R v DPD

[2023] NSWSC 477

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v DPD [2023] NSWSC 477

Hearing dates:

10 February 2023

Date of orders:

05 May 2023

Decision date:

05 May 2023

Jurisdiction:

Common Law

Before:

Wright J

Decision:

(1)   The offender is sentenced for the murder of Kevin Kourtis, taking into account the offences of possession of a firearm and common assault on the Form 1, to imprisonment for a non-parole period of 10 years and 3 months commencing on 23 April 2021 and expiring on 22 July 2031 and a balance of term of 5 years expiring 22 July 2036.

Catchwords:

CRIME – Sentence – Constructive murder– Juvenile at time of offending – plea of guilty – totality and parity – special circumstances

Legislation Cited:

Crimes Act 1900 (NSW), ss 18, 94(a), 97

Children (Criminal Proceedings) Act 1987 (NSW), Div 4

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 21A, 23, 23A, 24, 25A(1), 44, 47, 54D

Crimes (High Risk Offenders) Act 2006, ss 25(C)

Cases Cited:

Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518

BP v R [2010] NSWCCA 159; 201 A Crim R 379 at 388

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

DS v R, DM v R [2022] NSWCCA 156

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

R v Jacobs [2004] NSWCCA 462; (2004) 151 A Crim R 452

R v Thompson and Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 294

Category:

Principal judgment

Parties:

Rex (Crown)
DPD (Offender)

Representation:

Counsel:
A Isaacs (Crown)
W Terracini SC (Offender)

Solicitors:
Office of Director of Public Prosecution (Crown)
McAney Lawyers (Offender)

File Number(s):

2020/00154246-001

Publication restriction:

Under s 15A of the Children (Criminal Proceedings) Act 1987 (NSW) the name of, or any information identifying or likely to identify, the offender and the other participants who were under the age of 18 years at the time of the offending must not be published or broadcast.

Judgment

Introduction

1. On 3 June 2022, the offender pleaded guilty in this Court to the offence of murder contrary to s 18(1)(a) of the Crimes Act 1900 (NSW), prior to a trial being listed and prior to the offender being arraigned for trial in the Supreme Court.

2. In the statement of agreed facts signed by the offender on 1 June 2022, the basis for the offender’s plea was stated in par 2 as follows:

“The offender is entering a plea on the basis that this is a constructive murder matter. The foundational ‘25 year’ offence is pursuant to s.97(2) of the Crimes Act 1900: assault with intent to rob in company while armed with a dangerous weapon. The offender in entering a plea of guilty on the basis of constructive murder admits all the elements of the foundational offence of in company assault with intent to rob whilst armed with a dangerous weapon. The shortened firearm used in the offence was a dangerous weapon whether it was loaded or not. The offender did not have to contemplate that one of the co-offenders might possibly stab the deceased with a knife with an intention to inflict grievous bodily harm or to kill to be liable on the basis of constructive murder. The accused’s liability arises from the deceased being killed by an accomplice during the commission of the foundational offence.”

3. Before turning to consider the circumstances of the offending and the offender’s subjective case, it is appropriate to acknowledge that Kevin Kourtis’s death, like the death of every human being in such circumstances, was a tragedy. These remarks, however, must focus on the events leading up to, and what occurred on and after, 24 May 2020. In addition, the focus must necessarily be on the offender’s rather than the deceased’s circumstances. This is not, however, to diminish the importance or value of Mr Kourtis’s life.

4. The offender is now to be sentenced for that offence of murder. In addition, he has admitted guilt to two other offences of possessing a shortened firearm contrary to s 62(1)(b) of the Firearms Act 1996 (NSW) and common assault contrary to s 61 of the Crimes Act. He asked that these two offences be taken into account on a Form 1 when being sentenced for the offence of murder. I am of the view it is appropriate to do so, in all the circumstances, and I have done so.

5. The offender has pleaded guilty to an indictable offence in a court other than the Children’s Court. He was a child when the offence was committed, and was under the age of 21 years when charged before this Court with that offence. Consequently, when being sentenced for the serious children’s indictable offence of murder, the offender is to be dealt with according to law.¹

6. Notwithstanding that he is to be dealt with according to law, the principles in s 6 of the Children (Criminal Proceedings) Act 1987 (NSW) must still be applied in light of all the relevant circumstances, including the seriousness of the crime for which the offender is being sentenced. ^[1] The more relevant of those principles for the present case include:

“…

(b) that children who commit offences bear responsibility for their actions but, because of their state of dependency and immaturity, require guidance and assistance,

…

(e) that the penalty imposed on a child for an offence should be no greater than that imposed on an adult who commits an offence of the same kind,

(f) that it is desirable that children who commit offences be assisted with their reintegration into the community so as to sustain family and community ties,

(g) that it is desirable that children who commit offences accept responsibility for their actions and, wherever possible, make reparation for their actions,

(h) that, subject to the other principles described above, consideration should be given to the effect of any crime on the victim.”

1. Sections 16 and 17 of the Children (Criminal Proceedings) Act 1987 (NSW).

7. I have considered these principles in determining the sentence to be imposed.

Maximum penalty

8. The maximum penalty for murder is imprisonment for life, which indicates the inherent gravity of offences of this kind. It was not submitted by the Crown Prosecutor, however, that the offending in the present case should attract the maximum penalty. Nonetheless, the maximum penalty constitutes a legislative guidepost to which I have had regard.

9. Although murder generally attracts a standard non-parole period of 20 years imprisonment, that does not apply in the present case since the offender was under the age of 18 at the time the offence was committed. ^[2] As a result, I have disregarded that standard non-parole period. ^[3]

   2. R v SDM (2001) 51 NSWLR 530; [2001] NSWCCA 158 at [36].

   3. Section 54D(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

10. As to the offences on the Form 1, possessing a shortened firearm contrary to s 62(1)(b) of the Firearms Act carries a maximum penalty of 14 years’ imprisonment and common assault contrary to s 61 of the Crimes Act carries a maximum penalty of two years’ imprisonment.

