R v KS (No 1)

Case •

[2023] NSWSC 696

•

23 June 2023

No judgment structure available for this case.

Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: R v KS (No 1) [2023] NSWSC 696
Hearing dates: 21 June 2023; 22 June 2023
Date of orders: 23 June 2023
Decision date: 23 June 2023
Jurisdiction:Common Law
Before: Yehia J
Decision:

(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

Legislation Cited:

Children (Criminal Proceedings) Act 1987 (NSW), ss 6, 19

Crimes Act 1900 (NSW), ss 18(1)(a), 33(1)(b)

Crimes (High Risk Offenders) Act 2006 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 6, 22A, 44

Cases Cited:

Apps v R [2006] NSWCCA 290

Barbarov The Queen (2014) 253 CLR 58; [2014] HCA 2

BP v R [2010] NSWCCA 159; (2010) 201 A Crim R 379

Bresnahan v R [2022] NSWCCA 288

Charbaji v R [2019] NSWCCA 28

DH v R [2022] NSWCCA 200

DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156

Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45

JA v R [2021] NSWCCA 10

KT v The Queen [2008] NSWCCCA 51; (2008) 182 A Crim R 571

Miller v R [2015] NSWCCA 86

MS2 & Ors v Regina [2005] NSWCCA 397; (2005) 158 A Crim R 93

Munda v State of Western Australia (2013) 249 CLR 600; [2013] HCA 38

Park v R [2019] NSWCCA 105

Paul Campbell v R [2018] NSWCCA 87

R v Anthony Robert Williams [2005] NSWCCA 99

R v Ciaron McCullough [2009] NSWCCA 94; (2009) 194 A Crim R 439

R v DB [2010] NSWSC 812

R v Eaton [2023] NSWCCA 125

R v Elliottand Blessington [2006] NSWCCA 305

R v Hearne [2001] NSWCCA 37; (2001) 124 A Crim R 451

R v Kovaleff [2023] NSWSC 302

R v Mitchell, R v Gallagher [2007] NSWCCA 296; (2007) 177 A Crim R 94

R v Pham (2015) 256 CLR 550; [2015] HCA 39

R v PO [2017] NSWSC 757

R v Sharon Kaye Yeoman [2003] NSWSC 194

R v SSA & Siose [2007] NSWSC 1202

Sarhenev R [2022] NSWCCA 79

Versluys v R [2008] NSWCCA 76

Vragovic v R [2007] NSWCCA 46

Zreika v R [2021] NSWCCA 243

Category:Sentence
Parties: Rex (Crown)
KS (Young Person)
Representation:

Counsel:
L Shaw (Crown)
P Krisenthal (Defence)

Solicitors:
Office of the Director of Public Prosecutions (Crown)
Legal Aid NSW (Defence)
File Number(s): 2021/00266751
Publication restriction: Pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 (NSW) a non-publication order extends beyond the young person’s name, the name of the deceased, the name of BK, to the names of all witnesses who are mentioned during the course of these proceedings and the name of relatives. The order also extends to the addresses mentioned in the proceedings and any reference to the location of XXX.

JUDGMENT

  1. The events which are the subject of these proceedings ended in tragedy: with the death of one 16-year-old boy, serious injury to another 16-year-old boy, and what will be years of imprisonment for the perpetrator, himself a child at the time he committed these offences. The acts constituting the crimes were committed using a knife. However, the acts were not “adult acts”. They were acts of a 16-year-old boy, whose self-regulation and capacity for mature reasoning about the consequences of his actions were not fully developed.

  2. KS, who will also be referred to as the “young person” in this judgment, is now 18-years-old. The offences occurred in XXX, where he lived with his mother and stepfather.

  3. KS must be sentenced for two offences: an offence of murder contrary to s 18(1)(a) of the Crimes Act 1900 (NSW), which carries a maximum penalty of life imprisonment, and an offence of grievous bodily harm, with intent to cause grievous bodily harm, contrary to s 33(1)(b) of the Crimes Act which carries a maximum penalty of 25 years imprisonment. The standard non-parole period does not apply to either offence, as the young person was under the age of 18 years at the time the offences were committed.

  4. KS pleaded guilty to both offences in the Children’s Court. His pleas of guilty were entered at an early stage of the proceedings. There is no issue that a 25% discount should be applied to the sentence to reflect the utilitarian value of the plea.

  5. KS, the deceased and BK all attended XXX High School at one stage, although not at the same time. KS was known to BK through that school, and they had been friends. BK left school to pursue an apprenticeship in February 2021. Thereafter, KS and BK had less contact with each other. The circumstances of the offending will be set out in greater detail below. It is, however, necessary to acknowledge the life lost at the beginning of this judgment. It is also important to acknowledge the harm occasioned to BK.

  6. In matters such as this, judges are asked to perform an impossible equation. No human life can ever be equated with any penalty, including a period of imprisonment. No gaol term, of any length, can return a loved one. A life should never be measured simply by the punishment meted out to an offender.

  7. KA, the deceased, is described by his mother as having been cheeky, quick-witted, and honest. He was very close to his family and had a good relationship with his older and younger brothers. Just before he was murdered, KA obtained a fencing job and was excited about the prospect of commencing that employment. He had his whole life to look forward to, but his dreams and ambitions will never to be realised.

  8. The deceased’s mother’s victim impact statement reveals the unspeakable trauma she has suffered as a result of KS’s actions. Not only is she deeply distressed and has developed severe social anxiety which requires medication, she experiences guilt, often thinking about what she could have done to prevent this from happening. That guilt is completely misplaced, although understandable. There is nothing that she could have done. The death of her son is not her fault in any way. I acknowledge the deep pain experienced by the deceased’s family. KA is deeply missed.

  9. The sentence I impose does not, and cannot, measure the value of KA’s life. It cannot alleviate the grief KA’s family has experienced and will continue to experience for the rest of their lives.

  10. Instead, it reflects the sentencing discretion informed by proper principle. It must reflect adequate punishment, deterrence, and denunciation, in addition to rehabilitation and the protection of the community. It must hold KS to account and reflect the objective seriousness of the offences. It must also reflect KS’s subjective case, his prospects of rehabilitation, and the likelihood, or unlikelihood, of future offending.

  11. I also acknowledge the harm suffered by BK, his distress and fear at the time of the incident and his ongoing trauma. BK attempted to read out his victim impact statement but was too distraught to complete it. The contents were read out by the Crown Prosecutor. The continuing psychological and emotional harm caused by the stabbing was evident.

  12. BK knew KS and described him as being quiet in school. BK has struggled to understand why he was so brutally attacked. He has experienced anxiety and fear, evidenced by the fact that for the first few months after the attack, he slept with a spear gun next to him so that he could feel safe. While his physical injuries appear to have fully healed, his psychological and emotional injury persists. He experiences night terrors and has flashbacks to the incident. He deeply feels the loss of his friend KA and is struggling to make sense of what has happened.

  13. I acknowledge the harm occasioned to BK which extends beyond physical injury to psychological and emotional distress.

Circumstances of Offending

Background

  1. The circumstances giving rise to the offences are set out in the Statement of Agreed Facts that can be summarised as follows.

  2. At the time of the offending, KS resided with his mother and step-father at an address in XXX. The offences took place outside a residence in XXX. That residence was occupied by the young person’s friend, LK, and his mother. LK was 18-years-old at the time.

