R v JM (sentence)

[2024] NSWSC 1345

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v JM (Sentence) [2024] NSWSC 1345

Hearing dates:

11 October 2024

Date of orders:

25 October 2024

Decision date:

25 October 2024

Jurisdiction:

Common Law - Criminal

Before:

Dhanji J

Decision:

(1)    JM is convicted of the manslaughter of Liam.

(2)    For the offence of manslaughter, you are sentenced to imprisonment for a term of 5 years commencing on 29 May 2022. I set a non-parole period of 2 years and 9 months commencing on that date and expiring on 28 February 2025. The balance of term is 2 years and 3 months and is due to expire on 28 May 2027.

(3) Pursuant to s 19(1) and s 19(3) of the Children (Criminal Proceedings) Act 1987 (NSW), I direct the sentence be served as a juvenile offender up until the offender attains the age of 21.

(4) Pursuant to s 25C(1) of the Crimes (High Risk Offenders) Act 2006 (NSW), I advise you of the existence of that Act and the fact that it applies to you and to this offence. I direct your legal team to explain the significance of this fact to you.

(5)    In accordance with regulation 8(d) of Child Protection (Offenders Registration) Regulation 2015 (NSW) I direct that the Secretary of the Department of Justice give notice to the offender for the purposes of s 4 of the Child Protection (Offenders Registration) Act 2000 (NSW).

Catchwords:

CRIME – sentence – manslaughter – excessive self-defence – offender a young person at the time of the offence – trial by judge alone – fatal stabbing – confrontation between young people – KFC restaurant – melee – tragic loss of life – where deceased exhibited hostility towards offender –deceased armed with knuckledusters – offender did not initiate confrontation – offender had no interest in fighting the deceased - offender outnumbered by adversaries – offender believed he was going to be killed – chaos – clamorous noise – extreme situation – real threat to the offender – no intention to kill – where offender suffers from cognitive impairment – FASD – ADHD – youth and lack of maturity – moral culpability significantly reduced – unblemished criminal record – very good prospects of rehabilitation – whether sentence to be served as a juvenile offender – convicted – sentence imposed

Legislation Cited:

Crimes Act 1900 (NSW)

Children (Criminal Proceedings) Act 1987 (NSW)

Crimes (High Risk Offenders) Act 2006 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)

Child Protection (Offenders Registration) Regulation 2015 (NSW)

Child Protection (Offenders Registration) Act 2000 (NSW)

Cases Cited:

R v JM (Verdict) [2024] NSWSC 773

The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54

Paterson v R [2021] NSWCCA 273

R v Stanley (No 2) [2024] NSWSC 74

Category:

Sentence

Parties:

Rex (Crown)
JM (Offender)

Representation:

Counsel:
B Campbell SC (Crown)
J Watts (Offender)

Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
Aboriginal Legal Service (NSW/ACT) Limited (Offender)

File Number(s):

2022/155260

Publication restriction:

Statutory Non-Publication Order re identity of the Accused or any person who was a child at the time of the events. The names of all persons subject to this order have been allocated pseudonyms.

Judgment

1. On 21 June 2024, I found JM guilty of the manslaughter of Liam: R v JM (Verdict) [2024] NSWSC 773 (the verdict judgment). It now falls to me to sentence the offender for his crime.

2. The trial was by judge alone. My findings have been set out in detail in my reasons for verdict. I do not propose to repeat those findings, but will refer to those findings in summary form.

3. The offence of manslaughter carries a maximum penalty of 25 years imprisonment. [1] There is no standard non-parole period. The offender was 17 years old and thus a child at the time he committed the offence. The provisions of Part 2, Division 4 of the Children (Criminal Proceedings) Act 1987 (NSW) apply. The offence of manslaughter is a “serious indictable offence” for the purposes of that Act, with the result that the offender is to be sentenced according to law.