Purposes of sentencing

11. In order to identify and assess the many factors relevant to sentence, I have also had regard to the purposes of sentencing stated in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Procedure Act), which are:

“(a) To ensure that the offender is adequately punished for the offence,

(b) To prevent crime by deterring the offender and other persons from committing similar offences,

(c) To protect the community from the offender,

(d) To promote the rehabilitation of the offender,

(e) To make the offender accountable for his or her actions,

(f) To denounce the conduct of the offender,

(g) To recognise the harm done to the victim of the crime and the community.”

Sentencing for constructive murder

12. In the present case, the offender is to be sentenced for constructive murder on the basis that he was culpable because he admitted that:

1. he was a participant in a joint criminal enterprise to commit an offence of assault with intent to rob in company while armed with a dangerous weapon contrary to s 97(2) of the Crimes Act, which carries a maximum penalty of 25 years; and

2. the deceased was killed “during the commission, by some accomplice with [the offender] … of [that offence which is] a crime punishable by imprisonment … for 25 years”, within s 18(1)(a) of the Crimes Act.

13. The principles to be applied in sentencing an offender for constructive murder in a case such as the present were not generally in dispute. These principles include:

1. Constructive murder is not to be regarded as less serious than other categories of murder and thereby attracting a lighter total sentence or non-parole period than that which is appropriate for other categories of murder; ^[4]

2. There are degrees of seriousness of constructive murder and the determination of the appropriate sentence for any individual offence depends upon the nature of an offender’s conduct and the part which he or she played in the events giving rise to death; ^[5]

3. When sentencing parties to the commission of the same offence, differences in the part played in the commission of the offence, age, background, previous criminal history and general character have to be taken into account. ^[6]

   4. BP v R [2010] NSWCCA 159 at [36] (Johnson J, Hodgson JA and Rothman J agreeing on this point); 201 A Crim R 379 at 388.

   5. R v Jacobs [2004] NSWCCA 462 (Jacobs) at [332] (Wood CJ at CL, Sperling and Kirby JJ agreeing); (2004) 151 A Crim R 452 at 512.

   6. Jacobs at [332].

14. The application of these principles was recently considered by the Court of Criminal Appeal in DS v R, DM v R [2022] NSWCCA 156 (DS). ^[7] At [109], the Court emphasised that the proper approach was to sentence an offender for constructive murder “on the basis that he pleaded guilty to it”, including in that case that the only state of mind encompassed by the plea was an advertence to the possibility of the infliction of a non-fatal wound, rather than to sentence the offender by reference to his co-offender’s offending and the offender’s role in that. Accordingly, in the present case, the objective seriousness of the offender’s offending is to be assessed by reference to the offender’s conduct and what was encompassed in his guilty plea rather than by reference to the conduct of his accomplices.

    7. Lowe v The Queen (1984) 154 CLR 606 at 609 (Gibbs CJ, Wilson, Mason and Dawson JJ agreeing); [1984] HCA 46.

The facts

15. For the purpose of determining the sentence, I must make findings of fact as to what occurred. ^[8] The facts I find against the offender must be found beyond reasonable doubt but the facts found in favour of the offender need only be found on the balance of probabilities. ^[9] In the present case, the offender has pleaded guilty and certain facts are agreed, as set out in the extensive statement of agreed facts which was signed by the offender on 1 June 2022.

    8. In that case, one of the offenders being sentenced, DS, had pleaded guilty to murder by reason of the combined effect of two forms of extended criminal liability, namely constructive murder and extended joint criminal enterprise. In that case, DS had agreed to commit an armed robbery with DM and in doing so was aware of the possibility that a weapon would be used to wound during that robbery. As it happened, during the robbery, DM violently assaulted and fatally stabbed the deceased. While the deceased was bleeding to death on the floor, DM dipped his finger in his blood and wrote the letters “I” and “S” on the window.

    9. GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22 at [30].

16. As to what relevantly occurred, I find that the facts are as set out in the agreed facts. For present purposes, it is sufficient to summarise those findings in the following way.

17. From around March through to May 2020, Mr Kourtis lived in a house in Langton Street, Riverstone, NSW, with Ms McKenzie and her then partner, Mr Sorenson. Throughout April and May 2020, the deceased had a girlfriend, Ms Howlett, who stayed at the residence on a number of occasions. Around this time, the offender attended the residence on several occasions.

18. In early April 2020, the offender was witnessed arguing with the deceased in the garage of the deceased’s residence about the price of the drug ice. On a subsequent occasion in April 2020, the offender and the deceased had a disagreement after the offender woke the deceased who was sleeping on the lounge at his house. Following this altercation, Mr Kourtis would not let the offender into his house.

19. On the evening of 23 May 2020, the offender, DJD and SP were at DJD’s residence in Quakers Hill. At 12:10 am on 24 May 2020, the offender telephoned Travis Murdoch. The call lasted 70 seconds. Soon after this phone call, Murdoch and Shillingsworth, who had been nearby, drove together to the Quakers Hill residence.

20. All five men then travelled in Shillingsworth’s car from the Quakers Hill residence to a street near Langton Street. At about 12.31 am, the five men walked down Langton Street and looked towards Kevin Kourtis’s house and gathered in a circle on the roadway outside the house for about 20 seconds before walking together down the driveway towards the front door of the house at about 12:32 am. They all had the lower half of their faces covered. The offender was the first of the five accomplices to reach the front door, and he was carrying a shortened .22 calibre 250 Remington savage model repeating bolt action rifle in his right hand, which had been taken in the vehicle with the five men.

21. One of the men knocked on the door, identified himself as James and asked to be let in. Mr Kourtis opened the door a fraction and then tried to shut it again but some of the men pushed against the door pushing the deceased backwards, knocking the deceased’s phone out of his hand in the process, before the men forced their way into the house. Ms Howlett was in the lounge room immediately to the right of the entrance hallway.

