R v Dowden-Carlisle
[2023] ACTSC 169
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Dowden-Carlisle |
Citation: | [2023] ACTSC 169 |
Hearing Date: | 20 June 2023 |
DecisionDate: | 7 July 2023 |
Before: | Norrish AJ |
Decision: | See [114] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment & Punishment – Sentence – murder – use of knife in a public place – young offender – prior criminal history – breaches of conditional liberty – childhood ADHD – drug and alcohol dependence – contemporaneous sentencing practices – contrition |
Legislation Cited: | Crimes Act 1900 (ACT) s 12 Crimes (Sentencing) Act 2005 (ACT) ss 7, 10, 33, 35; Part 8A |
Cases Cited: | Barbaro v The Queen [2012] VSCA 288; 226 A Crim R 354 Beniamini v Craig [2017] ACTSC 30 Bugmy v The Queen [2013] HCA 37; 249 CLR 571 Cooke (a pseudonym) v The Queen [2022] ACTCA 44; 18 ACTLR 204 DPPv Ledlin [2022] VSC 826 Forster-Jones v The Queen [2020] ACTCA 31 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 R v Cicekdag [2004] NSWCCA 357; 150 A Crim R 299 R v Way [2004] NSWCCA 131; 60 NSWLR 168 Veen v The Queen(No 2) (1988) 164 CLR 465 |
Parties: | Director of Public Prosecutions ( Crown) Kenan Dowden-Carlisle ( Offender) |
Representation: | Counsel A Williamson SC ( Crown) K Weston-Scheuber ( Offender) |
| Solicitors ACT Director of Public Prosecutions Legal Aid ACT ( Offender) | |
File Number: | SCC 163 of 2022 |
NORRISH AJ:
Introduction
The offender appears today for sentence in relation to an offence of murder committed on 4 December 2021 to which he has pleaded guilty. This an offence contrary to s 12 of the Crimes Act 1900 (ACT) which carries a maximum penalty of “life imprisonment”.
The offender, who was born on 18 October 2002, was 19 years and almost 2 months of age at the time of the offence. His victim was 29 years of age. The victim is a Koori and his name will not be disclosed. Neither will the names of his family or the family of the offender.
The offender pleaded guilty on 28 February 2023 after a Criminal Case Conference held on 7 and 10 February 2023, but before pre-trial applications by the Crown would be heard and determined by the Court. The issue of the appropriate discount for the plea of guilty available pursuant to s 35 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), will be discussed later. There are no other offences to be taken into account. It is agreed between the parties that the plea of guilty was entered on the basis that the act of the offender causing the death of the deceased was a voluntary act done with reckless indifference to the probability of the act causing death (s 12(1)(b) of the Crimes Act).
The facts
The “Statement of Facts” sets out an agreed statement of relevant facts to the offending, although other “facts” emerged from material provided by the parties. No dispute has been raised on behalf the offender as to the matters set out in that “Statement”. The facts in that document however need to be understood in the context of some of the personal circumstances of the offender, particularly the events in the day or two before the fatal stabbing.
In the 48 hours before the fatal stabbing, on Thursday, 2 December 2021, the offender was drinking in a motel room he had leased at the Leagues Motel in Queanbeyan, New South Wales (NSW). He was with two men, and they drank alcohol and smoked cannabis. At one point the offender called a female friend and told her he was smoking cannabis. She described (I presume in a statement to police) that the offender was sounding “weird” on the phone and said that he was forgetting what she had said to him “two minutes earlier”. That evening, the offender texted one of his two adoptive mothers to say that he was not doing very well and asked to meet her the following day.
Early the next day, on Friday, 3 December 2021, the offender became involved in a verbal argument with a young male friend which turned physical. At approximately 10:00am the same morning, the offender had breakfast with his mother. She described him as seeming “stressed”. At about 11:00am, the offender met with his female friend he had rung the evening before. She described him at that time as being tired and in a “bad mood”. The offender said that he had been kept awake all night by his friend.
She and the offender later travelled to the Kingston area in the ACT in the vicinity of Lake Burley Griffin and walked around that area and talked. She described the offender as appearing to be “stressed and angry and very tired”. From there, they then travelled to Civic and then she drove the offender to Richardson to see a friend for about 15 minutes. She then dropped the offender at Manuka and ordered an Uber to take the offender to Walsh’s Hotel in Queanbeyan.
The offender attended Walsh’s Hotel in Queanbeyan to celebrate a friend’s 18th birthday and there he drank approximately eight schooners of beer and consumed at least three Xanax tablets. His friend observed that the offender had been “on edge all day” and that “little things were ticking him off”.
The offender, in the company of some friends, then left Walsh’s Hotel and briefly attended the Leagues Motel so that the offender could drop off his ‘satchel bag’ because he did not want to carry it around Civic. The offender left the satchel bag in his motel room. The offender was heavily intoxicated. He was slurring his words and had trouble maintaining his balance. At around 11:00pm, the offender had a telephone conversation with the female friend who had driven him around earlier during which he indicated that he did not want to spend time with her later in the evening and told her he was in a bad mood.
From there, the offender and others caught an Uber into Civic arriving at approximately 11:38pm. The offender then attended a number of nightclubs. The offender continued to consume alcohol and Xanax in the city. A friend described him as having a “mindset that everyone wanted to fight him, and that he just needed to protect himself from them”.
The offender made his way to Petrie Plaza in the vicinity of the ACT Labor Club and associated with a number of people on seats in the vicinity of the “Carousel” in that area. He was intoxicated. Throughout the night the offender repeatedly asked those around him if they had seen his satchel bag. CCTV footage from Petrie Plaza shows the offender, at various points on the morning of 4 December 2021, stumbling around, falling to the ground, and at one point sleeping on a table.
On Friday, 3 December 2021, the deceased and his partner arrived in the city at around 5:00pm. They travelled in by bus from Kambah after first consuming a few beers. Once they arrived in Civic, they sat on the seats in Petrie Plaza in front of the ACT Labor Club. They drank alcohol, listened to music, and talked to people.
At about 7:55pm, police were called to a disturbance in Petrie Plaza. Police were told by a witness that the deceased had been involved in a fight with another male. Police observed the deceased to be heavily intoxicated. He was slurring his words, unsteady on his feet, and would not follow police directions. Police detained the deceased under the Intoxicated People (Care and Protection) Act 1994 (ACT) and lodged him in the City Watch House. Shortly afterwards, the deceased’s partner was also detained for being intoxicated and for being drunk and disorderly, and she was also lodged in the City Watch House. At approximately 5:50am on Saturday 4 December, the deceased was released from the Watch House and returned to the seats in Petrie Plaza earlier mentioned. His partner was released at approximately 7:55am.
At about 8:30am, the offender and the deceased were congregating in the area around the seats in Petrie Plaza when the offender became agitated and alleged that the deceased had stolen his satchel bag. The offender and the deceased ‘shaped up’ to one another before engaging in a physical altercation during which blows were exchanged each way. Subsequently, the offender and the deceased went their separate ways.
A short time later, the offender and the deceased began to argue again, including through a third party. The offender continued to accuse the deceased of stealing his satchel bag.
A friend of the offender then suggested that the offender and the deceased have a fist fight in Bible Lane, next to a “pub” nearby, to resolve their dispute. The offender and the deceased each agreed.
At about 9:40am, the offender walked into Bible Lane. Shortly afterwards, the deceased took off his shirt and walked to Bible Lane. Immediately upon entering the laneway, the deceased struck a fighting pose and swung a punch which struck the offender to the head. The offender then produced a knife and stabbed the deceased to the torso. That blade passed through the fourth rib on the left side, went through the lung, and punctured the deceased’s heart.
The knife used by the offender had been given to him at some point in the evening by someone he knew. He had not been carrying it with him earlier in the evening. A photograph of it has been produced to the Court.
Almost immediately upon being stabbed, the deceased collapsed. Multiple members of the public rendered first aid and administered cardiopulmonary resuscitation (CPR), but to no avail. The deceased died from acute blood loss.
The offender ran from Bible Lane after stabbing the deceased. However, he returned a short time later, and stood near the laneway to see what was happening to the deceased. He left and returned again shortly afterwards, looked into the alleyway, and left again.
Shortly after 10:40am, police observed the offender to be in the vicinity of the ACT Labor Club in Petrie Plaza. The offender was placed under arrest. While in the Watch House, the offender attempted to self-harm by jumping off a concrete seat in a cell landing on his head. He was transported to the hospital and banged his head against the cage of the police vehicle while being transported. He was medically cleared by Emergency Department Staff and returned to the Watch House.
At 5.30pm, the offender was examined by a medical practitioner, who considered that he was incapable of consenting to a forensic procedure. The offender told the doctor that he had not slept for the previous two days, and had not taken his prescribed medication for Attention Deficit Hyperactivity Disorder (ADHD), which made it difficult to concentrate or make decisions.
Criminal History
The offender has findings of guilt in the ACT Childrens Court [redacted].
[Redacted]. During the following 12 months he committed offences as an adult (when 18 years of age) between 28 November 2020 and 14 June 2021. Three of the offences were committed on the first date mentioned, being offences of assault, including assaulting a “frontline community service provider”, and obstruction. The offender was convicted and fined for these offences on 31 March 2022, after he came into custody for the present offence. For an offence of “fight in a public place” committed on 19 February 2021, he was likewise convicted on 31 March 2022 and fined. Each of these offences reveal the offender’s willingness to fight in public places when intoxicated. For an offence of assault committed on 14 June 2021, he was, on 31 March 2022, sentenced to a total of three months’ imprisonment to be served from that date as “full-time detention”.
Digressing temporarily, I note that the learned Acting Director of Public Prosecutions, appearing as prosecutor in this matter, properly brought to my attention the fact that, whilst the offender had been in custody for this matter since 4 December 2021, at the time of the commencement of proceedings before me that represented 563 days in custody, but only 472 days of that custody was solely referable to the charge of murder. I could commence the sentence I impose at the completion of three months calculated from 4 December 2021, or I could commence the sentence I impose at a date after 4 December 2021 but before the expiration of three months, or wholly concurrent with the sentence I am required to impose. As I pointed out to the learned Crown Prosecutor, in the absence of reasons from the Magistrate, one does not know whether the sentence imposed, for the last assault in time dealt with by the Magistrate, represents a sentence that would have been imposed absent the fact that the offender was in custody on a charge of murder with no prospect of a trial before 2023, or, whether the ultimate penalty imposed acknowledged the reality of the fact that the offender was to be in custody in the immediate to long-term future. In the circumstances, I am obliged to respect the order of the Magistrate as representing a proper disposal of the charge, noting the absence of appeal from the order. Having regard to the concept of “totality” of sentence and the fact that the assault matter represents entirely separate offending, I propose to commence the sentence I impose one month after the commencement of the custody referable to this matter. I bear in mind the Magistrate commenced the sentence from 31 March 2022.
