R v JB

[1999] NSWCCA 93

CITATION:	Regina v JB, Regina v RJH [1999] NSWCCA 93
FILE NUMBER(S):	CCA 60683/97 (JB); 60684/97 (RJH)
HEARING DATE(S):	9 April 1999
JUDGMENT DATE:	27 April 1999
PARTIES :	Regina v JB, Regina v RJH
JUDGMENT OF:	Stein JA at 1; Studdert J at 40; Smart AJ at 42

LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S) :	CL 70081/97 (JB and RJH)
LOWER COURT JUDICIAL OFFICER:	Hunt CJ at CL

COUNSEL:	P. Byrne SC (Appellant) - JB W. Dawe QC (Respondent) J. Nicholson SC (Appellant) - RJH W. Dawe QC (Respondent)
SOLICITORS:	Legal Aid Commission - JB Aboriginal Legal Service - RJH
CATCHWORDS:	FELONY MURDER - De Simoni principle - robbery whilst in company - infliction of grievous bodily harm - circumstance of aggravation - victim murdered with rock by two co-offenders - appeal against sentence - whether sentence was manifestly excessive - proportionality of sentences imposed - objective gravity of crime - guilty plea - assistance to authorities - special circumstances of co-offenders - Aboriginality - youth - intellectual disability - deprived socio-economic background - weight to be given to special circumstances - prospects of rehabilitation
ACTS CITED:	Children (Criminal Proceedings) Act 1987; s 19; Sentencing Act 1989; s 5; Crimes Act 1900; s 98
CASES CITED:	Regina v Fernando (1992) 76 A Crim R 58 Regina v Ryan (1996) 90 A Crim R 191 De Simoni v The Queen (1980 - 1981) 147 CLR 383
DECISION:	Leave to appeal granted, appeal dismissed

IN THE COURT OF
CRIMINAL APPEAL
60683/97
60684/97




STEIN JA
STUDDERT J
SMART AJ

Tuesday, 27 April 1999

REGINA v JB

REGINA v RJH

On 28 May 1997 the victim, Mr White, was walking home from work near the Metford railway station. It was between 6 pm and 6.30 pm when he was walking through parkland and playing fields near the vicinity of a bridge over a small creek. There the two co-offenders robbed the victim of his wallet and he was attacked in a ferocious manner. Mr White received at least ten blows to the head with a rock weighing close to 2 kg. He sustained severe head injuries, including multiple fractures to his skull. The horrific injuries inflicted caused his death. His body was discovered the next morning by his wife and daughter.

Both JB and JBH pleaded guilty to felony murder. In proceedings before Hunt J, JB was sentenced to penal servitude for 16 years, consisting of a minimum term of 11 years and an additional term of 5 years. RJH was sentenced to penal servitude for 18 years, consisting of a minimum term of 12 years and an additional term of 6 years.

On JB’s appeal, it was argued that:

(1) his Honour erred in failing to give recognition to the applicant’s deprived socio-economic background and his Aboriginality;

(2) his Honour erred in finding that the applicant had no prospect of rehabilitation;

(3) his Honour erred in sentencing on the basis of a need for general deterrence, in circumstances in which there was uncontested evidence of the applicant’s intellectual disability; and

(4) the sentence was manifestly excessive.

On RJH’s appeal, it was argued that:

(1) his Honour erred in finding as a circumstance of aggravation that the applicant continued to strike the deceased until the applicant had satisfied an intention of inflicting grievous bodily harm upon the deceased;

(2) the sentence imposed on the applicant failed to maintain appropriate proportionality between his sentence and the sentence passed upon the co-accused, JB; and

(3) the sentence was manifestly excessive.

HELD:

In respect of JB’s appeal:

The sentence imposed by Hunt J cannot be said to be manifestly excessive. Proper account was taken of the youth of the applicant, his moderate intellectual disability, his socio-economic circumstances and Aboriginality, his plea of guilty and assistance to the authorities. Similarly, his Honour was not in error in his finding about the applicant’s prospects of rehabilitation.

In respect of RJH’s appeal:

His Honour’s finding that the applicant continued to strike the deceased until the applicant had satisfied an intention of inflicting grievous bodily harm upon the deceased does not make the applicant liable to any greater penalty than that applicable to felony murder, and accordingly, did not infringe the De Simoni principle. Hunt J did not pass sentence on the applicant on the basis of a different factual substratum than that required by the charge of felony murder. The sentenced impose upon the applicant by Hunt J did maintain appropriate proportionality between his sentence and the sentenced passed upon the co-accused, JB. While the sentence imposed on the applicant was indeed a heavy one, it cannot be said that it is manifestly inadequate.