22. The deceased was physically forced by the offender and Shillingsworth, Murdoch and DJD down the entry hallway, past the loungeroom, and into the kitchen which was located at the end of the hallway. The offender was still carrying the rifle, whilst another of the men was carrying a 30 cm knife.

23. SP approached Ms Howlett in the loungeroom and stood over her. The kitchen was not visible from the loungeroom. She pulled a blanket over her head and heard plates and other items smashing in the kitchen area where the deceased was with the offender, Murdoch, Shillingsworth and DJD. Ms Howlett pulled the blanket off her head and looked at SP. SP told her not to call the police and asked her for her phone, which he checked and wiped down with his sleeve before returning it. SP then asked for her wallet from her bag and he took approximately $200 from it, once again using his sleeve to wipe down the top of the bag.

24. Whilst this was occurring in the loungeroom, the deceased was in the kitchen arguing with the offender, Murdoch, Shillingsworth and DJD, and one of the four men said, “Where’s the stuff?”. The deceased was physically assaulted and various items in the kitchen were broken. As a result of the assault, two of the deceased’s teeth were knocked out. At some stage, Mr Kourtis was stabbed multiple times by at least one of the four men. The Crown conceded that it could not establish beyond reasonable doubt who stabbed the deceased.

25. The offender and another of the four men went upstairs into the bedroom of Ms McKenzie. They were both masked. Ms McKenzie recognised the offender. As the offender entered the room he carried the rifle in both hands and then dropped it down by his right side. Ms McKenzie asked, “what are you doing?”, and the offender replied “Kevin’s a dog. Kevin’s a dog. Kevin’s a dog”.

26. The other man with the offender then said, “we have to go”, walked past the offender and left the room. At this point, the offender’s face mask was down to his chin, and Ms McKenzie could clearly identify him. She got off the bed and walked towards the offender and said, “what are you going to do? Hit me with it?”. The offender moved towards her and she raised her hands and said “go on, point it at me”. The offender raised the rifle so that the tip of the gun was touching her mouth. Ms McKenzie felt a pain in her right cheek, although she was unsure whether this resulted from being struck with the rifle or being pushed by the offender against the door frame. The offender then left and went downstairs, leaving Ms McKenzie in her bedroom.

27. Meanwhile downstairs, Shillingsworth approached Ms Howlett in the loungeroom. He asked her, “Where’s the shit?”. She said that she did not know what he was talking about, and he responded, “You better not be lying to me”. At this point, Ms Howlett heard the metal garage roller door opening and Shillingsworth grabbed her phone, threw it on the floor, stamped on it a few times, threw it at the wall, and then kicked the TV. One of the men, not SP, then yelled, “We gotta go, coppers are coming”. SP remained in the loungeroom with Ms Howlett the whole time but did not participate in Shillingsworth’s conduct in that room. As he was leaving, Shillingsworth stepped on the deceased’s telephone which was on the floor leaving a bloody shoe print on the telephone.

28. Shillingsworth and SP went into the garage through an internal access door. At some point, the offender who was now downstairs said to the deceased, “wake up mate, wake up mate. Where’s the keys to the ATV? Where’s the keys to the quad?”. Another of the men, not SP, yelled, “Kev, where are the bike keys?”

29. At approximately 12:36 am, the other four men ran from the deceased’s residence. The offender remained at the residence.

30. At approximately 12:37 am, SP realised the offender had not yet left, and returned to the deceased’s residence. At approximately 12:39 am, SP and the offender left the residence. They both ran out of the garage towards the street in which the car had been parked.

31. Once Ms Howlett could no longer hear any noises she ran upstairs to check on Ms McKenzie. She was upstairs for a few minutes before she went back downstairs to check on the deceased who was lying on the kitchen floor with a large amount of blood on his mouth and chest, making a gurgling sound. Ms Howlett then returned upstairs and told Ms McKenzie to phone police and they locked themselves in the upstairs bathroom until police arrived.

32. A neighbour who lived on the same street as the deceased had seen the offenders enter and exit the deceased’s property. He contacted police between 12:32 and 12:33 am when he heard yelling from within the house. Police arrived shortly after 12.45 am.

33. Upon entering the house through the garage, police saw that in the loungeroom the television was smashed, there was a hole in the wall to the right of the television no bigger than a hand and a smashed black smartphone on the floor in the hallway. There was drug paraphernalia and tools scattered throughout the premises. In the kitchen, police saw the deceased lying on the floor. There was a large amount of blood around the deceased’s head and abdomen and there were blood spatters on the kitchen floor, across the benches and the cupboards. There was a tooth on the ground and a smashed plate, as well as holes in the gyprock. Police commenced CPR on the deceased and an ambulance arrived around 12.51 am. There was also a large pool of vomit and blood around the deceased’s head. After a 20 minute period of treatment from ambulance officers, the deceased was pronounced dead at the scene at 1:14 am.

34. After hearing police arrive, Ms Howlett and Ms McKenzie went downstairs. Ms McKenzie identified the offender as someone who was involved in the home invasion. When asked by a police officer “what weapons did they have?”, she replied, “I don’t know but [the offender] had a gun”. The police officer asked “[the offender] was here?”, to which she replied, “yes”.

15. The five men did not stay together upon leaving the deceased’s house. Shillingsworth ran to his car and drove off alone. Murdoch and DJD telephoned and arranged for a friend to collect them in her car from a street in Quakers Hill.

16. Early on the morning of 24 May 2020, a resident of 4 Annaluke Street, which runs parallel and next to Langton Street, heard someone downstairs say “oh shit” and heard a bang. He then called the police and found that the car in his garage had its light on and the passenger door open. In the front yard, a black scrunched up t-shirt was found with the offender’s DNA on it. At approximately 7 am that same morning, a resident of 2 Annaluke Street identified an unknown black jumper in his backyard near the fence. This also had the offender’s DNA on it inside the neckline and the deceased’s blood was found on the left sleeve of this jumper.

