R v JSK

[2004] NSWSC 470

CITATION:	Regina v J.S.K. [2004] NSWSC 470 revised - 16/07/2004
HEARING DATE(S):	29/04/04, 06/05/04, 11/05/04, 14/05/04
JUDGMENT DATE:	14 May 2004
JUDGMENT OF:	Buddin J
DECISION:	For the crime of murder, the offender is sentenced to 11 years' imprisonment, to commence on 9 August 2003 and to expire on 8 August 2014, with a non-parole period of 7 years, also to commence on 9 August 2003 and to expire on 8 August 2010, which is the first date upon which the offender is eligible for release to parole.
CATCHWORDS:	Young offender - plea of guilty to murder - significant discount for assistance to authorities - excellent prospects of rehabilitation - finding of "special circumstances".
LEGISLATION CITED:	Children (Criminal Proceedings) Act 1987 Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	Cameron v The Queen (2002) 187 ALR 65 R v A [2003] NSWCCA 157 R v AEM (Snr) & Ors [2002] NSWCCA 58 R v Ellis (1986) 6 NSWLR 603 R v Gallagher (1991) 23 NSWLR 220 R v Hearne (2001) 124 A Crim R 451 R v MA [2004] NSWCCA 92 R v NP [2003] NSWCCA 195 R v Previtera (1997) 94 A Crim R 76 R v Simpson (2001) 53 NSWLR 704 R v Thomson & Houlton (2000) 49 NSWLR 383 R v TNT [2002] NSWSC 537 R v X [2003] NSWCCA 56 Veen v The Queen (No2) (1988) 164 CLR 465 Wong v The Queen (2001) 207 CLR 584
PARTIES :	Regina J.S.K.
FILE NUMBER(S):	SC 70006/2004
COUNSEL:	P Cattini (Crown) A Haesler (Offender)
SOLICITORS:	S Kavanagh (Crown) S O'Connor (Offender)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BUDDIN J

FRIDAY 14 MAY 2004

70006/04 – REGINA v J.S.K.

REMARKS ON SENTENCE

1 HIS HONOUR: On 29 April 2004 JSK (“the offender”) pleaded guilty to having murdered Steven Tarlinton at Mt Kiera on 21 October 2000.

2 The offender had earlier pleaded guilty to the offence on 19 January 2004 in the Children’s Court. He was arraigned before me to ensure that there were no technical flaws in the process by which the plea was taken.

3 A statement of facts was tendered on sentence. It is agreed that it constitutes the factual basis upon which I should proceed to sentence the offender. It is in the following terms:

The Offender JSK was born on 10 September, 1984. The deceased Steven TARLINTON was born 11 February, 1983. Both the offender and the deceased were part of a wider circle of friends which also included MH.

On the 21 October, 2000 the deceased was picked up from his home address at 181 Farmborough Road Farmborough Heights by his friend MH. They drove in MH’s four wheel drive vehicle to the address of the offender at Mount Keira.

Initially the offender and MH informed Police that the deceased had decided not to go four wheel driving but instead headed east in Mount Keira Road Mount Keira to a friend’s house.

When the deceased did not appear later that evening a number of his friends made inquiries as to his whereabouts and the offender maintained that the deceased did not go with himself and MH. It was noticed that the offender had a swollen right hand and was holding a bag of frozen peas on the swelling. The offender said he had injured his hand when the vehicle had become bogged and he attempted to free it.

The deceased’s friends and family made numerous attempts to contact the deceased on his mobile telephone obviously with no success.

Police commenced a missing person’s investigation and it was found that the deceased had not accessed his bank accounts. The deceased was in full time employment and his disappearance was out of his known character. Police were suspicious that he may have been the victim of foul play.

On 24 October, 2000 the offender was interviewed and he maintained the version of events mentioned earlier that the deceased had decided not to go with the offender and MH but had headed towards a female friend’s house nearby. Police canvassed residents and found no witness who had seen the deceased. No information was gleaned for the next two years and 10 months.

In August 2003 a campaign known as missing person’s week was conducted by police utilising media outlets, in particular the disappearance of the deceased was broadcast and published with no information forthcoming.

On 9 August, 2003 the offender came to Wollongong Police Station in company with Toby Dawson, a friend and also with the offender’s mother. The offender said “I killed someone two years ago” and when asked who he said “Steven Tarlinton”.