ORDERS

(1) In respect of JB’s appeal, leave to appeal granted and appeal dismissed.

(2) In respect of RJH’s appeal, leave to appeal granted and appeal dismissed.

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IN THE COURT OF
CRIMINAL APPEAL
60683/97
60684/97




STEIN JA
STUDDERT J
SMART AJ

Tuesday, 27 April 1999

REGINA v JB

REGINA v RJH

JUDGMENT

1 STEIN JA : These two applications were heard together with the consent of the parties. Both are appeals against sentence. JB was sentenced by Hunt CJ at CL on 20 November 1997 having pleaded guilty to the charge of murder. RJH was sentenced by his Honour on 25 November 1997 having pleaded guilty to the charge of murder. In each case, the category of murder was felony murder.

2 JB was sentenced to penal servitude for 16 years, consisting of a minimum term of 11 years and an additional term of 5 years. His Honour made an order under s 19 of the Children (Criminal Proceedings) Act 1987 directing that until he attains 21 years of age, the sentence be served in a detention centre. RJH was sentenced to penal servitude for 18 years, consisting of a minimum term of 12 years and an additional term of 6 years. His Honour also made an order under s 19 with respect to RJH. The judge found special circumstances pursuant to s 5 of the Sentencing Act 1989 in respect of both applicants.

3 The facts are set forth in the two separate judgments on sentence of Hunt J. I will only briefly recount them. Both applicants were engaged in a joint criminal enterprise involving robbery whilst in company and wounding the victim, Mr White, who died from wounds inflicted during the robbery. On 28 May 1997 Mr White was walking home from work near the Metford railway station. It was between 6 pm and 6.30 pm and he was walking through parkland and playing fields near the vicinity of a bridge over a small creek. The offenders robbed him of his wallet, which contained only a small amount of money. The victim was then attacked in a ferocious manner, the attack involving at least ten blows to the head with a rock weighing close to 2 kg. Mr White sustained severe head injuries, including multiple fractures to his skull. The horrific injuries inflicted caused his death. His body was found by his wife and daughter the next morning. His Honour observed that the attack was on a wholly innocent defenceless victim, alone at night on his way home. He added that it was a senseless crime involving pointless violence, apparently merely for the sake of violence. It was a sickening crime deserving strong punishment. I cannot but agree.

4 Both applicants gave several versions of what had happened. At about 7 pm on the night of the murder, the offenders were seen by Mrs Callaghan and her son Troy walking along the route from the railway station to their home. They were agitated and yelling at each other. JB was saying:

I fucken fixed him good, didn’t I? We killed the cunt good … Yeah, we killed him. We fixed him good … We killed him, we killed him good.

RJH, when he realised that the Callaghans’ were watching, said:
Shut up, shut up, there’s someone on the front verandah.

5 On the next day both appellants participated in records of interview. RJH denied any knowledge of the offence. JB claimed little memory of the incident. Later on 29 May 1997 RJH participated in another interview wherein he said that JB had ‘bumped’ into the deceased and the two started arguing. The deceased had fallen over and JB kicked him in the head and then bashed him twice with a rock held in both hands. RJH said he continued to walk home and did not do anything to stop JB or assist the deceased. JB caught up 15 minutes later and the two did not discuss what had happened. When they arrived home, they both washed their clothes and joggers.

6 In JB’s second interview he admitted to taking the deceased’s wallet and hitting him with a stick and a little rock. In the Maitland police cells he told another prisoner that he and another person had taken the wallet and hit the man on the head with a brick and started kicking him and holding his head under water. Later at the Worimi Juvenile Justice Centre he told an inmate that ‘we killed the bloke, me and [RJH] smashed his head in and drowned him’. He also told another inmate that he picked up a rock and threw it at the man’s head.

7 On 10 June 1997 JB participated in a third interview. Police showed him RJH’s record of interview, which attempted to place the whole blame on him.

8 JB then said that the two had tried to grab the victim’s wallet, found three $5 notes and RJH had smashed the deceased in the jaw and dragged him into the creek. He (JB) had then thrown a rock at the victim, hitting him in the head. RJH then grabbed three rocks and started smashing the man on the head and then choked him in the creek. JB said he only hit the deceased once, on the forehead.

9 RJH had also made statements about the killing to a Mrs Sams, her daughter and a juvenile. In these statements he said that he had ‘king hit’ the victim, knocked him over and kicked him, but that JB had caved his head in with a big rock, dragged him into the creek and held him under the water.