17. The offender and SP were apprehended by the Dog Squad in Riverstone approximately 1.3 km from the deceased’s house at around 1:20 am on 24 May 2020. They were arrested and taken to Riverstone Police Station.

18. Whilst in custody, the offender’s clothing was seized for testing. DNA results located the deceased’s blood on the offender’s white jumper, as well as on the outside left leg of the offender’s black Adidas tracksuit pants.

19. The rifle, which was not loaded, was located at around 10:00 am on 24 May 2020 on a street in Riverstone, which is approximately 1.5 km from the deceased’s house and within 1 km from where the offender and SP were arrested by police.

20. No DNA matching the offender or any of his accomplices was detected on the rifle. DNA testing located the deceased’s DNA on four separate locations of the rifle. All five men knew that the offender had the rifle on his person at some stage prior to entering the deceased’s house.

21. Autopsies were completed on 26 and 27 May 2020 and the cause of death was identified as a stab wound of chest. When the initial autopsy was conducted, a serrated edge knife blade was located within layers of the deceased’s clothing, but the handle of the knife could not be located. The injuries sustained by the deceased included:

1. soft tissue swelling in the region of the parietal scalp without underlying skull or facial fracture;

2. seven stab wounds including one in the left upper chest, three in the abdomen, and three in the trunk;

3. two areas of laceration on the right parietal scalp;

4. blunt force injury of the mouth, including laceration of the lips and the avulsion of two teeth; and

5. defence type injuries including two incised wounds in the first web of the right hand, two in the dorsal aspect of the left hand, and a superficial laceration on the posterior left hand overlying the second metacarpophalangeal joint.

42. Between 24 May 2020 and 12 August 2020, Murdoch, Shillingsworth and DJD were also arrested.

Objective seriousness

43. Based on the agreed facts, I accept that the offender entered the deceased’s residence with four other young males as part of a joint criminal enterprise between them to assault Mr Kourtis with intent to rob him in company and whilst the offender was armed with a shortened rifle (which meets the relevant definition of a “dangerous weapon”). During or immediately after the assault on Mr Kourtis in the kitchen by the offender and three other participants, two of Mr Kourtis’s teeth were knocked out and he was fatally stabbed.

44. The offender entered a plea of guilty to murder on the basis set out in par 2 of the agreed facts, which has been quoted already. In the circumstances, he is not to be sentenced on the basis that he had either an intention to kill or an intention to inflict grievous bodily harm. In addition, since it cannot be determined beyond reasonable doubt who inflicted the fatal wound or wounds, the offender cannot be sentenced on the basis that he was the person who fatally stabbed Mr Kourtis.

45. The offending involved a targeted and planned assault with intent to rob Mr Kourtis, someone with whom the offender had had previous disagreements concerning the price of drugs and other matters. All five participants travelled together to a street near the deceased’s residence, parked there and walked to Langton Street; the offender brought a shortened rifle with him; all five wore partial face coverings; and, all five approached the deceased’s front door together and barged in. These circumstances indicate the offender and the four other males engaged in some planning and co-ordination. Nonetheless, I do not accept the Crown’s submission that the planning involved was greater than what was inherent in the relevant foundational offence for the constructive murder, namely, a joint criminal enterprise to assault Mr Kourtis with intent to rob him, in company and when armed with a dangerous weapon. In order for the offending to be “in company” in the present case, all five participants had to be there at the same time with a common purpose. In order for the element of carrying a dangerous weapon to be established, one of the participants had to carry such a weapon. In order for there to be a joint criminal enterprise to assault with intent to rob, in company armed with a dangerous weapon, the participants had to have reached an agreement to do so. All of this required a certain degree of organisation and planning. In my view, the factors which establish the level of planning or organisation involved did not elevate the degree of planning and organisation beyond what was inherent in the offence to which the offender has pleaded guilty. Thus, the aggravating factor within s 21A(2)(n) of the Sentencing Procedure Act does not apply in this case.

46. The offence, however, was committed in the home of the deceased and this is an aggravating factor ^[10] which I have taken into account.

    10. The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [24]-[27].

47. The offender played a significant role in the commission of the offence. The offender was the participant who knew Mr Kourtis and Ms McKenzie. He carried the shortened rifle. He was the first to reach the front door of the residence. He was one of the participants who pushed Mr Kourtis down the hallway and he was present in the kitchen when Mr Kourtis had two teeth knocked out and was fatally stabbed.

48. Furthermore, after the offender’s return to the kitchen after going upstairs and interacting with Ms McKenzie, he attempted to obtain the keys to the quad bike, which was in the garage, from the deceased without any apparent concern for his wellbeing at that time.

49. The offender submitted that, because he was carrying the rifle, he was “clearly not the person who was carrying or using the knife that killed the deceased”. I accept that the offender was carrying the rifle when the five men entered the house and when the offender went upstairs into Ms McKenzie’s bedroom. In addition, the deceased’s DNA was found on the rifle in various places, which suggests that the rifle came into contact with the deceased’s body during the attack on him. It can also be accepted that the offender was away from the deceased for some time while he was upstairs with Ms McKenzie. It is not clear, however, whether the offender retained the rifle at all times before it was disposed of on McCulloch St, where it was subsequently found. Based on all the material before me and in light of the absence of information as to who inflicted the fatal stab wound to the chest, I am not prepared to find positively, on the balance of probabilities, that the offender did not stab Mr Kourtis. Thus, the offender is to be sentenced on the basis that it is not known who inflicted the fatal stab wound.

50. The Crown submitted that the offending should be assessed as being “above the mid-range of objective seriousness for the offence of murder on a constructive basis”. The offender contended that his conduct fell “below the mid range of objective seriousness”.

51. In my view, in all the circumstances relevant to the assessment of objective seriousness of the offender’s conduct in relation to the constructive murder, his offending fell within the middle of the range.

52. As to the offences on the Form 1 and to the extent relevant, I would assess:

1. the offender’s possession of a shortened firearm as falling within the mid-range of objective seriousness for such offending; and

2. the common assault of Ms McKenzie by the offender upstairs in her bedroom as also falling within the mid-range for that offending.

