R v EE

Case •

[2023] NSWSC 104

•

17 February 2023

No judgment structure available for this case.

Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: R v EE [2023] NSWSC 104
Hearing dates: 28 July 2022, final written submissions 16 February 2023
Date of orders: 17 February 2023
Decision date: 17 February 2023
Jurisdiction:Common Law
Before: Wright J
Decision:

(1)   The offender is sentenced for the offence of murder, taking into account the offence of robbery with intent to rob on the Form 1, to imprisonment for a non-parole period of 4 years and 2 months commencing on 23 December 2020 and expiring on 22 February 2025 and a balance of term of 2 years and 1 month expiring 22 March 2027.

(2) Pursuant to s 19(1) and (2)(a) of the Children (Criminal Proceedings) Act 1987 (NSW), it is directed that the offender serve the whole of the non-parole period of his sentence as a juvenile offender.

Catchwords:

CRIME – Sentence – Constructive murder – Offender pleaded guilty – Juvenile at time of offending – No substantial involvement in acts leading to death of the deceased – Below mid-range of objective seriousness – Discounts for plea of guilty and assistance – Significant subjective case

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)
EE (Offender)
Representation:

Counsel:
Mr Marney (Crown)
Mr Steel (Offender)

Solicitors:
Office of Director of Public Prosecution (Crown)
Legal Aid NSW (Offender)
File Number(s): 2020/154265
Publication restriction: On 28 July 2022, the Court ordered that the offender be referred to by the letters “EE” and not by name. Under s 15A of the Children (Criminal Proceedings) Act 1987 (NSW) the name of, or any information identifying or likely to identify, the plaintiff must not be published or broadcast.

Judgment

Introduction

  1. On 24 May 2020, the offender went to the home of the deceased in company with four accomplices with the intent of robbing the deceased. One of the accomplices was armed with a shortened .22 repeating bolt action rifle and another accomplice was carrying a 30 cm silver knife. During an assault on the deceased involving the four accomplices the deceased was stabbed a number of times. The offender was not in the room when the stabbing occurred. The deceased died shortly after the stabbing, at the scene. The offender was arrested later that day.

  2. On 25 March 2022, the offender pleaded guilty in the Children’s Court of Parramatta to the offence of murder contrary to s 18(1)(a) of the Crimes Act 1900 (NSW). In the statement of agreed facts signed by the offender on 25 March 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 1990: 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.”

  1. Before turning to consider the events which occurred and the offender’s subjective case, it is appropriate to acknowledge that the deceased’s death, like the death of every human being in such circumstances, was a tragedy. These remarks, however, must focus on what happened on 24 May 2020 and the circumstances in which they occurred. They must also necessarily focus on the offender’s circumstances. This is not, however, to diminish the importance or value of the deceased’s life.

  2. The offender now stands to be sentenced for that offence of murder. In addition, he has admitted guilt to the offence of robbery contrary to s 94(a) of the Crimes Act, contained on a Form 1, and has asked that it be taken into account. I am of the view it is appropriate to do so, in all the circumstances, and I have done so.

  3. The offender has pleaded guilty to an indictable offence in a court other than the Children’s Court, 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]

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

Maximum penalty

  1. 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.

  2. 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. Section 54D(3) of the Sentencing Procedure Act.

    3. 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.

  3. Robbery contrary to s 94(a) of the Crimes Act carries a maximum penalty of 14 years’ imprisonment and there is no standard non-parole period.

Purposes of sentencing

  1. 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

  1. 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.

  1. 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 participants in 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. 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.

    5. Jacobs at [332].

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

  1. 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 that the only state of mind encompassed by his 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 it. Accordingly, in the present case, the objective seriousness of his 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 which led to the death of the deceased.

    7. 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.

The facts

  1. I find that the facts as to what relevantly occurred are as set out in:

  1. the extensive statement of agreed facts which was signed by the offender on 25 March 2022; and

  2. the oral evidence given by the offender at the sentence hearing.

  1. For present purposes, however, it is sufficient to summarise those findings in the following way.

  2. The deceased lived at a house in Riverstone, NSW, with a female and her boyfriend. Between April and May 2020, the deceased had a girlfriend who stayed at his house quite frequently.

  3. In the early hours of 24 May 2020, the offender met up with his four male accomplices and together they travelled in a car, at some times without its headlights on, to a street near the deceased’s house. After leaving the car, they gathered in a circle on the roadway outside the house for about 20 seconds before walking together down the deceased’s driveway towards the front door at about 12.32 am. They all had the lower half of their faces covered. One of the accomplices approached the door carrying a shortened .22 calibre 250 Remington savage model repeating bolt action rifle in his right hand.

  4. One of the men knocked on the door and asked to be let in. The deceased opened the door a fraction and then tried to shut it again but the men forced their way in, knocking the deceased’s phone out of his hand in the process. The deceased was forced by the offender’s four accomplices down the entry hallway, past the loungeroom which was located immediately to the right of the entry hallway, and into the kitchen which was located at the end of the hallway. One of the accomplices was still carrying the rifle and another was carrying a 30 cm knife. While this was happening, the deceased’s girlfriend was sitting in the loungeroom and the offender entered that room and stood over her.

  5. While the deceased girlfriend and the offender were in the loungeroom, the sound of plates and other items being smashed in the kitchen area, where the four accomplices were with the deceased, could be heard.