  3. In March/April 2021, the deceased moved into a friend’s house at XXX and attended XXX High School. BK lived in the XXX area for almost his entire life and was completing his first-year apprenticeship as a carpenter. He resided with his father.

  4. Following his move to the XXX area, the deceased became friends with BK. JT, a close friend of the deceased and BK were also present on the night of 17 September 2021.

Preceding Relationships

  1. As of August 2021, there had been issues between KS’s group of friends and the group of people that the deceased and BK spent time with. The issues between the groups extended online, with abuse and threats on the Snapchat social media application being exchanged by both groups.

  2. There was also property damage to LK’s home. This event was reported to Police on 2 June 2021. Bricks were thrown through two windows of that home. There is no evidence to link the deceased, BK or JT to this malicious damage. I am satisfied that KS was aware of the damage caused to LK’s home.

  3. In June 2021, the deceased and KS had a public argument on Snapchat. This was a large group chat and was witnessed by most young people in the area.

  4. In July 2021, the deceased and KS engaged in an organised fist fight in XXX Park, XXX. The fight was video recorded. KS lost the fight but when it ended, the two boys shook hands. The belief across both groups was that the dispute between the two groups was at an end. However, the threats and abuse between the groups continued after this fight.

Preceding Behaviour

  1. About a week or two before the offending, SW, KS’s stepfather, found a knife underneath KS’s pillow. He and the young person’s mother confiscated the knife.

  2. After a period of research across various online hunting and knife stores, KS purchased a second knife that was delivered to him. When the knife arrived, KS showed it to SW and to his mother. It was 30 centimetres long and black in colour. It is not in dispute that the knife depicted in Figure 1 in the Statement of Agreed Facts [1] is the knife purchased and was the knife used on the evening in question.

    1. Statement of Agreed Facts at [3].

  3. SW asked KS about his intentions in regard to the knife. He replied that he would “protect myself if I have to”. [2] I accept that when KS purchased the knife, he did so believing that he needed it for his own protection. While that conduct was highly inappropriate and criminal, I am not of the view that, at the time he ordered and received the knife, he had the intention of harming the deceased or any other person with it.

    2. Ibid at 2[27].

Offending

  1. On the night of 17 September 2021, at approximately 5:30pm, the deceased and BK attended XXX, near the southern XXX headland, where they had a gathering with a group of friends. The group, including the deceased and BK, were drinking alcohol.

  2. At around 7:45pm, the deceased, BK and JT caught a bus from XXX headland to the tennis courts at XXX, and then walked under the highway and into XXX. They were in the area to attend a friend’s birthday party which was being held in the bush near XXX. The bush is located at the western end of XXX. The three decided to stop at LK’s house which is very close to the home of KS.

  3. The group, including the deceased and BK, referred to LK’s house as a “trap house” [3] because they believed that drugs were used at the premises. In 2019 and 2020, LK had been warned, and subsequently charged, for the possession and supply of prohibited drugs. KS had visited the house during the day but had since returned to his home.

    3. Ibid at 5[32].

  4. The deceased, BK and JT walked into XXX Road via a rear lane between XXX Road and XXX Street. The three walked underneath the highway and turned left, taking a rear lane towards XXX Road that runs generally parallel to the XXX. The path ends at XXX Road and leads directly into the end of the cul-de-sac.

  5. KS was sitting with his mother and step-father around the fire inside his own property’s rear yard when the deceased, BK and JT walked down the rear lane behind their property. The three boys could be heard by the people in the backyard.

  6. As they approached LK’s house, the deceased, BK and JT, started yelling out words to the effect of “[LK] you dumb drug cunts” [4] and similar abuse, in loud voices. This could be heard by KS, his mother and step-father. The abuse was periodic and not consistent. KS was warned by his mother and step-father not to go into the rear lane. He should have listened to them. Instead, he went into the house and took possession of a knife, before leaving the property and heading for XXX Road via this same laneway. Neither his mother, nor his stepfather were aware that he had left the house.

    4. Ibid at 5[36].

  7. BK approached the house whilst the deceased and JT remained back in the cul-de-sac near the pathway entrance. BK described the area as really dark and with limited visibility. KS approached them and stabbed the deceased in the chest, causing him to fall to the ground. KS said nothing before stabbing the deceased. The deceased died shortly thereafter, from this single stab wound.

  8. KS then approached BK from behind, holding the knife, and stabbed him in the rear left shoulder. BK turned around when he was then stabbed in the left hip.

  9. BK tried to run away, jumping a hedge of a neighbouring house, and tried to run westward in XXX Road. He realised the extent of his injuries and stopped running. He sought help at a house nearby and collapsed on the front porch. JT chased after BK. Upon finding him, he called “000” emergency services.

  10. KS spoke with LK, the latter noting that KS was “freaked out”. [5] He appeared panicky, was talking fast and shaking. KS said: “[KA’s] been stabbed...I don’t know what to do”. [6] LK told KS to: “calm down…I’m sure it will be alright.” [7] At that point, KS was fully aware of what he had done but not aware of the extent of the harm inflicted.

    5. Ibid at 6[46].

    6. Ibid.

    7. Ibid.

  11. After hearing the commotion, KS’s mother and step-father entered XXX Road. They found the deceased lying on the road and attempted to perform cardiopulmonary resuscitation (CPR) on him, with the assistance of a female neighbour. Tragically, the attempts to save him were unsuccessful.

Calls to/from KS

  1. Immediately following the stabbing, KS called a close friend, LH, and made admissions to the offending, saying that he was hiding in the backyard. LH described KS as sounding distraught.

  2. SW called KS at 8:54pm and had the following conversation with him:

“a.   “W – “What’s going on, where are you?’

b.   KS – “I can’t tell you”

c.   W – “If you’ve done something wrong mate, you need to just hand yourself in to the Police…if it’s self-defence, just tell them.” [8]

8. Ibid at 6[52].

  1. KS cried throughout the entirety of this conversation.

  2. At 9:17pm, KS’s mother called him. He would not confirm where he was but inquired about the life status of the deceased. She told him that KA was deceased. KS then called LH again, telling him: “He’s dead [LH], I killed [KA], he’s dead.”

Police/Ambulance Attendance

  1. New South Wales Police and Ambulance attended the scene shortly after the “000” emergency services were called. Police spoke with SW and KS’s mother. Detective Senior Constable Jonathan Newton arrived on the scene and spoke with various witnesses. He organised to complete a line search in an effort to find any weapon used.

Investigation

  1. During the search, Detective Senior Constable Jonathan Newton heard a noise from a nearby tree and saw KS lying on the ground near the tree. He was cautioned by police and placed under arrest. At that stage, KS declined to tell police what had happened, but, when asked about the weapon, he led police to the rear of the property and showed them where the knife was.

  2. The knife had a black handle, a black blade and was approximately 33 centimetres long, with a blade approximately 21 centimetres in length and 4 centimetres in width.

  3. The area was secured, and the knife was seized as an exhibit. KS was transported and placed into custody at XXX Police Station.

  4. The deceased’s body was subject to an autopsy on 21 September 2021. His cause of death was identified as a stab wound to the chest. The wound penetrated the deceased’s lung and heart. [9]

    9. Ibid at 8[36].

  5. The pathologist measured the stab wound as between 3.5 – 4 centimetres in length. [10] The deceased had a small wound to the second finger of his right hand, near the fingernail. [11] Assorted abrasions on the elbow, hip and knee of the deceased were attributed to contact with the ground following the offending. [12] Evidence of extensive internal and external blood loss was identified. [13]

    10. Ibid at 8[70].

    11. Ibid.

    12. Ibid.

    13. Ibid.

  6. BK was admitted to XXX Hospital and remained for five days. He participated in a video recorded interview at hospital with police. This was supplemented by a statement on 1 October 2021.