Aggravating and mitigating factors

53. I have already referred to the aggravating factors said to be relevant in the present case. The fact that the offence took place in the deceased home has been taken into account in assessing objective seriousness and has not otherwise been relied on as increasing the appropriate sentence, in order to avoid double counting. As noted above, I do not accept that the offence was aggravated as a result of being part of a planned or organised criminal activity, as the Crown contended.

54. The only other aggravating factor was personal to the offender and was, therefore, not relevant to the assessment of objective seriousness. That was the fact that the offence was committed while the offender was on conditional liberty since he was on bail on 24 May 2020. ^[11] He was discharged from Cobham Youth Justice Centre on 9 March 2020 on bail awaiting a hearing in respect of offences for which he was sentenced on 4 August 2020 to a 17 month control order. This has been taken into account in determining the sentence in the present case.

    11. Crimes (Sentencing Procedure) Act, s 21A (2)(eb).

55. Mr Terracini of Senior Counsel, who appeared for the offender, made submissions on the offender’s subjective circumstances including the following mitigating factors for the purposes of s 21A(3) of the Sentencing Procedure Act:

1. his remorse for his offending; ^[12]

2. his plea of guilty; ^[13]

3. his prospects of rehabilitation, by reason of his age and circumstances; ^[14] and

4. his lack of full awareness of the consequences of his actions because of his age. ^[15]

   12. Crimes (Sentencing Procedure) Act, s 21A(2)(j)

   13. Crimes (Sentencing Procedure) Act, s 21A(3)(i).

   14. Crimes (Sentencing Procedure) Act, s 21A(3)(k)

   15. Crimes (Sentencing Procedure) Act, s 21A(3)(h).

56. I shall deal with these and other relevant matters, when I consider the offender’s subjective case.

The offender’s subjective case

57. Information as to the offender’s subjective circumstances was largely obtained from two sources. First, there was a psychiatric report of Dr Gerald Chew dated 18 July 2022, based upon a psychiatric assessment of the offender conducted via AVL on that same date. In addition, Dr Chew had access to, inter alia, the signed statement of agreed facts, the offender’s custodial and criminal history, and a Justice Health Report of Dr Elliot dated 4 May 2022. Dr Elliot’s report noted a history and diagnosis of a psychotic disorder, self-harm and substance abuse dating back to 2018.

58. Secondly, there was a Confidential Background Report of Lindsay Aubrey, Caseworker, and Chris Michaels, Assistant Manager, both with Youth Justice NSW, dated 11 October 2022. This report was based upon two phone interviews with the offender in August 2022. In addition, the authors of that report had access to, inter alia, two earlier Confidential Background Reports, as well as a report by Ms Kim Voss, Psychologist, dated 23 April 2021. Ms Aubrey also interviewed Ms Bree Creighton, the offender’s partner, via telephone on 27 September 2022.

59. The offender also provided character references from five individuals:

1. [Redacted] (his partner) dated 20 July 2022;

2. [Redacted] (a friend) dated 19 July 2022;

3. [Redacted] (his mother) dated 20 July 2022;

4. [Redacted] (a family friend) dated 18 July 2022; and

5. [Redacted] (his aunt) dated 10 February 2023.

60. The information in these character references is largely consistent with what is recorded in Dr Chew’s report and the Confidential Background Report and I have taken into account all this material in making my findings with respect to the offender’s subjective case and in considering the sentence to be imposed.

Upbringing and education

61. The offender was born on 14 October 2002 in Blacktown, NSW. He was 17½ years old at the time of the offending. He is now 20 years of age. He identifies as Indigenous.

62. The offender grew up in Riverstone in Western Sydney. He had a difficult childhood, with his father, mother and step-father being in custody for substantial periods from when the offender was quite young and being frequent drug users. He denied any physical or sexual abuse to Dr Chew although some of the material indicated that he witnessed and may have suffered some domestic violence. The Confidential Background Report described his family and living circumstances in the following terms:

“[the offender] has lived a very transient lifestyle, with limited parental supervision, due to his parents' own periods of incarceration throughout his early childhood and adolescent years. As such, [the offender’s] accommodation has been fairly unstable, and he has lacked appropriate positive role models for the majority of his adolescent years.”

63. It appears that the only stability in his life was provided by his grandmother who, unfortunately, died when he was about 11 years old. From time to time, he also lived with his aunt, his mother’s sister. In his mother’s letter to the Court, she wrote:

“After the death of my mother, everyone’s life had changed because the person that held the family together was gone. My sister went into the deepest depression which caused her to relapse and turn to drugs again. Months later her and her partner went to jail, because of this [the offender] believed he had to support his family and only being 11 years old he was at school and had no job, so he turned to the drug world. A month or two later my sister[’s] partner was released, a short time after her and [the offender] got into a disagreement and she told him to leave, for the next few nights [the offender] found himself sleeping in a bobcat on a construction site until his father found out and took him in. Where he was staying wasn’t fit for any child. One night a fight broke out and [the offender] witnessed a crime that no child should of seen from that day.

A short time later [the offender] couldn’t handle the flashbacks from what he had seen. To make it stop he started drinking and using zanies (alprazolam) to make it stop. …”

64. The Confidential Background Report summarises the position as follows:

“[The offender] has experienced a significantly adverse upbringing, encompassing being exposed to parental substance abuse, parental incarceration, parental mental health, neglect, lack of positive role models, and unstable family and living circumstances.”

65. With what appears to me to be a degree of understatement the Confidential Background Report then said: “This appears to have had an adverse effect on [the offender].”

66. The offender’s education has been limited largely as a result of his dysfunctional upbringing and lifestyle.

67. I accept that the offender’s circumstances engage the principles in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 such that, in the present case, his moral culpability and his suitability as a vehicle for general deterrence are substantially reduced and this should be reflected in the sentence imposed.