The offender was entered into custody and obtained legal advice through the legal aid commission. The offender then participated in an electronic interview during which he made admissions to the murder of the deceased in the Water Catchment Area near Cordeaux Dam on the 21 October, 2000. The offender told police that he and MH had discussed the murder approximately one week prior because of the perception by MH that the deceased was becoming involved with the girlfriend of MH.

The offender told Police that MH had picked him up on 21 October, 2000 along with the deceased. The offender was told by MH to bring a shovel which he collected from a garage. The offender believed at the time that the shovel was to be used to bury the deceased. All three then travelled to the Water Catchment area approximately five kilometres from Mount Keira Road.

After arrival the deceased was struck across the head by MH with a piece of timber which he picked up from the ground. MH and the offender then kicked and hit the victim until he lost consciousness. Both MH and the offender then picked up a large log and dropped it from chest height onto the head of the deceased. This was done on a number of occasions until it was believed that the deceased had died.

The deceased was then placed into a boat which MH had previously brought to the area on a prior camping trip and the offender paddled across the catchment area. The deceased was then dragged into the tree line and buried in a shallow grave.

The offender told police he took the mobile telephone of the deceased, along with his wallet and keys and under instructions from MH he took them and secured the items in a locker at Wollongong Golf Club where they were later found by police. The offender also assisted police by attending at the scene of the murder and indicating the location of the deceased’s body.

At a post mortem examination it was found the deceased had suffered a fracture of the left body of the mandible and also a fracture of the right body of the mandible. He had also suffered a fracture of the left and right parietal bones of the skull. These injuries are consistent with the description given by the offender of events at the Water Catchment Area.

It was the opinion of the Pathologist that death was caused by blunt force head injury.

The offender has expressed extreme remorse at his actions and the death of the deceased. He indicated to police that he is willing to give evidence against MH in any subsequent prosecution and has executed an undertaking in that regard.

4 I have received a victim impact statement from Steven Tarlinton’s mother. In it she details the impact which his death has had upon her and her family and his friends. She expresses her grief, anguish and sense of despair at having lost the son to whom she gave life. She also refers to the particular anguish which was occasioned by not knowing what had happened to him for so long. The feelings which she expresses are entirely understandable. I am aware of course that the effect of his death upon his relatives is not, for present purposes, a relevant consideration. See R v Previtera (1997) 94 A Crim R 76. Nevertheless the court expresses its profound sympathy to all those who have suffered, and who continue to suffer, by reason of his death.

5 Pursuant to s 19A of the Crimes Act 1900, the crime of murder attracts a maximum penalty of imprisonment for life. Section 21(1) of the Crimes (Sentencing Procedure) Act 1999 nevertheless enables a court to impose a determinate sentence. In sentencing the offender, it is necessary to proceed upon the basis that the offence to which he has pleaded guilty is the most serious in the criminal calendar. The starting point must be to recognise that a human life has been taken. The community expects that the sanctity of human life will be protected by the law and that those who take it will be appropriately punished. I am required to bear in mind the relevant statutory framework that pertains to the sentencing of offenders and to the principles which are enunciated in the authorities that bear upon the issue. That being so, it is common ground that I must have regard to the purposes of sentencing which are set out in s 3A of the Crimes (Sentencing Procedure) Act 1999, It is in the following terms:

3A . The purposes for which a court may impose a sentence on an offender are as follows:
(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.

6 The Court of Criminal Appeal in R v MA [2004] NSWCCA 92 characterised s 3A as being a codification and elaboration of the purposes of criminal punishment which were described by the High Court in Veen v The Queen (No2) (1988) 164 CLR 465. A majority of the court, in a passage which is particularly apposite to the present case, said:

[s]entencing is not a purely logical exercise, and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guide posts to the appropriate sentence but sometimes they point in different directions. (At 476)

7 I must also, in determining the appropriate sentence, have regard to the various aggravating factors which are set out in s 21A of the Crimes (Sentencing Procedure) Act 1999. It is apparent from the concluding words of s 21A(1) that the list is not exhaustive. As long as I take into account those factors that are relevant and known, it is not necessary as I understand the situation, to deal seriatim with each matter which is identified. Suffice it to say that I have had regard to the statutory requirements to which I have just referred, and given due weight to the matters which I consider as being of particular relevance.

8 I must also weigh in the balance those matters upon which the offender is entitled to rely in order to mitigate the otherwise appropriate penalty. See s 21A(3) of the Crimes (Sentencing Procedure) Act 1999.