10 RJH gave evidence at his sentencing which, as I have mentioned, was separate from the sentencing of JB. He said that the assault had happened spontaneously. The two had wanted money for drugs. When the deceased refused to hand over his wallet, he hit him once in the face. He then kicked him in the face. He saw JB get a rock and hit the victim in the face more than once. He also said that when JB had put the victim in the water, he had seen bubbles coming out of the victim’s nose and mouth. He denied that he had picked up a rock or hit the deceased with a rock.

11 The judge went to great pains to emphasise that he was sentencing the applicants separately and on different facts. In sentencing JB his Honour said:

The Crown is content, for the purpose of sentencing this prisoner, to accept the reasonable possibility that the version given by him in the third of those interviews is the correct one. That is the version which the prisoner, too, has submitted should be the basis for sentencing him. That common approach does, of course, leave open one issue of interpretation - as to whether the prisoner merely threw the rock at the deceased or whether he hit him in the head with the rock in his hand or hands. There is a significant difference between the gravity of the two actions described. Both descriptions are given by the prisoner during the course of that interview. He told a number of other people that he had hit the deceased with the rock, in the apparent sense of having the rock in his hand or hands rather than merely throwing it. Those statements were referred to earlier. Even allowing for a tendency by the prisoner to brag (as noted by Dr Hayes, the psychologist), it is clear that - whether or not he also threw a rock - the prisoner did hit the deceased on the head with the rock in his hand or hands. Mr Williams QC, who has skilfully and with great care represented the prisoner, very realistically conceded that must be so. He points out, as is the truth, that there is no way in which it could be determined whether the blow or blows by this prisoner were the ones which in fact caused the death of the deceased.

I am satisfied beyond reasonable doubt, on the evidence properly before me in these

proceedings, that both the prisoner and RJH hit the deceased in the head with the rock in

their hands. In those circumstances, as I pointed out earlier, it matters not which one struck

the blow or blows which in fact caused the death of the deceased. Each one was aiding and

abetting the other in inflicting the injuries which led to that death. I am also satisfied beyond

reasonable doubt that, such was the force required to cause those injuries, the prisoner

intended to inflict grievous bodily hard upon the deceased. It is impossible to imagine from

the experience of life what other result the prisoner could have sought to achieve by acting in
that way.

12 Later, on the 25 November 1997, his Honour sentenced RJH. As I have said, he had the benefit of the applicant’s evidence given before him. In relation to the various versions given by RJH the judge stated a number of conclusions. These included the following:

… the lies told by the prisoner demonstrate a clear consciousness of guilt on his part, in the sense that he was unable to give an innocent account of his conduct, and there is therefore no reason to doubt any of the admissions which he did make against himself, or to accept any of his denials or his subsequent attempts to explain or alter those admissions. The lies themselves, however, could not amount to an admission by the prisoner that he was himself responsible for the act or acts which could have caused the death of the deceased. Thirdly, the prisoner has admitted to demanding that the deceased hand over the wallet, and that he was the first of the two offenders to hit the deceased, punching him twice in the face (one of them a king hit which knocked him four or five metres), kicking the deceased in the face and stomping on his head twice. Fourthly, in the light of medical evidence, none of the acts to which the prisoner has now admitted could have caused the death of the deceased.

Fifthly, I am satisfied beyond reasonable doubt that, despite his denials, the prisoner was
angry when he struck the deceased, either because the deceased had refused to hand over
his wallet or because he had irritated him in some other way, and that the prisoner had
continued to strike the deceased until he had satisfied an intention of inflicting grievous
bodily harm upon him. He had not wanted to stop half way through that task. Sixthly, the
facts that the prisoner stayed until the end of whatever JB was doing to the prisoner and that
his footprints are widespread throughout the area satisfy me that he was very close to the
action, and that he was not keeping his distance as he has claimed.

13 The judge noted that the Crown had asked him to infer that the applicant RJH also struck the deceased with the rock, and thus did one of the acts which caused his death. Hunt J concluded:

I am unable, however, to say that blows by the prisoner with the rock is the only reasonable inference from those facts - not because anything which the prisoner himself has said has given rise to a reasonable doubt in my mind, but only because the Crown has, on the evidence before me in the present proceedings, failed to eliminate the reasonable possibility that it was only JB who struck those blows.

