R v KS (No 1)

Case [2023] NSWSC 696


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

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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.

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