I am informed by the learned Crown Prosecutor that the offender was on bail in relation to some, if not all, of the matters heard in the Magistrates Court on 31 March 2022 as at 4 December 2021. The current offence represents a breach of conditional liberty occasioned by offending whilst on bail for a number of charges. However, the offender also committed offences in NSW on 27 June 2021 for which he was sentenced in the Queanbeyan Local Court on 8 November 2021. [Redacted]. At the Queanbeyan Local Court he was convicted on 8 November 2021 of the offences of “being armed with intent to commit an indictable offence”, “breaking entering and stealing”, and “resist officer in the execution of his or her duty”. For each of these offences he was sentenced to a Community Correction Order for a period of 18 months, each order subject to various conditions including to be of good behaviour, supervision by NSW Community Corrections Service, to attend ‘Headspace’ community based mental health service, and to obey the reasonable directions of the Service. This offence represents a significant breach of that conditional liberty granted only a month before the current offence.
I have the facts in relation to the NSW matters. They involve entry to a hotel at 4:00am whilst armed with a knife, threats to harm a person on the premises by the use of a knife, and a threat to “stab” two people who were resident at the hotel and had challenged his presence. The offender violently resisted his arrest. The offender was in possession of two knives at the time of his arrest, as I understand the facts. A third knife, not accounted for but used at the hotel, was described as a “steak knife”. The possession of knives is a similarity with the offending with which I am concerned, although there are very different surrounding circumstances in which the respective offences occurred. As earlier noted, the offender was in custody in NSW for a period of approximately three months before he was sentenced. I will refer later to the significance of his youth and lack of maturity, but the fact that he was in custody for a substantial period of time within a short time before the commission of the current offence detracts from the submission made by his learned counsel that the current offending occurred in circumstances where the offender had not had the benefit prior to this offending of an order that may have acted as some type of personal deterrent from further offending. I am mindful of the belief, held by some judicial officers and learned commentators, that sometimes a “short sharp shock” of incarceration can operate as a deterrent to further offending. That apparently did not happen here.
Victim Impact Statements
I have a number of Victim Impact Statements from people related to the offender as well as such statements from two eyewitnesses to the events surrounding the death of the deceased. Both eyewitnesses have obviously been greatly impacted by the offence that they witnessed, and I note the thanks extended by the sister of the deceased to those who sought to assist her brother in his final moments. The various Statements from members of the deceased’s family, particularly his sister, and the mothers of the deceased’s children, reflect the profound sense of loss of a loved one in circumstances of violence, unsupported at that time (through no fault of him or his family), the family having no opportunity for farewell or confirmation of love and respect for him. These matters I have noted.
Victim Impact Statements can be used to establish aggravating factors (Culbertv R [2021] NSWCCA 38, at [119]-[120]) such as “substantial harm” to a primary victim, but the relevant harm must be shown to be greater or more deleterious than can be ordinarily expected for the offence in question (R v Youkhana [2004] NSWCCA 412, at [26]; R v Tuala [2015] NSWCCA 8, at [77]). This is not the case here. As noted later in respect of the Crown submission in relation to the effect upon third parties, sadly and tragically, the profound impact on persons associated with the deceased in a case of homicide is not only commonplace (without seeking to diminish the fact) but also is implicitly recognised by the character of maximum penalties for offences involving the unlawful killing of another. However, there is no reason whatsoever to doubt the detail set out in the various Statements of the impact of the death of the deceased on each of the deponents. None of the Statements step outside the bounds of properly informing the Court of the impact of the offender’s actions. The sentence imposed does not represent any attempt to put a value on the life of the deceased, but the value of the deceased as a person is not ignored in the sentencing process.
The Pre-Sentence Report
The Pre-Sentence Report (PSR) from ACT Corrective Services, Community Corrections, is a detailed document setting out a range of material arising from interviews with the offender, an interview of one of the offender’s mothers, a review of records held by the Service, and other sources. This report, along with the psychiatric report and the reference from the offender’s parents, sets out details of the offender’s background that can shortly be stated as follows.
The offender was born in the United Kingdom, the last of five children who, at the age of nine months, was removed from the care of his mother who had drug addiction issues. Other histories available suggest that she was addicted to heroin when pregnant with the offender. The offender was placed in foster care. His father was of Caribbean heritage. The offender was ultimately adopted by his parents sometime after when he was 2 or 3 years old, along with a “half” sibling, and the two boys were brought to Australia. The brother is older than the offender and they have not had any contact since the older brother left home some years ago. The offender was properly cared for by his adoptive parents and spoke of his childhood post adoption “in positive terms”. His parents were described as “supportive” in the PSR, but there is evidence of deterioration in his relationship with his parents from about the age of 16 onwards, with the commencement of drug use. His relationship with his parents has “strengthened” whilst in custody. In the period of time before his arrest in relation to the current matter he had not lived at home, although stayed at the family home from time to time.
He suffered bullying at school because of the fact that he was adopted, because he had two mothers, and because of his ethnicity. The report notes the influence of anti-social peers, particularly in his mid-teens and his departure from school in Year 11 because of dissatisfaction with it. The report also notes his employment over a number of years, including short lived apprenticeships and work in hospitality and retail industries. It was noted that he had anti-social and pro-social friends at various times in recent years, but in the months before this offending he had been caring for a friend with “complex mental health and substance use issues”, causing him heightened stress and anxiety. He is reported to have had a history of alcohol and drug usage since the age of 16, but was thought by the reporter to “minimise his engagement with (illicit) substances”. He said he was introduced to Xanax, the drug he consumed in the period of time before the murder, about two months before that occurred. He described becoming addicted to the drug “quickly”, noting that the person who introduced him to the drug appeared not to be affected by it when drinking alcohol. As I understood the PSR, he stated that whilst using the drug, along with alcohol, he would become “angry” or “cry uncontrollably due to his suppressed emotions”. He had been offered a place in a residential rehabilitation program before his arrest in relation to the current matter but declined the opportunity when a bed became available. ACT Health reported that referrals were received for him to be counselled but he was unable to be contacted for arrangements to be made.
The offender’s history of ADHD was noted as well as his medication and “self-medication” for that condition. He reported a history of anxiety and “depression” and his mother had provided details of “numerous interventions” since childhood to assist him to overcome the impact of victimisation and racial abuse. His mother reported that he often experienced difficulty “processing information, articulating himself, and determining timelines due to his ADHD” condition. No evidence of mental illness had been detected in custody and, although there was attempted self-harm on his arrest, he was not considered at risk when taken into custody.
The offender said that he had “limited memory” of the events surrounding the offence and was unsure which memories he had were right or wrong. In my view, this is not a case of minimisation of responsibility, or deliberately distancing himself from his conduct, given his degree of intoxication at the time of the killing. The evidence in the agreed facts shows that he was in a highly intoxicated state at the time of his arrest, in fact too intoxicated to be interviewed or processed. It is noted that when discussing the victim of the offence, the offender “presented as emotional and stated he felt horrible as he did not think he would ever be capable of such an act or anything close to it”. He stated that he was “deserving” of consequences. He felt “immense guilt” for what he had done and the consequences of that for the victim’s family. I note that the assessment of the reporter, I can safely assume experienced in the exercise of reporting to the Court, is that the offender “appeared genuine when expressing insight into victim empathy and did not attempt to minimise or justify his offending behaviour”. I note from past experience in the ACT that reporters do not resile from exposing a lack of sincerity, or the presence of self-justification, by offenders when discussing their involvement in the commission of crimes.
The assessment of Community Corrections is that the offender is a man with a history of:
…violent offending behaviour of a seemingly impulsive and reckless nature when under the influence of substances. It is concerning for Corrections that his offending behaviour has escalated over time, ultimately resulting in the death of the current victim.
The offender has a supportive family but despite his parents’ best efforts the offender frequently self-medicated with alcohol and drugs and left the support of the family home knowing that “substance abuse and antisocial behaviour was not tolerated or encouraged” by his parents. His intoxication at the time of the current offending “appeared to exacerbate his impulsive behaviour”. These are fair assessments in themselves.
Consistent with observations of the parents, it is noted in the PSR that in recent times, as the offender has come to terms with his circumstances, there has been greater engagement by him with the services available in custody. He has completed a number of sessions with a psychologist between March 2023 and May 2023 and has obtained certificates of attainment or achievement in respect of ‘Workplace Practices’ and ‘Developing Healthy Relationships’ during this year, modest achievements. Since March 2022, the offender has also been involved in seeking mental health support from the Support and Interventions Unit of ACT Corrective Services. His engagement in this program has been “consistently positive” and he has demonstrated “a willingness to further develop [his] skills and strategies for managing… mental health”. The PSR records a number of custodial “offences” whilst he has been in custody up until March 2023. None of these matters constitute “criminal offences” and, in reality, are administrative charges, the reliability of which is opaque. There are two matters relating to the alleged possession of “prohibited items”, which appear to be “home-made weapons”, but the circumstances of the alleged possession are unknown. The timing of the majority of these matters reflects the offender’s difficulties settling into the custodial regime. These difficulties are reflected by the acknowledgment of the offender that when first in custody he had difficulties “engaging” with available services because of his “negative headspace”.
His general behaviour in custody at least in the early stages has been viewed as “unsatisfactory”. It was also noted that his “mental health ailments” have resulted in “impulsive behaviour” and substance abuse, and may have impaired his judgement contributing to his “seemingly impulsive and reckless decision” to commit the current offence. There are various recommendations within the report for counselling and treatment which will no doubt have to be addressed on his release from custody and some will need to be addressed whilst in custody, particularly in respect of matters relating to drug and alcohol abuse and maintaining his mental health.
The defence case
There was no oral evidence called in the offender’s case. There were four classes of material produced in documentary form. Exhibit 1 comprised references provided to the Court by a number of people including the offender’s parents, Exhibit 2 was a psychiatric report prepared by Dr Richard Furst dated 4 June 2023, but filed on the day of hearing, Exhibit 3 comprised a collection of short reports and certificates from ACT Corrective Services, and Exhibit 4 comprised two short letters from the offender, one addressed to the Court dated 7 May 2023, and an undated handwritten letter (I am informed written on 19 June 2023) addressed to the family of the deceased apologising to it for his crime.