   1. Crimes Act 1900 (NSW), s 24.

4. The basis of the offender’s liability for manslaughter is excessive self-defence. The sentencing of the offender in this matter requires me to fix a sentence that properly has regard to the offender’s responsibility for the tragic loss of life which occurred as a result of his unlawful act. To arrive at a result that does justice in the particular circumstances of this case, I must have regard to the various purposes of sentencing as set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Sentencing Act”) noting that those purposes may, at times, pull in different directions. To the extent that I make findings adverse to the offender, such matters must be established beyond reasonable doubt. Matters relied on in mitigation are to be established on the balance of probabilities. [2]

   2. The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27] (per Gleeson CJ, Gaudron, Hayne and Callinan JJ).

Victim impact statements

5. Victim impact statements were received from a number of family members of Liam. Statements were received from his mother, his brother, and his sisters.

6. The statements were read either by or on behalf of the authors. It is impossible not to be affected by hearing the emotional impact the death of Liam has had on those who loved him. As a result of the reading of those statements the Court has at least some understanding of his life and the impact of it having been so tragically cut short at an age that will forever remain fixed. The Court is grateful to those persons for sharing the impact of their loss. That ongoing pain and loss is evidence of the harm done to the community more broadly by this crime. [3]   The Court extends its sympathies to the family of Liam and indeed all those affected by his death.

   3. Crimes (Sentencing Procedure) Act 1999 (NSW), s 30E(3)

Additional evidence on sentence

7. In addition to the evidence led at trial the following further evidence was tendered on sentence: a background report authored by caseworker, Yvonne Dengate of Communities and Justice, dated 22 August 2024; a psychological report authored by provisional psychologist, Jaya Tait of Juvenile Justice dated 15 August 2024; and a report of Dr Richard Furst, forensic psychiatrist, dated 12 September 2024.

8. In addition, I have had the benefit of written and oral submissions from counsel.

The facts

9. In the verdict judgment, I set out the facts established by the evidence at trial. That decision forms an essential background to this judgment. What follows constitutes a summary of the circumstances of the offence for which I must now sentence the offender.  The facts that I find for the purposes of sentence must be consistent with the finding of guilt which I have already made.

10. Liam died as a result of a tragic, violent confrontation between two young people, both of whom were approaching their 18^th birthdays. That confrontation occurred on 29 May 2022, in the context of a melee involving a number of young people at a Kentucky Fried Chicken (“KFC”) restaurant in the town of Casino, in the Northern Rivers region of New South Wales.

11. The offender had been in a relationship with Julia. That relationship ended sometime in early 2022. Julia subsequently formed a relationship with the deceased, however she maintained some interest in and contact with, the offender up until the events of 29 May 2022. It is unclear whether the deceased knew of Julia’s continuing interest in the offender. However, there was evidence that he was aggrieved as a result of his belief as to the offender’s mistreatment of Julia during the offender’s relationship with her. Whatever the source, the deceased expressed a significant animus and outward hostility towards the offender. The first outward manifestation of the deceased’s hostility towards the offender was on 2 May 2022. The deceased obtained the offender’s telephone number and made several calls to his phone. The offender did not answer the calls. Further calls were made on 6 May 2022, ultimately resulting in a meeting between the offender and the deceased near the ALDI store at Casino that day. The deceased made it apparent that he wanted to fight the offender. The offender showed no reciprocating interest. Ultimately both parties walked away.

12. On 9 May 2022, the deceased was again involved in an incident involving threatened violence to a former boyfriend of Julia, this time Patrick. It is probable that Julia told the offender about this incident.

13. On 28 May 2022, the deceased encountered the offender at the Beef Week festivities in Casino. The deceased again challenged the offender to a fight. On this occasion the offender threw a punch at the deceased before running away. It is likely the offender punched the deceased to give himself a head start before running.

14. It seems that in response to this, the deceased attended the offender’s house as part of a large group. Some of the members of that group were armed and the deceased smashed a window with a scooter. The offender likely believed the deceased was responsible for the damage.

15. The offender and others searched for the deceased and the offender said he was “ready”. The offender was aware the deceased intended to do him harm but there is no evidence from which I can draw the inference that the offender was actively looking to assault the deceased. He was in possession of a knife from sometime on 28 May 2022. This was in the context of the offender’s concern at the prospect of being confronted by the deceased. The offender’s decision to carry a knife is not evidence of a willingness to act other than in self-defence towards the deceased.

