];

(2)   Central to the sentencing exercise is the identification of:

(a)    the circumstances as the offender (rightly or wrongly) perceived them to be; and

(b)   what, precisely, the conduct was that the offender believed was necessary in order to defend himself or herself: Smith at [44]-[45]; Patel at [14];

(3) The offender’s perception of the circumstances is relevant to the determination of what he or she believed it was necessary to do in order to defend himself or herself: s 421(1)(c) Crimes Act 1900; Smith at [45];

(4) An offender’s perception is also integral to the issue of the reasonableness of his or her conduct in responding to those circumstances: s 421(1)(b) Crimes Act; Smith at [45], [56], [58];

(5)    Both questions are to be assessed by reference to the offender’s subjective perception regardless of whether that was objectively reasonable, taking into account any intoxication: Smith at [45]; and

(6) The anterior conduct of the offender, including the reasons for their attendance at the scene of the crime and the reasons for their decision to enter into a confrontation with the deceased, forms no part of the actual offence and is not directly relevant to the assessment of the gravity of the offending: Patel at [14].”

156. Applying the principles set out in Newburn, the Crown submitted that the offender’s departure from reasonable conduct in the circumstances as he perceived them was significant, and that this should militate in favour of a finding that the manslaughter offence was objectively very serious. He pointed to the fact that the deceased was 40 years old, 171 cm tall and weighed 76 kgs, whereas the offender was approximately 3 cm taller (but at 54 kgs, about 20 kgs lighter). Mr Morris said that the deceased was armed with a work tool, being a reciprocating saw (a photograph of which is annexed to the affidavit of Ms Khan) which was not operational, contrasted with the offender being armed with a 30 cm long knife inclusive of the blade. He submitted that the offender had not observed the deceased threaten or attack anyone with the reciprocating saw, including himself. Mr Morris submitted that the Court should conclude that during the confrontation between the offender and the deceased, the deceased neither attacked nor threatened to attack the offender, but rather that that the offender, given that the confrontation took place during the melee where persons were punching and kicking other persons, perceived that he might be assaulted by the deceased. The conduct that the offender perceived was necessary to defend himself was to stab the deceased in the neck, intending to inflict grievous bodily harm. The Crown submitted that this was a significant departure from reasonable conduct.

157. In the Crown’s submission, the offender had other options, the most obvious being to retreat from the fight, given the confrontation occurred in a public park. Alternatively, he submitted that the offender could have defended himself by more limited means including by threatening to attack the deceased.

158. Ms Wasley, who appeared on behalf of the offender, agreed that Newburn should be applied.

159. Ms Wasley observed that the Crown has accepted that the offender’s liability for manslaughter is on the basis of excessive self-defence and that the offender, by his plea, accepts that his response to the perceived threat was not objectively reasonable. Although Ms Wasley accepted that this was a serious manslaughter, she submitted that because the offence was not committed with an intent to kill and involved a single wound, these factors weigh against the Crown’s submission with respect to the objective seriousness of the offending. Ms Wasley also pointed to the Agreed Facts which describe chaos at the scene. Further, she submitted that as the deceased was armed with a saw, it can be inferred that the offender perceived that he might be assaulted by the deceased, who was older and heavier than him.

160. Several matters can be gleaned from the Agreed Facts. I accept that the melee was not instigated by the offender, and that he was not involved when the fight first broke out. At some point during the melee, whilst involved in the fight and armed with the knife, the offender himself suffered minor injuries, which he showed to police. I do not otherwise accept the offender’s version of events which he recounted to police. It was accepted by Ms Wasley, that by his plea, the offender accepts that he did not tell police the entire truth about the events at Whalan Reserve.

161. Ms Wasley conceded that the offender was armed with a knife in contemplation that he may use it, but not planning to commit the offences, which I accept. She submitted that as the offence was not committed with an intention to kill, and involved a single wound, this should militate against the Crown’s submission with respect to objective gravity. She observed that the Agreed Facts disclose that during the melee, Jaiden Smale was armed with an operating taser and that Johnny Refalo was armed with a ratchet strap.

162. Ms Wasley submitted that I can infer that the offender perceived that he might be assaulted by the deceased who was older, heavier and who was armed with a weapon prior to their confrontation and that it was an assault involving the reciprocating saw that he was defending himself against. I accept this submission, which is borne out by the Agreed Facts and the photograph of the reciprocating saw, which even without power was a notable weapon. Ms Wasley further submitted that the departure from what was a reasonable response was not significant in the circumstances. She submitted that the suggestion that retreating or running away at the point of confrontation was not a real option, in circumstances where the offending occurred during a melee which involved much fighting and in which other people were armed.

163. I accept that at the point of confrontation with the deceased during the mayhem of the melee, the offender saw an appreciably older and stockier man armed with a dangerous weapon. He would have felt physically threatened in those circumstances. Things were happening quickly and there was fighting all around him. Believing that he had to defend himself, the offender struck the deceased in the neck with his knife once, intending to cause the deceased grievous bodily harm. He did not intend to kill him. Although the offender believed that he had to strike the deceased to defend himself, he could have parried and attempted to ward off any perceived attack. He could have struck the deceased in the arm or leg. I do not consider that in all of the circumstances of the melee, having seen a short video, that the offender might have just run away. However, the strike to the deceased’s neck was an unreasonable response, as is conceded by the offender.

