R v Matthew Cole (a pseudonym)

[2022] NSWDC 238

District Court

New South Wales

Medium Neutral Citation:

R v Matthew Cole (a pseudonym) [2022] NSWDC 238

Hearing dates:

29 November 2021, 1 December 2021, 8 December 2021

Date of orders:

10 February 2022

Decision date:

10 February 2022

Jurisdiction:

Criminal

Before:

Sutherland SC DCJ

Decision:

[239]-[241]

Catchwords:

CRIME — Violent offences — Cause grievous bodily harm with intent – Assault occasioning actual bodily harm in company – Aggravated break and enter – Juvenile offender – Affected by drugs (Xanax) – Paradoxical side effect of Xanax – Assault on a public street – Assault by group of youths – Substantial harm or injury

Legislation Cited:

Children (Criminal Proceedings) Act 1987 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Crimes Act 1900 (NSW)

Cases Cited:

AI v R; R v SB & AI [2011] NSWCCA 95

Arulthilakan v R; Mkoka v R [2003] HCA 74; (2003) 203 ALR 259

BC v R [2020] NSWCCA 329

BP v R [2010] NSWCCA 159

JM v R [2012] NSWCCA 83

KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571

PD v R [2012] NSWCCA 242

R v A; R v Hurst [2012] NSWDC 186

R v AN (No 2) [2015] NSWSC 308

R v AN [2014] NSWSC 1879

R v DGP [2009] NSWSC 1154

R v FD; R v JD [2006] NSWCCA 31

R v Khosravi [2008] NSWDC 298

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

R v PO [2017] NSWSC 757

R v SB; R v AE; R v MG [2015] NSWSC 659

R v Talimalie; R v Leavai; R v JL [2020] NSWDC 229

R v Thomas [2007] NSWCCA 269

R v Tuala [2015] NSWCCA 8

R v WA [2012] NSWSC 1317

R v Waters (a pseudonym); R v Mook [2020] NSWDC 636

R v Youkhana [2004] NSWCCA 412

Randell & McAlister v R [2004] NSWCCA 337

Category:

Sentence

Parties:

Crown
Matthew Cole (a pseudonym)

Representation:

Counsel:
Crown: Mr K Prince
Defence: Mr A Radojev

Solicitors:
Crown: Solicitor for Public Prosecutions
Defence: Mr M Stidwill

File Number(s):

2020/224974; 2021/040610

Publication restriction:

Prohibition on publication of the offender’s name or any matters that might identify him.

sentence

1. The offender in these proceedings was a 16-year-old youth at the time of his offending. He will in the course of my Remarks on sentence in court be referred to by his name as will other young offenders who I find it necessary to identify. However, in any published copy of these Remarks he and they will be referred to by pseudonyms. I remind members of the media that by virtue of the young person’s age and pursuant to the relevant statutory provisions, there is a prohibition on publication of either his name or matters that might identify him. That restriction also applies to the names of other young persons who were involved with the offending.

THE OFFENCES

2. On the evening of 31 July 2020, Matthew Cole was part of a group of approximately eight similarly-aged youths who violently assaulted the victim, Brett Halcro, who was unknown to them, in a public street in Pyrmont. In the course of the ongoing assault of the victim, who continued to be kicked and punched after he had become unconscious and fallen to the ground, this offender pulled out a knife and repeatedly stabbed and slashed the prone victim to his head and face, in all at least seven times.

3. Matthew Cole was subsequently arrested and charged with a number of offences arising from the assault. The principal charge, to which he has pleaded guilty, is an offence of causing grievous bodily harm with intent to cause such harm. Such an offence arises pursuant to section 33(1)(b) of the Crimes Act 1900 (NSW) and carries a maximum penalty of 25 years imprisonment. The seriousness of the offence is indicated by Parliament having specified a standard non-parole period of seven years. However, as a consequence of the youth of the offender, the standard non-parole period does not apply to these proceedings.

4. The physical assault which preceded the stabbing with the knife was the subject of a separate charge alleging assault occasioning actual bodily harm in company. This offence arises pursuant to section 59(2) of the Crimes Act 1900 (NSW) and when prosecuted separately on indictment carries a maximum penalty of seven years imprisonment. The offender has acknowledged his guilt of this separate offence and it has been placed on a Form 1 document. The court is asked to take that offence into account in determining an appropriate sentence with respect to the principal charge.