  6. The offender said to the deceased’s girlfriend, “Don’t call the coppers. Give me your phone”. She replied, “I haven’t called”. He then took the phone out of her hand and checked her phone before using his sleeve to wipe down the phone before handing it back to her. Following that, he asked her what she had in her bag and then said, “I think you’re lying to me, show me your wallet”. The offender took approximately $200 from her wallet upon her showing it to him and used his sleeve to wipe down the top of her bag.

  7. In the kitchen during this time, the four accomplices were arguing with the deceased and various items in the kitchen were being broken. One of the accomplices said, “Where’s the stuff?”. The deceased was physically assaulted which caused two of his teeth to be knocked out and he was also stabbed multiple times by at least one of the accomplices. The offender was not present in the kitchen when any of this occurred.

  8. Two of the accomplices, one carrying the rifle, went upstairs into the bedroom of the other female who lived in the house and eventually returned downstairs. Another of the accomplices approached the deceased’s girlfriend in the loungeroom and asked, “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, the metal garage roller door could be heard opening and the accomplice grabbed the deceased girlfriend’s phone, threw it on the floor, stamped on it a few times, threw it at the wall, and then kicked the TV. The offender remained in the loungeroom whilst this occurred but did not participate in this conduct. One of the accomplices then yelled, “We gotta go, coppers are coming”.

  9. The offender and the accomplice who had been in the loungeroom went into the garage through an internal access door. Some of the accomplices yelled out asking the deceased where the keys to the quad bike were.

  10. At approximately 12:36 am, all the offenders except the accomplice who had carried the rifle ran from the deceased’s property. They had been inside for about five minutes.

  11. At approximately 12:37 am, the offender stopped running and went back to the property upon realising that the accomplice who had carried the rifle had not left. At approximately 12:39 am, the offender and that accomplice ran out of the garage of the deceased’s property towards the street in which their car had been parked.

  12. Once the deceased’s girlfriend could no longer hear any noises she went upstairs to check on the other female. She was upstairs for a few minutes before she went back downstairs to check on the deceased who was laying on the kitchen floor with a large amount of blood on his mouth and chest, making a gurgling sound. The deceased’s girlfriend then returned upstairs and told the other female to phone police and they locked themselves in the upstairs bathroom until police arrived.

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

  14. 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 smears and spatters, broken plates and holes in the gyprock. CPR was performed on the deceased and an ambulance was called. After treatment from ambulance officers, the deceased was pronounced dead at the scene at about 1:14 am.

  15. After hearing police arrive, the two females went downstairs and the female who lived at the house identified the accomplice who had been holding the rifle.

  16. The five males did not all stay together upon fleeing the deceased’s house. Relevantly, the offender and the accomplice who had carried the rifle remained together and 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 at the same time and then taken to Riverstone Police Station.

  17. Whilst waiting for transportation to Riverstone Police Station to arrive, the police asked the offender to provide his details and he provided a false name which was an alias used by him. The police cautioned him and placed him under arrest. Police located a small black mobile phone, an Opal card and $220 in cash in his bum bag.

  18. Forensic test results included that: the DNA of the deceased could not be excluded as a contributor to the mixed DNA profile located on the left hand middle finger of the offender; and, the hooded jumper seized from the offender upon entrance into custody had the blood of the deceased on the front it.

  19. The rifle carried by one of the accomplices during the offending was located at around 10:00 am 24 May 2020 on a street in Riverstone which is within approximately 1.5 km of the deceased’s house and within approximately 1 km of where the offender and the accomplice were arrested by police. The statement of agreed facts expressly stated that the offender and his accomplices all knew that the accomplice had the rifle on his person at some stage prior to entering the deceased’s house.

  20. 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.

  1. Between 24 May 2020 and 12 August 2020, the other three accomplices were arrested.

EE’s time in custody

  1. The offender has been in custody since his arrest on 24 May 2020 but, on 30 September 2021 in Parramatta Children’s Court, a 21 month control order was imposed with a 12 month non-parole period concluding on 29 September 2022, for an offence of aggravated break and enter and commit serious indictable offence committed on 30 June 2019. Accordingly, not all of the period that he has spent in custody from 24 May 2020 is attributable solely to the offending for which he is to be sentenced on this occasion.

  2. In addition, the statement of agreed facts included transcripts of telephone calls involving the offender while in custody. In one of these, he indicated that he did not know that his accomplices were seriously going to hurt someone, which I accept to be true. In addition, on 26 May 2020, the offender is recorded as saying:

“ … How could you do that and laugh about it? Like, the person has a family and shit. Like, I regret being in my car for them. I just regret it, bah.

I just panicked.

…

It’s not but. I made the choice to jump in the car.”

  1. I am satisfied these comments, as explained in his oral evidence, relate to the offending for which the offender is being sentenced and that they demonstrate remorse and acceptance of a degree of responsibility.

Objective seriousness

  1. Based on the facts other than those that relate to circumstances personal to the offender, I accept that he entered the deceased’s home with four other young male accomplices as part of a joint criminal enterprise to assault in company the deceased with intent to rob whilst armed with a dangerous weapon. He knew that the shortened rifle, which meets the description of a dangerous weapon, was being carried by one of the accomplices.

  2. There was a degree of planning involved in bringing together the five participants in the joint criminal enterprise in which they chose to participate. The offender’s participation in the enterprise was not spontaneous and from the outset it was intended that the deceased was to be assaulted for the purpose of robbing him.

  3. I accept, however, that the offender’s guilty plea did not involve any admission that he agreed or foresaw that one of his accomplices might act with the intention of really seriously injuring or killing the deceased and I also accept his evidence that he did not think that one of the accomplices might kill or intentionally cause really serious injury to any of the occupants of the house that night.