Character references
The “references” include most importantly a letter addressed to the Court from the offender’s parents who adopted him in August 2006, having first met him a year before whilst working in Great Britain. One parent is a neonatal medical specialist, the other a nursing sister. That letter sets out details of his background, noting that he was unable to stay with his birth family due to child abuse and neglect. The offender came with his older brother to live in Australia in 2007. The letter sets out details of his education and his development noting that, on moving to Canberra in 2009, the whole family received “psycho-social support” from the Child at Risk Health Unit in 2010. The offender progressed through primary school and high school progressing well both academically and in sporting fields until Year 10. They state that he experienced “bullying and racial abuse” from other school students when in primary school. He received counselling when at primary school in relation to anxiety issues, particularly fears of being “abandoned”, and also in relation to the risk of death to family members, as well as fears arising out of his “interaction with his peers”. A psychologist in 2015 reported that he struggled with “impulse control, empathy, taking responsibility for his actions and relationships”, all consistent with “symptoms of anxiety”. He was diagnosed with ADHD by a paediatrician in 2011 and treated with the drugs Ritalin and Concerta. In 2018, he trialled a different medication to reduce swings in his emotions, but this also led to increased “sedation”. His older brother left the home in 2018 which increased his anxiety and, at this time, he further experienced difficulties relating to his sense of identity, particularly arising out of coming into contact with his birth family through social media. He was counselled by a “Barnardos” officer in Queanbeyan, but his adoptive parents had difficulties getting appropriate “psycho-social support”, bearing in mind that his adoption had occurred in England.
His medication on the trial drug “Intuniv” was revived in November 2019, but he had problems, given the combination of his ADHD condition, his anxiety, and the medication changes with behavioural changes, particularly feelings of aggression. He left school partway through Year 11 to commence a cabinetmaking apprenticeship. He endeavoured to join the Australian Defence Force, but could not because of his ADHD, which “triggered” his request to cease his medication for the condition. His mothers set out his difficulties through 2019 and 2020 with disruptions to his education and his personal circumstances by Covid-19 restrictions. His parents noted that he regularly sought work and had various jobs but because of his anxiety, ADHD, and “poor self-esteem” he had difficulty holding onto regular employment. In 2021, he intermittently lived at home (I am aware that he also spent three months in custody during this period in NSW as earlier mentioned). He moved out of his parents’ home in September 2021 after being released from custody but had contact with his parents, usually by phone, exhibiting increasing anxiety in early December particularly in the context of trying to look after a “friend” with major mental health issues.
Since his incarceration in December 2021, it is claimed that he has not received an adequate psychiatric assessment, nor has he received medication previously prescribed for his ADHD. This was represented in the PSR as an unwillingness to “engage” with services available in custody. However, recent counselling has enabled him to approach his circumstances more “rationally” in the opinion of his parents. He has expressed remorse for his “negative choices and actions”. His parents continue to support him and stated they have always had a “loving relationship with him”. They state that they and a network of friends and former employers, sporting coaches and the like, will “help him rehabilitate on his release from custody”. I note in relation to his parents that they are both professional people. One can accept that from their professional experiences they would have insight as to their son’s conditions and are able to obtain appropriate assistance for identifying the needs of their son.
There are a range of referees who have known the offender each for a number of years in a range of capacities. The references are of some assistance but are not as significant or important as the document prepared by the parents. They confirm a number of matters arising from other sources. Many references confirm aspects of the matters raised by parents, his early enthusiasm for sport and other physical activities, his industry when employed, his capacity when sober and ‘clean’ for empathy, but also his capacity for impulsive behaviour. As with his parents, a number of referees note the observation of the offender’s capacity to be easily led. The referees speak of the positive support provided to the offender by his parents whilst he has been living in the ACT. The practical difficulties of his ADHD, particularly with maintaining concentration on the task at hand, are attested to by one of his employers who noted his high motivation, his politeness, and his reliability. That employer reflected upon the impact of peer pressure in bringing the apprenticeship to an end. An uncle reflected upon the positive impression the offender made when he was younger in family gatherings and his physical and sporting prowess, as well as his conscientious work ethic and his enjoyment of employment involving personal interaction with people. One couple who wrote a joint reference reflected upon the empathy shown to their family by the offender on the passing of one of their children who had previously ‘babysat’ the offender when he was much younger. A friend of the offender’s parents, who is a social worker and has known the offender for nine years, commented upon his early life of happiness and his ambitions in sport and education but noted his continuing difficulties having to adjust to the fact that he was adopted and having to make his way in a country other than that of his birth and of his birth family. The referee noted the development of “sadness” and “confusion” by the offender as he grew older and the difficulties he had in that period of time “regulating his emotions”. All the referees who are family friends speak positively of the capacity of the offender’s parents to assist him on his release from custody.
The psychiatrist’s report
The psychiatrist’s report sets out details about the offender’s background in the United Kingdom and Australia, his experiences at school, his difficulties since about the age of 16 with living at the home of his parents, his history of ADHD and treatment of it, his drug and alcohol history, medical employment and criminal history. This history accords with what I have previously summarised. The report notes, as is conceded in the facts, that in the period of time leading up to the offending the offender was abusing alcohol and Xanax. He reported feeling “depressed” after being released from custody in NSW in September 2021 and to some extent cutting himself off from his support within the community, particularly his parents. The offender commenced using alcohol at the age of 15 or 16 and “recreational” drugs from about the age of 17 and 18, but primarily in the year before the offending was abusing alcohol and Xanax during which time he also sporadically used ADHD medication, particularly Intuniv in about September/October 2021. He had also used ketamine and cocaine earlier in the year, prior to the offences committed by him in NSW which led to him being held in custody. On 2 and 3 December 2021, the offender said he was drinking alcohol and taking Xanax pills, claiming he drank 30 standard drinks per day in the three to four weeks prior to the fatal stabbing, as well as taking six to seven Xanax pills per day over that period of time.
The psychiatrist noted the offender’s regret for his conduct, stating that thinking about the fatal incident of which he has a poor recollection “does his head in”. He acknowledged that the victim was not someone known to him, and he had no previous antipathy towards the victim other than that that arose out of the dispute over the satchel bag that he believed had been taken by the victim. The review of relevant medical records conforms with the general chronology provided by the offender’s parents, including details of his struggles with alcohol and drug use, mood swings, and impulsivity which was sought to be treated in September 2021 by reintroduction of the Intuniv when the offender attended upon his long serving medical professional treating his ADHD. The psychiatrist also extensively examined the records of Child and Youth Protection Services, ‘Think Psychology Solutions’, and ACT Health Service. There was no recorded history of instability or mental illness. He was subjected to the Depression Anxiety Stress Scale for Youth (DASS-Y) in 2019 and 2020 during therapy sessions, but there was no evidence of a pervasive depression disorder or pervasive anxiety disorder during that period. Other reports examined by the psychiatrist reflected upon the breakdown of his relationship with his mothers in early 2020, noting the decline in his behaviour and relationships commencing in 2018 and 2019 with alcohol and drug use. [Redacted].
The doctor was asked specific questions by the offender’s legal advisors. The answers to those questions revealed that the offender did not present with a history of significant mental illness, cognitive impairment, or intellectual disability. He met the criteria for the diagnosis of mental disorders according to DSM-5 criteria of ‘alcohol/substance abuse disorder’ and ADHD. He noted the various symptoms that usually arise with such disorders. He was specifically asked whether the offender satisfied particular criteria or factors arising from the decision of R v Verdins [2007] VSCA 102; 16 VR 240, at 588-89. He concluded that he did not. He noted that the offender being heavily intoxicated, and the effects of the combination of alcohol and Xanax, “was the most likely the proximal (cause) because of his disinhibition and aggression”. Whilst the offender stated that he felt depressed, and this was the reason for his drinking and use of Xanax, “there was no convincing evidence that he met or meets criteria for the diagnosis of depressive disorder per se”. However, “there were a series of genetic, developmental, social and mental health factors that likely contributed to his drinking and drug use and social maladjustment as at December 2021”.
The psychiatrist noted the background genetic, social and mental health factors that likely contributed to his drinking and drug use and social maladjustment as at December 2021, thereby laying the foundation for his offending. Matters he noted, in the context of a background of neglect in at least the first 18 months of his life, included the fact that childhood maltreatment has profound negative effects on mental and physical health during childhood and across the lifespan, a much higher rate of premature death (and other) misadventure in children who have been removed from their parents due to maltreatment, abuse or neglect, the adverse impact of the experience of neglect on school participation, addiction and involvement in violence, amongst other matters. He observed that studies have shown that the risk of addiction is “largely inherited with genetic factors accounting for at least 50% of the causation of addiction”, bearing in mind the use of heroin by the offender’s mother when he was in his infancy. The psychiatrist opined that the offender’s drug and alcohol abuse from the age of 16 or thereabouts was “probably largely the product of his genetic vulnerability to addiction, coupled with the longer-term neuro developmental effects of maternal abuse and neglect that tend to (express) such genetic vulnerabilities”. The psychiatrist describes the use of alcohol and drugs also as likely a “maladaptive means of responding to stress”. He expressed the view that the offender’s ADHD has had an impact upon his drug and alcohol abuse and the offending because it renders him more “impulsive in actions and decision-making” (impulsivity being a core feature of ADHD), contributing to mood swings and negative mood states and greater propensity to the risk of developing drug addiction (approximately two to three times the risk) than children without ADHD. These contributing factors, amongst others, are said by the doctor to be matters “mitigating against the seriousness of his actions at the time of the fatal altercation”. ‘Explanation’ rather than ‘mitigation’ would be a more appropriate word.
He stated that incarceration is not likely to have an adverse effect upon his condition nor have a greater effect upon him than a person without those impairments. His condition does not make him “particularly vulnerable” in custody. The psychiatrist said that whilst in custody, however, the offender required ongoing treatment with psychotropic medication and stimulant medication for treating his ADHD, which would be likely to decrease his impulsivity and improve his prospects of completing his studies. He should also have psychological treatment and drug and alcohol rehabilitation counselling. Completion of studies in custody would be an advantage in relation to “future employability and long-term prognosis and would probably also improve his self-esteem”. The doctor also noted the need for specialist mental health and drug and alcohol counselling when the offender was eligible to be released on parole.
Timing of the plea of guilty
In the Crown’s submissions there is further information relevant to the timing of the plea of guilty by regard to the progress of the proceedings. The plea was entered in the Supreme Court 10 days before the Court was scheduled to hear a pre-trial application made by the Crown regarding the admissibility of particular evidence, and after the Crown had filed its written submissions in relation to the application.
A Criminal Case Conference was held on 7 February 2023, and was adjourned until 10 February 2023. No resolution of the matter was reached at that conference, but neither was the offer made by the Crown to resolve the matter (being essentially the basis on which the matter was ultimately resolved) rejected by the offender. The trial itself was listed to commence on 11 April 2023.
The Crown’s submissions
The Crown’s extensive written submissions were supplemented by helpful oral submissions which I need only summarise at this point as the various matters raised in those submissions will be dealt with in my consideration of the matter. Most of the legal submissions by the parties are without dispute, but application of principles to the evidence is the difficulty in the case.