JB’S APPEAL

14 An application is made to adduce fresh evidence. On behalf of the applicant Mr Byrne SC suggests that the material should only be considered if the court were to resentence. The court received the material annexed to the affidavit of Joanne Collings, sworn 8 April 1999, for the purposes of hearing argument on the application and in the event of re-sentencing.

15 The thrust of the submission made on behalf of JB is that the sentence was manifestly excessive. Counsel relied on three significant features of the case. The extreme youth of the applicant at the time of commission of the crime. He was only 15 years and 11 months. His plea of guilty and assistance to the authorities by his agreeing to give evidence against RJH in the event of that person’s trial. Prior to taking into account this assistance, the judge had said that an appropriate sentence would have been 20 years. Mr Byrne does not, as I understand his submission, take issue with his Honour’s 20% discount for assistance, rather the appropriateness of 20 years. Acknowledging the horrific circumstances of the killing, counsel noted that it was unpremeditated. Counsel was critical of the judge’s observations on the issue of rehabilitation. Hunt J found that there was no basis in the evidence for a finding that there were prospects of rehabilitation. Mr Byrne submits that, for an offender as young as the applicant, this was an unusual conclusion.

16 It is submitted that Hunt J was in error in so concluding because there was in fact material before him which indicated that the process of rehabilitation had at least, in part, begun. Counsel pointed to the plea of guilty and the assistance to the authorities.

17 It is clear that the judge did not regard either of these matters as indicative of first steps towards rehabilitation. As to the plea, his Honour found that it was a recognition of the inevitable and evinced little contrition. There was an obvious self-interest in receiving a lower sentence, although there was a significant utilitarian purpose which should receive recognition as a separate discount. As to the value of the offer of assistance, had JB been called by the Crown in the trial of RJH, the judge assessed this as only moderate. It did, however, play some part in the decision of RJH to plead guilty, although not a significant part. His Honour did not deal with the assistance in the context of rehabilitation. It is implicit in the judge’s reasons that he did not see it as relevant to rehabilitation, important as that issue is in relation to the sentencing of young people.

18 It may be thought to be very harsh to say of a very young offender, that there are no indicators of rehabilitation. However, it seems conceded that there was in fact no evidence before the trial judge which supported a favourable finding, unless it is to be found in the plea or in the assistance to the authorities.

19 The judge also had before him the applicant’s extensive criminal history which he discussed in his reasons on sentence.

20 From what his Honour said about the plea of guilty and the assistance to the authorities, and his remarks about the prospects of rehabilitation, it is apparent that the judge did not see either of them as indicating the first steps towards a process of rehabilitation. I cannot see why his Honour was in error in his finding about rehabilitation, harsh as that conclusion may have been.

21 It is further submitted that the sentence was excessive because it did not give sufficient weight to the special circumstances which included JB’s moderate intellectual disability and his deprived socio-economic background and Aboriginality. It is submitted that the special circumstances found by his Honour did not lead to more than a relatively small adjustment to the minimum term, which would not provide any incentive to the young man.

22 It is clear that the judge gave specific consideration to the applicant’s intellectual disability and also to his deprived socio-economic background. In particular, he acknowledged the factors discussed in Regina v Fernando (1992) 76 A Crim R 58 at 62 - 63 approved in Regina v Ryan (1996) 90 A Crim R 191. I do not see how it can be said that he disregarded or gave insufficient weight to these considerations.

23 While the sentence is a heavy one, the objective gravity of the circumstances, as found by the judge, made this felony murder a very serious one indeed. [See JB AB 102] Proper account was taken, it seems to me, of the youth of the applicant, his moderate intellectual disability functioning at an intellectual level lower than 99.9% of the population, his socio-economic circumstances and Aboriginality, his plea of guilty and assistance to the authorities.

24 I do not see that it may be concluded that the sentence was manifestly excessive, or that the special circumstances required a different adjustment to the additional term set by his Honour. It follows from this conclusion that it is unnecessary to consider the fresh evidence suffice it to say that it is not obvious on its face that it provides any real evidence of the prospects of rehabilitation. I mention nonetheless that if the court were to embark upon a process of re-sentencing then I would be minded to admit the fresh evidence in the interests of justice.

25 It follows that I would grant leave to appeal against sentence but dismiss the appeal noting that a number of grounds in the written submissions were not addressed orally by JB’s counsel.

RJH’s APPEAL

26 There are three aspects to the appeal of RJH. First, it is submitted that the judge erred in law in finding as a circumstance of aggravation that the applicant continued to strike the victim until he had satisfied an intention to inflict grievous bodily harm on him. Second, that the sentence on RJH failed to maintain appropriate proportionality with the sentence imposed on JB. Last, that the sentence was excessive having regard to the subjective features of the case.