  4. The offender did not inflict any wounds on, or participate directly in the assault of, the deceased. The offender was not in the kitchen when the deceased was assaulted and fatally stabbed. He had gone into the loungeroom and found the deceased’s girlfriend there. He remained with her while the deceased was being attacked in the kitchen. In addition, the offender did not participate in the conduct of the accomplice who came into the loungeroom and asked the deceased’s girlfriend “Where’s the shit?” and said “You better not be lying to me” and then smashed her telephone and damaged the television.

  5. The offender did, however, seek to facilitate the assault on the deceased by his accomplices by directing the deceased’s girlfriend not to alert the police and by checking her telephone when the assault was taking place. At about this time, he took approximately $200 from her wallet (which constituted the Form 1 offence).

  6. In my view, in all the circumstances the offender’s participation in the events and conduct that constituted the constructive murder in the early hours of 24 May 2020 was very significantly less than that of the accomplices who were in the kitchen and who actively participated in the assault or stabbing of the deceased or who were present and encouraged or assisted or took no steps to prevent the assault.

  7. Ultimately, both the Crown and the offender’s counsel submitted in effect that his offending fell below the mid-range of objectiveness seriousness for the offence of murder. I accept that this is the appropriate assessment of the objective seriousness in this case.

Aggravating and mitigating factors

  1. Section 21A(1) of the Sentencing Procedure Act requires the Court to take into account aggravating and mitigating factors that are relevant and known to the Court. The types of aggravating and mitigating factors to be taken into account are set out in s 21A(2) and (3) respectively. The fact that an aggravating or mitigating factor is relevant and known does not require the Court to increase or reduce an offender’s sentence. [8]

    8. Crimes (Sentencing Procedure) Act, s 21A(5).

  2. The Crown and counsel for the offender, Mr Steel, were in agreement that the following aggravating factors might be relevant in the present case:

  1. The offence was committed in the deceased’s home; [9] and

  2. The offence was committed while the offender was on conditional liberty in relation both to offences he had committed and offences he was alleged to have committed but that had not been concluded. [10]

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

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

  1. As to the fact that the offence was committed in the deceased’s home, I have taken this aggravating factor into account but not so as to double count it, when assessing the objective seriousness of the offence.

  2. As to the fact that the offender was on conditional liberty at the time of the offending, I shall consider that matter when dealing with his subjective circumstances. I note that, since this factor is personal to the offender, it was not relevant to the assessment of the objective seriousness of the offending and was not taken into account in that regard.

  3. The Crown also submitted that, in the present case, it was an aggravating factor that the offence involved planning that was greater than what might be considered inherent in such offending, contending that this amounted to the offence being part of a planned or organised criminal activity. [11] In particular, it was submitted:

“While the offending could not be described as sophisticated, it did involve a targeted attack on the Victim that was sufficiently organised to involve a number of participants some of whom had weapons. It cannot be said that this was spontaneous or an opportunistic assault with intent to rob. …”

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

  1. Mr Steel submitted that any planning related to the offence was “very rudimentary and not necessarily beyond what might be expected in an offence of assault with intent to rob in company whilst armed with a dangerous weapon”.

  2. It appeared to me that the degree of planning in the present case involving the offence of constructive murder based on the foundational offence of participation in a joint criminal enterprise to assault the deceased in company with intent to rob armed with a dangerous weapon was only the degree of planning inherent in the elements of that offence. Accordingly, it was inappropriate to have additional regard to the degree of planning as an aggravating factor, in light of the concluding paragraph of s 21A(2) of the Sentencing Procedure Act.

  3. Counsel for the offender submitted that this Court would find the following mitigating factors:

  1. The offender’s remorse for his offending; [12]

  2. he has good prospects of rehabilitation, by reason of his age and circumstances; [13]

  3. he was not fully aware of the consequences of his actions because of his age; [14]

  4. his plea of guilty; [15] and

  5. his assistance to law enforcement authorities. [16]

    12. Crimes (Sentencing Procedure) Act, s 23A(3)(i).

    13. Crimes (Sentencing Procedure) Act, s 23A(3)(h).

    14. Crimes (Sentencing Procedure) Act, s 23A(3)(j).

    15. Crimes (Sentencing Procedure) Act, s 23A(3)(k)

    16. Crimes (Sentencing Procedure) Act, s 23A(3)(m).

  1. I shall deal with the relevant mitigating factors in this case which are all specific to the offender, when I consider the offender’s subjective circumstances.

The offender’s subjective case

  1. As to his subjective case, much of his background and circumstances were recorded in the separate reports of the psychologists Dr Collins, of Sydney Collective Psychology, and Ms Connaughton, of Justice Health. The offender gave evidence that what he told Dr Collins was true and I accept that this is so. Based largely on his evidence and those reports which I accept, my findings in relation to his circumstances can be summarised as follows.

Upbringing

  1. The offender was born in 2003 in Liberia, West Africa and spent his early years in both Liberia and Ghana. He was about 16 years and 8 months at the time of the offending and is now 19 years old.

  2. Early on, his mother took him to live in Ghana with his uncle because of his father’s violent behaviour. He then moved to South Australia with his uncle when he was about six years old. The offender has had little or no contact with his mother. In 2011, his father took him to live in Mount Druitt with his two half-siblings, against his uncle’s wishes.