9 Whilst the offender must be given credit for his obvious candour in disclosing the details of the events that led to the death of the deceased, the fact remains that this was a cowardly and cold-blooded killing perpetrated upon a young man who would have had absolutely no reason to suspect that he was to be murdered by two of his friends. Moreover, the offence was committed in company and there was at least a degree of premeditation about it. Certainly by the time that MH arrived at the offender’s place with the deceased in his car on the day of his death, the offender was well aware that MH intended carrying out his stated intention to kill the deceased and that he was expected to participate in MH’s plan to do so. Indeed the offender acknowledged in the Statement of Facts and in cross-examination by the Crown Prosecutor, that MH had asked him to bring along on the fateful trip a shovel, which he believed was to be used in the commission of the offence.

10 Furthermore, at least from the offender’s perspective, it is extremely difficult to discern what it was that motivated him to have committed the offence. As the Statement of Facts reveal, it would appear that MH’s motivation rested upon his perception that the deceased had commenced a sexual relationship with his girlfriend. The evidence does not permit me to reach a concluded view about the accuracy of that perception, although it may be observed that the offender himself in his interview with police does not seem to have believed that it was true. In the final analysis, nothing much turns on the resolution of this issue.

11 The question that remains unanswered however is what it was that led the offender to participate in this crime. He maintains that he did so at the behest of MH. He sought to explain why he had felt compelled to do MH’s bidding, when interviewed by the police. The following exchange took place:

Q Do you remember where you were when he said to you, suggested that you should help kill Tarlo?
A We were in the car.
Q Do you remember where?
A We were actually driving to my house, yeah.
Q Was anybody else in the car?
A No.
Q When he told you that, how did you feel?
A I felt uncomfortable and, and stuck, as if trapped in a corner, like, you can’t you can’t do anything, there’s not much you can do about it, but I couldn’t find a way out of it.
Q Well, why did you, why did you feel like you couldn’t do anything about it?
A Well, back a few years ago, and still to this day, people have always had it over me, like, I’ve always been the little bloke, little Johnny or, and, you know, I get told something and I’d have to do it, I don’t have the confidence to say, look, no, I can’t do it, or, No, I’m not doing that for you, you do it yourself. I just, people have always had it over me, yeah.
…
Q And why did you agree?
A It was, it just came out, it was something that, it came out of my mouth and I could never go back on, even if I’d have said, No, I would have taken part in Steven’s death, no matter what.
Q Sorry, you would have taken part in his death…
A No matter what, I couldn’t get out of it. MH was that type of person.
Q What I’m trying to understand, John, is what hold did MH have over you, to make you agree to this?
A I can’t explain it meself, but he’s always had power over me. He’s like the big bully.

12 He also said that during the course of the assault which preceded the death of the deceased, MH had said to him, “If you don’t help me, you’ll be next.” His continued participation in the incident which led to the death was motivated, he said, by a fear that he would himself be killed if he did not provide assistance to MH. He elaborated upon these matters in one of the statements which he provided to police. The following extract is taken from that statement:

MH used to stand over me and I always felt threatened by him. It was like his actions and his tone of voice. On occasions he would get me to do things like he would say “Get me a drink”. If I didn’t do it he would punch me in the arm or give me a dead leg. It was like I just had to do what he said. Nobody else treated me like that in the group and I don’t know why MH would pick on me. He would normally only do this when nobody else was around and do sly stuff. It was like a power thing. Maybe because I had just turned sixteen and he was older than I was.
The bullying would happen pretty much whenever I would see him. It just got to the stage that I would do what he wanted.
….
I remember another night when I was at Tess’s house. I can’t remember her surname but she used to live in Mount Keira. I think the party was only a couple of days or so before MH spoke to me about killing Steven so I would say in early to mid October 2000. There was MH, myself and Steven upstairs at Tess’s house. We were just having a conversation and MH pointed to me and made a fist indicating for me to punch Steven. MH said, “Hit him”. I just walked up to Tarlo and punched him in the head with my right hand. I don’t think I said anything. Tarlo said, “oh fuck” or something like that. He just walked off downstairs. I don’t remember why MH motioned for me to hit Tarlo but I knew he wasn’t happy with Tarlo and I though it was to do with E. I just felt I had to hit him because MH motioned for me to do it. I knew I had to do it because if I didn’t I would get bullied. It is very hard to describe but I just felt I had to do whatever MH said.