27 Senior counsel for the applicant submits that the starting point for consideration of the first submission is the Crown having offered and the applicant accepted the plea of guilty of murder on the basis of felony murder. It is maintained that his Honour supported a verdict of murder upon the basis of death arising from acts done with intent to inflict grievous bodily harm, which was a different basis. The judge said that such a finding did not make the applicant liable to any greater penalty than that applicable to felony murder and did not infringe the principle in De Simoni v The Queen (1980 - 1981) 147 CLR 383 at 389, 392.

28 In De Simoni Gibbs CJ said:

However, the general principle that the sentence imposed on an offender should take account of all the circumstances of the offence, is subject to a more fundamental and important principle, that no-one should be punished for an offence of which he has not been convicted. Section 582 reflects this principle. The combined effect of the two principles, so far as is relevant for present purposes, is that a judge, in imposing sentence, is entitled to consider all the conduct of the accused, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence. [at 389]

and at 392 the Chief Justice added:

[A] Judge, in imposing sentence, may not have regard to a circumstance of aggravation which should have been charged in the indictment if it was intended that reliance should be placed upon it. He may, of course, have regard to facts which might ordinarily be described as circumstances of aggravation but which do not fall within the definition of that expression in the code, because they do not render the offender liable to a greater punishment.

29 The submission on behalf of RJH is that the finding that the killing was accompanied by an intent to do grievous bodily harm to the deceased would expose the applicant to a greater penalty than felony murder. It would amount to a statutory circumstance of aggravation not envisaged by the Crown or the defence in the offer and acceptance of the plea.

30 The submission of Mr Nicholson SC is that Hunt J breached the principle in De Simoni or the requirements of the common law. Alternatively, it is submitted that the applicant was not accorded procedural fairness in that he volunteered evidence, which was prejudicial to him, on the basis of the plea entered to felony murder when the judge passed sentence on a different factual substratum.

31 One of Hunt J’s findings was that he was satisfied beyond reasonable doubt that RJH continued to strike the deceased until he had satisfied an intention of inflicting grievous bodily harm on him. His Honour said that such a finding did not make the prisoner liable to any penalty greater than that applicable to felony murder and did not infringe the De Simoni principle. His Honour had earlier noted that the felony forming the basis of the murder charge was robbery of the deceased, in company with JB, and the wounding of the deceased or the infliction of grievous bodily harm on him, immediately before, or at the time of, or immediately after, such robbery (s 98 Crimes Act 1900). In sentencing JB the judge had noted that the court had resisted any attempt to formulate a hierarchy between various categories of murder. The assessment of the particular moral culpability for a murder must be considered in the light of the particular relevant facts.

32 The Crown submits that his Honour did not infringe the De Simoni principle, but was merely assessing the criminality of the applicant in the carrying out of the crime which lead to the death of the deceased. His Honour was not changing the class of murder for which the applicant was being sentenced. He did not find that the murder was, in addition to being a felony murder, also a killing accompanied by any intent to do grievous bodily harm to the deceased which would make the applicant liable to a greater penalty.

33 I think it is correct to say that there are degrees of seriousness of felony murder, just as any other serious crime. The starting point was for the judge to determine the objective gravity of the crime. This depends, for the most part, on the nature of the actual acts of the offender which played a part in the death of the victim. His Honour’s finding that the applicant participated in an attack on the deceased with an intention to inflict grievous bodily harm on him does not elevate the felony murder into another class of murder. His Honour had to assess the material before him, including the evidence of the applicant, in order to consider what was an appropriate sentence. It is conceded by the applicant that in doing so the judge is entitled to take into account the infliction of grievous bodily harm, but not the intention to inflict it. In light of the facts of this case, it seems to be a distinction without a difference. It is necessary to analyse the conduct involved to ascertain the degree of moral culpability. Even assuming that his Honour was wrong, and I am not convinced of this, it is difficult to see that a re-sentencing would make any difference. Nor do I accept that it has been established that RJH was denied procedural fairness in giving evidence on his plea. I do not see that it can be concluded that his Honour passed sentence on the applicant on the basis of a different factual substratum than that required by the charge of felony murder.

34 The next ground of appeal relies on the proportionality between the sentence imposed on RJH and that on JB. On behalf of the applicant it is noted that his Honour found that none of the acts to which the applicant admitted caused the death of the deceased. As his Honour said the Crown had failed to eliminate that it was JB who had struck the fatal blows.