The Crown opened its submissions by addressing the important issue of assessing the objective seriousness of the offence, surveying a range of authorities of the ACT Supreme Court as to the appropriate approach to assessing objective seriousness, without necessarily stating where the objective seriousness of the matter falls within the spectrum of offending (e.g. Beniamini v Craig [2017] ACTSC 30, at [117]-[122], per Refshauge J). I have taken those authorities into account. It is not my responsibility to set aside the jurisprudence that has developed in this jurisdiction on this issue. Nor is it seriously submitted that I should incorporate into my assessment of the objective facts the language of legislation of other states that mandate that it is the obligation of the judge to do so.
But it is correctly noted by the Crown that the sentencing judge is required to undertake at least the “mental exercise” of considering where the offending “sits on the spectrum of objective seriousness”, and that the judge must also give “sufficiently clear and detailed reasons for reaching (a view of the matter) so that each party can understand the basis of the court’s decision” (Forster-Jones v The Queen [2020] ACTCA 31 at [29]-[30]). This I will attempt to do. I accept as was stated in R v Kilic [2016] HCA 48; 259 CLR 256, at [19], that unless the maximum penalty is to be imposed, I have to consider where the facts of the particular offence and offender lie on the “spectrum” that extends from the least serious instances of the offence to the worst category, properly so called. As was stated in Forster-Jones, at [29]-[30], assessing the objective gravity of an offence is a fundamental part of determining the appropriate sentence for that offence. It must be apparent from the sentencing judgement that this has been done. It is not enough to “simply recite the facts on which any particular Count is based”. The circumstances in which murder is committed “can vary dramatically”, as stated by the Crown.
The Crown submits that, in the context of the offence being the most serious offence under Territory law, this offence of murder by “reckless indifference” is not “necessarily” less serious than murder by intention to kill or inflict grievous bodily harm. This I accept to be so. That having been said, it is conceded by the Crown that “obviously each case must be considered in the light of its own particular relevant facts”. In this matter it is submitted that the offence is one that was within the “middle range of objective seriousness” having regard to:
(a)the use of an offensive weapon;
(b)the offending was “cowardly”;
(c)the use of the knife to inflict the fatal wound was impulsive and not the subject of planning or premeditation;
(d)the offending was motivated by “revenge”, at least in part;
(e)the offending was an example of “vigilante justice”;
(f)the offending was an example of “criminal underworld” violence; and
(g)the offence was aggravated by the effect of the offending on the victim’s family.
So far as the offender’s intoxication was concerned, it is submitted that his moral culpability was not reduced by intoxication, and was not a matter of mitigation, noting that the offender was not a “novice user” and had a history of committing offences whilst affected by drugs with an appreciation of the effect upon him of his drug use. Although intoxicated, it is submitted that he “was able to reason with a moderate degree of composure” and that his condition gave no rise to the consideration of “Verdins principles”.
Referring to the available details of the offender’s background and subjective circumstances it was submitted that his upbringing did not “explain” or “otherwise shed light” on his offending such as to reduce the assessment of his moral culpability. It was submitted that his current circumstances are not a result of circumstances of his background but “as a result of poor life choices…which led him to associate with anti-social peers and abuse alcohol and drugs”. The breaches of conditional liberty, described as “betrayals” in the written submissions, are a “significant” aggravating feature in the matter, with the Crown summarising the detail of the offending breaches in the written submissions. The Crown submitted that the details of the criminal history demonstrate the offender “[had] a propensity for unprovoked and gratuitous violence… multiple court appearances, bail orders and successive good behaviour… orders have clearly failed to protect the community from the offender”. The Crown also submits that the “prospects of rehabilitating [sic]” must be viewed as “guarded”. It is further submitted by the Crown that the available mental illness evidence did not establish any matter that would “engage… Verdins principles” and that the mental conditions, particularly his diagnosed ADHD, is “nowhere near as serious” as other mental illness conditions such as schizophrenia.
The Crown submitted that the evidence of remorse was not strong, that a plea of guilty was not necessarily evidence of remorse, citing a number of authorities that reflect upon the circumspection required in assessing remorse in whichever way that evidence comes before the Court (e.g. Forster-Jones at [69]). The Crown submitted that the timing of the plea enabled a discount within the range of 15 to 20 percent for a plea of guilty following Criminal Case Conferencing (Blundell v The Queen [2019] ACTCA 34 at [12]).
The Crown correctly pointed out that the Court was required to have regard to current sentencing practice (s 33(1)(za) of the Sentencing Act), citing a number of authorities said to provide some comparative “yardstick” and also contributing to reasonable “consistency” in sentencing. It was submitted that the Court should not only have regard to ACT sentencing decisions, but also sentencing decisions from interstate and to that end cites a number of decisions both from within ACT and interstate for comparative purposes. Cited in this respect are the observations in this regard of Elkaim J in R v Kourpanidis [2021] ACTSC 112, at [47]:
I can see no reason [for not considering authorities from outside the ACT], provided of course that primary consideration is given to the facts of the case, the specifics of the ACT law… and any relevant authorities in this court.
I do not doubt this proposition. The Crown claimed that the most “analogous case” was a Victorian decision of Director of Public Prosecutions (DPP) v AK [2019] VSC 852. Other decisions submitted to be “analogous” were R v Athuai [2007] VSCA 2 and DPP v Ledlin [2022] VSC 826, as well as an ACT decision of R v Tuifua [2021] ACTSC 298. As it transpires, as analysed later, the “interstate” sentences relied upon by the Crown provide not a great deal of helpful comparison for a number of reasons in each matter.
So far as the nonparole period was concerned, noting leading High Court authorities as to the purpose of the minimum term, such the first “Bugmy” decision (Bugmy v The Queen (1990) 169 CLR 525, at 531–532), the Crown submits that in respect of the nonparole period that rehabilitation will need to play “an important part in the sentencing exercise”, notwithstanding its “guarded” character in this matter. However, the Court should ensure that the period of actual imprisonment to be served is “not so low as to fail to recognise and value the sanctity of the deceased’s life and the very serious criminality involved in this matter”.
The Crown submits that given the previous conditional liberty orders failed to achieve their objective, and the offender failed to realise the rehabilitative course made available to him through these orders, "the Court in such circumstances cannot proceed on the same expectation of rehabilitation that is open in other circumstances". The Crown cites R v Cicekdag [2004] NSWCCA 357; 150 A Crim R 299 at [52] and R v Fernando [2002] NSWCCA 28 at [42] and stated the “well known comments of the High Court in Veen v The Queen (No 2) (1988) 164 CLR 465 are directly relevant”. Although the offender cannot be subject to double punishment for previous offending it is submitted that the antecedent criminal history of the offender is relevant “…to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instance offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent history when it illuminates the moral culpability of the offender in the instant case or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind.”
The Crown noted that s 33(1)(w) of the Sentencing Act requires the Court to have regard to any demonstration of remorse. The Crown cited CD v The Queen [2013] VSCA 95, in which the Victorian Court of Appeal observed (at [36]) that:
'Remorse' is a word frequently employed during plea hearings. Yet it is not putting it too starkly to say that there is very often no substantive justification for its use. Although they too often masquerade as remorse, self-pity or regret at being caught do not, or at least should not, qualify. Nor is a plea of guilty, without more, necessarily evidence of remorse.
There is obvious wisdom in these observations.
The Crown noted similar observations in Lyddy v The Queen [2019] VSCA 35 at [62], and in Barbaro v The Queen [2012] VSCA 288; 226 A Crim R 354, at [38]-[40], reflecting upon the need for “caution” in this regard, particularly where it is sought to rely upon the plea of guilty itself alone representing evidence of contrition or remorse. The Crown noted that in Forster-Jones, at [69], the ACT Court of Appeal was circumspect as to whether the offender's expression of remorse was genuine, as opposed to the offender simply telling the sentencing judge what he thought the Court wanted to hear in order to get a more lenient sentence. An authority cited in oral submissions by the Crown was Imbornone v The Queen [2017] NSWCCA 144, at [57], per Wilson J, where her Honour summarised the principles relating to consideration of “untested out of court statements made to third parties”, which I accept to be accurate. It should be noted of course that one of the matters identified by her Honour of significance in this area is the situation where a person by such untested representations “wishes to place evidence before the court which is designed to minimise his or her criminality”. In that circumstance, it is said that it should be done directly and in a form that can be tested (citing Munro v The Queen [2006] NSWCCA 350, at [17]-[19]). But her Honour also noted that it is “one matter for an offender to express remorse to a psychologist or other third party and quite another to give sworn evidence and be cross-examined on the issue”. That having been said the situations in which untested representations to third parties arise will vary, as will the circumstances of individual offenders, such as capacity or maturity to give evidence in those circumstances. Her observations were supported in short remarks by Hulme RA J. These pronouncements have been long held as correct in NSW, going back to observations of Howie J in R v Palu [2002] NSWCCA 381; 134 A Crim R 174, and beyond.
Consistent with these authorities, the Crown submits that the Court would be circumspect in accepting the offender's expression of remorse as genuine. He made no admissions to police and did not voluntarily assist with their inquiries. The Crown does concede that the offender was of course not obliged to assist police. But it is submitted that his lack of voluntary assistance is inconsistent with genuine remorse. The problem with this submission is that the offender was not in any fit state to be interviewed on arrest or before charging, and no reasonable opportunity until these proceedings has arisen for him to express relevant remorse. The learned Crown Prosecutor also submitted that it was “telling” that the offender was charged with murder on 6 December 2021, but did not plead guilty to until 28 February 2023, some 15 months later. It was suggested if he were genuinely remorseful, he would have offered to plead guilty to murder, or at the very least manslaughter, at a much earlier stage of the proceedings. This submission is, in my view, unrealistic given the reality of offenders (particularly young offenders) being captive to legal advice and the natural course of litigation of this type.
The offender pleaded guilty shortly after a Criminal Case Conference. The plea was entered after the Crown had filed detailed submissions in relation to the admissibility of tendency evidence. However, the Crown accepts that the negotiations that took place as part of the Criminal Case Conference would have been prominent in the offender's decision to plead guilty. Reference was made to Blundell at [12] where the Court of Appeal indicated that a discount in the order of 15 percent to 20 percent is usually appropriate for a plea following Criminal Case Conferencing. It is submitted that a relevant consideration in determining where the discount should fall within that range is the strength of the Crown case: R v Hawkins [2019] ACTSC 10 at [3]. In the context of evaluating the utilitarian value of the plea of guilty, I do not accept this submission, particularly as Cooke (a pseudonym) v The Queen [2022] ACTCA 44; 18 ACTLR 204, at [80]-[83] held that per s 35 of the Sentencing Act, when considering utilitarian value, “the strength – or weakness – of the prosecution case is irrelevant” unless the Crown case is “overwhelming” (s 35(4)). But this is really a matter of limited moment given the oral agreement of both parties as to the range of discount available, although the Crown in writing suggested perhaps below 15 percent. Whilst the Crown does not go so far as to suggest that the Crown case for murder was "overwhelming”, it submits that the Crown case was nonetheless a strong one.