  7. BK suffered four external wounds:

  1. Central chest;

  2. Left hip and lower back/flank; and

  3. Rear left shoulder. [14]

    14. Ibid at 8[73].

  1. BK underwent surgery where the following occurred:

  1. Emergency sternotomy (splitting of sternum) performed;

  2. Wounds were explored, cleaned and sutured;

  3. Laceration to his diaphragm and internal mammary/thoracic artery (below the heart) were repaired;

  4. Pericardial effusion (removal of liquid around the heart) completed;

  5. Wedge resection of the right middle lobe of his lung was repaired due to laceration. [15]

    15. Ibid at 8[73-74].

  1. BK was discharged on 22 September 2021.

Dispute as to KS’s State of Mind at the Time he Stabbed KA

  1. A plea has been entered to the offence of murder on the basis that at the time of stabbing KA, KS had an intention to inflict really serious bodily harm (grievous bodily harm), as opposed to an intention to kill. The Crown’s position is that KS is to be sentenced on the basis that he intended to kill the deceased.

  2. The Crown relied, at least in part, on a record of interview conducted with KS on 18 September 2021 at 2:24am. An objection was taken to the tender of the electronically recorded interview (“ERISP”). During these proceedings, I heard evidence and submissions on this issue. I determined that the record of interview was not admissible. The reasons for that determination are contained in a separate judgment that should be read together with these remarks on sentence.

  3. Quite apart from the representations in the ERISP, the Crown relies upon a number of factors to establish an intention to kill on the part of KS. Those factors are identified in the Crown’s written submissions as follows:

  1. There had been a prior episode of violence between KS and the deceased in which they engaged in a fight which KS lost. That fight took place in July 2021.

  2. KS was observed by his parents to keep a knife under his bed, which was confiscated.

  3. KS purchased another knife online and made representations that he intended to use it if there was a further physical confrontation with KA.

  4. The knife was of a kind that was likely to cause serious injury.

  5. On the night in question, the likelihood of a physical altercation occurring if KS left his home, was self-evident.

  1. The directness of the assault and the location of the stab wound, namely to the chest of the deceased, is not consistent with the knife being carried for defensive purposes.

  2. The subsequent stabbing of BK demonstrates the degree of violence and an ongoing intention.

  1. The fact that KS kept a knife under his bed, and purchased another after the first had been confiscated, is consistent with his belief that he had to protect himself in light of the background of previous tensions and, in particular, the physical altercation with KA in July 2021. I accept that the knife was of the kind that was likely to cause serious injury and that the directness of the assault negates self-defence. However, notwithstanding the location of the wound, there was only one stab wound, as opposed to multiple wounds inflicted upon the deceased.

  2. I am not persuaded that these factors, viewed in combination, establish beyond reasonable doubt, an intention to kill on the part of KS, as opposed to an intention to cause grievous bodily harm. The circumstances relied upon by the Crown are equally consistent with an intention to cause really serious bodily harm to KA.

  3. Accordingly, I proceed to sentence KS on the basis that at the time of stabbing the deceased, he intended to cause grievous bodily harm to him. I add for completeness, that even if the record of interview had been admitted and I was satisfied beyond reasonable doubt that KS had an intention to kill at the time he stabbed the deceased, that finding would not have operated to increase the sentence in any material way.

  4. It is clear to me that, although KS armed himself with a knife before he left his property, his actions were entirely impulsive and spontaneous. Immediately before he left his house, he was in the company of his mother and stepfather enjoying a night with them in the backyard. Upon hearing the yelling, he armed himself with the knife and proceeded a relatively short distance between his house to the front of LK’s house. Any intention to kill, had it existed, was fleeting at best.

Objective Seriousness

  1. At the forefront of an assessment of the objective gravity of the offence is the fact that there has been a taking of human life with either an intent to kill or an intent to inflict grievous bodily harm: see R v Anthony Robert Williams [2005] NSWCCA 99 at [44]. The community expects that human life will be protected by the law and those who take it will be punished: see R v Sharon Kaye Yeoman [2003] NSWSC 194 at [43].

  2. It is not necessary to describe the objective seriousness of an offence by reference to a notional mid-point: see DH v R [2022] NSWCCA 200 at [57]-[62]. Nevertheless, it does remain the duty of this Court to make an assessment of the seriousness of the offence. What is important is to fully identify the facts and circumstances which bear upon the assessment of objective seriousness.

  3. It is accepted that, generally, murder involving an intention to kill is more serious than one involving an intention to inflict grievous bodily harm: Charbaji v R [2019] NSWCCA 28 at [180]; Apps v R [2006] NSWCCA 290 at [49]; Versluys v R [2008] NSWCCA 76 at [32]. Each case must, however, be determined on its own particular facts and circumstances.

  4. In addition to KS’s intention, I take into account the following matters in determining the objective seriousness of the offence of murder:

  5. Firstly, although there was some deliberation in taking possession of the knife before leaving his premises, I am not persuaded that KS did so having already formed an intention to stab the victims or cause them really serious bodily harm. That there was a lack of planning as evidenced by the fact that the incident took place over what must have been a few short minutes and that KS left his home only after hearing the yelling outside.

  6. Secondly, the lack of planning is evidenced by KS’s demeanour following the offending. He was described as” freaked out”, [16] panicked and shaking. He was distraught when talking to LH and crying when speaking with SW. His mother’s account of KS’s response when he was told that KA was dead, militates against a finding that the offences were planned. TS spoke to her son on the phone shortly after the incident. She told him that KA was dead. KS cried out, “a deep, all the air being stolen from your chest, kind of cry. It was a terrible sound”. [17]

    16. Statement of LK, dated 18 September 2021 at 2[10].

    17. Exhibit 1, letter prepared by TS, dated 5 June 2023.

  7. Thirdly, the offence of murder is constituted by a single stab wound as opposed to a frenzied attack upon the deceased.

  8. Fourthly, I take into account, as an aggravating factor, that KS used a knife which was capable of inflicting very serious bodily harm.

  9. Factors personal to the offender that are not casually linked to the offending do not inform an assessment of objective seriousness but can operate to reduce moral culpability: see Zreika v R [2021] NSWCCA 243 at [53]. I will summarise KS’s subjective case in detail below. Mr Krisenthal relies upon some of KS’s personal attributes, namely age and associated immaturity, in support of the contention that the objective seriousness should be significantly reduced. It is submitted that application of relevant principle to the present matter would lead to a conclusion that the age of KS, together with his immaturity are so connected with the nature and circumstances of the offending behaviour, that this is a rare case where the young person’s personal attributes justify a significant reduction in the objective seriousness of the offending.

  10. In making that submission, Mr Krisenthal does not rely upon the evidence of mental impairment. Instead, KS’s mental health issues are relied upon in support of the submission that his moral culpability is significantly reduced.

  11. Assessing objective gravity by reference to matters personal to an offender has been described as a “vexing issue for sentencing judges”: see R v Eaton [2023] NSWCCA 125 (“Eaton”) (Hamill J) at [45]. I accept that the judgments on this issue do not always speak with one voice.

  12. Objective seriousness and moral culpability are separate but related concepts. Matters personal to an offender may impact on an assessment of objective seriousness: see DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156 at [71],[77].