Substance abuse

68. The offender commenced using cannabis from about the age of 10 and other drugs later. His drug use has included cannabis, alcohol, methamphetamine and benzodiazepines (Valium and Xanax), as well as heroin on a few occasions. He also admitted smoking illicit buprenorphine while in custody. The offender disengaged from drug and alcohol treatment programs while previously in custody and under supervision. The Confidential Background Report noted that he had been a participant in a residential rehabilitation program, known as PALM, at Randwick in March 2020 but left the program after about 10 days because he was displaying flu-like symptoms and was directed to leave because of the COVID-19 pandemic. He went to reside with Ms Hunt but then sought to move to live with his aunt, [redacted], which apparently led to difficulties with his then existing bail conditions. The offending occurred not long after. The Confidential Background Report recorded that the offender now is of the view that his substance use is an issue for him but that since he has been in adult custody he has not been afforded the opportunity to address this via a program. It was reported that he hopes to engage in a substance use program after he is sentenced.

69. I have taken into account: the fact that he was introduced to drug and alcohol use at a very young age by those who should have been responsible for his welfare; that he has tended to self-medicate using those substances for his mental health conditions and his history of trauma and neglect.

Mental health

70. Dr Chew’s report noted the statements and opinions of Dr Elliott from May 2022 including:

1. the offender’s history and diagnosis of psychotic disorder dating back to around 2018, developmental adversity and deliberate self-harm;

2. his treatment under the provisions of a forensic community treatment order;

3. his specific psychotic symptoms included: auditory hallucinations consisting of sounds and his name being called and voices commanding him to harm others; delusions that his body was slowly dying; beliefs in telekinesis and thought broadcasting; thoughts that the radio was giving him derogatory messages and people were talking about him; beliefs that he had telepathic communication with his cousin; and a belief that he could die and transition to another life;

4. his abuse of alcohol and Xanax.

71. Dr Chew noted that the offender’s current medications included an anti-depressant and an antipsychotic. Dr Chew’s opinion was that the offender’s primary diagnosis was schizophrenia and, given his developmental adversity, he had developed a Cluster B personality style with a significant substance abuse disorder, which further complicated his psychiatric diagnoses. Dr Chew was also of the opinion that he was suffering from those conditions at the time of the offending and that these impaired his ability to control his conduct.

72. The Confidential Background Report noted that in July 2019 the offender had been diagnosed with post traumatic stress disorder, disruptive disorder, psychosis/schizophrenia, anxiety and depression and was prescribed medication accordingly.

73. It was also noted by Dr Chew that the offender was not taking his medication as prescribed at the time of the offending, which further contributed to his unstable mental state.

74. In light of that evidence, which I accept, and of all the circumstances of the case as disclosed in the material before the Court, I am satisfied that the offender’s significant mental health conditions were causally related to the offending for which he is to be sentenced.

75. The circumstances of the present case engage the principles which must be applied when sentencing in relation to serious or violent crimes in a context of mental illness which were set out by Simpson J in Aslan v R [2014] NSWCCA 114 at [33] – [35], as follows:

“33. … The compassion and sympathy that such a condition engenders collide with the need for sentences to reflect the objective gravity of the offence in question, the community's interest in general deterrence, and that criminal conduct must be met with appropriate denunciation and retribution. Over the years, the applicable principles have evolved. They were most recently re-stated by McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 at [177]. They are as follows:

‘[Principle 1] Where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence ...

[Principle 2] It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed ...

[Principle 3] It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced ...

[Principle 4] It may reduce or eliminate the significance of specific deterrence ...

[Principle 5] Conversely, it may be that because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence ... Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public ...’ (internal citations omitted, italics added)”

34. It will be observed that none of these principles is stated as absolute. What is recognised is the potential effect, in any given case, of a mental disability. It does not follow that, because an offender suffers from some mental impairment or disability, his or her moral culpability is reduced (principle 1); nor that he or she is an inappropriate vehicle for general deterrence (principle 2); nor that a custodial sentence will weigh more heavily upon him or her (principle 3); nor that the significance of specific deterrence is reduced or eliminated (principle 4). Nor, on the other hand, does it follow that a person with mental impairment is a danger to the community, indicating a need for community protection (principle 5). Too often, the mere fact of mental illness is advanced to this Court as necessarily calling for a more lenient sentence. What the principles spelled out by McClellan CJ at CL do is direct attention to considerations that experience has shown commonly arise in such cases. There is, however, no presumption. It remains necessary for the sentencing court to examine the relevant facts in order to determine whether, in the specific case, the mental condition has the consequence contended for.

35. A central question (but not the only question) is whether the mental illness or other condition had a causative role to play in the commission of the offence or offences for which the offender is to be sentenced. Counsel who appeared for the applicant accepted that this was the principal issue in this case. If it is concluded that there was a causal connection, then the offender's moral culpability may be reduced (see principle 1). That connection may also warrant lesser attention being paid to the need for the sentence to reflect considerations of general deterrence (principle 2).” (emphasis in original)

76. Applying these principles, it appears to me that, because of his mental health conditions and the role they played in his offending, the offender’s moral culpability and his appropriateness as a vehicle for general deterrence should be taken to be reduced. In addition, these conditions will also make the offender’s time in custody more onerous. There is also, however, the need to take into account the protection of the public arising out of how these conditions have manifested themselves in the offender’s conduct and interactions with other persons to date. This latter consideration tends in the opposite direction compared to the two previous considerations and means that the need for specific deterrence is not reduced to the same extent as it might otherwise have been.

Remorse

77. The offender pleaded guilty to the charge of murder and it can be accepted that this demonstrates some acceptance of responsibility for his actions. Dr Chew also recorded that:

“He told me that he was extremely sorry for his offending behaviour. He said that he was extremely ashamed and embarrassed. He admitted that at the time of the offending he had been off his medication since his release from juvenile Justice about two months earlier and had relapsed into illicit drug use.”

78. In addition, the authors of the Confidential Background Report noted:

“[The offender] was able to identify how the victim, the victim’s family, himself and his family have been impacted by his involvement in the above offence.