Defence Submissions
The defence submissions in relation to the issue of the objective seriousness of the offending on a review of the facts of the matter are that the offending is at the lower end of the range of seriousness because of a range of features, including:
(a)the offence was not premeditated;
(b)death was caused by a single stab wound;
(c)the stabbing occurred in the context of a “fight” and the offender was struck first on the head by the deceased;
(d)the weapon was not obtained for the purposes of the fight and had been in the possession of the offender for a short period before; and
(e)the offending was not motivated by greed, revenge or any premeditated motive. It was submitted that the state of mind of this offender was less serious than that of a person having an intention “(to inflict) grievous bodily harm”.
It is submitted that there are a number of important mitigating factors that arise out of the subjective circumstances of the offender including his youth, his guilty plea and remorse, and his willingness to participate in restorative justice (relevantly identified within s 33 of the Sentencing Act). His character was relevant to the extent that he had difficulties in his upbringing beyond his control. His prior criminal history was consistent with the picture emerging from the PSR and the psychiatric report of a “confused young man struggling, and failing, to deal with underlying poor mental health and social issues arising in part from his difficult background circumstances”. So far as his mental health is concerned, reference was made to anecdotal observation of him by friends and family members in the period of time leading up to the offence, particular appearing stressed and anxious.
The offender’s relevant conditions are conceded not to give rise to application of “Verdins principles” but were still relevant to the assessment of his prospects of rehabilitation, as was his history of drug and alcohol abuse. His serious intoxication at the time of the offending was relevant to his capacity to exercise judgement at the time of the offending and was also relevant to his prospects of rehabilitation and his past history of difficulties in exercising appropriate judgement (R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [273]). It was submitted that the offender was “at the crossroads” and the tailoring of a sentence to accommodate his personal circumstances would have a benefit for the offender and the community, leading him to reform or rehabilitation. Various matters were identified as being relevant to his prospects of rehabilitation, including aspects of his good character, the family support available to him, his past attempts at employment, and his future ambitions so far as his education and career designs were concerned.
So far as current sentencing practices are concerned, reference was made to a number of authorities said to be either comparable or providing a relevant “yardstick”, including ACT decisions of R v Lee [2017] ACTCA 30, R v Massey (Unreported, Supreme Court of the ACT, Gray J, 28 July 2011) and R v Tuifua [2023] ACTSC 298, and R v O’Donnell [2009] NSWSC 42 which could be distinguished on its facts. So far as the nonparole period is concerned, it was submitted that the offender should be given the opportunity to re-enter the community at a relatively early stage and to “fulfil the previous potential that he showed in earlier years”. It was further submitted that all time served in custody be taken into account and the sentence backdated to the date he came into custody.
It is submitted that the Crown’s submission that the offending was motivated “to exact revenge” should not be accepted. The Crown submission that the offending is an example of “criminal underworld enforcement” is “fanciful” the defence suggests. There is not a “scintilla of evidence” to suggest that the offender was part of the “criminal underworld”, nor that the drugs in the satchel bag he believed had been stolen were for sale or distribution. This last matter was conceded by the Crown.
Learned counsel for the offender submitted that this is a less serious iteration of murder than an intention to cause grievous bodily harm and an intention to kill. It is submitted that the applicable state of mind here, in the circumstances, was less serious than the intention to cause serious harm. The offender did not enter Bible Lane intending to cause harm but to “fight”. The fight occurred in the context of a dispute over his missing satchel bag, which he mistakenly believed had been taken by the deceased. The offence occurred in the context of resolving that dispute, and in a situation that escalated quickly into violence, in a way that had tragic consequences.
“Current sentencing practice” is a relevant sentencing consideration but, contrary to the Crown’s submission, the defence submits that “current sentencing practice” is a reference to practice in this jurisdiction. That is how “current sentencing practice” has been applied by ACT courts, as suggested in Dawson v The Queen [2019] ACTCA 9, at [5]. That passage however is not explicit on that issue. It is submitted that the sentencing range in any jurisdiction will incorporate a range of principles relevant to that jurisdiction. To take one example, different practices and principles in relation to the role that the strength of the Crown case has in discounting for a plea of guilty is said to be one difference. This means that sentences imposed for factually similar offending behaviour in other jurisdictions will not provide a useful comparison in terms of sentencing practice. This difference between the positions of the Crown and defence on this issue are somewhat academic. As it transpires, the ‘interstate’ sentences referred to by the Crown had clearly discernible differences from this matter.
The oral submissions of counsel for the offender reflected upon the youth of the offender, his lack of maturity, his prospects of rehabilitation being favourable, and the fact that the offending could be characterised at the “lower range of objective seriousness”, particularly given the offending was not premeditated but spontaneous and arose in the context of a “fight” not in the context of enforcing an underworld debt, acting out of revenge, or acting in the spirit of vigilantism.
It was noted that the evidence of the disadvantaged background of the offender was of significance, as demonstrated in the psychiatric report. Whilst this was not a case where the full application of 2013 “Bugmy” principles arose, it was, as counsel said, “part Bugmy”, by which I understood that the offender’s background of disadvantage had implications for the development of his ADHD and his addictions, which rendered him vulnerable to impulsive anti-social conduct.
Whilst it was conceded that “Verdins” principles do not apply, there was an interrelation between his ADHD and the offending behaviour, because his condition rendered him vulnerable to drug abuse in which context the offending occurred and to act impulsively as the facts revealed. Counsel for the offender said that the Court should consider and apply what Wood CJ at CL had said in Henry at [273]. It was submitted that any term of imprisonment would have a significant deterrent effect upon the offender and could serve the purposes of both general and personal deterrence.
It was noted that there was evidence of his good character from referees, the existence of a supportive family environment for him to return to after his sentence, all relevant to the assessment of his prospects of rehabilitation. In this regard reference is also made to his certificates of attainment whilst in custody, his plans to undertake studies in the future, and in his future employment aspirations in real estate and property development. Although he had been found guilty of some offences in custody it was to be borne in mind his limited experience of custody beforehand and that, whilst on remand, he was in the form of “limbo” which made it difficult for him to adjust to his circumstances. As far as his prospects of rehabilitation are concerned, that matter could be reflected in the nonparole period, citing Bugmy v The Queen (1990), approved in Martin v The Queen [2015] ACTCA 38, at [96], counsel submitting that a shorter nonparole period could still serve the purposes of sentencing.
As to the plea of guilty, it was a plea of “high utilitarian value” and the timing of it occurring shortly after the Criminal Case Conference, which permits the offender to have the benefit of the “full discount” permitted under s 35 of the Sentencing Act, which in the ACT would be 20 percent upon the otherwise appropriate sentence, the range in these circumstances being between 15 percent and 20 percent. Whilst it was disputed that the Crown case was “overwhelming” for murder, it was noted by reference to the decision of Cooke that the strength or weakness of the prosecution case was irrelevant to the assessment of the utilitarian benefit of the plea in accordance with s 35 of the Sentencing Act, unless the Crown case was “overwhelmingly strong”. Whilst I accept this submission of the defence as earlier explained noting the terms of the judgement in Cooke, I note that it is not submitted by the Crown that s 35(4) of the Sentencing Act should be invoked.
It was submitted that whilst the offender did not give evidence and that his claims of remorse were “untested”, his remorse had been expressed not just through his letters to the Court received in evidence, but had been expressed on earlier occasions in the preparation of the PSR, to his parents, to the psychiatrist, and two others, these expressions of remorse occurring over a period of time. It is submitted that the Court should regard him as truly remorseful noting his willingness to involve himself in any restorative justice programs available. I was specifically taken to the Crimes (Restorative Justice) Act 2004 (ACT) (Restorative Justice Act) and was informed that it was open to the Court to recommend a referral under that Act. Although the legislation is not entirely clear as to whether it is open for a referral to occur at a time after sentencing, I am prepared to accept that a referral under this Act can be made by a Court when it has a relevant matter before it where the offender is an “eligible person”. However, at this late stage and in the absence of any evidence of willingness of the family of the deceased to participate, I do not believe a referral is a practical matter for the Court to concern itself with at this time. However, I accept the secondary submission of counsel for the offender that the expression by him of a willingness to participate in a process of restorative justice is some evidence of his remorse and taking responsibility for his conduct. I note that one of these letters produce to the Court is addressed to the family of the deceased expressing his regret for his conduct and for the harm he has caused to the victim’s family. Accepting the timing of it is not to be criticised in light of the limited opportunity for an accused person to express him or herself in court, this correspondence and that addressed directly to this Court is noted as evidence of remorse, although not as strong as evidence of remorse produced in different circumstances.
With regard to the issue of comparative cases and particularly having regard to “current sentencing practices” (s 33(1)(za) of the Sentencing Act) in fixing the appropriate sentence, it was submitted again orally that primary attention should be paid to purported comparative sentences imposed in this jurisdiction and not in other jurisdictions where different standards and legislative provisions apply to influence directly or indirectly sentencing standards. In this context, reliance is placed upon the decision of then Chief Justice Murrell in Monfries v The Queen [2014] ACTCA 46; 245 A Crim R 80, particularly at [91], where it was noted, in the context of considering ‘interstate’ sentences, that sentencing outcomes in the ACT may be more “lenient” than in other jurisdictions. The rationale behind this, it was submitted, was in part because of greater emphasis in this jurisdiction upon weight being given to “rehabilitation” than punitive purposes. Counsel, in referring to some of the “comparative” decisions cited by the Crown, noted a number of particular differences as to the objective facts, subjective matters and/or different procedural or legislative considerations.
In reply, the Crown addressed a submission made by counsel for the accused that the Court may take into account the fact that the offender had not previously served a term of imprisonment to impress upon him the salutary effect of imprisonment, submitting that it was inaccurate as the offender had been on remand in respect of the NSW matters for a period of three months in custody at Parklea Gaol in NSW. So far as considering sentences from other jurisdictions it was noted that ACT authority acknowledged that decisions from outside this jurisdiction can be considered, citing, again, Kourpanidis at [47], per Elkaim J.
Consideration
As Mossop J recently observed in the decision of DPP v Taylor [2023] ACTSC 39, at [15]:
The offence of murder is the most serious offence in the Territory law. It recognises that the protection and preservation of human life is one of the most important pursuits of a civilised society. The circumstances in which murders occur can vary significantly.