  13. While it is correct to say that there are cases where matters personal to an offender may impact on the assessment of objective seriousness, such cases require more than a simple or indirect causal connection between the relevant subjective feature of the case and the offending: see Eaton at [49].

  14. I am not persuaded that KS’s age and “associated issues” are intrinsically related to his offending such that they operate to reduce the objective seriousness. KS’s young age, lack of maturity and reduced capacity for consequential thinking are relevant because these factors inform the degree of his moral blameworthiness. I find that the matters personal to KS, including his age, immaturity, and mental health issues, operate to significantly reduce his moral culpability. I will address his moral culpability more fully after I have summarised his subjective case.

  15. Because of the lack of planning and premeditation and the absence of an intention to kill, I find that this offence falls below the middle of the range of objective seriousness but not at the lower end of the range. I have made this finding because the offence involved the use of a weapon in a public place and while not premeditated or planned, there was a degree of deliberation in leaving the premises armed with a knife.

  16. With respect to the offence of grievous bodily harm, with an intention to cause grievous bodily harm, consideration must be given to the nature of the injury, in R v Mitchell, R v Gallagher [2007] NSWCCA 296; (2007) 177 A Crim R 94 (Howie J) said at [27]:

“A very important aspect of an offence under section 33 is the result of the offender’s conduct. The nature of the injury caused to the victim will to a very significant degree determine the seriousness of the offence and the appropriate sentence. This is not to underestimate the intent component of the offence, after all that is the elements that makes the offender liable to a maximum penalty of 25 years as opposed to 7 years for a section 35 offence. But there is less scope for variation in the nature of the intention to do grievous bodily harm when determining the seriousness of a particular instance of the offence then there is for variation in the nature of the injury inflicted.”

  1. In Ciaron McCullough v R [2009] NSWCCA 94; (2009) 194 A Crim R 439, a case dealing with an offence of malicious wounding, Howie J (per McClellan CJ at CL, Simpson J agreeing), said at [37]:

“Malicious wounding is principally a result offence. Generally speaking the seriousness of the offence will significantly depend upon the seriousness of the wounding. That is not to say that the manner in which the wound was inflicted, the reason for the infliction of the wound and the circumstances surrounding the wounding are irrelevant. The same can be said for an offence involving the infliction of grievous bodily harm: the more serious the harm inflicted, the more serious the offence: see R v Mitchell and Gallagher [2007] NSWCCA 296; 177 A Crim R 94 at [27].”

  1. BK suffered a number of stab wounds and underwent emergency surgery. He was discharged on 22 September 2021. While the injuries were serious, they did not result in permanent incapacitation. This is a case that can be distinguished from more serious cases, where the injuries rendered the victim permanently impaired.

  2. The objective seriousness of an offence under s 33 of the Crimes Act is not determined, however, merely by considering the injuries occasioned: see Vragovic v R [2007] NSWCCA 46 at [32]. All of the circumstances must be considered in order to properly assess the objective seriousness.

  3. In determining the objective seriousness of the present offence, I have had regard to the fact that the offence involved use of a weapon. This aggravating factor increases the objective seriousness of the offence. I take into account that KS inflicted four stab wounds. I have had regard to the lack of planning and impulsivity of the conduct. I find that this offence falls below the middle of the range of objective seriousness but not at the lower end of the range because there was a degree of deliberation in taking possession of the knife and there were multiple stab wounds.

Subjective Circumstances

  1. KS’s background is before me primarily by way of a report prepared by Dr Emma Collins, Clinical and Forensic Psychologist, dated 5 June 2023, a Progress Education Report from Girrakool Education and Training Unit dated 10 May 2023, and a report prepared by Juvenile Justice dated 19 June 2023. I have also had the benefit of a letter prepared by TS, KS’s mother, references, and certificates of completion. The contents of those documents can be summarised as follows:

Summary of Psychologist Report

Developmental History

  1. KS is the only child born to his parents, who separated when he was about 7 months old. He continued to live with his mother. His father was “hot and cold” [18] in both his temperament and behaviour and would “snap” [19] over minor issues and shout at him. When KS was 11 years old, he was reluctant to see his father, stating he was “mean” and shouted at him frequently. His mother’s relationship with his father was “volatile”. [20] He was verbally abusive towards her. KS has not had any contact with his father for the last six years.

    18. Psychological Report of Dr Emma Collins, dated 5 June 2023 (Psychological Report of Dr Collins), at 3[6].

    19. Ibid.

    20. Ibid.

  2. On the other hand, KS’s relationship with his mother is a positive and loving one. He reported that she provides him with unconditional love. His mother repartnered and has been together with her partner for about five years. KS describes this man as “pretty fair” [21] and denied any major problems in their relationship.

    21. Ibid at 4[7].

  3. KS described his childhood as “alright”. [22] He would play Xbox a lot and did not interact much with peers. His mother believes that the lack of a male role model in his life affected his ability to form meaningful relationships with other males.

    22. Ibid at 4[8].

  4. KS reported to the Juvenile Justice author that his poor decision making before going into custody was due to his depression. His mother tried to help him, but he admits to pushing all the help away. KS expressed remorse for the hurt and anguish his family is facing, especially his mother. The Crown pointed to an absence of expressed remorse in the Juvenile Justice Report, for KA’s family and for BK, in submitting that I would not find that KS is remorseful and would take that into account in assessing his prospects of rehabilitation.

  5. Dr Collins does, however, note that KS struggled to articulate when discussing the impact of his offending how he felt. He said that he thinks about his actions daily and he demonstrated what Dr Collins concluded was victim empathy as well as understanding the devastating impact his conduct has had upon the victim’s families. [23]

    23. Ibid at 11[40].

  6. KS told Dr Collins that he wanted to write to the victim’s families but struggled to put into words how sorry he is about his offending. He told Dr Collins that he had been regularly dreaming about the victims for months and thinking about how to apologise for his actions. [24]

Education and Employment History

24. Ibid.

  1. KS did not make many friends at school. He completed Year 6 at XXX Public School. He found it difficult to integrate into this school because everyone had well-established friendships. He was a victim of verbal and physical bullying. He reported being punched in the face a few times, shoulder barged by a group of other students, and verbally abused. These experiences were distressing and made him feel like he wanted to die.

  2. The bullying ended when KS was transferred to XXX High School for Year 7. He reported being in a relationship with a girl who was “not good for me.” [25] His girlfriend had mental health issues, self-harmed and was suicidal. His girlfriend’s instability made him feel “sad”. [26] The relationship ended after 10 months.

    25. Ibid at 4[11].

    26. Ibid.

  3. At the end of Year 8, his interest in school deteriorated. He was introduced to drugs. He reported never being particularly interested in learning, and using drugs destroyed any motivation he had towards his education. He truanted, and in 2021 began refusing to attend school. He eventually left school in Year 11 and struggled finding employment during the Coronavirus pandemic. It is noteworthy that he commenced using drugs, primarily cannabis, at a young age when he was experiencing symptoms of depression.

Substance Abuse History

  1. KS was introduced to cannabis at the end of Year 8. He started smoking cannabis more regularly in Year 9 after he found a source of supply. On a few occasions in Year 9, he experimented with cough medicine, “MDMA” and “acid”. In Year 10, he reported smoking cannabis a few times per week, and eventually progressed to daily use by the end of Year 10. He was using prescription medication (Valium) which appears to have been sourced from a friend’s grandmother. He also obtained Attention Deficit Hyperactivity Disorder (ADHD) medication, which he used a few times, at the end of Year 10.