5. Following the offender’s arrest with respect to the assault, he was taken into custody and processed before being refused bail. His fingerprints were taken and were subsequently matched with fingerprints found at the scene of an earlier break and enter offence which had been committed at commercial premises in Killara. That offending had taken place on 26 April 2020. Following the identification of the young person’s fingerprints, he was subsequently charged with offences relating to that break and enter.

6. He has pleaded guilty and appears for sentence with respect to one offence of aggravated break and enter in company, and committing a serious indictable offence in the premises. Such an offence arises from section 112(2) of the Crimes Act 1900 (NSW) and carries a maximum penalty of 20 years imprisonment. By virtue of the offender’s youth, the specified standard non-parole period has no application.

7. A separate offence arising from the same incident, namely breaking and entering with intent to commit a serious indictable offence, has also been charged. Such offending contravenes section 113(2) of the Crimes Act 1900 (NSW) and carries a maximum penalty of 14 years imprisonment if prosecuted separately on indictment. This offence has been placed on a second Form 1 document which relates to the offence under section 112(2). The offender has acknowledged his guilt of this separate offence and the Court is asked to take it into account in determining an appropriate sentence with respect to the section 112(2) offending.

FACTS RELATING TO THE ASSAULT CHARGES

8. On Friday 31 July 2020, a “gathering” or party of predominantly young persons was held in an apartment in Wattle Crescent, Pyrmont. The evidence in these proceedings, presented primarily by way of Agreed Facts, indicates that there were approximately eight young males at the premises of whom the majority (six), were only 15 or 16 years of age. Two of the others identified in the Agreed Facts were respectively 17 and 18. Most, if not all, were still school students. There were also a number of young females who would also appear to have been of school age.

9. The apartment had been rented through the Airbnb facility by a person whose name otherwise does not feature in these proceedings. A strong inference is that the purpose of attending the apartment was for the consumption of alcohol and/or drugs, away from the presence of adults and parents.

10. In the course of the evening, one of the 15-year-old young persons at the party effectively bumped into two young girls in the reception area of the apartment complex, one of whom was known to him by virtue of them attending the same school. The two young girls were invited to join the party. Another 15-year-old male arrived shortly after in the company of an additional young female. It is clear that a number of additional persons were invited to attend the party and the precise number of persons present in the apartment at various times is not clear.

11. At about 10:20 pm, the victim, Brett Halcro, and a man named Matthew Schultz were on Pyrmont Bridge Road near the Dunkirk Hotel. The 17-year-old and the 18-year-old from the group at the apartment were on Pyrmont Road and approached Schultz and the victim. The 17-year-old then crossed the road where he spoke with a female named Hall (a pseudonym). She then crossed the road to where Schultz was showing the 18-year-old a packet of a small quantity of MDMA or “ecstasy”. After asking to look at the small quantity of the drug, the 18 year-old took the packet and ran away with it, described in the Agreed Facts as “a small satchel” (query sachet?).

12. Schultz ran after the 18 year-old who had taken the drug. The 18 year-old ran back towards the apartment in Wattle Crescent. Schultz chased after him across the intersection at Wattle Crescent but stopped his pursuit shortly after.

13. Meanwhile, the young girl Hall went to walk away from the location where the drug had been produced by Schultz but was grabbed by Halcro to prevent her from leaving. Hall broke free from his grasp and walked away. She then met up with another female friend and the two of them continued to walk away from the scene. The ultimate victim, Brett Halcro, proceeded to follow the two young women for about 200 metres before he was confronted by the young person, the 17 year-old.

14. The young woman, Hall, then made a phone call to one of the young men up in the apartment. The call was heard in the apartment through the loudspeaker of the mobile phone on which the call was received. She is described in the Agreed Facts as “screaming and crying incomprehensibly.” Hall claimed in that call, “I’ve been groped.” Whether she said “groped” or “grabbed” was not the subject of additional evidence. Immediately after that call was received a few of the young males began telling everyone to leave the apartment, because the “cops were going to show up”.

15. CCTV footage which was subsequently obtained from the apartment block showed that at about this time, on the ground floor of the apartments outside the lifts, the 18 year-old, who had taken the drug from Schultz, appeared to be showing the drugs which he had taken to one of the 15-year-olds who had been at the party in the apartment. The CCTV footage shortly after then depicted approximately six of the young men from the party getting out of the lift on the ground floor of the apartments. Various of them are identified by name in the Agreed Facts as participants in the subsequent assault on the victim.