The Crown correctly noted in its submission that the complexity, and perhaps difficulty, of the consideration of the various matters to be taken into account in relation to particular issues for consideration, as well as the relationship of those issues to the ultimate decision was a matter of “intuitive” or “instinctive synthesis” (see Markarian v The Queen [2005] HCA 25; 228 CLR 357). Putting aside the fact that every sentencing exercise is individual (even when sentencing different offenders for the same crime) the task of sentencing is structured by the legislative provisions required to be taken into account in the context of the significance of the maximum penalty for the relevant offence providing a “yardstick” for the seriousness of the offending. In this matter, as with practically all matters for sentencing in this jurisdiction, the Court is required when taking into account all the relevant individual characteristics of the offender and the offending, to do that by reference to particular provisions in the Sentencing Act. Such as s 10, relating to fixing terms of imprisonment, s 33, concerning the relevant considerations in sentencing, s 35, concerning the reduction of sentence by reason of a guilty plea and, significantly, s 7, setting out the “purposes of sentencing” which will be at the forefront of every sentencing exercise. In this matter each of the seven “purposes of sentencing” are relevant and applicable, but their intensity of application and/or significance in the sentencing exercise vary in weight depending upon the evidence available to the Court and the nature of the offence, including its maximum penalty. Certainly, in sentencing for an offence carrying a maximum penalty of life imprisonment and noting what is conceded about the seriousness of this type of offending, general deterrence and “adequate punishment” are highly significant, absent the application of other provisions in the Act, particularly Part 8A (MT v The Queen [2021] ACTCA 26).
In sentencing the offender by reference to considerations that arise pursuant to s 33(1) of the Sentencing Act, I am required to consider relevantly:
33 Sentencing—relevant considerations
(1)…
(a) the nature and circumstances of the offence;
…
(e) any injury loss or damage arising from the offence;
(f) the effect of the offence on… the victim’s [family] and anyone else who made a victim impact statement;
…
(i) the degree of responsibility of the offender for the commission of the offence;
(j) the plea of guilty of the offender [in conjunction with s 35 of the Sentencing Act];
…
(m) the cultural background, character, antecedents, age and physical and mental condition of the offender;
…
(p) whether the offender was affected by alcohol or controlled drug when the offence was committed and the circumstances in which the offender became affected;
…
(t) whether the offender is voluntarily seeking treatment for any… mental condition that may have contributed to the commission of the offence;
…
(v) the reason or reasons [that] the offender committed the offence;
…
(y) whether the offender has demonstrated remorse (w), if the Crimes (Restorative Justice) Act 2004, section 19(1)(b)(i) applies to the offender—that fact;
…
(za) current sentencing practice.
A number of these specific issues have been already specifically mentioned and/or addressed or will be addressed below. I bear in mind by reference to this subsection that the “personal circumstances” of the victim were not known to the offender (s 33(1)(d)) and the victim cannot be regarded as a “vulnerable person” (s 33(1)(gb)).
As observed during the course of submissions from counsel for the offender, whilst the offender may be regarded as an eligible person under the Restorative Justice Act, having regard to the detail of the provisions of the Act I do not believe that an order or referral under the Act is practical at this stage. But I accept that the willingness of the offender to accept a referral under the Act, expressed through his counsel on instructions I must assume, is relevant to the assessment of the extent of his remorse and/or contrition.
Objective seriousness of the offending
In this context the starting point is assessing the objective seriousness of the offending. I accept the submissions of the Crown concerning the fact that acting with “reckless indifference” may not necessarily be less serious than acting, for example, with an intention to cause grievous bodily harm. The categorisation of particular acts of murder by reference to the basis of liability does not necessarily reflect the seriousness of the offending of the case at bar, within the range of offending that constitutes murder. The Crown particularly cited two decisions R v Dean [2013] NSWSC 1027 and R v Crabbe (1985) 156 CLR 464, one NSW authority on sentencing for murder by “reckless indifference to human life”, the other a High Court authority on the character of liability for murder by an act of reckless indifference under Northern Territory law. Obviously, as these two cases sadly show, actions done without a specific intent but done with “reckless indifference” to support the crime of murder may be more serious objectively than actions done even with an intention to kill. Having said that, both authorities reflect upon conduct that not only resulted in mass homicide (Dean being one of the worst cases in this regard in Australia after the Port Arthur massacres), but in each case considerable deliberation and determination to cause as much harm as possible, or to create the threat of as much harm as possible in all the circumstances. These cases involved considered motivation far different from the impulsive or spontaneous circumstances here.
I accept that, objectively, the killing of the deceased in this matter falls within the lower category of seriousness of the crime of murder, albeit that the range of conduct for consideration is obviously serious indeed, involving, as it does, the killing of a human being. Specifically, the seriousness of this particular offending is below that of a similar crime (that is causing death by the use of a knife) done with an intention to inflict grievous bodily harm or an intention to kill.
The reasons for coming to this conclusion are as follows: the stabbing was not premeditated or planned, it was a single stabbing without intention to cause grievous bodily harm, it occurred in the context of a “fight” in which the deceased and the offender agreed to participate, the weapon was used after the offender was struck to the head first, and the weapon was not obtained for the purpose of the fight. There was no “considered” motivation.
In relation to the submissions made by the Crown about the motivation of the offending, particularly that the offence was an offence of “revenge”, that it involved “vigilante justice” and could be described as an instance of “criminal underworld enforcement”, I do not accept that this offence represents any of these characteristics. Whilst there was a dispute between the offender and the deceased as to whether the deceased had taken the offender’s “satchel” that contained drugs for his personal use, the reality was, as was directly submitted by counsel for the accused, that the offender and the deceased went into the laneway “to fight”. The fight started with the deceased striking the offender on the head. The circumstances of the then fatal blow, and the surrounding circumstances, do not have the hallmarks of events giving rise to judicial disapproval of vigilantism. To fight over the matter of the missing satchel bag was not the same as a “desire to seek revenge” for the missing satchel bag. All the cases cited by the Crown (and the cases cited within those authorities) in this context are concerned with individuals “taking the law into their own hands” which is clearly not the case here. It is to be remembered as well that this is a matter where the offender was extremely intoxicated, and the infliction of fatal violence was not planned or thought out in any way. Vigilantism, by definition, involves premeditation and deliberately seeking an outcome, usually the infliction of physical harm, to satisfy or satiate vengeance for a perceived wrong. Additionally, or alternatively, in the circumstances in which the matter developed it could not be established beyond reasonable doubt that the accused acted to “revenge” himself upon the victim for the believed theft or taking of his drugs. The stabbing was the immediate reaction to being struck on the head. The offender did not strike first, nor did he use a knife in the previous fight he had with the deceased.
Likewise, I do not accept that the offending can be categorised as an instance of “criminal underworld enforcement”. Again, this class of crime involves a degree of premeditation or forethought entirely absent in this matter. It is to be noted that the Crown conceded in oral submissions that the offender’s possession of drugs was not for the purposes of trafficking the drugs. The conflict between the offender and the deceased was not about recovering lost profit, or “territory” for drug supply, or other hallmarks of “underworld crime”. There is absolutely no element of the deceased threatening the offender’s “illegitimate business” interests. This was not a case, to paraphrase the words in Forster-Jones, at [65]-[66], of a member of the “criminal underworld [acting] according to its own rules” or a person resorting to violence “in pursuit of objectives” concerned with the distribution of drugs, or even “the need” to obtain drugs to feed an addiction.
The Crown submitted that these purported motivations “aggravated” the offending. I conclude the specific motivations did not exist. Likewise, I do not agree that the purportedly cowardly conduct of the offender is “an aggravating” factor in sentencing in this matter. It is correct that the deceased was unaware that the accused was in the possession of a knife and certainly unaware that he would use it until the last moments of his life. But putting aside the issue of whether this is “cowardly” conduct, the reality of the situation is practically every “murder” is, by the standard set out by the Crown, a “cowardly” act. An offender acting with an intention to kill or inflict grievous bodily harm or with reckless indifference to human life usually will be doing so against an unsuspecting victim. Cases involving the infliction of fatal harm by provocation or self-defence, excessive or otherwise, generally do not fit within the rubric of murder. Another aspect is that cowardly acts are usually planned to be so, to ensure that the victim is caught unawares to heighten the likelihood of causing death or grievous bodily harm. It would be a very rare matter indeed in a murder situation where the deceased person was aware of the risk of death or serious bodily harm until only shortly before it occurred. Catching victims unawares is sadly almost always the case. The offender by going into the lane to fight had not planned to catch the victim “unawares”, given the conceded impulsiveness of his conduct.
It is submitted that the “impact on the victims” also aggravated the offending and thus increased the objective seriousness of it. This submission I do not accept either. The unlawful taking of a life will in every instance will have an impact upon the family and friends of the deceased. The very character of the offending attracts significant maximum penalties. These arise from the causing of the death of the human being, whether it be by murder, manslaughter or by misuse of a motor vehicle. The impact upon individuals is a matter for the Court to note and respect. But absent evidence of knowledge of the personal circumstances of the deceased or of any intent on the part of the offender to cause emotional or other harm to persons either present as witnesses, or affected by the conduct of the offender, the criminal conduct of the offender for objective assessment cannot be ‘aggravated’ by the impact of that conduct upon those persons. I have noted earlier the proper approach to the treatment of Victim Impact Statements.
The objective facts of this case can be distinguished from the situation discussed in Forster-Jones, at [42], where the difference between “an intentional murder” [sic] and one done with reckless indifference to human life was considered to be not “given much weight”, because the offender “must have realised that death was highly likely”. Such has not been proven to be the case in this matter.
Moral responsibility
As to the issue of “moral responsibility” as it arises in the matter by regard to the offender’s intoxication (in the context of his drug dependency) and his general mental state in the period leading up to the offending, the situation is complex and difficult to evaluate. I do not accept, in the manner discussed by Spigelman CJ in Henry, that in this matter the offender’s abuse of alcohol and drugs in the period leading up to the killing was simply a matter of free choice. The offender’s progress to the point he reached in early December 2021 was dictated or ordained in part by a range of considerations and/or influences, not all of the offender’s making or within his control. Notwithstanding the benefits of the loving support of his parents and the material comfort and support they were able to provide, I am persuaded by the available evidence relating to the offender’s upbringing and observations of him during that period of time that the offender had either a genetic or socialised predisposition to addiction. The anti-social conduct of the offender, occurring over a relatively short period before the instant crime (or “index” offence), reflected in part by his drug and alcohol use and his prior criminal offences, were manifestations of the effect of addiction acquired in circumstances beyond his control and his ADHD almost certainly genetically acquired.