16. On 29 May 2022, the offender was eating at the KFC with Adam and Richard. The deceased came to know of his presence at the KFC and, despite being discouraged from doing so, went to the KFC to search out the offender. The deceased armed himself with knuckledusters. He was dressed in the manner in which he tended to dress when he fought. He was described as drunk and angry. He said he was going to “pump” the offender. The deceased's behaviour upon his arrival at the KFC on 29 May 2022 was aggressive and made others in the restaurant feel fearful and anxious.

17. The offender left the KFC with his companions. He was confronted by the deceased outside the entry area. While standing outside the KFC, the offender was likely of the impression that he and his friends were outnumbered by the deceased and his allies. Although the deceased claimed he wanted a “one on one … fair and square” he was armed with and intended to use knuckledusters. The offender believed the deceased was intent on inflicting violence upon him and was determined to do so by the use of knuckledusters.

18. During the initial parts of the confrontation at the KFC, the offender remained silent in the face of the deceased's aggression. The offender only intervened in the altercation between the deceased and Adam after the deceased had swung towards Adam three times using the knuckledusters and was readying to swing a fourth time. At this stage, the offender ran in, swinging his right fist, driving the deceased backwards into the disabled car park. The deceased was on his back on the ground in the car space with the offender and Adam above him. The offender punched the deceased at least twice to the head and was about to deliver a third punch when others intervened.

19. Robert, Nick and Natalie rushed to the offender. Natalie took hold of his hair. The offender tried to separate himself from Natalie in the course of which he appeared to throw her to the ground. Thereafter the offender was surrounded by at least three others and was held down, punched and kicked for some nine seconds. At some point while being held down, he retrieved the knife. He found his feet and believing he was surrounded by adversaries swung the knife indiscriminately in order to clear the space around him. In doing so he wounded Hayden who had joined the attack on the offender when he was on the ground. I am unable to find that the act in wounding Hayden was done with an intention to target Hayden or to cause him cause grievous bodily harm. While the offender was reckless as to causing actual bodily harm the evidence did not establish that the offender did not believe his act was necessary to defend himself.

20. The offender's fear for his safety throughout the melee was likely increased by his low level of cognitive function and anxious tendencies. Considering the offender’s perception that he was outnumbered, surrounded and at risk of being struck to the head with knuckledusters, he was faced with a very dangerous situation and his use of the knife towards Hayden without an intention to inflict grievous bodily harm could not be considered an unreasonable response in the circumstances as the offender perceived them. For this reason, I found the offender not guilty in relation to the wounding of Hayden.

21. Following the injury to Hayden, the deceased directed a blow at the offender which passed the back of the offender's head. The motion of swinging drew the deceased’s body past the offender. At this point, Richard put an arm around the deceased body and pulled him a short distance backwards. I found in my reasons for verdict that Richard was at that time seeking to defuse the situation. The offender however may have been unaware that the deceased had been restrained. The movement of the deceased and others did mean that there was, at this stage, some space around the offender.

22. The offender then took a large step forward towards the deceased and swung the knife with his right hand towards the area of the deceased's throat. While it cannot be said that the offender deliberately targeted the deceased's neck, he did, however, deliberately thrust the knife in the direction of the deceased's head, neck and upper torso.

23. The deceased swung three punches with the knuckledusters while the offender swung the knife twice more in the area of the deceased's neck. In stabbing the deceased, I was satisfied that the offender intended to inflict grievous bodily harm.

24. The moments leading up to the stabbing of the deceased were marked by chaos. The offender’s mental conditions of anxiety, low level of cognitive functioning due to Foetal Alcohol Spectrum Disorder (“FASD”) and Attention Deficit Hyperactivity Disorder (“ADHD”) increased his fear and his perception that he was going to be killed, which in turn affected his belief as to what was necessary to defend himself. By deliberately thrusting the knife at the deceased’s head, neck and upper torso the offender intended to inflict grievous bodily harm, but believed it was necessary to do so to defend himself.