164. In my opinion, the departure from what was a reasonable response was not insignificant, although not as significant as the Crown submitted, taking into account the circumstances that the offender, on balance, perceived them to be and what he likely believed was necessary to defend himself. Notwithstanding that comment, the offending was objectively serious.

Reckless wounding of Jaiden Smale and Robert Corrigan

165. The seriousness of the offence of reckless wounding is reflected in the maximum penalty of 7 years imprisonment and the standard non-parole period of 3 years. The Crown submitted that the seriousness of the offence of reckless wounding will significantly depend upon the seriousness of the wounding: McCullough v R [2009] NSWCCA 94 (McCullough) at [37]. The injury inflicted is not the only factor in determining the seriousness of an offence, and the surrounding circumstances are relevant: R v Channels (unrep, 30 September 1997 NSWCCA), McCullough at [37]. Further, the number of blows and the circumstances in which they were delivered are relevant to the objective seriousness of the offence.

166. With respect to the reckless wounding of Jaiden Smale, the Crown submitted that this offending is at the upper end of the range of objective seriousness. Mr Morris relied on the following combination of factors in making this submission:-

1. The offender stabbed Jaiden Smale twice, once in the back and once in the chest;

2. The offender knew that by stabbing Jaiden Smale that he would cause him actual bodily harm;

3. The offender was armed, and used a knife of about 30 cm in length;

4. The offender was not acting in self-defence. He had already stabbed Robert Corrigan, not acting in any form of self-defence, and had also stabbed the deceased;

5. The stab wound to chest was aimed at a part of the body where vital organs are located;

6. The offender brought the knife to the park contemplating using it in a violent altercation; and

7. The nature and extent of the injuries to Jaiden Smale and the treatment he required was significant.

167. Mr Morris submitted that the reckless wounding of Mr Corrigan was less serious than the wounding of Jaiden Smale, but was above the middle of the range of objective criminality. The Crown pointed to the following factors:-

1. The offender stabbed Mr Corrigan once to the right arm;

2. The offender knew that by stabbing Mr Corrigan that he would cause him actual bodily harm;

3. The offender was armed with and used a knife approximately 30 cm in length;

4. The offender brought the knife to the park contemplating using it in a violent altercation;

5. The offender was not acting in any form of self-defence; and

6. The nature and extent of the injuries to Robert Corrigan and the treatment he required.

168. With respect to the reckless wounding of Robert Corrigan, Ms Wasley submitted that this offending was below the mid-range, noting that there was a single wound to the arm. Ms Wasley conceded that the reckless wounding of Jaiden Smale was above the mid-range, but she submitted that it was not at the upper end of the range. She submitted that the Court should take into account the circumstances that were unfolding at the time of both woundings, and in the case of Jaiden Smale, that he was armed with a taser. She conceded that the offender was not acting in self-defence at the time of the woundings, but submitted that neither woundings were akin to an unprovoked attack on a unknown random member of the community, for which the objective seriousness would be greater. She said that the woundings took place during a fight which had been instigated by Jaiden Smale, and which the offender had not instigated.

168. I observe that there is no obligation on a court to indicate where on a notional scale of objective seriousness the offending lies.

169. In DH v R [2022] NSWCCA 200, Yehia J said at [58] – [60]:-

“[58] Some degree of confusion remains as to whether a sentencing judge is obliged to indicate “where on the scale of seriousness each offence falls” when dealing with an offence which carries a standard non-parole period. The applicant submitted that the sentencing judge was obliged to utilise the concept of mid- range offending [emphasis added] and assess where on the scale of seriousness the offending for the offences which carried a standard non-parole period lay.

[59] To be clear, there is no such obligation or requirement. In Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 (Muldrock) at [29] the High Court said that the standard non-parole period legislation:

“is not to be understood as suggesting either the need to attribute particular mathematical values to matters regarded as significant to the formulation of a sentence that differs from the standard non-parole period, or the need to classify the objective seriousness of the offending. It does require the judge to identify fully the facts, matters and circumstances which the judge concludes bear upon the judgment that is reached about the appropriate sentence to be imposed”.

[60] The assessment of objective seriousness of an offence is an essential element of the process of instinctive synthesis, a purpose of which is the imposition of a proportionate sentence: Zreika v R [2012] NSWCCA 44 at [46]; R v Dodd (1991) 57 A Crim R 349 at 354; Khoury v R [2011] NSWCCA 118. A sentencing judge is required to identify all the factors relevant to the objective seriousness of an offence but is not required to nominate a point on the scale of seriousness by reference to a notional mid-point. The use of descriptors such as “low end of the middle of the range”, “upper end of the middle of the range” or, “just below or above the midpoint” add nothing of value to the process of instinctive synthesis and the determination of a proportionate sentence.” (endnote omitted) [emphasis in original]

171. In deference to counsels’ submissions which focussed on the factors relevant to objective seriousness, but made specific submissions about a notional range, I will make a finding on a notional scale with respect to each reckless wounding.