I thought that if I didn’t do what MH told me to do, MH would kill me. It is MH’s personality when he is by himself. He is just threatening. It is like he is on a power trip all the time. When MH and I are in the group with everyone MH acts like a normal person. When MH and I are together by ourselves I see a different side of him. Like that night at Tess’s house when MH told me to hit Steven, I saw MH’s face looked evil. I really felt that if I didn’t do what MH said, I would be hurt in some way.

13 The offender gave sworn evidence before me which was to similar effect, namely that he went along with MH’s demands because he entertained fears that he would be killed himself if he did not comply with them.

14 Section 21A(3) includes within the list of factors which may mitigate an offence, the fact that the offender was acting under duress. The offender placed some reliance upon that provision. It is not easy to make an assessment of such a submission in the absence of more extensive material which would provide me with an insight into MH’s character, personality and conduct, particularly when in the presence of the offender. I have however been informed that MH was indeed older than the offender. He was just short of his 18th birthday at the time of the offence.

15 In any event as the submissions unfolded, it became clear that it was common ground that the issue of duress could be more usefully considered in the context of other factors with which it was interrelated, the most significant being the offender’s age at the time of the offence. The offender had just turned 16 at the time. That being so, the provisions of the Children (Criminal Proceedings) Act 1987 come into play, and in particular s 6 of that Act. The principles to be applied in cases involving the sentencing of young offenders, especially for serious offences, are well established. In R v AEM (Snr) & Ors [2002] NSWCCA 58, the Court of Criminal Appeal said:

“It is well accepted that in the case of youth, general deterrence and public denunciation usually play a subordinate role to the need to have regard to individual treatment aimed at rehabilitation…However, important as that principle is, it cannot defeat the primary purpose of punishment nor, in circumstances where young offenders conduct themselves in a way which an adult does can it stand in the way of the need to protect society”. (at par 97)

16 In R v Hearne (2001) 124 A Crim R 451 the Court of Criminal Appeal cited with apparent approval the principle that:

In sentencing young people…the consideration of general deterrence is not as important as it would be in the case of sentencing an adult and considerations of rehabilitation should always be regarded as very important indeed. (at 458)

17 The court then went to observe that:

[o]f course that is not to say that other factors such as deterrence or retribution may not have a relatively greater part to play in the more serious offences than they do in the less serious ones…However it is, we think appropriate to look beyond the simple difference in facts to address the principle which is involved. It lies in at least part of the rationale for making any allowance for youth, that is, the immaturity which is usually involved. Where that immaturity is a significant contributing factor to an offence then it may fairly be said that the criminality involved is less than it would be in a case of an adult of more mature years…. the Courts have taken the view that the younger the offender, the greater the weight to be afforded to the element of youth. (at 458-9)

18 There was a body of expert evidence adduced on behalf of the offender on the question of his overall level of maturity, and thus his level of culpability for having committed this offence. Dr Nielssen, a consultant psychiatrist, provided a report in which he expressed the opinion that the offender was “emotionally immature” and that this coupled with his “personality traits and intellectual limitations probably contributed to his involvement in the offence…as a result of his limited ability to oppose MH’s demands”. Mr Champion, a clinical psychologist described the offender as “an unsophisticated and slow thinker, though he does not demonstrate a diagnosable global intellectual or developmental disability”.

19 Dr Michael Perdices conducted a neuropsychological assessment of the offender. He concluded that he was a person of “low average to average intellect who, apart from a relatively mild limitation of new learning capacity, had an essential [sic] normal neuropsychological profile apart from mild deficits in verbal learning capacity”.

20 Suffice it to say that I accept that the evidence, including evidence as to his unfortunate background to which I shall shortly refer, demonstrates that the offender was rather emotionally immature at the time when he committed this offence, even allowing for the fact that he was then only 16. To that extent, I consider that it is a reasonable possibility that he was more vulnerable to the demands of MH than might otherwise have been the case. That being so, I am prepared to moderate to some extent the sentence that would otherwise have been appropriate, on account of the factors which I have just been discussing. None of this, of course, serves to excuse in anyway the offender’s conduct. It is also important to ensure that these features of the case are kept in proper perspective, especially when it is borne in mind that the offender’s actions carried with them, as I have said, a measure of premeditation.

21 I have been provided with a significant body of material about the offender’s background. It comes from a number of sources, including his mother and various experts who have provided opinions about him. I have also received, as the relevant legislation requires, a comprehensive background report which was prepared by the Department of Juvenile Justice. See s 25 of the Children (Criminal Proceedings) Act 1987.