  3. The offender’s father was a violent alcoholic and the offender told Dr Collins that his father hit him a few times each week with his fist, a belt, soccer boots, or shoes. He said his father would also make him stand or perform squats naked, which he believed was done to humiliate him. He also said that, prior to being in custody, he had been homeless or lived with a girlfriend.

Education

  1. The offender has had significant difficulties throughout his education. After primary education in South Australia and at [redacted] Primary School, he attended [redacted] High School in years 7 and 8 but was asked to leave because of poor behaviour. He was bullied for not being given lunch by his father or having the correct uniform or his poor reading. He retaliated by fighting.

  2. The offender became involved with the gang known as “Greater West Brotherhood” around the age of 13 years and he told Dr Collins that he felt welcome there.

  3. He completed year 10 at [redacted] High School while in custody and transferred to [redacted] High School on release but left early in year 11.

  4. Since returning to custody in May 2020, the offender has undertaken studies in order to complete his Higher School Certificate and he gave evidence that, after finishing his HSC, he intends to do a business course, Certificates 3 and 4 in personal training and Certificate 3 in strength and conditioning and his goal was to become a personal trainer. He said in effect that without the assistance of the psychologist while in custody he would not have been likely to continue with his studies because previously he did not see any future for himself other than being a gang member.

Medical and mental health history

  1. The offender sustained some significant injuries in a motor vehicle accident in October 2017, including a fractured spine, broken legs, and missing teeth.

  2. In 2018, when he was in custody, Dr Annie Parsons, child, adolescent and forensic psychiatrist, diagnosed him with post-traumatic stress disorder (PTSD), major depressive disorder and conduct disorder. The offender reported suffering from flashbacks, nightmares, anger, suicidal thoughts, withdrawal from others and agitation. On 31 August 2018, he was prescribed antidepressant medication as well as other medication. Between 31 August 2018 and May 2020, he spent some time in juvenile detention and received treatment for his mental health issues during those periods but it appears he may not have been appropriately medicated when not in custody. Thus, it appears that the offender suffered from these mental health conditions at the time of the offending for which he is being sentenced but I do not accept that they were directly causally related to the offending.

  3. Dr Collins provided a current diagnosis in July 2022 of PTSD with additional features of depression, which was consistent with other diagnoses, including those already referred to and that of Ms Connaughton based on her assessment in April 2022.

  4. Since being in custody after May 2020, the offender came off medication for the reasons he explained in evidence:

“I saw … before ‑ because I was getting into little arguments and … I kept on getting in trouble and I was always using the medication as an excuse, and I kept on going back to the doctor to top it up. So I talked to [the psychologist] and tried to decide to remove the medication so I have no more excuse for my behaviour, it will just be me. And I felt that worked a lot better, me being accountable for my behaviour”.

  1. He said that he was finding he was better able to control his emotions now but acknowledged it was still something he was working on.

Substance use

  1. The offender reported using alcohol from age 13 in the context of gang associations, illicit drugs from 14, including MDMA and cocaine, and that he eventually came to use these daily, with additional periods of hallucinogenic and ecstasy use.

  2. Dr Collins reported in this regard:

“[The offender] expressed a commitment to fitness and well-being, which will assist him in remaining drug-free upon his return to the community. Given the likely underlying mental health symptoms that he has experienced, it will be important to address those triggers prior to his release into the community, to ensure that [he] does not resort back to substances to mask any potential mental health concerns.”

Gang associations

  1. Although the offender had been associated with the Greater West Brotherhood gang, he gave evidence that, since being in custody after May 2020, he has sought to sever ties with that gang and other gangs but this had caused difficulties by way of reprisals in custody both from members of the gang he was formerly affiliated with and from members of rival gangs who knew of his previous affiliation. In the facility in which he has been housed, however, there have been other young persons who were also seeking to break their affiliations with gangs and he has been able to associate with them.

  2. Dr Collins noted that, during the initial stages of treatment with his psychologist in custody, the offender displayed strong gang loyalty that was complicated by negative self-views about being uneducated and unemployable due to his criminal history. Nonetheless, it was noted that those views changed over time as he explored new vocational goals. His treating psychologist advised Dr Collins that the offender had been able to coexist with rival gang members in custody where all parties were motivated to sever prior associations and he removed himself from activities in which he wanted to participate, such as fitness programs and first-aid, where active rival gang members might be present because he did not want to engage in ongoing violence.

Conditional liberty at the time of the offending

  1. It was not in dispute that the offender committed the index offence whilst he was subject to conditional liberty as a result of:

  1. a supervision order for 12 months imposed by the Children’s Court on 28 June 2019 for an offence of stealing property in dwelling house and stealing from a person;

  2. a bond for 12 months imposed on 8 January 2020 at Surry Hills Children’s Court;

  3. being on parole in relation to a control order commencing on 6 September 2019 and concluding 5 August 2020 (with a non-parole period expiring on 5 February 2020) imposed by the Children’s Court on 8 January 2020 for offences of aggravated break and enter a dwelling in company; and

  4. being on bail in relation to offences of aggravated break and enter and commit a serious indictable offence and assault occasioning actual bodily harm in a domestic context.

  1. The Crown also drew attention to the fact the offender had been previously convicted for offences of violence, aggravated break and entering, and theft.

  2. I accept that this criminal history effectively precluded the offender from asserting any claim to good character and disentitled him to any leniency that may have been afforded to him otherwise.