[The offender] reported that the victim has lost their life unnecessarily via his involvement in the offence, and that this is a permanent action that he is unable to take back. [The offender] reported that the victim will never have another experience again, be able to spend time with their family or watch their children grow up. [The offender] also acknowledged that the injuries the victim sustained were significant, and that the victim must have felt extremely ‘scared’ being confronted by multiple persons, with weapons.

As mentioned, [the offender] reported that he believes that the victim has children, and reported he was unable to express how they would feel having lost their father. [The offender] likened this to the loss of his parents to drugs, however, reported that ‘my parents are still here, they are just different’. [The offender] reported that he could not imagine the impact that this has had on the victim’s family.”

79. The offender did not, however, give evidence nor was there any other indication directly from the offender of his remorse or regret. Nonetheless, I accept that the offender has a degree of genuine remorse which should be given some weight. I cannot, however, conclude that the offender’s remorse is such as to justify a conclusion that the offender is unlikely to reoffend.

Guilty plea

80. As noted above, the offender pleaded guilty after his committal for trial and when he was first arraigned in this Court. The plea was, thus, not entered at the earliest stage nor was it entered at the latest possible time. Since the offence was committed when the offender was under the age of 18 years and he was under the age of 21 years when charged before the court with the offence, the legislatively mandated discounts which are to be applied under Pt 3, Div 1A of the Sentencing Procedure Act do not apply. ^[16]

    16. Crimes (Sentencing Procedure) Act, s 21A(3)(j).

81. Nonetheless, the offender is entitled to some discount by reason of his plea of guilty falling within the range of 10-25%. ^[17] Given the timing of the plea and the issues which would have been required to be determined at trial, I propose to allow a discount of 17.5%.

    17. Crimes (Sentencing Procedure) Act, s 25A(1)(b).

Prospects of rehabilitation

82. Mr Terracini SC submitted that the offender’s expressions of remorse and contrition, his willingness to engage in treatment, and Dr Chew’s opinion that the offender showed good insight into this need for treatment and the need to abstain from illicit drugs, “provide a foundation for the Court to accept that the offender has good prospects of rehabilitation”. It was also submitted that the capacity of a young person to reform and readjust to society’s norms is more often greater than that of an older offender. Finally, in this regard, it was submitted that the court would impose a sentence that was not crushing and promoted the rehabilitation of the offender.

83. The offender has had an unfortunately dysfunctional upbringing and suffers from serious mental health conditions. I accept that he has shown some recognition as to the seriousness and consequences of the offending for which he is to be sentenced. This together with his youth and his recognition of the need to receive treatment for his substance abuse disorder mean, in my view, that he has some significant prospects of rehabilitation. I could not, however, in all the circumstances go further and find that those prospects are “good”. In all the circumstances, I find that that the offender’s prospects of rehabilitation require some mitigation of his sentence, but not to the full extent that might have applied if his prospects of rehabilitation had been better.

Criminal history

84. The submissions made on the offender’s behalf acknowledged that his criminal history did not afford him “any capacity for leniency”. I accept this acknowledgement was correctly made.

Youth

85. As to the offender’s youth, I have already mentioned the application of the principles in s 6 of the Children (Criminal Proceedings) Act and have taken them into account. I have also taken the offender’s youth into account when considering the role that his immaturity played in the commission of the offences in relation to which he is to be sentenced and his prospects of rehabilitation. His youth and immaturity are also factors which tend to reduce his moral culpability and make him a less suitable vehicle for general deterrence.

86. In addition, in the offender’s case, where he is only 20 now and was 17 at the time of the offending, I am particularly mindful of not imposing a sentence which could be characterised as crushing and which would militate against his prospects of rehabilitation.

Special circumstances

87. Given the offender’s circumstances to which I have already referred, in my view it is appropriate to find special circumstances exist for the purposes of s 44(2) of the Sentencing Procedure Act, based in particular upon:

1. the offender’s youth and mental health conditions;

2. the need for him to have significant mental health and drug and alcohol treatment and supervision over an extended period once he is released into the community; and

3. the need to mitigate the prospect of institutionalisation by providing a lengthier period on parole than would otherwise apply by virtue of the statutory ratio.

Form 1 offences

88. As to the Form 1 offences, it appears to me that the criminality involved in the firearm offence is essentially subsumed in the criminality of the constructive murder offence, which was based on the foundational offence of assault with intent to rob in company armed with a dangerous weapon, namely the firearm. The other Form 1 offence, the assault of Ms McKenzie, involved a separate incident from the foundational offence and the murder. Nonetheless, it was closely related in time and place and motivation to those other offences.

89. In all the circumstances, in my view, the offences on the Form 1 do not call for any substantially increased penalty to be imposed for the offence of constructive murder not least because the circumstances which gave rise to the Form 1 offences are also circumstances which have already been taken into account in assessing the seriousness of the offender’s participation in the murder.

Parity

90. The other four males who were participants, or are alleged to have been participants, in the offending for which the offender is to be sentenced were charged with murder under s 18(1)(a) of the Crimes Act arising out of the events which occurred on 24 May 2020. Three, including the offender, pleaded guilty and two pleaded not guilty. The other two who pleaded guilty have already been sentenced. There are, however, differences between the Form 1 offences that one of those who pleaded guilty asked the Court to take into account and the Form 1 offences in the present case.

91. In a case such as the present where a number of persons have been charged with the same offence arising out of the same criminal conduct or enterprise, the parity principle, which is a norm of equal justice and an essential aspect of the rule of law, requires like offenders to be treated in a like manner and different sentences to be imposed upon like offenders to reflect the different degrees of culpability and any different circumstances of the offenders. ^[18]

    18. R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 at [152]ff, quoted in GL v The Queen [2022] NSWCCA 202 at [91] (Hamill J, Brereton JA and Garling J agreeing).