35 Hunt J concluded that the objective gravity of the applicant’s conduct cannot be regarded as being as serious as that of JB. Nevertheless, his Honour added that his moral culpability remained high. His violence was not as great as that of JB, but was nonetheless substantial. The judge found that he encouraged JB to inflict the ferocious and horrific wounds which led to the death of the deceased. His Honour said that while the punishment should be less than JB, so far as the objective gravity of the crime (of RJH) was concerned, it should not be that much less. But for JB’s assistance to the authorities, his Honour assessed a sentence of 20 years as appropriate. RJH was sentenced to 18 years. It is submitted that the two year difference in total sentences for each participant does not adequately reflect the differences in their objective criminality. Differences in the subjective features between the two applicants is also relied upon.

36 I am unable to appreciate how it can be said that his Honour failed to maintain appropriate proportionality. Both applicants were physically involved in the robbery and each was physically involved in the infliction of wounding and grievous bodily harm on the deceased. Each was aiding and abetting the other in the commission of the crime. His Honour’s findings as to the respective objective gravity, which I have mentioned above, were open on the evidence and the conclusion that the objective gravity of RJH was less, but not much less, than JB, was arrived at upon his Honour’s assessment of the evidence before him. It is a conclusion with which I would agree. His Honour was entitled to conclude that, as far as the objective gravity of the crime was concerned, the punishment deserved by RJH was not much less than that which JB deserved.

37 As to the subjective features of the two co-offenders, a number of matters may be noted. They both had equally poor criminal records. They both came from similar deprived backgrounds. RJH was older than JB, being about 2 months off his 18th birthday at the time of the offence. The prospects of rehabilitation of RJH were substantially more promising than those of JB, although not good. As compared with JB, the judge recorded that there was no suggestion of any intellectual disability on the part of the applicant. All subjective considerations being weighed in relation to RJH, his Honour was entitled to conclude that he was unable to say that those considerations were significantly greater or less than the cumulative effect of those relevant to JB.

38 Finally, it is submitted that the sentence was manifestly excessive having regard to the youth of the offender. I am unable to agree. His Honour noted the age of the applicant and that he was just 2 months short of being considered an adult for sentencing purposes. The judge also had regard to the prevalence of this type of crime and the need for strongly deterrent sentences ‘even for young persons’. His Honour closely examined the subjective factors, including the youth of the applicant and his prospects of rehabilitation. While the sentence was a heavy one, I cannot conclude that it was manifestly excessive. It was certainly within the judge’s discretion.

39 I would grant leave to appeal against sentence but dismiss RJH’s appeal.

40 STUDDERT J: I have read the judgment of Stein JA in draft form.

41 I agree with the orders proposed in relation to each appeal, and I agree with the reasons stated by his Honour.

42 SMART AJ: The facts and circumstances are set out in much helpful detail in the judgments of Hunt CJ at CL and summarised in the judgment of Stein JA. The Chief Judge gave this matter deep thought.

43 I would dismiss the appeal for these reasons:

(a) The killing was ferocious. An innocent man on his way home to his family after work was waylaid and brutally attacked. He was robbed and assaulted by the applicants and then killed. He had given no offence.

(b) Thereafter he was callously left beside a creek until he was found by a member of his family very early the following morning.

(c) The applicants showed their victim no mercy.

(d) Despite their youth and Aboriginality the barbarity of the pointless killing and the records of both applicants forfeited any claim for lesser sentences. JB had over twenty findings of or convictions for dishonesty, four findings of or convictions for robbery or robbery in company, one for assault occasioning actual bodily harm, five for assault or common assault, one for using a prohibited weapon and four for malicious property damage. JB has a propensity for violence and a continuous attitude of disobedience of the law. It is surprising record for a youth who was not quite 16 at the time of the killing.
RJH had many convictions for dishonesty, three convictions for robbery, one for robbery in company, one for robbing with violence, four for assault or common assault, one for assaulting police and one for stealing from the person.

(e) In the circumstances the judge could not reasonably have imposed lighter sentences.

44 While I have sympathy for their deprived upbringing and their disadvantaged background that is not a weighty factor given the details of the crimes. While JB is in the lowest 0.1% of the population intellectually and is moderately intellectually disabled that does not mean that his actions can be adequately explained.

45 The difficulty with these applications is that there is so little of substance that can be said in favour of the applicants.

46 I agree with the reasons for judgment of Stein JA and with the orders he proposes.

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