Remorse

  1. The offender gave evidence of his being sorry for what he did and has written two letters of apology. One was a typed letter to the deceased’s family dated 8 October 2021, before he had entered a plea of guilty. In the letter, he acknowledged his wrongdoing and accepted responsibility, expressed his apology for the pain he had caused, and asked the family for forgiveness whilst accepting that that day might never come. The second was a handwritten letter dated 29 March 2022 to the deceased’s girlfriend, who was in the loungeroom with him when the deceased was stabbed and whom the offender robbed. In that letter, he accepted responsibility for his actions, acknowledged the pain that it had caused, and asked for forgiveness. He also acknowledged the harm involved in breaking into her home, a place where she was meant to feel safe and secure. In his oral evidence, the offender reiterated his being sorry for what he had done.

  2. Furthermore, during the recorded telephone conversation on 26 May 2020, which has already been referred to, the offender demonstrated a level of appreciation of the seriousness of what he had been involved in and expressed regret. Such statements, which were made in a conversation that he did not know was being recorded, serve to confirm, in my view, that his later expressions of remorse were indeed genuine. Finally, I note that the opinions of the psychologists, based on their interactions with the offender, supported the conclusion that he was genuinely remorseful.

  3. In all the circumstances, I accept that the apology letters and his evidence of being sorry are genuine expressions of remorse, and that the offender has accepted responsibility for his actions and acknowledged the injury and loss caused by his involvement in the events of 24 May 2020.

Prospects of rehabilitation

  1. I am also satisfied that the offender has good prospects of rehabilitation. The Youth Justice Background Report indicates that he has been engaging appropriately with programs in custody aimed at rehabilitation and promoting a pro-social lifestyle. This has been confirmed in his oral evidence in which he spoke about his participation in such programs and desire to become a personal trainer. It has also been confirmed by the letters and references from Robert Delaporte (retired Case Manager and Program Coordinator for Shine for Kids) Joe Kwon (Co-director of ConFit Pathways), Eric Brown (Aboriginal Practice Officer for Youth Justice Northern Directorate), Father Chris Jackson (Chaplain at Frank Baxter Youth Justice Centre), and Tanya Macfie (Stand as One Mentoring Program Coordinator).

  2. The general tenor of these letters and references is that the offender has made considerable progress and has displayed increased maturity since May 2020. Some of the authors have indicated a willingness to provide ongoing support including when he is released to parole.

  3. In reaching my conclusion as to his good prospects of rehabilitation, I have not overlooked the unsatisfactory aspects of the offender’s behaviour whilst in custody. In particular, in the Youth Justice Background Report, dated 28 July 2022, it was noted:

“[The offender] has received a total of 25 misbehaviour reports since his admission including 7 in the past 6 months. These behaviours include disobedience, fighting, harassment and bad language. During the assessment interview, [he] reported his misbehaviour can be due to the custodial environment which can impact his ability to manage frustration when it arises. Mr Durick reported that [the offender] at times has difficulty accepting staff direction and will challenge staff when he doesn’t achieve the desired outcome.”

  1. In that same Youth Justice Background Report, however, it was also noted that:

“[The offender] has engaged appropriately with all professionals including programs whilst in Custody aimed to rehabilitate and promote a pro-social lifestyle. [The psychologist said] “I have witnessed a profound change in [his] prospects for rehabilitation”. …

Youth Justice assessment has found that the offence before the Court has had a significant impact on [his] attitude towards offending. [He] appears motivated to make the necessary changes in his life when he is released however stated “this (offence) will always stay with me as it is a forever action”. [The offender] appears to be genuine when discussing change and he highlights the following strategies that he will implement when he is released:

– I am now educated and will utilise my qualifications to gain employment in the fitness industry.…

– I will move away from the Mount Druitt community where I am at highest risk as I have a lot of negative influences.

– Friends are no longer in trouble and have their own families now that I want to be involved with.

– A shift in attitude towards further offending and has aspirations to cease any further offending behaviours”

  1. From all of the evidence which I accept it appears that being in custody as a result of the offending for which he is to be sentenced can be appropriately described as a “turning point” or “watershed” in the offender’s life. In custody, he has taken up the opportunity of completing his HSC, where previously he saw no reason for, or hope of, doing so and has developed the goals of being a personal trainer and making a positive contribution to society.

  1. A Confidential Update Report from Youth Justice dated 10 February 2023 was provided to the Court. The parties were given the opportunity to make further submissions concerning this report. The Crown was content to rely on what had already been put to the Court. Counsel for the offender, Mr Steel, made further submissions, contending in effect that the Update Report was generally favourable to the offender. The Update Report confirms me in my conclusions about the prospects of rehabilitation. In the Update Report, it was noted that the offender has remained on remand at the Youth Justice Centre and has completed his Year 12 studies for his HSC and his Certificate 4 in business studies, although he is currently restricted from attending school as a result of a decision of the Department of Education. His Custodial Case Worker said of him that:

“[The offender] has only had two misbehaviour reports since July with his latest one being at the start of November. [He] has made 22 of 24 incentives in the last 6 months which is a great achievement, especially as [he] is very limited in what he can actually participate in throughout the centre. [He] has behaved great in the light of not be able to attend school and a majority of programs due to alerts and has controlled his frustrations in a mature fashion. He maintains a positive outlook and looks forward to the day that he can re-join school.”

  1. Similarly the Update Report recorded that the psychologist, Ms Barrett-Jones, was of the view that:

“[The offender] has shown a great deal of frustration tolerance since his last background report as he has been unable to access education… [He] genuinely wants to better himself and continue learning. It is a testament to [his] resilience that he has not acted out on his frustrations but has instead managed his emotional state by seeking the support of his psychologist/caseworker and has asked Justice Health to resume his medications. [He] has been trying to spend his time on the unit productively by engaging in a therapeutic writing task assigned by his psychologist and designing fitness and leadership programs for his fellow detainees, as well as motivating them to engage in daily workouts on the unit. He remains very focused around pursuing a career in the fitness industry upon release. He hopes to complete his certificate III and IV in Fitness whilst in custody.”