92. In addition to the differences in the Form 1 offences in the case of the offender compared to others who have pleaded guilty and the different timings of their pleas of guilty, the most relevant differences in the present case include:

1. the offender carried the shortened rifle, which was a “dangerous weapon”, and which led to the foundational offence being one which carried a maximum penalty of 25 years’ imprisonment;

2. the offender being one of those in the kitchen when Mr Kourtis was fatally stabbed, unlike SP who did not enter the kitchen but, during the relevant time, remained in the loungeroom with Ms Howlett and did not use physical force or violence towards her or her possessions;

3. the offender being the only one of the males who was said to have any previous knowledge of or involvement with the deceased or Ms McKenzie; and

4. the offender being a participant who stayed behind after the others had left and who attempted to obtain the keys to the quad bike from the deceased without any apparent concern for Mr Kourtis’s wellbeing at a time when he was alive, lying on the kitchen floor in a pool of blood, having been stabbed and assaulted.

93. In addition, I have taken into account:

1. the differences in the agreed facts in respect of the offender and the agreed facts relating to the other two participants who pleaded guilty; and

2. the different ages, backgrounds and other aspects of the subjective cases of each of the males involved, including in particular their different mental health diagnoses, different prospects of rehabilitation, different expressions and depth of remorse and insight and different criminal histories.

94. It is not possible to make any simple or precise quantitative comparisons between the sentences imposed on the other offenders and the sentence to be imposed on the offender in this case. Nonetheless, all of these factors and the other circumstances of the case have been taken into account and particular attention has been given to the differences and similarities in the respective circumstances and cases of each offender so as to arrive at a sentence for each of them which appropriately reflected the differences and similarities. It can be noted, however, that some of the differences between the circumstances relevant to the offender compared to those of Mr Shillingsworth tended to cancel one another out.

Time spent in custody

95. The offender was arrested on 24 May 2020 and has been in custody since that time. Both the Crown and the offender, in their respective submissions, also noted however that part of that time spent in custody has been attributable to sentences imposed on the offender in respect of other offending.

96. The Crown Sentence Summary stated that the total time spent in custody solely in respect of the offending for which the offender is to be sentenced is 10 months and 22 days (the offender’s submissions calculated the period as 10 months and 21 days). It was submitted on behalf of the offender that a significant period of time that the offender has spent in custody in addition to the time solely referrable to the offending for which he is to be sentenced should be taken into account to avoid a crushing sentence and because there should be a significant degree of concurrence between the sentence in the present matter and the time spent in custody for the other matters. In addition, it was noted that the offender’s time in custody has been affected adversely by the COVID-19 pandemic.

97. The periods spent in custody since his arrest on 24 May 2020 which were attributable, in part, to other sentences were:

1. between 24 May 2020 and 20 January 2021 (241 days), which was part of a control order imposed for offences of affray, being armed with intent and aggravated entering a dwelling with intent; and

2. between 12 December 2021 to 11 February 2023 (426 days), which was a sentence imposed for an offence of assault occasioning actual bodily harm.

98. Thus, the offender has been in custody solely as a consequence of the offending for which he is to be sentenced from 21 January 2021 to 11 December 2021 and from 12 February 2023 to date. This period is to be taken into account by backdating the commencement of the sentence.

99. In addition, I accept that a consideration of the totality of the criminality involved in the offences for which the offender is to be sentenced and the offences which gave rise to the control order and sentence for the assault occasioning actual bodily harm requires some notional concurrency between those sentences and the sentence to be imposed. The other offences arose out of essentially the same underlying circumstances as those that led to the offending for which the offender is being sentenced. Furthermore, a degree of notional concurrency will also assist to ensure that the sentence for the current offending is not crushing and to recognise the difficulties associated with the Covid-19 pandemic in custody. A total of 667 days in custody is attributable to that other offending. It is, in my view, appropriate in all the circumstances to allow notional concurrency of about half that period.

100. Accordingly, the commencement of the sentence to be imposed should be backdated to 23 April 2021.

Additional remarks

101. Before formally announcing the sentence of the Court, it remains important to acknowledge that the taking of Mr Kourtis’s life was a human and personal tragedy, which should not be treated only as the subject of a criminal proceedings. His unnecessary death in such distressing circumstances has undoubtedly caused grief and sorrow for his family and loved ones.

102. The Court extends its sincere sympathy for their loss to the deceased’s family and all those affected by his untimely death.

Sentence

103. Having considered all possible alternatives and given the nature of the offending and the circumstances of the offender, I am satisfied that no penalty other than imprisonment is appropriate.

104. Having regard to the purposes of sentencing, the objective seriousness and circumstances of the offending as well as the subjective case of the offender and the other relevant principles and considerations, in my view, before the application of the discount of 17.5% for the plea of guilty, the appropriate term of imprisonment for the offence of constructive murder, taking into account the offences on the Form 1, is 18 years and 6 months. When the 17.5% discount is applied to that period, it results in a sentence, when rounded down to the nearest month, of 15 years and 3 months. Given the finding of special circumstances in relation to the statutory ratio of the non-parole and parole periods, that sentence should be made up of a non-parole period of 10 years and 3 months (67.2%) and a balance of term of 5 years (32.8%).

105. As already noted, the commencement date of the sentence is to be backdated to 23 April 2021 and, thus, the non-parole period will expire on 22 July 2031.

Orders

106. Accordingly, the Court orders:

1. The offender is sentenced for the murder of Kevin Kourtis, taking into account the offences of possession of a firearm and common assault on the Form 1, to imprisonment for a non-parole period of 10 years and 3 months commencing on 23 April 2021 and expiring on 22 July 2031 and a balance of term of 5 years expiring 22 July 2036.

107. The earliest date the offender will be eligible to be released on parole is 22 July 2031.

108. Pursuant to s 25C of the Crimes (High Risk Offenders) Act 2006 (NSW), the offender is advised of the existence of that Act and of its application to the offence he has committed.

**********

Endnotes

Amendments

05 May 2023 - Redactions applied

05 May 2023 - Redactions applied

Decision last updated: 05 May 2023