172. Both woundings are objectively serious, the wounding of Mr Smale more so than the wounding of Mr Corrigan. The offender attended the melee contemplating the possibility that he might use the knife during the altercation. He was not acting in self-defence when he wounded either Mr Smale or Mr Corrigan. I accept the Crown’s submission and find beyond reasonable doubt that at the time that the offender stabbed both Mr Smale and Mr Corrigan he knew that he would cause each of them actual bodily harm. Each stabbing took place in the context of a violent melee when events occurred very quickly.

173. With respect to the wounding of Mr Smale, there were two blows, including one to the chest, which was a particularly vulnerable part of his body. He suffered significant injuries. In my opinion, the offending falls somewhere above the mid-range but not at the top range of objective seriousness.

174. With respect to the wounding of Mr Corrigan, there was one blow to his arm. His injuries were not nearly as severe as Mr Smale’s, but they were not insignificant. In my opinion, that offending falls somewhere just below the mid-range of objective seriousness.

Aggravating factors

175. The Crown submitted, and Ms Wasley conceded, that each of the counts is aggravated by the use of a weapon (s 21A(2)(c) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Act).

Mitigating factors

176. The Crown properly conceded that the offender’s lack of prior convictions and his plea of guilty are mitigating factors (ss 21A(3)(e) and (k) of the Sentencing Act).

177. In my opinion, these aggravating and mitigating factors are properly identified and I take them into account.

Subjective Circumstances

Plea of Guilty

178. The offender pleaded guilty to the present indictment on the first day of his trial. The Crown submitted, and Ms Wasley agreed, that a 10% discount should be applied.

Prior Criminal History and Prior Good Character

179. The offender has no prior criminal history. I accept, as does the Crown, that the offender is entitled to some leniency because of his lack of prior criminal history. The Crown took issue with the offender having prior good character because of his use of cannabis in the past. I reject that submission. The offender, on the evidence, was an occasional recreational drug user during his minority. I do not consider that it qualifies his good character in the sense suggested by the Crown. I find that the offender was otherwise a person of good character which is supported by the many references tendered by the offender.

Remorse

180. The Crown submitted that I would be very cautious before accepting that the offender had been remorseful in the way referred to in s 21A(3)(i) unless he gave evidence and was subject to cross-examination. Mr Morris relied on R v Qutami (2001) 127 A Crim R 369; [2001] NSWCCA 353 and Imbornone v R [2017] NSWCCA 144, amongst other cases.

181. I leave to one side whether or not I should exercise such caution, because in my view, I cannot find on the evidence – even on the untested reports to Dr Calvin, Mr Felice, his cousin Jade Macapinlac and in his letter to the court - that the offender has satisfied s 21A(3)(i) by providing evidence that he has accepted responsibility for his actions and that he has acknowledged the injury, loss and damage caused by his actions.

182. However, notwithstanding that the offender declined to give evidence in these sentence proceedings, the offender’s letter to the court and his comments about remorse to Mr Felice, Dr Calvin and Jade Macapinlac in my opinion are of some weight, and demonstrate that he has developing insight and remorse for his actions. In so doing he is demonstrating an evolving accountability. I observe that he is also taking positive steps in custody to further his education so that he may one day make a valuable contribution to the community. In this sense, as might be expected from a young person, there is hope that the offender will grow to fully acknowledge the consequences of his actions. I take this into account as a matter to synthesise on sentence.

Time in custody

183. The offender has been in custody referrable to this offending since 23 December 2021. The parties agree that the sentence should be backdated accordingly.

Youth

184. Ms Wasley submitted that Mr Borja’s youth was an important factor on sentence. The Crown accepted that the offender’s youth was a matter to be taken into account on sentence, but he submitted that general deterrence and denunciation should not cede to the offender’s youth given the seriousness of the offending.

185. The topic of youth was revisited by the Court of Criminal Appeal in Byrne & Cahill v R (2021) 97 MVR 85; [2021] NSWCCA 185. There the Court reaffirmed the general principles relating to the role of youth in determining an appropriate penalty for serious offending. The following principles emerge as relevant to sentencing (and see BP v R [2010] NSWCCA 303 (BP)):

1. The age of the offender. Here the offender was 18 years and 3 months at the date of the offence;

2. The actual degree of maturity – or immaturity. Here the evidence is that the offender was immature;

3. The fact that, generally speaking, “…emotional maturity and impulse control develop progressively during adolescence and early adulthood and may not be fully developed until the early to mid-twenties…” (BP per Hodgson JA at [19]); and

4. Any specific insight into the mental or psychological condition of the offender which might have affected his decision-making in this context. I deal below with the offender’s mental and psychological condition.