  2. Dr Collins opines that there is some evidence to suggest that the young person substituted cannabis use with alcohol in 2021. [27] The history as to his cannabis use is inconsistent. Dr Collins opines that he was smoking at a reduced frequency. However, the Juvenile Justice Report records that KS was smoking cannabis on a daily basis, and he described himself as a “pothead” in the period leading up to the offence. I am satisfied that KS was smoking cannabis on a daily basis and engaging in that activity with LK and his group of friends, young men who were older than KS.

    27. Ibid at 6[20].

  3. The material establishes a long-standing pattern of drug use, with predominant cannabis use and periods of abusing Valium, hallucinogens, and other medications. It is likely that KS was self-medicating to deal with his low mood. Since entering custody and being drug free, there has been an improvement in his mood. He can focus and does not feel “brain dead” [28] any longer.

Psychosocial and Maturational History

28. Ibid at 6[22].

  1. KS reported finding it hard to make friends during childhood, due to being shy and nervous around people he did not know and struggled to initiate conversation. This improved over time and with age. At the end of Year 10, his friendship group changed, and he began associating with LK and his friends, who were older than he was. He spent most days at LK’s house, usually smoking cannabis together. KS admitted to the author of the Juvenile Justice Report that LK, his closest friend at the time, “got him into cannabis”. The friendship with LK was characterised by heavy cannabis use. KS’s loyalty to LK was problematic and deeply misplaced.

  2. It is telling that LH, a good friend of KS, told police that as a result of KS’s use of drugs he fell out with his original friendship group and formed a friendship with LK and his group. LH did not like KS associating with LK or this new group because they were heavily into drugs and there were always “dramas and fights” [29] surrounding LK. He observed that KS would get caught up with LK’s drug use and his “dramas”. These “dramas” included an ongoing battle between LK and the deceased. [30] KS took LK’s side and was loyal to him. KS’s loyalty is relevant contextually to his actions on 17 September 2021. It is against this background, and cognisant of the history between the deceased and LK, that KS armed himself with a knife and attacked the deceased and BK.

    29. Statement of LH, dated 18 September 2021 at 2[5].

    30. Ibid at 2[5].

  3. None of this history in any way excuses or justifies KS’s actions. However, it provides some of the necessary context to explain why KS, a child with no criminal record, acted as he did.

  4. Dr Collins took a history from KS about the events leading up to the offences. He reported that the victims began to target his friend’s home, throwing eggs and rocks at the windows. He said that he was assaulted by one of the victims, when he was reportedly goaded into fighting over WhatsApp group messaging. This appears to be a reference to the fight with the deceased in XXX Park in July 2021.

  5. KS described the situation as “driving me crazy”. [31] He wanted the conflict to end, and agreed to the fight, in hope that it would resolve things. The conflict continued regardless, even though he lost the fight and he and the deceased shook hands.

    31. Psychological Report of Dr Collins, above n 2, at 7[23].

  6. He reported that the conflict between his friends and others made him feel “terrible, hopeless” [32] and thought that they could do anything to him and his friends. He bought a knife for protection.

    32. Ibid at 10[38].

  7. On the night of the offences, KS said that he heard some males go past his home when he was in his backyard with this mother and stepfather. He grabbed his knife and went out through the back gate. He felt “enraged” [33] as he believed that they were going to his friend’s home to cause some damage. [34] He went on to say that it was an “impulse decision” and acknowledged that he had not planned his actions or thought about the consequences. Observations of the demeanour of KS shortly after the event, support these representations.

    33. Ibid at 10[39].

    34. Ibid.

  8. Dr Collins referred to a number of witness statements that describe KS as “gentle”. [35] Other witnesses describe him as “shy” and “nerdy” and someone prone to being bullied. The violence he perpetrated on the night of 17 September 2021, was out of character.

    35. Statement of LH, above n 20,5[14].

  1. Dr Collins observed the young person interacting with a staff member while they were waiting to exit the visiting area. The contact overall “appeared immature and more consistent with an individual who is considerably younger than the [young person]”. [36] The young person was almost 18-years-old at the time of the interview. It is reasonable to infer that his degree of immaturity was far greater at the age of 16.

    36. Psychological Report of Dr Collins, above n 2, 7[27].

  2. Dr Collins commented on the young person’s level of maturity:

“Maturity refers to a range of behavioural, cognitive, and emotional skills that a young person should develop. [37] These include the capacity to regulate one’s emotions, demonstrate behavioural self-control, perspective take, problem solve, consider the consequences of one’s actions, and identity formation.

It is my view that [KS’s] maturity is below what would be considered typical for his age. He has shown difficulty regulating his emotions and behaviour as well as considering the consequences of his actions. He has struggled with identity formation, with problems forming relationships with others and experiences of bullying. He has struggled to resolve problems and issues, leading to impetuous behaviour. He can also act in a playful manner that would suggest he is younger than his actual age. It is my opinion that [KS] will need to work on developing these key areas, both as part of any custodial and community therapeutic recommendations, so as to ultimately assist him to reintegrate back into the community and adjust into adult life.” [38]

Clinical Assessment

37. E.J Collins & C.J Lennings, ‘Coming of age: Legal and Psychological implications related to Juvenile vulnerability and incarceration’ (2013) 20 Psychiatry, Psychology and Law 824-823.

38. Ibid at 8[28].

  1. KS reported a history of depression dating back to when he was 11 years old. From about 2016, he experienced high irritability and persistent feelings of sadness, refusing to spend time with his father. He was observed to become increasingly withdrawn, tearful and referred to himself as a “waste of space”. [39] He told Dr Collins that he was feeling worthless around that time and said, “I really didn’t like myself” [40] and he hoped he would “spontaneously combust one day”. [41] Dr Collins noted that he had little awareness of his mental health during this period, which was not surprising given his young age at the time.

    39. Ibid 8[29].

    40. Ibid.

    41. Ibid.

  2. The history included reports of long-term sleep disturbance. In June 2016, his mother took him to a psychologist for one session. His mood improved for a short time when he began experimenting with drugs. However, his use of cannabis resulted in his mood deteriorating. This impacted upon his motivation, school engagement and his relationship with his mother.

  3. In 2010, when KS was in Year 10, he reported increased feelings of sadness and hopelessness which appear to have been a result of being a victim of bullying. His mood reportedly worsened in 2021.

  4. In August and September 2021, he attempted suicide by overdosing on medication. Upon waking after his second attempt, he cycled to a cliff with the intention of throwing himself over, but a friend talked him out of it.

  5. In 2021, KS engaged in professional support, instigated by his mother. He was referred to psychologist, Rebecca Russell, but could not recall how many sessions he attended. His mood remained low, and he was not motivated to participate. The young person’s mother became aware of his suicide attempts through one of his friends. He refused to speak to her about these attempts. She took him to Dr Cosmas Ekezie, General Practitioner, who prescribed him, Mirtazapine in September 2021. The medication caused side effects, so he stopped taking it. He was also prescribed melatonin to help him sleep.