22 That material reveals that the offender was placed into foster care in 1986 when he was aged 2. His natural parents, who were aged 19 and 20 respectively when he was born, and who were apparently intellectually disabled, were quite unable to care for him. According to Department of Community Services records and hospital records, not only was the offender neglected but he was apparently subjected to physical assaults at the hands of his natural parents. On one occasion he was reported to have been bitten on the face by his natural father.

23 After a protracted process, he was eventually adopted by his foster parents when he was 12. That process could not be completed earlier as his natural parents had declined to sign the necessary authorisation. His adoptive family also includes his natural sister, who was also adopted, and who is now aged 18.

24 The Department of Community Services organised for contact to be made between the offender and his natural parents after he was placed in foster care. Regrettably however, his natural patents frequently failed to attend those meetings. This occasioned considerable distress to the offender.

25 It would appear that the offender’s adoptive parents, who are both in full-time employment, have provided a secure and loving home environment for their children. The offender initially attended school locally and then attended Wollongong High School. He left at the age of 15 and then attended Edmund Rice College for a short period of time. His parents report that he was a capable student, although he was teased and bullied at school. He passed all his exams and apparently had no behavioural problems whilst at school. He also seemed to have fitted in well in the family environment.

26 The offender was however keen to leave school as he enjoyed working outdoors. He commenced a career in bricklaying and worked for a period of about 18 months in that industry in the Engadine area. He subsequently returned to the Wollongong area where he continued working, until his arrest, as a bricklayer earning $500 per week.

27 The offender showed superior skills as a sportsman as he was growing up. He represented the Illawarra region in cricket, rugby union and golf. Most of his leisure time was devoted to either playing or training for sporting activities.

28 There are a number of other matters of a subjective nature, upon which the offender is entitled to rely, in order to ameliorate what would be the otherwise appropriate sentence. There can be no doubt that they will operate in such a way as to very considerably reduce the sentence which would, in the normal course of events, have been imposed.

29 The offender is entitled to a significant measure of leniency on account of his plea of guilty. That is a matter that I expressly take into account in his favour. See s 22 of the Crimes (Sentencing Procedure) Act 1999. It was of course entered at the first available opportunity after he was charged. It had been preceded by admissions which not only rendered his conviction inevitable, but amounted to disclosure of his guilt in circumstances in which it was otherwise unlikely to have been discovered and established by the authorities. It is common ground that that factor provides a basis for extending additional leniency to the offender in accordance with the principles enunciated in R v Ellis (1986) 6 NSWLR 603.

30 It is also common ground that the offender has displayed genuine remorse for his actions. It was very apparent from his appearance in the witness box that this was a case of an offender who was deeply ashamed of what he had done. Far from being content to merely recite the standard incantation as to how sorry he was, he said that he wished, in effect, to demonstrate the genuineness of his contrition by his actions (that is, by continuing to assist the authorities) rather than by mere words.

31 I have received a letter from the Chaplain at the Kariong Juvenile Detention Centre where the offender is currently being held. He said that the offender has attended many church groups at the Centre. He also said that the offender had spent a great deal of time with him “expressing grief, disbelief, remorse for the pain to others and the deep feeling of shame”. He also reports that the offender has recently embraced the Muslim faith and spends much of his time in prayer. The author of the background report, to which I earlier referred, observed that the offender had reported to him that he was “so, so sorry for what I’ve done”. The writer expressed the opinion that the offender has expressed what appeared to be genuine remorse for his victim and the family of his victim for his part in the commission of this crime.

32 I am readily persuaded that the offender’s decision to come forward and confess his crime, albeit belatedly, was motivated by the guilt which he had been carrying. To investigating police, he said “I came forward…because it was eating me alive.” He also said that he had been living with “this” for three years and “it’s just doing my head in”.

33 The offender’s parents observed, in the period following the commission of the offence, what they said were concerning changes in their son’s behaviour. They said that he “appeared to be very depressed, his behaviour changed, he commenced drinking, he dissociated from others and did not want to leave the family home”. It seems that he was also, for a short period, using marijuana. Endeavours to have him attend counselling were apparently unsuccessful. In short, his emotional state went into a significant decline after the offence.