186. In Clarke-Jeffries v R [2019] NSWCCA 56 Bellew J (Simpson AJA and Campbell J agreeing) summarised the principles that govern the sentencing of youthful offenders, citing KT v R (2008) 182 A Crim R 571; [2008] NSWCCA 51:

“[49] The principles which govern the sentencing of youthful offenders are well known. They include the following:

1. considerations of general deterrence and principles of retribution are, in most cases, of less significance than they would be when sentencing an adult for the same offence;

2. in recognition of the capacity for young people to reform and mould their character to conform to society’s norms, considerable emphasis is placed on the need to provide an opportunity for rehabilitation;

3. the law recognises the potential for the cognitive, emotional and/or psychological immaturity of a young person to contribute to their breach of the law;

4. allowance will be made for an offender’s youth, and not just his or her biological age; and

5. where the immaturity of an offender is a significant factor in the commission of an offence, the criminality involved will be less than if the same offence was committed by an adult.”

187. In Miller v R [2015] NSWCCA 86, Schmidt J reiterated the well-recognised principle that the capacity for young people to reform and mould their character to conform to society’s norms is usually greater than that of an older offender. In the result, considerable emphasis is usually placed on the need to provide young offenders with the opportunity for rehabilitation. In that case, the appellant was 20 years old. Her Honour went on to say that it is also well settled that the law recognises the potential for the cognitive, emotional and/or psychological immaturity of a young person to contribute to their breach of the law. Notwithstanding that comment, her Honour said that the greater the objective gravity of an offence, the less likely it is that retribution and general deterrence will cede to the interests of rehabilitation.

188. I add the following, which is relevant to the sentencing of Mr Borja. In Yildiz v R [2020] NSWCCA 69, their Honours Simpson AJA and N Adams J said at [2]:

The applicant was 18 years and 5 months at the time of the offence and had no prior convictions. The principles with respect to sentencing young offenders have been stated many times by this court: R v T (2008) 182 A Crim R 379; [2008] NSWCCA 51; BP v R (2010) NSWCCA 159. Recently, in Howard v R [2019] NSWCCA 109 Fullerton J (with whom McFarlan JA agreed, Bellew J in dissent) observed at [13]:

“It is not necessary to restate the principles articulated in a succession of authorities governing the sentencing of youthful offenders referred to by Bellew J, save to emphasise that the law recognises the potential for the cognitive, emotional and/or physiological immaturity of a young person to contribute to their breach of the law. It is also well recognised that the emotional maturity and impulse control develop progressively during adolescence and early adulthood and may not be developed until a person’s mid-20’s.”

…

…chronological age is a pointer to maturity, but not decisive. On average, emotional maturity and mature executive functioning does not occur until the early 20s. In some cases, it occurs at a later chronological age than for other persons, but there is a significant difference between the brain maturity of an 18-year-old and a 21-year-old or, indeed, a 23-year-old (at which age most persons achieve full maturity).”

189. In this case, the 18 and 3 month old offender’s subjective case points to emotional immaturity. His previous good character, his very participation in the melee, and the facile nature of his text messages and answers to police questioning re-enforce my view. Amongst the likely causes are his compromised childhood, the mental health issues he has suffered (to which see below) and his youth, which in my view affected his decision-making on the day of the offending. I accept for the purpose of this sentence that the offender’s immaturity contributed to his breach of the law and that greater emphasis must be put on an opportunity for him to rehabilitate than would be the case with an older, more mature offender.

Mental Health/Deprived Background

190. In my opinion, the offender’s mental health issues and background of disadvantage are interrelated, and so I will deal with them together. I note that I cannot make any positive finding about the offender’s illicit drug use, other than he was a cannabis user and occasional recreational drug user during his teenage years. There was conflicting evidence about the pattern of his use of substances, including alcohol and benzodiazepines which I am unable to resolve one way or another, which I believe aligns with Dr Calvin’s view during his cross-examination. I do not find that he has an established Substance Use Disorder.

191. The Crown did not accept either that the offender had a compromised background or that it caused him to have mental health issues. I have already indicated that in my opinion, the offender has established that he was sexually assaulted when he was a boy at about age 10. That by itself might be enough to establish a background of disadvantage, but in this matter there is additional evidence.

192. It is not in dispute on the evidence that the offender’s mother left the family home when he was about one year of age and left him in the care of his father and his maternal grandmother. From the time she left the family home, the offender’s mother saw him only after school on two weekdays and every second weekend. He did not, therefore, have the presence of a maternal figure in his life from a very early age. It is not in dispute that the offender’s father travelled abroad with some frequency, leaving him in the care of his maternal grandmother. He was thus often left without a parent. It is not in dispute that the offender shared a bed with his father until he was in about Year 7 (at 12 or 13 years of age), which the offender’s mother described as “not normal”. The offender’s mother only found out about this fact when the offender was about 12 or 13 years old, which indicates that she had little idea of what was in fact going on in the home in which the offender resided and supports a finding that she was not close to the offender during most of his life, and certainly up to his early teenage years. That the offender’s father and maternal grandmother did not think that this sleeping arrangement was odd, itself demonstrates that the offender’s household was somewhat dysfunctional. To Ms Pepper’s credit, upon learning that the offender was sharing a bed with his father, she bought him his own bed. I observe that she did not take over the care for her son, and the same access arrangements continued.