  1. Based on that report, I accept that over the period since the sentence hearing last year the offender has developed a substantially improved ability to control his reactions to the challenging situations in which he finds himself from time to time. He is to be commended for this.

  2. That is not to say that there are not factors that may make his rehabilitation challenging when not in a custodial environment or that there will not be pressures to engage in unsatisfactory behaviour that are likely to be present when released. Nevertheless, I am satisfied that the offender has good prospects of rehabilitation, especially with the support and supervision that will be available when he is released on parole.

Age

  1. The offender was 16 years and 8 months old at the time of the offending on 24 May 2020 and he was one of the youngest of the persons involved. He is now 19 years of age.

  2. Both parties submitted that his young age and lack of maturity at the time of the offending would need to be taken into account in determining the appropriate sentence. I accept that given his age, the offender’s cognitive, emotional and psychological immaturity are likely to have played a significant part in his offending. In all the circumstances, his youth and immaturity mean that less weight should be given to general deterrence and retribution in the present case and the sentence should be mitigated to reflect that.

Plea

  1. By virtue of s 25A(1)(b) of the Sentencing Procedure Act, the discounts provided for guilty pleas for offences dealt with on indictment specified in s 25D do not apply in the present case, because the offender was under 18 years of age when he committed the offences and was under 21 years of age when charged before the Court with these offences. Nonetheless, since he entered his plea of guilty at an early stage, I propose to allow a discount of 25% for the utilitarian value of the plea to the criminal justice system, applying the principles in R v Thompson and Houlton. [17]

    17. (2000) 49 NSWLR 383 at 419; [2000] NSWCCA 294 at [160] (Spigelman CJ, Wood CJ at CL, Foster AJA, Grove and James JJ agreeing).

Assistance

  1. In the present case, it was accepted by both parties that the offender had provided assistance to law enforcement authorities, which is a mitigating factor within s 21A(3)(m) of the Sentencing Procedure Act. Section 23 of that Act provides that a court may impose a lesser penalty than it would otherwise, having regard to the degree to which the offender has assisted, or undertaken to assist, law enforcement authorities in the prevention, detection or investigation of, or in proceedings relating to, the offence concerned or any other offence.

  2. The assistance was given by way of a witness statement and the provision of an undertaking to give evidence in accordance with that statement at the trial of the two co-accused who have pleaded not guilty. It was confirmed in oral evidence by the offender that the contents of that statement were all true and that he was willing to give evidence in any related proceedings including any trial or separate trials or re-trials.

  3. Section 23(2) sets out a list of matters that the court must consider when deciding whether to impose a lesser penalty for an offence as a result of assistance. My consideration of those matters can be summarised as follows:

  1. The offender’s assistance has been of substantial significance and usefulness and I have taken into account the view of the authorities in that regard as well as the contents of the statement. I am satisfied that it had a material influence upon one of the co-offender’s decision to plead guilty, in circumstances where that offender only pleaded guilty after the offender’s statement was served. In addition, the contents of the statement indicate that it will be of significant assistance in future proceedings in respect of the two co-accused who have pleaded not guilty.

  2. I accept the view expressed by the relevant authorities to the effect that the information and evidence provided is truthful, complete and reliable.

  3. Since the statement contains substantial information and there is an undertaking to give evidence, the nature and extent of his assistance and promised assistance is as full as might reasonably be expected in the circumstances.

  4. The statement and undertaking were provided well before the trial of the two co-accused who have pleaded not guilty and before one other co-accused pleaded guilty. On that basis, I am satisfied that the assistance and undertaking were given in a relatively timely fashion.

  5. There was no suggestion that the offender gained or may gain any benefit, other than under s 23, such as favourable conditions of custody or financial payments, in respect of the assistance provided by him.

  6. I accept, as a matter of general experience and in light of his evidence of being assaulted after it became known in the detention centre that he might be a “sntich”, that there is a real risk of injury to him resulting from the assistance he has given and his undertaking to assist.

  1. I am of the view that a lesser penalty is warranted because the offender has assisted law enforcement authorities and has undertaken to assist in the future, given the circumstances already referred to. In determining the extent of the lessening of the penalty to be imposed I have taken into account that the lesser penalty must not be unreasonably disproportionate to the nature and circumstances of the offence for which the offender is being sentenced.

  2. In the present case, I propose to lessen the penalty because of past assistance provided by 10% and by an additional 15% on account of the future assistance which he has undertaken to give. Accordingly, the sentence will be reduced by 25% for assistance by the offender to law enforcement authorities, as provided by s 23 of the Sentencing Procedure Act.

Bugmy v The Queen, mental health and similar issues

  1. In the circumstances of the present case, which I have already outlined, I accept that the principles in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 apply because of the offender’s deprived upbringing involving, as it did, exposure to parental neglect, alcohol abuse and family violence and the significant cultural and social dislocation inherent in moving from West Africa to Australia. These factors, in my view, contributed to his educational difficulties, being bullied, illicit drug use and gang membership.