34 The material before me reveals that the offender was admitted to hospital on three or four occasions in the period between the commission of the offence and his disclosure of it to authorities. It is apparent that the excessive consumption of alcohol played a part in each of these incidents. In one incident he was found lying in the middle of the road beside his pushbike. On another occasion he collapsed on a train and had a seizure. On another occasion, which also occurred on a train, he was badly assaulted and in yet another incident, he sustained concussion on a football field. As I have said, each incident was in someway associated with his being in an intoxicated state. I am satisfied from that material that the offender was abusing alcohol at a time when he was consumed by feelings of shame and guilt. As Mr Champion described it “his escalating alcohol abuse was probably indicative of the progression of his guilt and despondency”. At the same time he was keeping up the pretence to everyone, including the victim’s family, that he had no idea what had occasioned the victim’s disappearance. By August 2003, he realised that he could no longer continue to maintain that level of deceit.

35 Were matters to have remained there, the offender would have been entitled, as I have said, to make a claim for a substantial discount for his plea of guilty in accordance with the principles enunciated in R v Thomson & Houlton (2000) 49 NSWLR 383. The only factor that would tell against his entitlement in this respect is the fact that his decision to come forward was, as I have said, a belated one.

36 It is then necessary to take into account the very important issue of the offender’s assistance to the authorities in the form of his decision to give evidence against MH. Indeed it has been necessary to proceed with due despatch to sentence the offender in order that he may, in accordance with accepted practice, be in a position to give evidence next week when committal proceedings against MH get under way.

37 The question of assistance to the authorities is governed by s 23 of the Crimes (Sentencing Procedure) Act 1999. Section 23(1) provides that a court may impose a lesser sentence upon an offender “having regard to the degree to which the offender has assisted, or undertaken to assist, law enforcement authorities”. I have had regard, in making that decision, to the matters enumerated in ss (2). Prominent amongst those considerations are the significance, usefulness and reliability of the information provided, and the nature and extent of the offender’s assistance or promised assistance.

38 The evidence reveals, as best one can assess an uncontested version of events, that the information which the offender has provided is highly significant, useful and reliable. Its significance and utility can be gauged from the fact that without his evidence, the Crown would not have a case against MH. Indeed it was only when the offender came forward and confessed, that MH was charged. Moreover the information provided by the offender has been confirmed in various respects. The location of, and the injuries to, the deceased’s body are entirely consistent with what the offender told police. Furthermore, there are, according to the informant, several important pieces of evidence which are capable of corroborating the offender’s account of the involvement of MH in the offence. The informant also described the offender’s assistance as being of the highest order and that certainly appears to be an accurate characterisation of it.

39 On any analysis of the matter, the offender is entitled to a significant discount for his assistance to authorities. It is not necessary however in the present case to provide a separate quantifiable discount on account of this feature of the case. As Gleeson CJ said in R v Gallagher (1991) 23 NSWLR 220:

It must often be the case that an offender’s conduct in pleading guilty, his expressions of contrition, his willingness to co-operate with the authorities, and the personal risks to which he thereby exposes himself, will form a complex of inter-related considerations, and an attempt to separate out one or more of those considerations will not only be artificial and contrived, but will also be illogical” (at 228).

40 In Wong v The Queen (2001) 207 CLR 584 a majority of the High Court (Gaudron, Gummow and Hayne JJ) in a joint judgment cited his Honour’s remarks with approval. Their Honours went on to say:

So long as a sentencing judge must, or may, take account of all of the circumstances of the offence and the offender, to single out some of those considerations and attribute specific numerical or proportionate value to some features, distorts the already difficult balancing exercise which the judge must perform. (at 612)

41 Before leaving this topic, I must also bear in mind the very important statutory mandate encapsulated in s 23(3) which provides that “a lesser sentence that is imposed under this section in relation to an offence must not be unreasonably disproportionate to the nature and circumstances of the offence”. See R v X [2003] NSWCCA 56; R v A [2003] NSWCCA 157; R v NP [2003] NSWCCA 195. Nevertheless it is clear that the offender has clearly accepted responsibility for his actions and has demonstrated a “willingness to facilitate the course of justice”. See Cameron v The Queen (2002) 187 ALR 65. For that he is entitled to an appropriate and significant adjustment to the sentence which would otherwise be imposed.

42 The offender is also entitled to have weighed in his favour the fact that he has no prior criminal convictions. I am satisfied that he is, this matter apart, otherwise a person of good character. I have received a number of testimonials from persons who know him well. They speak highly of his personal qualities and speak of their shock that such a person could have committed such a heinous crime.