193. Although the Crown did not accept that there was domestic violence in the home, in my opinion it is easy to find, on the balance of probabilities, that there were many heated and significant arguments and conflict between the offender’s father and his grandmother over the years, including the grandmother accusing the father of neglect. I cannot find on the evidence that there was physical violence in the offender’s home. However, I accept that the significant arguing and conflict amounted to domestic violence witnessed by the offender. The Crown submitted that I should have doubt about making this finding based as it is on the offender’s self-report. He also submitted that it was contrary to the observations of the offender’s mother, who expressed surprise when she first learned of it when she read Dr Calvin’s report. That Ms Pepper was surprised, in my view, does not detract from the cogency of the offender’s self-report. She was also surprised that the offender was sleeping with his father in the same bed. Clearly, the offender’s mother was unaware of many things that transpired in the home in which her son was living.

194. Whilst the offender himself was apparently not the object of the conflict, I do not doubt that children exposed to family conflict suffer lasting effects of witnessing it.

195. As Fullerton J said in Perkins v R [2018] NSWCCA 62 at [99]:

“The insidious effects of exposure to family and domestic violence on children in their formative years, and the potential for that exposure to play out in unforeseen ways as a young child develops from adolescence into adulthood, are well researched and documented.”

196. To all of this must be added the sexual abuse suffered by the offender at a time when he was vulnerable, because of the dysfunction in his household. All of this adds up to a significantly compromised background.

197. As to childhood sexual abuse, the courts have long recognised that psychological and emotional damage to children from sexual abuse can be assumed: R v Tuala [2015] NSWCCA 8 at [56]; R v Gavel (2014) 239 A Crim R 469; [2014] NSWCCA 56; at [110]; R v MJB [2014] NSWCCA 195 at [49]; R v Erazo [2016] NSWCCA 139 at [44]). Most pertinently in this context, in Nasrallah v R (2021) 105 NSWLR 451; [2021] NSWCCA 207 at [99] to [102] Hamill J said:-

“[99] The impact of violence and sexual offences on victims is well understood and documented. In R v MJB, Adamson J observed “that the damage done to children who are victims of sexual assault by adults was well known and could be assumed”. The pervasive effects of child sexual abuse were again acknowledged in R v Gavel:

“[C]hild sex offences have profound and deleterious effects upon victims for many years, if not the whole of their lives: R v CMB [2014] NSWCCA 5 at [92]. Sexual abuse of children will inevitably give rise to psychological damage: SW v R [2013] NSWCCA 255 at [52]. In R v G [2008] UKHL 37; [2009] 1 AC 92, Baroness Hale of Richmond (at [49]) referred to the ‘long term and serious harm, both physical and psychological, which premature sexual activity can do’. The absolute prohibition on sexual activity with a child is intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity: Clarkson v R [2011] VSCA 157; 32 VR 361 at 364 [3], 368–372 [26]–[39].”

[100] In Stanton v R, Beech-Jones J (Cavanagh and Harrison JJ agreeing) noted:

“The court is entitled to have regard to the well-known fact that the victims of child sexual assault very frequently suffer long-term, and serious, psychological consequences. Moreover, those consequences are not limited to the obviously, at face value, more serious offences.”

[101] The Royal Commission into Institutional Responses to Child Sexual Abuse (“RCIRCSA”) also contributed to the understanding of the impacts of child sexual abuse with the release of its final report and recommendations in 2017.The Commission’s conclusions, based on a body of academic research and the experiences of witnesses called in the course of the lengthy hearings and private sessions, analysed the adverse and multifaceted effects of child sexual abuse on “survivors”. The impacts on participants in the RCIRCSA were summarised as follows:

“After mental health, relationship difficulties were the impacts most frequently raised by survivors in private sessions, including difficulties with trust and intimacy, lack of confidence with parenting, and relationship problems. Education and economic impacts were also frequently raised.

For many people, these diverse impacts are interconnected in complex ways, making it difficult to isolate the specific impacts of child sexual abuse. These interconnected impacts can be experienced at the same time or consecutively, as a cascade of effects over a lifetime. For instance, we heard from many survivors that they developed addictions after using alcohol or other drugs to manage the psychological trauma of abuse, which in turn affected their physical and mental health, sometimes leading to criminal behaviour and relationship difficulties.”

[102] This Court has echoed RCIRCSA conclusions that “what was previously regarded as low level sexual abuse can have catastrophic effects on children” in several decisions: BT v R [2019] NSWCCA 147 at [11] and see, for example, O’Sullivan v R [2019] NSWCCA 261 at [14], R v Cattell (2019) 280 A Crim R 502; [2019] NSWCCA 297 at [111].”