25. The offender had very little time to process what was going on. The evidence did not establish that the offender did not honestly believe it was necessary to stab the deceased in the manner he did.

26. I accept that the situation faced by the offender was extreme. At least when he was on the ground, the offender believed he was going to die. However, the retreat of Nick and Hayden, of which the offender was aware, provided a potential escape route. I found the actions of the offender in not attempting to run into the gap that had been created to flee the melee, but to face the deceased, step forward and stab him in the area of the throat and to continue to strike in that fashion, rather than attempting to disengage to avoid the swing of the knuckledusters, was not a reasonable response to the threat as he perceived it.

Objective seriousness

27. The objective seriousness of the offending is primarily informed by the fact that the offending involves the loss of human life. The fact of death, of course, is inherent in an offence of manslaughter. This fact does not assist in determining the seriousness of this particular instance of manslaughter. In that regard the first observation that should be made is that the offence of manslaughter can be committed in a wide variety of ways. There is difficulty in assessing where one manslaughter offence sits when compared against the multitude of other actual or hypothetical manslaughter offences that might be committed. It has been said that, for this reason, determining where a particular offence is located on some hypothetical range of manslaughters or types of manslaughters is neither obligatory, nor of much utility. [4] Considering the sub-category of manslaughter by excessive self-defence does not particularly assist as, even within this category, a vast array of circumstances may present themselves. [5] Subject to that cautionary note, some observations may be made about the instant offence.

    4. Paterson v R [2021] NSWCCA 273 at [33].

    5. R v Stanley (No 2) [2024] NSWSC 74 at [49]

28. The use of a knife informs the seriousness of the offence, but only in a limited way. Resort to weapons capable of inflicting serious harm or death, is to be deprecated. However, in the present case, absent the use of a weapon such as a knife, the deceased would not have been killed, with the result that the use of that weapon can be regarded as integral to the commission of the offence itself. It was, nonetheless, the offender’s decision to carry a knife. The offence is in that regard more serious than, for example, an offence where a person under threat spontaneously takes hold of whatever might be within reach.

29. The primary determinant of the relative seriousness of the present offence, as an incidence of manslaughter, is based on an understanding of the circumstances as the offender perceived them and the degree to which his response to those circumstances crossed the line below which he would have had a complete defence. That is, an assessment of the extent to which the offender’s actions were disproportionate to the circumstances perceived by him.

30. I have set out in summary form the facts leading to the fatal stabbing. Those facts established to my satisfaction that the offender was exposed to a significant level of threat. In this regard it was not just the offender’s perception, but the objective fact that the offender was exposed to a risk of very serious injury or death.

31. It is significant to note, based on my findings, that the offender did not initiate the confrontation and indeed showed no interest in fighting the deceased. He only became involved in the physical altercation after it became obvious that the deceased was using a weapon, placing Adam in serious danger. On entering the fray in those circumstances, the offender made no attempt to use the knife which was in his possession.

32. The offender did not produce the knife until the point when he was on the ground, with his jacket pulled over his head, surrounded and being punched and kicked. At that time he was not to know what was being worn on the feet of those kicking him. He did not know precisely where the deceased was. He did know the deceased was nearby, armed, and determined to do him harm. The level of threat to the offender at this time and continuing in the moments after he regained his footing, and only very shortly before the fatal stabbing, was such that despite him swinging the knife in in a manner capable of resulting in death and in fact causing grievous bodily harm to Hayden, I could not be satisfied that his response to his perceived circumstances was not reasonable. While the circumstances changed in the short time between that act and the stabbing of the deceased, the offender remained subject to significant threat. In one respect the threat increased in that it was coming from the deceased, whom the offender knew to be armed with knuckledusters and intent on causing him serious harm, an objective the deceased had been pursuing, to the offender’s knowledge, over the preceding weeks.