  2. Dr Collins described the situation in the following terms:

“36. [The offender] experienced a difficult upbringing where he was removed from caregivers with whom he had formed attachments and placed with his father, who was reportedly violent and abused alcohol. He experienced sadistic forms of physical abuse in that environment and was treated harshly as compared with his siblings. That abusive and inconsistent parenting propelled him towards older peers with whom he began to engage in drug abuse and crime. [His] engagement in school declined and he self-described as engaging in ongoing crime due to having no future prospects…

37. A cycle of offending with brief engagement in treatment in custody continued up to [the offender’s] arrest on the current charges.”

  1. The offender’s evidence was that he owed money to one of the co-offenders for drugs and took part in the intended robbery to pay off the debt he owed and to obtain some money for himself. As a result of his drug use and gang membership, he was led to engage in criminal activities, including crimes of the type in which he has been involved.

  2. I have taken into account the offender’s deprived background and the consequences which flowed from that, as well as his young age and immaturity and the mental health issues from which he suffered at the time of the offending. In my view, these factors reduce his moral culpability and are to be taken into account as mitigating the sentence to be imposed. In addition, these matters viewed, in light of all the other circumstances, indicate that the need for general and specific deterrence is reduced, albeit to a limited extent, in the present case.

Time in custody

  1. As noted above, the offender was arrested and taken into custody on 24 May 2020 for the offending for which he is to be sentenced. Mr Steel accepted that not all of his time spent in custody since that date was solely attributable to this offending. On 30 September 2021, at Parramatta Children’s Court, the offender was sentenced for an offence of aggravated break and enter to a control order [18] for 21 months with a non-parole period of 12 months. Detention under that control order commenced on 30 September 2021 and the 12 month non-parole period expired on 29 September 2022. Consequently, 1 year out of the period of 2 years, 4 months and 1 week between 24 May 2020 and 29 September 2022 was referrable to that control order.

    18. Under s 33(1)(g) of the Children (Criminal Proceedings) Act.

  2. Mr Steel submitted that, considering the principle of totality, there should be a significant degree of concurrence such that the date of commencement for this sentence should be “not long after the date of his arrest on 24 May 2020.”

  3. While it is appropriate, having regard to the principle of totality and all the circumstances, that there be some degree of concurrence between the earlier control order and the sentence for the current offending since they appear to have arisen out of the same underlying circumstances, I do not accept that the sentence to be imposed should commence “not long after” 24 May 2020, the date of his arrest. The offending giving rise to the control order was different from the offending for which the offender is to be sentenced, even if they arose out of the same underlying circumstances. In my view, the sentence to be imposed should only be made concurrent with 5 months of the 12 months’ non-parole period applicable to the control order.

  4. Thus, the time the offender has spent in custody in relation to the offending for which he is to be sentenced is to be taken into account for the purposes of ss 24(a) and 47(2) and (3) of Sentencing Procedure Act by fixing the date for commencement of the sentence in the present case as 23 December 2020, that is 7 months from the date of his arrest on 24 May 2020.

Juvenile detention

  1. On 30 August 2021, the offender turned 18 years of age and he will turn 21 on 30 August 2024.

  2. Counsel for the offender submitted, in effect, that an order under s 19(1), (2) and (3) of the Children (Criminal Proceedings) Act should be made in this case. Division 4 (ss 16–21) of Pt 2 of that Act applies to the offender because he has pleaded guilty to an indictable offence in a court other than the Children’s Court, was a child when the offence was committed, and was under the age of 21 years when charged before this Court with the offence. [19]

    19. Section 16 of the Children (Criminal Proceedings) Act.

  3. Section 19(1) provides:

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

  1. Section 19(3) of the Children (Criminal Proceedings) Act applies to the offender since he is to be sentenced to imprisonment for a serious children’s indictable offence. [20] Section 19(3) relevantly provides:

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

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

...

This subsection is subject to subsection (2).”

20. As defined in s 3(1) of the Children (Criminal Proceedings) Act.

  1. Furthermore, s 19(2) effectively permits a person in the offender’s position to remain in juvenile detention between 18 and 21 and for a further six months after turning 21 years of age. That subsection is relevantly in the following terms:

“A person is not eligible to serve a sentence of imprisonment as a juvenile offender after the person has attained the age of 21 years, unless—

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

…”.

  1. Accordingly, given his age, the offender will only be eligible to serve a term of imprisonment as a juvenile offender until he turns 21 and for six months after that if the Court is satisfied that there are special circumstances justifying his continued detention as a juvenile offender, under s 19(3), and the non-parole period will end within 6 months after he turns 21, as stated in s 19(2).

  2. Section 19(4) relevantly provides that a finding of special circumstances may be made on one or more of the following relevant grounds, but not otherwise:

“…

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

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

  1. In regard to the matter in s 19(4)(b), based on all the evidence including that of Dr Collins, the offender himself and his treating professional and support persons, I find that in an adult correctional centre he would not receive the education and vocational training and intensive therapy which he needs and receives in juvenile detention and that staying within the juvenile system until he reaches the age of 21 would be important for his rehabilitation and maintenance of the relationships with his treating psychologist and other treating professionals and support persons who would not be available in an adult correctional facility.

  2. In relation to s 19(4)(c), I find that the offender has already been assaulted for disaffiliating from his previous gang and because of the possibility that he has given or will give assistance to authorities. As indicated already, there is a real risk of the offender suffering physical harm due to the assistance he has given and has undertaken to give to authorities. In light of all the evidence, I am satisfied that the risk of physical harm to the offender as a result of these factors would be greater if he were required to serve his sentence in an adult correctional centre and that such greater risk would be unacceptable.