43 The material which has been placed before me suggests that the offender has spent his time whilst in custody in a most productive manner. He has completed a 20 week course in Horticulture and now works full-time at Kariong, doing ground maintenance. His caseworker described him as being “one of the best behaved inmates at the Centre. [He] apparently has been very co-operative and has displayed no behavioural issues since his arrival.” He is described as being a model detainee.

44 The offender has sought to avail himself of the services of mental health professionals whilst he has been in custody. The details of that contact are set out in the report in the following terms:

JSK has been seen by the resident psychologist at the Centre, Ms Fiona Ruscheinsky. Ms Ruscheinsky stated that on JSK’s admission to Kariong Juvenile Justice Centre he first had contact with a Drug and Alcohol Counsellor. Ms Ruscheinsky commenced counselling with JSK in November 2003 and this continued until March of this year. Ms Ruscheinsky stated that the main component of her counselling was working with JSK’s depression and his adjustment to custody and dealing with his feelings on handing himself into the police. Throughout these counselling sessions JSK has again become aware of his identity of being adopted and the Department of Community Services have visited him whilst he has been in custody making him aware of his background prior to coming into their care and this has raised some emotions in relation to his background.
JSK has recently been seen by the Centre Psychiatrist, Professor Greenberg and he has been prescribing medication for his depression.
Recently JSK moved into the Lawson Unit at Kariong Juvenile Justice Centre and has been seen twice by Ms Kelly Rochow, Psychiatrist. Ms Rochow stated that JSK meets expected behaviours, he does extra chores in the unit and respects other detainees. He also follows rules and regulations and participates in counselling expressing how he feels and has shown a lot of remorse for what he has done.

45 The offender told me that he was no longer taking medication and is feeling better as a result.

46 I have been able to derive some insight into the offender from a letter written by his case worker. Omitting formal parts, it is in the following terms:

I have been a Youth Officer at Kariong Juvenile Justice Centre for ten years now and in the past year I have been working closely with JSK. I have been his ‘Key Worker’. This is a position where each worker is allocated a detainee. My job is to handle his case work, case conferencing, liaison with him and his parents and also data his behaviour.
I carry out my duties professionally and impartially, always detaching myself from their crimes and background. However, working with JSK has been both challenging and rewarding. Rarely have I enjoyed the company of a detainee, but working with JSK has been a breath of fresh air to me. He has always been open and honest when discussing his present, future and past. Rarely also, do detainees show remorse for their crimes. But JSK not only shows remorse but also compassion and sorrow for the family of his victim.
Through my case work with JSK I have become friends with his parents I and KK. They too, are a rarity. Since JSK was adopted by them as a child they have shown enormous love and dedication to JSK, and most recently has relived the trauma JSK suffered as a baby with his natural parents. I too was present when DOCS came to the Centre with piles of paperwork and sat down with JSK revealing his entire life from birth. JSK was devastated by all that transpired and broke down several times.
All this does not excuse the heinous crime JSK committed, nor is this letter in any way seeking leniency. He deserves to face any sentence handed down to him, which the victim’s family fully deserve. I always feel pity for the victims and their families. It’s something I cannot help.
I was not asked by JSK or his family to write this letter, I chose to do so in order to show the kind of character JSK is. Also how different I believe he is in comparison to other detainees we have here at Kariong Juvenile Detention Centre. I have never written this kind of letter before, I just needed to let you know how much JSK regrets his actions and the grief his own family has been through as a result of his crime.

47 In light of that material, and having regard to his age and the attitude which is manifest in his endeavours to make amends for his involvement in this appalling crime, I am persuaded that the offender has excellent prospects of rehabilitation. Furthermore, one of his former employers has spoken enthusiastically about his reliability as a worker and has expressed a willingness to employ him again in the future. I am also of the view that it is most unlikely, given the state of the evidence, that he will re-offend.

48 It is again common ground that it is appropriate that I should find “special circumstances” within the meaning of s 44(2) of the Crimes (Sentencing Procedure) Act. In making such a finding, I have, in particular, had regard to the fact this is the offender’s first time in gaol and that upon his eventual release from custody, he will require considerable supervision and assistance to facilitate his re-integration into the community. In reaching that conclusion, I have not overlooked the need, in setting the non-parole period, to fix the minimum period which the offender must spend in custody. See R v Simpson (2001) 53 NSWLR 704; R v MA [2004] NSWCCA 92.