198. I do not doubt that sexual abuse is a substantial risk factor for the development of subsequent mental health problems, the type of which are present in this case and which were discussed at length by Dr Calvin, and for which there is corroborative evidence in the affidavit of Ms Pepper, the Headspace documents and the custody records of the police and Justice Health. Whilst I accept that there is no evidence as to the precise frequency and dose of any medication that was prescribed to the offender over time, there can be little doubt that he attended counselling and was prescribed psychotropic medication in the years following the sexual abuse. Thus it follows that the offender developed mental health problems, for which he was medicated, that are temporally connected with the abuse he suffered at a young age. I accept Dr Calvin’s diagnosis of complex PTSD.

199. In my opinion, the offender’s significant and largely untreated mental health issues are so intertwined with the elements of disadvantage set out above, that his mental health cannot be sensibly disentangled from the deprivation he has suffered throughout his life, from the time that his mother left the family home.

200. It is conceded that the offender’s mental health issues did not cause his offending. However, in my view, the language of the common law and its interaction with concepts relating to mental health is unhelpful in Mr Borja’s case. In Luque v R [2017] NSWCCA 226, Hamill J said at [114]:-

“…a sentencing Judge dealing with evidence of an offender’s mental condition or intellectual impairment ought not to approach the task in an unduly technical or restrictive way. The issue to be determined is not the same as deciding the issue of causation in a civil case. The issue is whether the fact of the disorder mitigates the punishment that ought to be visited upon the offender. In one respect, this involves an assessment of whether the moral culpability of an offender is reduced because their mental condition contributed directly or indirectly to the commission of the offence. In other respects, the impact of an offender’s mental condition is not conditional upon any link (causative or otherwise) between the condition and the offending. For example, the condition may mean that the offender is not an appropriate vehicle for a sentence containing a large component of general (or specific) deterrence. Further, incarceration may be more onerous as a result of an offender’s difficulties. Those matters do not require the judge to find any link or connection between the condition and the commission of the crimes.”

201. In this passage, his Honour was picking up some of the language and concepts set out in the well-known passage of DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; (2010) 243 FLR 28; [2010] NSWCCA 194 at [177], where McClellan CJ at CL summarised the principles to be applied in sentencing an offender who was suffering from a mental condition at the time of committing the offence, to the following effect (leaving to one side an offender who was more dangerous because of a mental condition):

1. It might reduce his moral culpability (and consequently the need to denounce the crime);

2. It might render him a less appropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed;

3. It might mean that a custodial sentence weigh more heavily him; and

4. It might reduce the significance of specific deterrence.

202. In this particular case, as will be seen, in my opinion the offender’s mental illness in combination with other factors reduces his moral culpability.

203. In my opinion there is a clear association, or a bright line between, or a co-relationship with or a nexus between the offender’s youth, his mental health issues, the sexual abuse he suffered as a child, and his childhood exposure to domestic and family conflict that whilst not amounting to causation, are indirect contributions.

204. In my opinion, in all of the offender’s circumstances including his youth, and because of the combination of the disadvantages he has suffered, he was unable to make choices in the same way as an average person at the time of the offending.

205. I must determine whether the disadvantage and adversity suffered by Mr Borja reduces his moral culpability. In my opinion, there is more than ample indicia, which I do not arrange in any hierarchy. In this case there is abundant evidence to establish the offender’s background of significant deprivation, and I give it full weight in this sentencing exercise: Bugmy v the Queen (2013) 249 CLR 571 at [44]: see also Hoskins v R [2021] NSWCCA 169 per Brereton JA at [57].

206. I note the oft cited quote of Simpson J, as her Honour then was, in R v Millwood [2012] NSWCCA 2 at [69]:

“I am not prepared to accept that an offender who has the start in life that the respondent had bears equal moral responsibility with one who has had what might be termed a "normal" or "advantaged" upbringing. Common sense and common humanity dictate that such a person will have fewer emotional resources to guide his (or her) behavioural decisions.”

207. This is such a case. Taking into account the limited emotional resources of the offender and the trauma Mr Borja has experienced, it is perhaps unsurprising that the tragic events the subject of these proceedings have manifest themselves. In my opinion, Mr Borja’s moral culpability is reduced. It is important that the victims understand that this finding does not extinguish Mr Borja’s moral culpability for the unlawful homicide of Mr Matthew Smale and the reckless woundings of Jaiden Smale and Robert Corrigan. It does not, and he bears responsibility for the commission of those offences. My finding is that his moral culpability is diminished, which I will take into account as a matter to synthesise on sentence.

Prospects of rehabilitation and risk of reoffending

208. The Crown submitted that the offender’s prospects of rehabilitation are guarded due to a combination of factors because of a lack of remorse, his behaviour in custody and the opinion of Dr Calvin that the offender presents with numerous static risk factors for future violence.

209. As I have said, the evidence adduced in the proceedings, including from Dr Calvin and Mr Felice, demonstrates that the offender has developing insight into his offending. That he is engaging in treatment for his mental health, funded by his mother, is a very positive development.