  6. Dr Collins states that in the two months prior to the offending, KS was experiencing clinical depression, consistent with a diagnosis of major depressive disorder. He had attempted suicide on two occasions and felt “hopeless”. [42] Dr Collins concluded:

“It is apparent that he did not plan to engage in the offences that evening, and he impetuously reacted to hearing others walking to his friend’s home. His mental state was evidently poor at that time. [KS] has expressed remorse for his conduct and demonstrates appropriate victim empathy.” [43]

Progress in Custody

42. Ibid at 11[44].

43. Ibid at 11-12[44].

  1. Since being on remand, his mood has improved. His initial entry into custody involved having to be quarantined, whilst withdrawing from drugs, which was difficult. He was placed in the Enhanced Support Unit, which provides therapeutic support. He sees a psychologist and caseworker weekly and engages in strategies to develop prosocial coping strategies and psychoeducation around drug use. He is currently prescribed Sertraline, which is an anti-depressant and clonidine and melatonin to assist with sleep. He continues to wake up a few times during the night, which reflects the pervasive nature of his sleep disturbance.

  2. Dr Collins noted that he has engaged well with therapy and education. Dr Collins recommends that vocational and therapeutic programming should continue as part of any sentence received. This will assist with his adjustment into adulthood through maximising his prospects and rehabilitation.

  3. Dr Collins also recommends that KS remain in youth detention until the age of 21, for the following reasons:

“It is my view that [KS] has engaged well in education, with options to engage in further certification in horticulture, furnishings or return to Year 11. I believe it is likely that [KS] will return to Year 11 once he knows the full length of the sentence he will receive. In addition, [KS] impresses as vulnerable based on psychosocial maturity factors. I have concerns that he may be seriously victimised, or groomed into more sophisticated antisocial groups if he spends significant time in the adult system. Ultimately, an educationally diverse and supportive environment such as that offered in the youth justice system will best assist [KS’s] maturation, and in turn positively impact his rehabilitation and eventual return to the community.” [44]

School Report

44. Ibid at 12[46].

  1. During his 21 months in custody, KS started completing Year 11 through distance education but ceased the course because he wanted to pursue more practical training, Ms Pugsley, KS’s custodial caseworker, reported that there were some internal concerns that KS placed undue pressure on himself to do well, which may have influenced his decision to leave the course. She noted that he was quite studious and received outstanding marks across some of his assignments.

  2. KS has completed a Certificate II in Horticulture, which involved tending to garden beds at the centre. At the time of the last interview in May 2023, he had engaged in a hospitality course. This involved food preparation for the Centre School and theoretical studies. KS has also started a weekly construction course. Ms Pugsley noted that he was engaging well across all his studies and was highly active in pursuing various programs at the Centre.

  3. Joe Kwon, CEO of Confit Pathways, has provided a letter to the Court. This is a not-for-profit Organisation, that provides mentoring programs in New South Wales to young people in Youth Justice Centres. Mr Kwon first met the young person in 2022. Mr Kwon states: “KS has shown a strong level of motivation and engagement, which has created a positive vibe for other young people in such a negative place. He is respectful to the team and staff at Frank Baxter and has been a pleasure to work with”. Confit Pathways will continue the mentorship, both whilst KS is in custody and once, he is out in the community.

  4. KS plans to engage in as much practical training as possible to help him find employment upon his release. He would like to complete a trade if possible. His uncle has a shed installation business that he has previously engaged in work experience with in the past. He believes that he may be able to obtain employment with his uncle as an alternative if required.

  5. KS’s school report, dated 10 May 2023, confirms that he was enrolled at Girrakool Education and Training on 5 October 2021. He was enrolled in Year 11 Preliminary Higher School Certificate and withdrew on 16 May 2022. He then joined a Centre based program before beginning his service-oriented architecture towards achieving his Certificate II in Horticulture and completed this on 17 May 2023. He is currently studying his Certificate I in Hospitality and is involved in the following extracurricular activities including:

  • 2021 School Athletics Program

  • Literacy and Numeracy program

  • Positive Incentive Gym Program

  • Wellbeing Program

  1. The report states that KS positively interacts with other students, works independently, and keeps to himself. He presents a respectful attitude towards all staff members. It is reported he has a positive work ethic towards reaching his educational goals. On 9 November 2021, he was suspended for inappropriate use of computers. Other than this incident, his behaviour has been positive and is reflected in his regular attendance to the Positive Incentive Gym Program.

  2. I am satisfied that KS has reflected upon the enormity of his actions. I find that he is remorseful for taking the life of KA and causing the injuries to BK. Dr Collins has referred to KS demonstrating victim empathy. In addition, his plea of guilty at an early stage in the proceedings, reflects his contrition.

  3. These are extremely serious offences that carry significant maximum terms of imprisonment. It is not an easy matter for a 16-year-old child to take responsibility for his actions by pleading guilty to these offences without seeking to put the Prosecution to proof, thereby averting the significant trauma and distress that a trial would have caused the family of the deceased, BK and his family and the witnesses who are members of his community. His plea of guilty has meant that BK was not retraumatised by having to give evidence and being cross-examined. Furthermore, KS’s family have been spared the graphic detail that would have necessarily been involved in a trial.

  4. Although there has been an issue in relation to the admissibility of his ERISP, that point was legitimately taken. It does not demonstrate any reduction in the extent to which he is sorry for his criminal actions. I am satisfied that he will be haunted by his actions which have led to the death of one 16-year-old boy and the serious injury of another. He will live with that guilt far longer than any sentence I impose.

  5. In addition to the utilitarian value, that plea of guilty not only demonstrates remorse and also the willingness to facilitate the administration of justice. Section 22A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSPA) has application in this case. KS was cooperative with police and led them to the knife immediately upon his arrest.

  6. The reports of his progress in custody over a period of about 21 months, demonstrate that he is capable of reform. He has no criminal record, and this is the first time that he comes before the court for any criminal offence, let alone matters of violence. I find that his prospects of rehabilitation are very good. It is difficult to predict with any certainty, the likelihood or unlikelihood of reoffending, given that he will be serving a lengthy period of imprisonment. However, given his plea of guilty, his remorse and the progress he is making in detention, I am prepared to find that if he continues with that progress, he is unlikely to reoffend.

Applicable Principles

  1. Where the immaturity of the offender is a significant factor in the commission of the offence, the criminality involved will be less than if the same offence was committed by an adult: see R v Hearne [2001] NSWCCA 37; (2001) 124 A Crim R 451 at [25]; MS2 v The Queen [2005] NSWCCA 397; (2005) 158 A Crim R 93 at [61]. Furthermore, considerations of deterrence and retribution will have less weight than rehabilitation in a case involving a juvenile offender: BP v R [2010] NSWCCA 159; (2010) 201 A Crim R 379 (“BP”) (Hodgson JA) at [4].

  2. Section 6 of the Children (Criminal Proceedings) Act 1987 (NSW) (CCPA) provides:

6   Principles relating to exercise of functions under Act

A person or body that has functions under this Act is to exercise those functions having regard to the following principles—

(a) that children have rights and freedoms before the law equal to those enjoyed by adults and, in particular, a right to be heard, and a right to participate, in the processes that lead to decisions that affect them,

(b) that children who commit offences bear responsibility for their actions but, because of their state of dependency and immaturity, require guidance and assistance,

(c) that it is desirable, wherever possible, to allow the education or employment of a child to proceed without interruption,

(d) that it is desirable, wherever possible, to allow a child to reside in his or her own home,

(e) that the penalty imposed on a child for an offence should be no greater than that imposed on an adult who commits an offence of the same kind,

(f) that it is desirable that children who commit offences be assisted with their reintegration into the community so as to sustain family and community ties,

(g) that it is desirable that children who commit offences accept responsibility for their actions and, wherever possible, make reparation for their actions,

(h) that, subject to the other principles described above, consideration should be given to the effect of any crime on the victim.