27. The determination of whether the offender’s actions were objectively disproportionate was not one I found easy. I did, however, find the offender’s action in stabbing the deceased was not reasonable given the existence of a possible alternative means of avoiding the threat. While disproportionate it was not grossly disproportionate to the circumstances as he perceived them. I pause to note there was, in this case, not a significant distinction between the circumstances as perceived by the offender and the circumstances which actually existed. While the offender swung the knife multiple times, they were part of a short flurry and all occurred while the threat against him was real. In particular, I cannot find that the offender was aware that any of the earlier swings had done anything to reduce the threat. While I found that there was alternative action available, that alternative was not risk free. It was dependant on the offender successfully avoiding a number of members of the attacking group, any one of whom may have intervened to stop him getting away, either by tripping him or otherwise impeding his progress. In essence my finding was that the danger involved in the use of the knife by the offender was such that it should have been avoided, even if it meant the offender assuming a significant risk. That was a calculation that needed to be made in an instant. Ultimately, a line must be drawn as to what is reasonable in the circumstances, and the actions of the offender fell on the wrong side of that line. It was not, however, by any significant margin.

28. I would also observe that the offender did not act with an intention to kill but rather with an intention to inflict grievous bodily harm. It was accepted by the Crown that, in the circumstances of this case, this fact rendered the offending less serious than had there been an intention to kill. That lesser intention is relevant to the proportionality of the offender’s response.

29. The offender submitted that the objective seriousness of the offending was also reduced as a result of his mental condition. There will be cases where a mental condition has a causal connection with offending behaviour such that it will reduce the objective gravity of the offending. An offender’s mental illness may result in a motive that results in the offending, or impacts the offender’s understanding of the particular situation, such that the objective seriousness of an offence is reduced.

30. In the present case, however, as I have indicated, the primary determinant of objective gravity of this particular case of manslaughter, is the degree to which the response of the offender was not reasonable in the circumstances as perceived by him. Given the objective component of this assessment, I do not find that the offender’s mental condition impacts the objective seriousness of the offending. The offender’s mental conditions were of course taken into account in determining to the circumstances as he perceived them. Matters particular to the offender are however, highly significant to an assessment of his moral culpability, a matter to which I will return.

Subjective circumstances

37. The offender was 17 years, 11 months and 18 days old at the time of the offence. While close to adulthood, he was a long way short of maturity. Evidence was led at trial that the offender had no criminal convictions, but that offences of entering with intent to commit an indictable offence and larceny were dismissed pursuant to s 14 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW). I accept the Crown’s concession that it is appropriate to treat the offender as having an unblemished record.

38. Evidence of the offender’s background as given at trial is summarised in my verdict judgment (at [53]-[56]). The evidence of Dr Pulman, forensic psychologist and clinical neuropsychologist and Dr Furst, forensic psychiatrist is summarised at [57]-[63].

39. Further evidence is contained in the reports tendered on sentence. A further report of Dr Furst dated 12 September 2024 was tendered by the offender. Dr Furst maintained the opinions he had expressed in previous reports and at trial as to the causal connection between the offender’s mental health conditions and his offending. He noted when asked about his offending on 15 August 2024, the offender said “I could’ve done things differently. I don’t know. Probably walked away. It all happened quickly. I felt threatened.” Dr Furst cautioned against reading too much into the offender’s comments or omission of any further comment in relation to his offending because a lack of expansiveness, poor expression and impaired capacity to verbalise his feelings have been consistent features of the offender’s presentation throughout his various engagements with Dr Furst.

40. Dr Furst also assessed the offender’s prospects of rehabilitation. He stated that the offender suffers from long-term impairments such that his cognitive and verbal deficits are likely to persist. However, he noted that the offender benefits from regular contact with his foster mother, Lucy and was likely to remain engaged in therapeutic programs, psychology, vocational training and work opportunities. Dr Furst noted that the offender’s conduct has been “more than acceptable” whilst in custody and that the offender does not endorse or engage in violence. Dr Furst commented that overall, the offender “appears to have good prospects [of] being successfully rehabilitated.” He opined that the offender was at a moderate risk of re-offending but that any further offence would likely be by way of a summary offence, rather than a serious violent offence.