210. Ms Wasley submitted that aside from the offences for which Mr Borja is to be sentenced, he is otherwise a person of good character and has no prior criminal history which bodes well for his eventual rehabilitation. She submitted that his institutional charges must be understood in the context of his vulnerability in custody. Further, she relied upon the offender’s involvement in educational and religious activities in custody as evidence of developing insight which would reduce his risk of re-offending and which she submitted demonstrated good prospects of rehabilitation. She observed that Mr Borja handed himself into police, that he pleaded guilty, that he has been responding well to therapy and that he continues to have good family support.

211. I cannot find that the offender has good prospects of rehabilitation, taking into account the opinion of Dr Calvin that the offender currently presents with numerous static risk factors for future violence. This remains a concern. I agree with the Crown that at present, Mr Borja’s prospects of rehabilitation are guarded, in the sense that Mr Borja still has much work to do. However, I expect that if he continues therapy and remains involved in pro-social activities, his prospects of rehabilitation will significantly improve.

General and specific deterrence

212. The Crown submitted that general and specific deterrence have a role to play in this sentencing exercise. Ms Wasley submitted that general deterrence ought to be moderated because of the offender’s mental illness. In my opinion, notwithstanding my finding that the offender was suffering from and continues to suffer from a mental illness, general deterrence has some relevance in this sentencing exercise. As one of Mr Borja’s crimes involved the unlawful taking of a life, and the others were reckless woundings armed with a knife, the sentence imposed must reflect the community’s denunciation of his actions. General deterrence is therefore of some significance in this case. Taking into account the facts of the case, and that the offender attended the melee armed with a knife, general deterrence has a role to play so as to deter others who might contemplate acting in a similar fashion.

213. As to specific deterrence, again notwithstanding my finding that the offender was suffering from and continues to suffer from a mental illness, taking into account Dr Calvin’s opinion that the offender currently presents with numerous static risk factors for future violence, there is some role for it to play in the sentencing exercise.

214. I take these matters into account to synthesise on sentence.

Hardship in custody

215. Ms Wasley submitted that Mr Borja’s experience in custody has been and will be more onerous because of his complex PTSD, his youth, his lack of life experience and social awareness, his small stature and his mental health, all of which contribute to a particular vulnerability which will make the experience more onerous for him.

216. The Crown submitted that the offender has not established on the balance of probabilities that his time in custody will be more onerous.

217. I accept the evidence of Dr Calvin, a staff specialist at Justice Health, that the matters identified by Ms Wasley will make the custodial experience somewhat more onerous for him, although I observe that it is difficult to determine the effect with any precision.

Covid-19

218. The Court accepts that the existence of the pandemic is relevant to the assessment of an appropriate sentence, particularly with respect to the time the offender has already spent in custody. So much is conceded by the Crown.

219. Over time, since the beginning of the pandemic, Corrective Services NSW has imposed a number of protective measures to prevent and isolate any outbreak of Covid-19 amongst the prison population. These conditions have included suspending visits to inmates, restricting travel between and within correctional facilities, and restricting access to social activities. There is evidence in this case that these conditions affected this particular offender, which is not disputed by the Crown and who accepts that the offender’s experience in custody to date will somewhat ameliorate his sentence. Dr Calvin gave (unchallenged) evidence, as a Justice Health practitioner, that Covid-19 continues to affect prisoners in custody in New South Wales. Measures imposed by Corrective Services from time to time, although designed to protect inmates against contracting the virus, will inevitably negatively impact the quality of life enjoyed by the offender in custody. I accept that there is likely to be some indeterminate impact in the future. I take the pandemic into account as a matter to synthesise on sentence.

Totality

220. A court sentencing an offender for more than one offence must determine the appropriate sentence for each individual offence and then consider questions of accumulation or concurrence bearing in mind the principle of totality. The effect of the totality principle is to require me, having assessed all individual sentences, to stand back and consider whether the overall sentence to be imposed is just and appropriate and reflects the overall criminality of the offending.

221. This in turn requires consideration to be given to whether the sentences to be imposed for each offence should be concurrent or cumulative. The ultimate sentence must be appropriate to the totality of the offender’s offending and his personal circumstances. In this particular case, whilst the offending all took place as part of the same event, in my view there must be some modest accumulation to account for the different episodes affecting different victims.

222. I have also considered the principle of proportionality.

223. I have also considered what were said to be comparable cases and sentencing statistics, which were of limited value, given the unique facts of this case.

Special Circumstances

224. Given the terms of s 54B(3) of the Sentencing Act, I indicate that my reasons for deviating from the standard non-parole period are the special circumstances that I find, that is that this is the offender’s first time in custody, together with his youth, his prospects of rehabilitation, his compromised upbringing including his mental health issues and the experience of childhood sexual abuse (which I accept occurred on the balance of probabilities). The Crown submitted that I should not find special circumstances, as there would be ample time for the offender to be supervised on parole. I disagree. The offender will require extensive supervision due to the chronicity of his long-standing mental health issues which have yet to be properly addressed. This is particularly so because of the unfortunate start in life he has had, and his need to address the issues arising from those events. I have deviated to a ratio of 60.5% because of special circumstances. To the extent that I have referred to these factors when arriving at the head sentence, I do not double count them. Factors may be (and in this case are) relevant to both the total sentence and the length of the non-parole period. In Bugmy v The Queen (1990) 169 CLR 525; [1990] HCA 18 at 531, Mason CJ and McHugh J said:-

“Once this is accepted, it follows that the considerations which the sentencing judge must take into account when fixing a minimum term will be the same as those applicable to the setting of the head sentence. Obviously, the weight to be attached to these factors and the way in which they are relevant will differ due to the different purposes behind each function.”

