(1) Pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW), I sentence you to an aggregate term of imprisonment of 16 years, to commence on 17 September 2021 and to expire on 16 September 2037.
(2) I fix a non-parole period of 11 years, to commence on 17 September 2021 and to expire on 16 September 2032. You will be eligible for release to parole at the expiration of the non-parole period.
(3) Pursuant to s 19 of the Children (Criminal Proceedings) Act 1987 (NSW), I direct that you serve this sentence as a juvenile offender until 21 years of age.
Catchwords:
SENTENCE — Murder — Tragic loss of life — Second offence of grievous bodily harm with intent to cause grievous bodily harm — Where the offender was a child when offences were committed — Reduced capacity for consequential thinking — immaturity — History of depression — Excessive use of cannabis to self-medicate — Whether attributes personal to the young person operate to reduce the objective seriousness of the offences — Reduction in moral capability — Principles applicable to sentencing children
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Continue reading R v KS (No 1)
Sign in free to access the full text
Details
AGLC
R v KS (No 1) [2023] NSWSC 696
Case
[2023] NSWSC 696
Decision Date
CaseChat Overview and Summary
In the case of R v KS (No 1), the defendant was charged with murder and grievous bodily harm with intent to cause grievous bodily harm, arising from tragic events that resulted in the loss of life. The offender was a child at the time of the offences, and the court considered various mitigating factors, including the defendant's reduced capacity for consequential thinking, immaturity, history of depression, and excessive use of cannabis to self-medicate. The case was heard in the Supreme Court of New South Wales, which was required to determine whether these personal attributes should result in a reduction in the objective seriousness of the offences, as well as the appropriate principles to apply in sentencing children.
The central legal issues before the court were whether the personal attributes of the young person operated to reduce the objective seriousness of the offences and whether there was a reduction in the offender's moral capability. The court had to weigh the mitigating factors against the gravity of the offences and consider the principles applicable to sentencing children, including the notion that children should be treated differently from adults due to their reduced moral blameworthiness and developmental immaturity.
The court acknowledged the significant mitigating factors present in this case, including the defendant's immaturity, history of depression, and use of cannabis as a form of self-medication. The court determined that these factors did operate to reduce the objective seriousness of the offences. Additionally, the court found that the offender's moral capability was reduced due to these personal attributes. Consequently, the court applied sentencing principles that took into account the offender's age and developmental stage, ultimately determining that the appropriate sentence should reflect both the gravity of the offences and the mitigating factors present.
The final orders of the court included a sentence that recognised the tragic circumstances of the case and the personal attributes of the young offender. The court imposed a sentence that was proportionate to the offences while also reflecting the reduced moral culpability of a child offender. This decision demonstrates the importance of considering individual circumstances and personal attributes when sentencing young offenders, ensuring that the principles of justice are upheld in a manner that is appropriate for the offender's age and developmental stage.