41. Dr Furst opined that full-time imprisonment was likely to weigh more heavily upon the offender because of his FASD and ADHD and related poor communication skills, noting that the custodial setting, including juvenile detention, is often characterised by conflict between detainees, violence, threats, and intimidation. In Dr Furst’s opinion, the offender’s mental conditions would make him more vulnerable to those threats than the average detainee. He stated that these conditions were best treated by psychologists and counsellors in a juvenile detention centre because provisions for treatment of those conditions in adult custody is particularly limited. Dr Furst posited that the offender’s cognitive impairment would make him more vulnerable to being “stood over” or exploited in an adult custodial environment.

42. A background report of Yvonne Dengate, caseworker at Youth Justice New South Wales dated 22 August 2024 was also tendered. It noted that the offender is reported to have had “no issues” at Acmena Youth Justice Centre (“Acmena”), that he is behaviourally compliant and is frequently visited by his family. He has accessed various programs whilst in custody, including, but not limited to, a construction course, the Changing Habits and Reaching Targets program and the My Journey My Life cultural intervention program for young Aboriginal men. While the offender has received a number of misbehaviour reports they have been for relatively minor infringements, none involving incidents of violence towards others. It was reported by the offender’s case worker in this context that the offender exhibited a commendable level of conduct when compared to the majority of his fellow detainees. [6]

    6. As recorded in the Confidential Psychological Report of Jaya Tait, 15 August 2024, p 6

43. A psychological report of Jaya Tait, provisional psychologist at Juvenile Justice New South Wales dated 20 August 2024 was also tendered. Ms Tait noted social and emotional deficits consistent with the history obtained by Drs Furst and Pulman, as outlined in earlier reports and at trial. The offender’s behaviour at Acmena was described in positive terms, including that “[JM] presents as a polite and respectful young man, who interacts appropriately with both staff and detainees.” The offender was reported to have consistently expressed a strong stance against violence, which he believes to be destructive. The report noted that the offender is committed to using non-violent strategies to handle confrontation in the future. He has maintained consistent contact with psychologists whilst in custody.

The appropriate sentence

44. As I have said, the taking of a human life is necessarily a grave crime. Within the realm of manslaughter offences, however, I find the seriousness of this offence is significantly impacted by my finding as to the degree to which the offender’s response was disproportionate to the circumstances as he perceived them.

45. Additionally, I find the offender’s moral culpability for the crime he committed is substantially reduced by matters particular to him. While I found that the offender’s action in stabbing the deceased was not a reasonable response to the circumstances as he perceived them, that finding did not take into account the offender’s capacity to respond to those circumstances.

46. I find that capacity was significantly affected by the offender’s cognitive deficit and anxious tendencies, exacerbated by his justifiably held fear of sustaining serious injury or death. The offender’s decision-making capacity was further impacted by the number of people engaged in the events such that I described the situation as both chaotic and clamorous. Added to this, there was little time for reflection. All of this occurred in the context of the offender’s youth and lack of maturity. While the offender made the regrettable decision to carry with him a knife, with the consequence it was available to him at the critical time, this decision was, in accordance with my findings, not one made for the purposes of seeking to inflict unjustified harm. Rather it was a decision made in the context of the legitimate fear in which the offender was placed as a result of the ongoing threat posed to him together with his immaturity and impaired capacity to take a more responsible course. It is on this basis, I find the offender’s moral culpability to be significantly reduced.

47. The offender was a child at the time of the offence. The principles applicable to the sentencing of children and young people have an important role to play in the sentencing exercise. I have had specific regard to s 6 of the Children (Criminal Proceedings) Act. The offender’ youth impacts the role of retribution in the sentencing exercise. Additionally, the role of general deterrence, while relevant, is reduced based on the offender’s youth. Conversely, I find greater emphasis should be given to rehabilitation. This is a case where having regard to the offender’s age, the protection of the community is more adequately addressed by giving weight to rehabilitation.

48. The offender’s particular mental conditions are such as to reduce the extent to which it is appropriate that he be used as an example to others. That is, general deterrence should be given less weight on this basis.

49. The mental condition may also impact the onerousness of imprisonment. I have no doubt that incarceration in an adult gaol would be significantly onerous to the offender given his vulnerabilities in particular resulting from his age and reduced capacity. Dr Furst expressed the view that the offender, even in a juvenile detention centre is, because of his mental conditions, more vulnerable to the conflict and threats characteristic of such institutions. While I accept that to be so, the evidence before me suggests the impact is to a large extent counterbalanced by the fact the offender is one of the older detainees.