With due respect to the helpful submissions of the Crown, the situation here was not as straightforward as the offender, with his history of drug and alcohol abuse, being fully aware of the effects of these substances and thus finding himself in the current situation simply because of what the Crown described as “poor life choices”. His situation as at 4 December 2021 was not a situation of simple choice on his part. Racist bullying, uncertainty about his family background, difficulties coping with his home environment, isolation from his birth family, the influence of antisocial peers, disaffection from his brother, and other features referred to in the summary of evidence, all contributed to casting him adrift from his parents. Associated with this, or in conjunction with what would appear to be his genetically acquired ADHD, his resultant impulsive behaviour was ultimately demonstrated by not only the commission of this crime, but also the surrounding circumstances in which it occurred. Whilst his “addiction” and his “mental disabilities” (in part connected to his addiction) are not mitigating factors, nor require less weight to be given to general deterrence, they provide an explanation and a proper context for his conduct culminating in the killing of the deceased, in the manner described by Wood CJ at CL (as he then was in 1999) in Henry, earlier cited. Although this is not a case that excites consideration of “Bugmy“ principles (Bugmy v The Queen [2013] HCA 37; 249 CLR 571), particularly as set out at [40]-[44] of the judgment, primarily because of the absence of material deprivation or living in an environment providing no leadership or structure, this offending and immediate past offending of the prisoner must be understood as conduct not simply reflecting “free choice”, but influenced by social and genetic circumstances not of the offender’s making. The observations of the psychiatrist in this regard are pertinent here. To that extent, particularly in the absence of planning or deliberation in the offending or any recognisable motive other than the specific circumstances of the “fight”, the moral responsibility of the offender is to some extent diminished.
Contrition
I accept that the offender has demonstrated contrition and taken responsibility for his conduct by expressions of contrition that are judged to be genuine to representatives of Community Corrections, his parents, and the examining psychiatrist. He has further demonstrated contrition by the letters he has written to the Court and to the family of the deceased, the naïveté of the latter document a reflection of its genuineness. His willingness to participate in restorative justice, in my view impractical at this time, is further evidence of his contrition and taking responsibility for his conduct as with his plea of guilty. Of course, clearly there are degrees of contrition and it is correct that the evidence available in this respect in this matter is not of high order of significance in this sentencing exercise, but is still relevant and required to be taken into account. I accept the evidence would be stronger if it had been provided in circumstances where, if the Crown chose, its genuineness could be tested by appropriate cross-examination. I do not believe, however, that the offender declined to give evidence because he believed his expressions of contrition would be exposed as not genuine. Whilst it is a short distance from the dock to the witness box it is a difficult journey to undertake particularly for young, and in regard to this offender, inexperienced offenders facing a significant period of imprisonment. The facts are that this offender is not a sophisticated criminal, or a highly intelligent person, or an experienced participant in proceedings in a Superior Court. As everyday experience in this Court, and in other courts and inquiries in this Territory and beyond, honest, intelligent witnesses sometimes do not do justice to themselves when giving evidence, notwithstanding their own experience of involvement in judicial proceedings.
Criminal history
The offender’s criminal history does not entitle him to any special leniency in that regard. Whilst he has a number of prior convictions for random acts of violence, usually perpetrated against strangers, on occasions in the possession of a weapon particularly a knife, bearing in mind the limited time over which that offending has occurred and his youth at relevant times this is not the same situation as discussed in Veen (No 2) at 475-476, cited by the Crown in its submissions, that antecedent history in the particular circumstances of a case may require less weight be given to rehabilitation in the sentencing exercise and greater weight being given to the sentencing purposes of deterrence, denunciation, recognition of harm and community protection. It is to be noted that the majority of the High Court in that particular passage stated that this will be so particularly when the antecedent criminal history: “…illuminates the moral culpability of the offender in the instant case or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and others from committing further offences of a like nature”. Particularly noting the offenders background circumstances and his youth, this case does not reflect these matters. Nor do the facts of this matter require significant concern for the protection of the community. It is to be remembered that my former client, Robert Vincent Veen, was being sentenced, as the subject of his second appeal to the High Court, for a homicide committed in identical circumstances to the first one some 10-12 years before.
Prospects of rehabilitation and the nonparole period
Whilst I accept that the offender’s multiple breaches of conditional liberty by the commission of this offence is an aggravating feature of the matter and disentitle him to any particular or special leniency, they do not disqualify him from consideration of the rehabilitative purposes of fixing a minimum term, even for murder, largely because of his comparative youth, and despite previous opportunities provided to him bearing in mind the greater maturity of the offender when he will be eligible or readied for release to the community. I do not accept that all previous performances on conditional liberty reflect the reality of his prospects of rehabilitation in the years ahead, and as it may be relevant to the assessment of the appropriate minimum term to be imposed in this matter. It is correct, as the Crown submitted, that “at the present time” the prospects of rehabilitation of the offender appear “guarded”, particularly having regard to the offender’s poor record of progress while subject to court Orders designed to promote his rehabilitation. It is noteworthy that in the 12 to 18 months before this current offence was committed the offender was separated from or, at least, disengaged from his most important “support system”, his parents.
In Bugmy v The Queen (from 1990 previously cited and approved in Martin at [96]) it was said by Mason J and McHugh J:
A prisoner’s prospects of rehabilitation will be relevant to the fixing of a minimum term, both by way of mitigation and because the community benefits from the Reformation of one of its members. Conversely, the community needs to be protected from a violent offender, especially one whose prospects for rehabilitation are bleak. Likewise, the nature of the crime will be relevant because a more serious offence will warrant a greater minimum term due to its deterrent effect upon others. But the nature of the offence does not assume the importance which it has when the head sentence is determined. There, the sentence must be proportionate to the gravity of the offence (Veen v R (No 2) (1988) 164 CLR 465 at 477) whereas the minimum term represents a portion of the head sentence during which the offender will not be considered for parole. In one sense, that proportion must itself be a proportionate relation to the crime. Generally speaking, the perceived prospects of rehabilitation will make a significant difference. …Release on parole is a concession made when the Parole Board decides that the benefits accruing by way of rehabilitation and the recognition of mitigating factors outweigh the danger to the community of relaxing the requirement of imprisonment.
I pause to point out that it is not established either by reason of the conduct of the offender or his diagnosed mental state that he constitutes a general “danger to the community”. The High Court went on to say that:
…the difficulty of making satisfactory predictions about the future progress of the offender and the danger he or she would present the community…does not relieve the judge of his or her responsibility to take account of the need to protect the community. Nevertheless, the judge will be influenced by an assessment of the material before the court is to the prisoner’s prospects of rehabilitation. If the judge’s assessment of those prospects is that they are minimal or bleak, a minimum term should be fixed in the light of that assessment, along with the other factors relevant to the fixing of a minimum term.
The evidence here does not establish that his prospects are “minimal” or “bleak”.
Obviously predicting the future is fraught with difficulty and no judicial officer is given a “crystal ball” for predicting the future on appointment. But on the basis of evidence available in this matter as with most other matters requiring consideration of these issues, one is required to make a considered prediction of the future having regard to the lessons of the past, the present situation and the reasonable possibilities that lie ahead. The first issue for consideration, bearing in mind that the issue of release to parole is not immediately, or in the medium term, up for consideration, is the real likelihood that the offender will develop considerable maturity and reflection whilst in custody. In the interim period it is expected that the development of the offender’s maturity will not only come with the effluxion of time but with the assistance of counselling and other rehabilitative resources whilst in custody. His comparative youth is a relevant matter in this regard, as it is more generally. Whilst relative youth may be a mitigating matter in sentencing, its significance may be diminished by the seriousness of the offending (e.g. R v AEM [2002] NSWCCA 58, at [97]-[98]. See also KT v The Queen [2008] NSWCCA 51 at [22]-[26].
Whilst in custody and on release from custody, the offender has a respectable and intelligent support network and, as I would understand it, a secure and responsible environment to which he can return. This offender is not in the same position as most offenders we consider for sentence of serious crimes who can only look forward to an environment of dysfunction and disadvantage on the occasion of future release from custody. Parole authorities will be able to have confidence that the immediate family and adult associates of the offender have the capacity to carry through on obligations that no doubt will be cast upon them by those authorities. The other aspect of this, particularly relevant to the determination of the minimum term allowing for the fact that the minimum term should not be so “low” as to bring the administration of justice “into disrepute”, is the consideration of the purpose of the minimum term to not only give effect to adequate punishment and general and personal deterrence, but also to predict or encourage the promotion of the rehabilitation of the offender in circumstances where the offence assessed objectively is not required to receive “condign punishment”. A Court is still required to undertake a predictive exercise in the understanding that the circumstances of the offender will change over time, particularly where the person sentenced is youthful or immature. Further, this predictive exercise involves the assessment of a young offender who cannot be said either to be a professional criminal or to have ingrained attitudes that will influence future conduct. In fixing the nonparole period, I have also had regard to the need to provide for an extended period of supervision to assist the offender to adjust to community living, particularly bearing in mind this will be his first release to parole after serving, what is in reality, his first prison sentence.
Plea of guilty
I have determined that to recognise the utilitarian value of the plea of guilty the offender should receive a discount of 20 percent upon the otherwise appropriate sentence, or other objective and subjective matters taken into account. I make this assessment in the context of the authorities to which I was referred that set out practice for fixing relevant discounts to recognise the utilitarian value of the plea of guilty. Here the utilitarian value is substantial given what would be required for the conduct of a trial and the imposition that would place upon witnesses, the community, and the Crown in preparation of such a proceeding. As distinct from the concept of “facilitate in the course of justice”, the strength of the Crown case is not a relevant consideration in determining the utilitarian value of a plea of guilty as earlier noted. The timing of this plea shortly after the Criminal Case Conference where the issue of the likely plea of the offender was left open is not such to disqualify a discount within the upper range allowable. The plea of guilty did not arise from an ostensible benefit to the offender arising from negotiations between the prosecution and the defence about the charge to which the offender pleaded guilty (s 35(2)(c) of the Sentencing Act), as may have been the case if the offender had pleaded guilty to manslaughter. I have had regard to the other matters required to be considered pursuant to s 35(2), including the effect of the offence on the persons who gave Victim Impact Statements. It was not in dispute that the Crown case for murder was not “overwhelmingly strong” (s 35(4) of the Sentencing Act). Nor will the resultant sentence having regard to all the circumstances of the matter be “unreasonably disproportionate to the nature and circumstances of the offence” (s 35(6) of the Sentencing Act).