225. I find special circumstances for the reasons stated.

Threshold

226. Having considered all the possible alternatives, I am satisfied that the s 5 threshold of the Sentencing Act has been crossed. Due to the seriousness of the offending, I find that no penalty other than imprisonment is appropriate. No submissions were put otherwise.

Sentence

227. I have taken into account the various purposes of sentencing under s 3A of the Sentencing Act. They include ensuring an offender is punished for his or her conduct, deterring crime, protecting the community, promoting an offender’s rehabilitation, making an offender accountable for his or her actions, denouncing an offender’s conduct and recognising the harm done to victims of an offence in the community. The facts and circumstances of the present offending and this offender highlight how the various purposes of sentencing pull in competing directions.

228. As the High Court said of s 3A in Muldrock v The Queen (2011) 244 CLR 120 at [20]:

“The purposes there stated (in s3A) are the familiar, overlapping and, at times, conflicting, purposes of criminal punishment under the common law (Veen v The Queen (No 2) at [476–477]). There is no attempt to rank them in order of priority and nothing in the Sentencing Act to indicate that the court is to depart from the principles explained in Veen v The Queen (No 2) [at 476] in applying them.”

229. The instinctive process of sentencing requires consideration of the relevant facts and circumstances as they are known to the Court, including the facts surrounding the commission of each offence, matters affecting relative seriousness, the offender’s subjective circumstances and other aspects which bear upon the question of sentence, including the guideposts of the maximum penalties and the standard non-parole periods for two of the offences and the factors referred to in s 21A of the Sentencing Act. The sentencing Court is required to identify the factors relevant to the sentencing discretion and then to make a value judgment as to the appropriate sentence in all the circumstances: Markarian v The Queen (2005) 228 CLR 357; (2005) 215 ALR 213; [2005] HCA 25.

230. I intend to proceed to sentence the offender by way of an aggregate sentence pursuant to s 53A of the Sentencing Act. I have been mindful to ensure that the aggregation of the sentences reflects an appropriate measure of the total criminality involved. Taking all matters into account, as I am satisfied that no alternative other than a sentence of imprisonment is appropriate, the next step is to determine the aggregate sentence in the quantitative sense. Having considered all of the matters I have referred to in this sentence judgment, I impose an aggregate sentence of imprisonment of 9 years and 6 months with a non-parole period of 5 years and 9 months.

231. As required by s 53A(2)(b) of the Sentencing Act, the indicative sentences I would have imposed are as follows:

1. For the offence of manslaughter contrary to s 18(1)(b) of the Crimes Act, I would have imposed a sentence of 7 years and 2 months after a discount of 10% for the plea of guilty.

2. For the offence of reckless wounding contrary to s 35(4) of the Crimes Act (Jaiden Smale), I would have imposed a sentence of 4 years after a 10% discount for the plea of guilty with a non-parole period of 2 years and 6 months.

3. For the offence of reckless wounding contrary to s 35(4) of the Crimes Act (Robert Corrigan), I would have imposed a sentence of 3 years after a 10% discount for the plea of guilty with a non-parole period of 1 year and 10 months.

Orders

232. Mr Borja, I convict you of the offence of manslaughter contrary to s 18(1)(b) and two offences of reckless wounding contrary to s 35(4) of the Crimes Act.

233. I impose an aggregate sentence of imprisonment of 9 years and 6 months with a non-parole period of 5 years and 9 months.

234. Your sentence has been backdated to commence from 23 December 2021. The head sentence will expire on 22 June 2031. You will be eligible for release to parole on 22 September 2027.

235. The sentences I would have imposed for each offence if separate sentences had been imposed instead of an aggregate sentence are as follows:-

1. For the offence of manslaughter contrary to s 18(1)(b) of the Crimes Act, I would have imposed a sentence of 7 years and 2 months after a discount of 10% for the plea of guilty.

2. For the offence of reckless wounding contrary to s 35(4) of the Crimes Act (Jaiden Smale), I would have imposed a sentence of 4 years after a 10% discount for the plea of guilty with a non-parole period of 2 years and 6 months.

3. For the offence of reckless wounding contrary to s 35(4) of the Crimes Act (Robert Corrigan), I would have imposed a sentence of 3 years after a 10% discount for the plea of guilty with a non-parole period of 1 year and 10 months

236. Pursuant to s 25C of the Crimes (High Risk Offenders Act) 2006 (NSW), you are advised of the existence of that Act and of its application to the offence of manslaughter for which you have been convicted. Your legal representatives are directed to advise you of the implications of those matters to you.

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