  3. On these bases, I find that special circumstances exist for the purposes of s 19(3)(a) of the Children (Criminal Proceedings) Act.

Special circumstances in relation to the parole period

  1. Counsel for the offender also submitted that this Court should find that there are special circumstances which justify the Court exercising its power pursuant to s 44(2) of the Sentencing Procedure Act to vary the statutory ratio under that subsection, which provides:

“The balance of the term of the sentence must not exceed one-third of the non-parole period for the sentence, unless the court decides that there are special circumstances for it being more (in which case the court must make a record of its reasons for that decision).”

  1. This means that unless there is a finding of special circumstances, the non-parole period must not be less than 75% of the total sentence

  2. The evidence as a whole establishes that the offender would benefit from an extended period on parole to allow for a longer period where support and supervision can be provided for his reintegration into the community and his abstinence from drug use can be monitored. In addition, his youth and prospects of rehabilitation justify a more extensive parole period than provided by the statutory ratio. On these bases, I find that there are special circumstances that warrant an adjustment of the statutory ratio.

Form 1

  1. As to the robbery offence on the Form 1, the offender admitted he committed this offence and asked that it be taken into account when he was sentenced for the constructive murder. There was no actual physical violence inflicted on the deceased’s girlfriend by the offender but he stood over her and she was induced to show her wallet to him and he took the money in her wallet by the implicit threat of violence. In accordance with the principles in 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 at [39]-[42], I have considered whether somewhat greater weight should be given to personal deterrence and retribution when sentencing the offender for constructive murder. In light, however, of the fact that this robbery was not planned, appeared to be opportunistic and was closely associated with the joint criminal enterprise which gave rise to the offender being liable for constructive murder and having regard to the totality of the offending, in my view it is not appropriate in the present case for the sentence for the principal offence to be increased on account of any need for personal deterrence or retribution to be given greater weight than they should otherwise be given when sentencing for the primary offence.

Parity

  1. All four of the offender’s accomplices have been charged with murder under s 18(1)(a) of the Crimes Act arising out of the same criminal enterprise in which they were participants, or are alleged to have been participants, on 24 May 2020. There are differences between the Form 1 offences that some of the accomplices who have pleaded guilty have asked the Court to take into account when sentencing them for the offence of murder.

  2. 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. [21]

    21. Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [28] (French CJ, Crennan and Kiefel JJ).

  3. In addition to the differences in the Form 1 offences in each case and their pleas of guilty and provision of assistance, the most relevant differences in the present case are:

  1. the very different part the offender played in the events giving rise to the death of the deceased compared to the other 4 accomplices who were in the kitchen when the deceased was assaulted and stabbed; and

  2. the different ages, backgrounds and other aspects of the subjective cases of each of the offender and the accomplices, and in particular, the fact that the offender was only 16 years of age at the time of the offending and one of the youngest amongst those involved, some of whom were adults.

  1. I have had regard to the summary of sentencing outcomes in cases of constructive murder that were provided, noting the similarities and especially the differences between those cases and the present. In this context, I have taken the particular nature and extent of the offender’s involvement in the relevant events and other aspects of the objective circumstances as well as his individual subjective case into account in determining the sentence for him.

Additional remarks

  1. Before formally announcing the sentence of the Court, it remains to acknowledge that the taking of the deceased’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.

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

Sentence

  1. 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.

  2. 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 combined discount of 50% for the plea of guilty and past and future assistance, the appropriate term of imprisonment for the offence of constructive murder, taking into account the offence on the Form 1, is 12 years and 6 months. When the 50% discount is applied to that period, it results in a sentence of 6 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 4 years and 2 months (66.7%) and a balance of term of 2 years and 1 month (33.3%).

  3. As already noted, the commencement date of the sentence is to be fixed as 23 December 2020 and, thus, the non-parole period will expire on 22 February 2025.

  4. Given my finding of special circumstances for the purposes of s 19(3)(a) of the Children (Criminal Proceedings) Act and the fact that the non-parole period will end on 22 February 2025, which is within 6 months after the offender turns 21 on 30 August 2024 as required by s 19(2)(a), the offender will be eligible to serve his non-parole period as a juvenile offender in accordance with s 19 of the Children (Criminal Proceedings) Act. In all the circumstances including the recently demonstrated improvement in his ability to control his reactions to challenging situations, I propose to make an order under s 19(1) of that Act, directing that the offender serve the whole of the non-parole period of his sentence as a juvenile offender.

Orders

  1. Accordingly, the Court orders:

  1. The offender is sentenced for the murder of the deceased, taking into account the offence of robbery with intent to rob on the Form 1, to imprisonment for a non-parole period of 4 years and 2 months commencing on 23 December 2020 and expiring on 22 February 2025 and a balance of term of 2 years and 1 month expiring 22 March 2027.

  2. Pursuant to s 19(1), (2)(a) and 3(a) of the Children (Criminal Proceedings) Act 1987 (NSW), it is directed that the offender serve the whole of the non-parole period of his sentence as a juvenile offender.

  1. The earliest date the offender will be eligible to be released on parole is 22 February 2025.

  2. 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

19 June 2023 - Redactions applied

Decision last updated: 19 June 2023

Most Recent Citation
Cases Citing This Decision

2

R v Xx, R v ZZ [2023] NSWDC 585
DPD v The King [2025] NSWCCA 77
Cases Cited

10

Statutory Material Cited

4

Re Attorney-General's Application (No 1 of 2002) (NSW) [2002] NSWCCA 518
R v Barrientos [1999] NSWCCA 1
BP v R [2010] NSWCCA 159