Comparative cases and “Current sentencing practice”
In this matter the issue of consideration of other cases is required to be taken in the context of the requirement to have regard to “current sentencing practice” (s 33(1)(za) of the Sentencing Act), in part as a mechanism for seeking to achieve “consistency in sentencing” and to ensure that individual sentencing judges are properly and rationally “constrained” in their respective approaches by the considered wisdom of other judges, particularly by regard to principles determined by intermediate courts of appeal or the High Court of Australia. In the same manner, as discussed by Elkaim J in Kourpanidis, regard may be had to judgments outside this jurisdiction but only when proper attention is paid to the relevant ACT legislation and differences in sentencing practice between the ACT and other jurisdictions. There is also regard to be had for the observations of former Chief Justice Murrell in 2014 in the decision of Monfries, to which earlier reference was made, although that matter is not decisive or significant here.
As it transpires, a number of the purported “comparative cases” cited by the Crown demonstrate substantial differences in the objective facts and/or in the application of different principles or procedures to demonstrate that their assistance for providing a yardstick in this particular exercise is limited. This is in the context of noting what is said time and time again in various decisions cited in argument in this matter, and to be found elsewhere, that no two cases are alike and comparative sentencing exercises have limitations in defining an outcome for the case at bar. In AK, Kaye J noted, in addition to the observations quoted by the Crown in its written submissions primarily about purportedly comparative subjective circumstances, that the crime for which he was sentencing which involved the use of a knife by a young offender, was one where the offender in company with other people, uninvited, entered an AirBnB accommodation rented by a 19 year old law student and her female friend where a party was being held. After being asked to leave, a fight between the deceased and friends of the offender developed during which the offender produced a knife and stabbed the deceased in the chest. He was sentenced on the basis that he intended to inflict grievous bodily harm and the considerations in assessing the seriousness of the offending were, the deceased in the course of the “fight” was outnumbered by the offender and his friends “each of whom were substantially larger and stronger than her”, she was “to all intents and purposes defenceless”, his actions were “unprovoked and entirely needless”, he and his friends were engaging in “unacceptable and reprehensible acts of violence towards a young woman”, he inflicted the wound whilst “in company” and did so with “a substantial degree of force” (at [17]-[18]). One can see from his Honour’s assessment of the facts in that matter a substantial distinction in the objective circumstances from the facts of this case, allowing of course for the finding in that matter that the offender’s action in stabbing the deceased was “spontaneous”. The offender, who was found guilty by a jury, had offered to plead guilty to manslaughter which plea was not accepted and thus there was no discount for the plea of guilty in that matter. There were of course similarities in the criminal histories of this offender and that offender, but despite the fact that offender was younger at the time of the offence (17 years of age) he had a much more substantial criminal history as detailed at [20]-[23], including offences of “carjacking”, “threatening to inflict serious injury”, “sexual assault”, “recklessly causing injury”, and was on parole at the time of the offence. Even if it might be thought that the subjective cases of both offenders were highly similar, the absence of a relevant plea and commensurate discount, the absence of remorse and the substantially different factual circumstances, and the context of the offending signify the requirement, if the Crown chooses this as a yardstick, for a lesser term in this matter. Sometimes “comparative” sentencing exercises serve a purpose other than intended.
Another authority relied upon by the Crown as significant for comparative purposes was the decision, again from Victoria, in Athuai. Putting aside the fact that a decision from 16 years ago may not represent “current sentencing practice”, in that matter there was no plea of guilty and thus no discount for the plea. There was absence of any remorse, the offender stabbed the victim three times in a deliberate fashion, the offender assaulted the deceased in company with another, the appellant was significantly taller and stronger than the deceased, who was 17 years of age, and the offender was observed to be smiling when he stabbed the deceased who was on the ground and smiled again as he left the scene (at [2]-[3]). Furthermore, the sentencing judge determined that the attack was “premeditated” and that before the attack the offender “intended to inflict violence on the deceased and his companions”. The intention to stab the deceased was not committed on the spur of the moment but the product of “calculation and some forethought”. He also concluded that the blows inflicted on the deceased were accompanied by “significant force”. Again, noting that the offender was 17 years of age, thus younger than this offender, and had “similar” subjective circumstances, in respect of the most significant aspect of the sentencing exercise, the objective circumstances, the offending in that matter was substantially more serious objectively than this matter. Of course, this assessment is made in the context of an understanding of the seriousness of all offences of murder and that given the maximum penalty for that crime there is a “narrow band” of sentencing discretion whatever be the objective facts or the subjective circumstances of the particular offender.
Putting aside a few truly exceptional “mercy killing” sentencing exercises, the range of supposedly comparative cases from the matter of Lee, relied upon by the defence, to the matter of Ledlin (cited by the Crown and referred to below) demonstrate this to be so. It should be noted that the two authorities first referred to above involved the sentencing of juveniles both aged 17, but in circumstances where the Victorian sentencing regime had not the “benefit” of the equivalent of Part 8A of the ACT sentencing legislation with its impact upon the punitive purposes of sentencing, as discussed in MT earlier cited.
Ledlin involved a sentence imposed for murder which in Victoria now has a “standard sentence” regime under legislation, where the “standard sentence” for murder is 25 years imprisonment. The deceased was killed by the offender whilst he was in company with two other people, the offender and his group were the “initial provokers and attackers”, and the offender had an intention to inflict grievous bodily harm (at [5]-[10]). The offender was 19 years of age at the time of the offence with a “considerable criminal history” involving “violence and carrying and the use of weapons” ([33]-[37]). There was no discount for a plea of guilty (although the offended did plead guilty to manslaughter not accepted by the Crown). In that matter the sentencing judge was required “to have regard” to the “standard sentence” of 25 years for murder, the standard sentence acting as “a legislative guidepost in the sentencing process”, although one of many factors to be taken into account in the “instinctive synthesis” ([44]-[45]). The sentencing judge concluded that the offending was “spontaneously committed against an unarmed and unsuspecting victim who was at that moment engaged in defending himself from others than you”. In the context of Victorian sentencing practice, the judge concluded that the offence “should not be regarded as being in the low range of offending of this type, but more towards the mid-range”, at [56]. In sentencing the offender to 22 years imprisonment with a nonparole period of 16 years imprisonment, he was required to have regard to sentences previously imposed for murder as “a standard sentence offence”. Again, even if it might be thought there were similarities subjectively, the objective offending was more serious than in this case, there was absent any discount for a plea of guilty, and of course there was the requirement to have regard to a “standard sentence” which does not apply in the ACT.
An authority relied upon by the Crown for comparative purposes was Tuifua, where the offender was sentenced to 18 years and 6 months’ imprisonment for the murder (with an additional term for a contemporaneous offence of “inflicting grievous bodily harm” bringing the sentence to an aggregate of 20 years) with a nonparole period of 10 years (but with an effective minimum term of 11 years taking into account another sentence imposed for a “jail assault”). This matter is also relied upon by the defence in providing some comparative assistance. This offender, as the Crown points out, had no prior criminal convictions, but he was five years older than this offender at the time of the offending. This offender was sentenced on the basis that his act was one of “reckless indifference”. The victim stabbed the deceased from behind in the neck below his right ear. The deceased and some associates of him were involved in a melee with the offender and his associates. The offender was substantially affected by alcohol. When sentencing the offender it must be said that the sentencing judge concluded subjective matters more favourable than are available in this matter, such as the absence of criminal history and any breach of conditional liberty. However, the objective facts in that matter, both the manner of inflicting the fatal wound and that the offender wounded another person at the same time (of course for which the offender was required to be separately sentenced), were more serious. Nevertheless, the sentence provides at least a “guidepost” but not a definitive “yardstick”.
Finally, of some relevance is the decision in Massey, an unreported decision of Gray J of the ACT Supreme Court, on 28 July 2011. This is a decision that lacks some contemporaneity with current sentencing practice but involved a sentence of 16 years imprisonment with a non-period of 10 years imprisonment for the fatal stabbing by the prisoner of another woman at a shopping centre in the context of long-standing animosity between the offender and the deceased. The offender and the deceased were involved in a fight outside a shop where punches were thrown by both parties resulting in the deceased pulling out a knife and stabbing the victim once in the chest, and two times in the left side of the deceased body. There was no discount for the plea of guilty, the offender was found guilty after trial, the offence was not premeditated, and the offender did not arm herself for the purposes of stabbing the deceased. The offender was 38 years of age with “an extensive criminal history” but with an undiagnosed bipolar condition and a background of heroin addiction and other drug and alcohol abuse. The offending was assessed as “towards the lower end of the crime of murder” (without seeking) “to derogate from the seriousness of that crime”, noting “considerations of deterrence and retribution call for a significant sentence of imprisonment”.
In addition to some of the authorities referred to by the Crown, there were two other authorities cited by the defence that in my view are of little assistance. Lee involved a sentence for murder of 12 years with a nonparole period of 7 years imposed upon a 45 year old offender with no relevant criminal history and a “respectable” employment history, the subject of an unsuccessful Crown appeal. The murder involved the use of fists. There was no weapon used and it is conceded in the defence submissions here that the subjective circumstances of the offender warranted “significant leniency”. The much more favourable subjective circumstances, particularly the significantly longer period lived by the offender without relevant conviction, provides a substantial distinction from this matter, as does the absence of a weapon. The matter of R v O’Donnell [2009] NSWSC 42, whilst it involved a 22 year old offender committing the offence with the use of a knife in “unplanned” circumstances, required the Court to take into account the standard nonparole period for murder which was 20 years’ imprisonment (that is in accordance with the principles in R v Way [2004] NSWCCA 131; 60 NSWLR 168 since overturned by the High Court in Muldrock v The Queen [2011] HCA 39; 244 CLR 120) which does not apply here. The Crown also produced a lengthy schedule of cases in other jurisdictions which was not discussed in submissions beyond the cases above to which I have had regard, but which adds little to what can be gleaned from the cases I have cited.
Conclusion
I have concluded that the starting point for the sentence to be imposed should be 18 years’ imprisonment, reduced to 14 years 6 months’ imprisonment, with a discount of 20 percent for the plea of guilty rounding the figure slightly upwards, commencing on 4 January 2022. The sentence imposed is not an attempt to measure the value of the deceased to his family and the community, but an attempt to measure the appropriate punishment all considerations taken into account.
I fix a nonparole period of 10 years commencing on the same date, 4 January 2022, and expiring on 3 January 2032. I commend the recommendations made in the PSR for counselling and treatment of the offender within and outside custody.
Orders
The orders of the Court are:
(1) On the charge of murder (CC2021/11681) contrary to s 12 of the Crimes Act 1900 (ACT) the offender is convicted and sentenced to 14 years and 6 months’ imprisonment commencing on 4 January 2022 and ending on 3 July 2036.
(2) The nonparole period of 10 years’ imprisonment commences on 4 January 2022 and ends on 3 January 2032.
| I certify that the preceding one-hundred and fourteen [114] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Norrish. Associate: Date: 7 July 2023 |
43
0