  1. As was noted by Hamill J in Paul Campbell v R [2018] NSWCCA 87, at [27]-[29], it is significant that paragraph (h) provides that the effect of the crime on the victim (or victims) is to be considered but that this is “subject to” the principles set out in paragraphs (a)-(g). The fundamental principles set out in s 6 remain relevant where the offence is to be dealt with according to law.

  2. Principles relating to the maturity of young offenders in sentencing were outlined in BP and were recently referred to by Rothman J in R v Kovaleff [2023] NSWSC 302 at [124]:

“In dealing with youth crime, it is necessary to take into account the principles that apply to persons who have not yet fully developed maturity and, in that, not yet fully developed an appreciation of the full consequences of their actions. As made clear by Hodgson JA in BP, relying on earlier judgements of the Court and the Court's experience, emotional maturity and impulse control develop progressively during adolescence and early adulthood and are not fully developed until the early to mid-20’s.” In his reasons for judgment, Hodgson JA said:

‘[4] First, statements that, in relation to young offenders, principles of retribution may be of less significance and considerations of rehabilitation may be of more significance, may tend to obscure the point that even in relation to retribution the youth of an offender may be a mitigating circumstance. In my understanding, considerations of retribution direct attention to what the offender deserves; and in my opinion, where emotional immaturity or a young person's less-than-fully-developed capacity to control impulsive behaviour contributes to the offending, this may be seen as mitigating culpability and thus as reducing what is suggested by considerations of retribution: see TM v The Queen [2008] NSWCCA 158 at [33]-[36].

Second, while I agree with the statements in KT at [26] that the weight to be given to considerations relevant to a person's youth diminishes the closer the offender approaches the age of maturity, and that a “child offender” of almost 18 years cannot expect to be treated substantially differently from an offender who is just over 18 years of age, it does not follow that the age of maturity is 18 (albeit that for certain purposes the law does draw a line there: Children (Criminal Proceedings) Act 1987 (NSW). In my understanding, emotional maturity and impulse control develop progressively during adolescence and early adulthood, and may not be fully developed until the early to mid twenties: see R v Slade [2005] 2 NZLR 526 at [43], quoted by Kirby J in R v E (2006) 68 NSWLR 1; 164 A Crim R 208 at [127]. As shown by R v Hearne (2001) 124 A Crim R 451, youth may be a material factor in sentencing even a 19 year old for a most serious crime.’”

  1. In JA v R [2021] NSWCCA 10 at [56], the Court, citing R v Elliott and Blessington [2006] NSWCCA 305 (Kirby J) at [127], referred to psychological studies in relation to young offenders, demonstrating the important distinctions between adults and children:

“In R v Elliott and Blessington [2006] NSWCCA 305 Kirby J said at [127]: A jurisprudence has developed in the context of sentencing young offenders, which recognises the important differences, in terms of responsibility, between adults and child

ren. The reasons for the distinction were well explained in a report by a psychologist which the New Zealand Court of Appeal reproduced and appeared to accept in Slade v The Queen [2005] NZCA 19:

"[43] It is widely accepted that adolescents do not possess either the same developmental level of cognitive or psychological maturity as adults (Steinberg & Scott, 2003). Adolescents have difficulty regulating their moods, impulses and behaviours (Spear, 2001). Immediate and concrete rewards, along with the reward of peer approval, weigh more heavily in their decisions and hence they are less likely than adults to think through the consequences of their actions. Adolescents' decision-making capacities are immature and their autonomy constrained. Their ability to make good decisions is mitigated by stressful, unstructured settings and the influence of others. They are more vulnerable than adults to the influence of coercive circumstances such as provocation, duress and threat and are more likely to make riskier decisions when in groups. Adolescents' desire for peer approval, and fear of rejection, affects their choices even without clear coercion (Moffitt, 1993). Also, because adolescents are more impulsive than adults, it may take less of a threat to provoke an aggressive response from an adolescent.”

  1. In Miller v R [2015] NSWCCA 86, Schmidt J reiterated the well-recognised principle at [96]:

“…the capacity for young people to reform and mould their character to conform to society’s norms is usually greater than that of an older offender, has repeatedly been recognised. In the result, considerable emphasis has been placed on the need to provide young offenders with the opportunity for rehabilitation…”

  1. Her Honour went on to say at [97] that it is also well settled that the law recognises the potential for the cognitive, emotional and/or psychological immaturity of a young person, to contribute to their breach of the law: see KT v The Queen [2008] NSWCCCA 51; (2008) 182 A Crim R 571 at [23]. Of course, the greater the objective gravity of an offence, the less likely it is that retribution and general deterrence will cede to the interests of rehabilitation.

  2. In Sarhene v R [2022] NSWCCA 79, at [25] (per Hamill J, Leeming JA, and Ierace J agreeing), the Court again emphasised the relevance of an offender’s youth and immaturity to an assessment of their moral culpability:

“Considerations of general deterrence may be less significant when sentencing a juvenile or young offender.

Rather, emphasis should be placed on the ‘the need to provide an opportunity for rehabilitation’.

While the relevance of youth diminishes the closer an offender gets to the age of maturity, there is no bright line between an offender who is just under 18 years of age and one who is just over 18 years of age; ‘emotional maturity and impulse control develop progressively during adolescence and early adulthood’.

Where ‘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 the case of an adult of more mature years.’

An offender’s youth and immaturity is also relevant to an assessment of their moral culpability.

In some cases, where the young offender is said to have committed an ‘adult crime’ or ‘conducted him or herself as an adult might’, the significance of youth, or the weight to be afforded to it, has been held to be less.

However, courts should not ‘be over-ready to discount the relevance of an offender’s youth on the basis that the offender has engaged in adult behaviour or acted as an adult.’” (footnotes omitted)

  1. In addition to KS’s youth, I have taken into account the evidence of his mental health issues. He experienced symptoms of depression from a very young age. His attempt to self-medicate with cannabis only compounded these difficulties. These difficulties manifested in more than one attempt at self-harm. KS’s youth and mental health issues significantly reduce his moral culpability.

Purposes of Sentencing

  1. Section 3A of the CSPA (NSW) provides:

3A   Purposes of sentencing

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.

  1. In light of KS’s youth and mental health issues, greater weight is given to rehabilitation and less weight to general and specific deterrence. The reasons that rehabilitation is afforded significant weight in cases such as this, where the perpetrator is a child, was clearly identified by Adams J in MS2 & Ors v Regina [2005] NSWCCA 397; (2005) 158 A Crim R 93. The first is the “substantial public interest in the rehabilitation of young offenders” (at [15]). The second is “that immaturity is relevant to culpability or criminality” because “children do not have adult value judgments, adult experience [and] adult appreciation of consequences” (at [16]).

  2. That said, the offending conduct is extremely serious, involving as it did the use of a knife in a public place, occasioning death to one victim, and grievous bodily harm to another. General deterrence remains a relevant consideration. The young person’s conduct must be denounced and punished. He must be held to account for his actions.