49 Section 19(3)(a) of the Children (Criminal Procedure) Act 1987 provides that, where the offender has turned 18 and the sentence is, as here, one imposed according to law, then it must be served in an adult gaol unless “special circumstances” are shown. “Special circumstances” appear pursuant to s 19(4), to include “the degree of vulnerability of the person” and “the availability of appropriate programs at the place the person will serve the sentence”. I am persuaded that the offender is able to satisfy each of those requirements. It is clear from the material which has been placed before me that he has made very significant progress to date in his present environment. The Court of Criminal Appeal said in R v AEM (Snr) & Ors (supra).

“ A transfer to an adult gaol will involve considerable dislocation. Given that last year saw considerable improvement in his behaviour and maturity, the Court should, to the extent that it is able, encourage that. It is far preferable, and in the end works towards the greater protection of the community, if an offender can complete a term of imprisonment with insight into the wrongdoing which placed him or her there, with increased maturity and with skills. He should be given an opportunity to further develop both personally and educationally and we consider that some further period in a Juvenile Justice Centre will better assist that process.” (at para 199)

50 Those remarks apply equally to the present offender. The Crown accepts that it is appropriate that the offender should remain in a detention centre until he turns 21. He will thereafter have to serve the balance of his sentence in an adult gaol. That fact gives rise to a further consideration. The parties are agreed that in all likelihood the offender will, by reason of the sentence which I am about to impose, be placed at least initially, in maximum security. That being so, it is also highly likely that the offender will need to go into protective custody. Once there, it is highly likely that he would need to remain there. The potential risk of harm to the offender will of course continue after his release. Accordingly I am prepared in the light of well established principles, to take those matters into account in the offender’s favour.

51 I have had the benefit of written submissions which were prepared by Mr Haesler, who appears on behalf of the offender. He also provided me with other material, including statistical material from the Judicial Commission and other sources, a summary of cases involving other young offenders who had been convicted of murder, as well as some decisions which were, it was suggested, capable of assisting me in my present task. It is common ground that the only decisions which provide any real guidance, given the highly unusual circumstances of the present case, are the decisions of Hidden J in R v TNT [2002] NSWSC 537 and of Sully J in relation to the same offender [2002] NSWSC 394. Although I must of course exercise my own independent sentencing discretion, it is apparent that the decision of Hidden J in particular is useful because the circumstances of that case bear considerable similarities to the present case. That offender was also aged 16 at the time that he participated, with others, in committing the offence of murder. He too pleaded guilty and got the benefit of having provided assistance to the authorities. There was also an additional measure of leniency extended to that offender on account of the considerations identified in R v Ellis. In the upshot Hidden J, after allowing an overall discount of 50%, sentenced that offender to a sentence of 10 years’ imprisonment with a non-parole period of 6 years. There were as might be expected, features which distinguish the two cases, not the least being that, only a mere week before the murder in respect of which that offender was sentenced by Hidden J, he had killed another person. For that offence, he was sentenced to 14 years’ imprisonment with a non-parole period of 9 years by Sully J. The sentence which Hidden J imposed was wholly accumulated upon the sentence imposed by Sully J and was undoubtedly affected by considerations of totality. It is to be noted that Sully J also sentenced that offender for an additional offence of unlawful imprisonment. Nor was there any Ellis factor in respect of the sentences imposed by Sully J. Moreover in relation to the homicide offence with which Sully J was concerned, the offender actually fired the fatal shots in what was, as his Honour observed, a gangland execution. It would appear that that offender was under the control of other members of a Vietnamese gang at the time of the commission of each of the offences.

52 Notwithstanding the offender’s extremely favourable subjective matters and the other features of the case to which I have referred, it is necessary to impose a sentence which properly reflects the objective gravity of the offence and which gives effect to the various matters referred to in s 3A of the Crimes (Sentencing Procedure) Act 1999. This case involves the senseless and tragic loss of human life and accordingly nothing less than a substantial custodial sentence can be countenanced.

Sentence

53 For the crime of murder, I sentence the offender to 11 years’ imprisonment, to commence on 9 August 2003 and to expire on 8 August 2014, with a non-parole period of 7 years, also to commence on 9 August 2003 and to expire on 8 August 2010, which is the first date upon which the offender is eligible for release to parole. I order that the offender serve his sentence in a Detention Centre until he attains the age of 21.

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Last Modified: 07/26/2004