50. It was not submitted that there was evidence on which I could positively find the offender had shown remorse for his actions. That is not to suggest I could positively find the offender was not remorseful. The lack of evidence in this regard is to be seen in the context of the evidence of the offender’s limited capacity to verbalise his feelings. It may be that the offender’s positive behaviour in custody, including his engagement in counselling, is a manifestation of his feelings in relation to having caused the death of Liam. Whatever be the case, the absence of a positive finding of remorse in the circumstances of this case does not adversely impact my findings as to the offender’s prospects or rehabilitation or likelihood of further offending.

51. The offender is entitled to credit on the basis of his absence of prior criminal history and what I find to be his generally good character. Further, having regard to the offender’s prior lack of criminal history, the evidence of his response to and progress in custody, and the opinions of the authors of the various reports (including most recently the report of Dr Furst provided on sentence), I find the offender is unlikely to reoffend in a manner remotely approaching an offence of this level of seriousness. Given this, and his active engagement with therapists and commitment to prosocial engagement in the community, I find the offender’s prospects of rehabilitation to be very good.

52. I have had regard to the offender’s co-operation in the conduct of the trial and reduce the sentence that I would otherwise have imposed pursuant to s 22A of the Sentencing Act, but do not apply a fixed or percentage discount.

53. I have regard to the purposes of sentence as set out in s 3A of the Sentencing Act. There must be adequate punishment having regard to the loss of life. The harm done to the deceased and the community must be recognised and the offender held accountable for his actions. Those actions must be denounced. The sentence must contain an element of deterrence, both personal and general. These factors are impacted on in the particular circumstances of this case in the manner I have discussed. In addition, I am required to promote the rehabilitation of the offender, a factor I have found is entitled to weight in this case. While I also consider the protection of the community, as I have said, in the circumstances of this case, this is not at odds with the rehabilitation of the offender.

54. No sentence other than one of full-time imprisonment is appropriate. I find that there are special circumstances warranting an adjustment to the usual ratio between the non-parole period and the total term of the sentence. Those circumstances include the offender’s particular deficits, his prospects of rehabilitation, and the need for a longer period of supervision to manage his particular needs and reintegration into the community.

Should the sentence be served as a juvenile offender?

55. The offender is now 20 years of age. He will turn 21 in June 2025. Any sentence I impose will be served in an adult prison in the absence of an order that it be served as a juvenile offender, in which case, subject to the length of the sentence, either the whole or part of the sentence will be served in a juvenile detention centre. I am of the view that there are special circumstances for the purposes of s 19(1) and (3) of the Children (Criminal Proceedings) Act which justify such an order. That finding is based on the offender’s vulnerability on account of his disabilities.

Sentence and orders

56. I make the following orders:

1. JM, you are convicted of the manslaughter of Liam.

2. For the offence of manslaughter, you are sentenced to imprisonment for a term of 5 years commencing on 29 May 2022. I set a non-parole period of 2 years and 9 months commencing on that date and expiring on 28 February 2025. The balance of term is 2 years and 3 months and is due to expire on 28 May 2027.

3. Pursuant to s 19(1) and s 19(3) of the Children (Criminal Proceedings) Act1987 (NSW), I direct that the sentence be served as a juvenile offender up until the offender attains the age of 21.

4. Pursuant to s 25C(1) of the Crimes (High Risk Offenders) Act 2006 (NSW), I advise you of the existence of that Act and the fact that it applies to you and to this offence. I direct your legal team to explain the significance of this fact to you.

5. In accordance with regulation 8(d) of the Child Protection (Offenders Registration) Regulation 2015 (NSW), I direct that the Secretary of the Department of Justice give notice to the offender for the purposes of s 4 of the Child Protection (Offenders Registration) Act 2000 (NSW).

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Endnotes

Amendments

22 November 2024 - File number corrected

Decision last updated: 30 May 2025