  3. I have also taken into account that once KS is transferred to an adult gaol, the conditions will, at least initially, be quite onerous. It is apt to refer to the observations of Harrison J in Mainwaring v R [2009] NSWCCA 207 at [71]:

“Any period of imprisonment must be understood for what it is: onerous, unpleasant, oppressive and burdensome. It is, as it should be, the last available punitive resort in any civilised system of criminal justice. Public discussions about the need to deter crime by the imposition of heavier sentences are not always obviously, or at least apparently, informed by an appreciation of the significance of full-time incarceration upon men and women who receive such sentences. In contrast, I have no doubt that the learned trial judge was acutely aware of such matters, as his careful disposition of the case reveals.”

  1. The sentencing considerations point in different directions. On the one hand, KS must be punished and held to account for taking the life of one young man and seriously injuring another. On the other hand, in accordance with long-standing principles, considerable weight must be afforded to his rehabilitation and the protection of the community that successful rehabilitation affords.

Comparable Cases

  1. The Crown has provided a schedule of sentences imposed on juvenile offenders for the offence of murder and relies on three particular cases which will be summarised below.

  2. The point of sentencing judges having regard to what has been done in other cases is twofold: first, it can and should provide guidance as to the identification and application of relevant sentencing principles; and, secondly, the analysis of comparable cases and statistical data may yield discernible sentencing patterns and possibly a range of sentences against which to examine a proposed or impugned sentence: see R v Pham (2015) 256 CLR 550; [2015] HCA 39 at [26].

  3. However, the use of comparative cases and statistical data should be approached with some caution. I bear in mind that information about sentences that have been passed in other cases does not necessarily capture the spectrum of facts in a particular case, or are otherwise determinative of the upper or lower limits of sentencing discretion: see Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [48]-[49]; Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2 at [25]-[28]; Munda v State of Western Australia (2013) 249 CLR 600; [2013] HCA 38 at [39]; Park v R [2019] NSWCCA 105 at [34].

R v SSA & Siose [2007] NSWSC 1202

  1. The juvenile offender was sentenced for the murder of a young man at an amusement parlour. He was 17 years old at the time and stabbed the deceased once to the chest. He was found guilty of murder after trial. The juvenile offender had one prior offence, being having custody of a knife in a public place, which was dealt with in the Children’s Court. The trial judge ultimately found that due to the spontaneity of the attack, the relevant intention was to inflict grievous bodily harm. The trial judge took into consideration the young person’s age, good prospects of rehabilitation and remorse. The offender was sentenced to imprisonment, with a non-parole period of 13 years and a balance of term of 5years. The offender was to serve his sentence as a juvenile offender until the age of 21.

  2. There was no discount applied because there was no plea of guilty.

R v DB [2010] NSWSC 812

  1. DB pleaded guilty on arraignment to murder and wounding with intent to murder. He was 16 years and 2 months at the time of the offence. He was the boyfriend of JS. After the relationship ended, he became jealous. One evening, he went to the home of JS with a carving knife. Upon entering the house, through the kitchen window, JS’ father confronted him. DB inflicted a number of stab wounds, ultimately killing Mr S and then proceeded to stab and wound Mrs S, who survived the attacked after undergoing surgery. DB was sentenced to a term of imprisonment for both offences to a total sentence of 24 years with a non-parole period of 16 years.

  2. The objective seriousness of the offences in that case was considerably higher than the present case. Furthermore, it appears that the discount applied for the plea of guilty was 12 and a half per cent.

R v PO [2017] NSWSC 757

  1. PO was 16 years and 8 months when he committed murder. He was found guilty and convicted after trial. The offence involved a fight involving four males, during which the deceased was stabbed by PO twice to his chest and abdomen. PO had a criminal history. The sentencing judge found that it was PO’s intention to cause serious injury and his conduct was reactive to the circumstances in which he found himself embroiled. There was no planning or premeditation, and the stolen knife was given to him by a school friend. Consideration was given to his age, emotional immaturity, and the fact that he was without parental guidance from the age of 9. PO was sentenced to a term of imprisonment of 15 years with a non-parole period of 9 years. It is unclear if any discount was applied.

Penalty and Special Circumstances

  1. Clearly, the only appropriate penalty is one of full-time imprisonment. I will proceed to impose an aggregate sentence. The offences were committed in one episode of offending proximate in time and location. The incident took place over what must have been a few minutes. As a result, the sentences will not be wholly cumulative. However, the offences involve two separate victims and separate acts of violence. There will be a measure of accumulation. In determining the extent of that accumulation, I have had regard to the principle of totality. The aggregate sentence must be a proportionate sentence, reflecting the objective seriousness of each offence, the relevant purposes of sentencing, and the young person’s subjective case and reduced moral culpability.

  2. Generally, by operation of s 44 of the CSPA, the non-parole period - that is the minimum period that an offender will remain in custody - will be at least 75% of the total sentence. However, the statutory ratio may be varied where special circumstances exist. The adjusted non-parole period must not fall below that which is proportionate to the criminality involved in the offences.

  3. I find special circumstances warranting a variation of the statutory ratio, so as to reduce the non-parole period. I make that finding for the following combined reasons:

  1. This is the first time that KS is serving a term of full-time imprisonment.

  2. KS has very good prospects of rehabilitation.

  3. KS will require a lengthy period on supervised parole to receive ongoing treatment in the community for his mental health issues and to prevent relapse to drug use.

  4. A variation of the statutory ratio is required to allow KS to successfully re-enter the community.

Section 19 of the Children (Criminal Proceedings) Act 1987 (NSW)

  1. The parties addressed the power under s 19 of the CCPA for KS to serve his sentence in a Juvenile Justice facility until he reaches the age of 21. I can make that order if I am satisfied that there are special circumstances. Section 19(4) provides as follows:

19   Court may direct imprisonment to be served as a juvenile offender

…

(4)  A finding of special circumstances for the purposes of subsection (1A) or (3) may be made on one or more of the following grounds, and not otherwise—

(a)  that the person is vulnerable on account of illness or disability (within the meaning of the Anti-Discrimination Act 1977),

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

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

  1. The Juvenile Justice report and the report prepared by Dr Collins, contain material sufficient to constitute special circumstances as to allow an order to be made under s 19(4) of the CCPA. I accept that there is access to various therapeutic services specific to KS’s mental health needs, vocational training and other education-based courses that are unlikely to be available in an adult prison. KS has already availed himself of some of these courses and has made good progress.

Sentence

  1. As I have endeavoured to show, the interplay of considerations bearing upon the sentencing discretion in this case, are complex and sometimes point in different directions. In synthesising those competing considerations, I record the following indicative sentences, discounting each indicative sentence by 25% to reflect the utilitarian value of plea:

  1. For the offence of murder - 14 years and 3 months imprisonment.

  2. For the offence of grievous bodily harm with intent to cause grievous bodily harm - 7 years and 6 months imprisonment.

  3. Pursuant to s 53A of the CSPA, I sentence you to an aggregate term of 16 years imprisonment, to commence on 17 September 2021 and to expire on 16 September 2037.

  4. 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.

  5. I direct that you serve this sentence as a juvenile offender until 21 years of age.

  6. I am required to advise you that the Crimes (High Risk Offenders) Act 2006 (NSW) applies to the offence of murder and that you may be subject to its provisions at the end of the sentence that I have imposed.

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Endnotes

Amendments

04 July 2023 - Corrected grammar

Decision last updated: 21 August 2023

Most Recent Citation
Cases Citing This Decision

2

MF v R [2024] NSWCCA 42
TM v R [2023] NSWCCA 185
Cases Cited

36

Statutory Material Cited

4

Apps v R [2006] NSWCCA 290
Barbaro v The Queen [2014] HCA 2
GAS v The Queen [2004] HCA 22