16. After running out of the apartment complex, the group of young persons attacked the victim, Brett Halcro. The two young girls who had been invited to join the party also left the apartment and were some 10 to 20 seconds behind the group of boys. The girl who attended the same school as one of the 15-year-old boys subsequently told police that she saw about 6 to 7 boys from the apartment punching and kicking the victim who was lying on the ground at the end of Wattle Crescent near Pyrmont Bridge Road. She described hearing one of the youths in the group allegedly call out to a blonde female: “Is this the one that raped you?” She said that she heard a reply: “Yeah that’s the one”.

17. It is appropriate to note that whether these attributed and claimed utterances truly occurred or not, there is not a scintilla of evidence to attribute any form of inappropriate sexual touching or otherwise to the victim, Mr Brett Halcro. The Agreed Facts indicate that after the bag of drugs was taken from his acquaintance, he grabbed the young lady when she went to depart the scene and thereafter followed her.

18. The female witness told police that she could see the 15-year-old boy that she knew from school “in the group punching and kicking the man while he lay on the ground.” She said: “a couple of the boys backed off and ran down the street past us while the rest of the boys kept kicking and punching him”.

19. The Agreed Facts recite that the offender and the other young persons punched and kicked the victim until he fell to the ground unconscious. The attack then continued with multiple kicks, stomps and punches upon the victim who was lying unconscious.

20. In the course of this vicious attack, an occupant of the apartment complex in which the party had been held recorded the assault from her balcony, using the video camera in her mobile phone. This was later provided to police. It formed part of the Crown tender on sentence and has been viewed by the Court.

21. At one stage during the kicking and stomping of the unconscious victim, the offender appears to slip and fall to the ground. As he gets back to his feet he took a knife from a small bag which was slung around his neck and proceeded to stab and slash the victim with the knife “at least seven times” according to the Agreed Facts. One of the female witnesses described a stabbing motion which is consistent with the court’s viewing of the video recording, although most of the strikes appeared to be slashing in the way one might use a Stanley knife to open a container.

22. One of the girls described having heard a male voice saying: “I stabbed him, run.” The various young males involved in the assault then scattered in all directions while the offender continued to slash the face of the victim.

23. The offender and others returned to the apartment complex. They took no action to provide assistance to, or seek assistance for, the victim. One of the girls who had been present at the party ran from the scene but, concerned about the victim, she then telephoned 000.

24. Other witnesses in the area went to the aid of the victim. He had sustained multiple slash and stab wounds to his face and neck. He had a broken jaw. He was transported to Royal Prince Alfred Hospital by ambulance where he was treated for his injuries.

25. An horrific photograph of the injuries to the victim’s face was tendered in the Crown Sentence Bundle at Tab 7. This photograph was taken by a police officer at the scene prior to the victim being placed in an ambulance and conveyed to Royal Prince Alfred Hospital.

26. A summary of the various injuries is set out in the Agreed Facts and two expert reports were tendered which provide additional detail specifically with respect to emotional and psychological harm and also the detail of particular damage to the victim’s right eye.

INJURIES TO THE VICTIM

27. In the course of the initial assault the victim suffered a cominuted fracture of his jawbone and right orbital fractures involving both the roof and floor of the orbit. He suffered bleeding behind his eardrum resulting in partial hearing loss in one ear. A shoulder which had previously been the subject of shoulder reconstruction surgery was also damaged in the assault in which he was kicked. The victim also suffered extensive bruising to his body, head and face. He was subsequently found to be requiring surgery to realign his jawbone, surgery to the shoulder to repair damage to the previous reconstruction and also to correct spinal misalignment. The insertion of grommets into one ear to clear bleeding and to assist with partial hearing loss was also necessary.

28. The multiple slash and stab wounds to the face and neck resulted in significant right-sided facial lacerations. Some of the lacerations involved the victim’s right upper and lower eyelids as well as a penetrating eye injury. Eyesight in his right eye was impaired by virtue of injuries which are detailed in the reports. CT scans demonstrated fractures of the right orbital floor and orbital roof. It is unclear whether those fractures were occasioned in the course of the kicking and stomping or whether they were occasioned by a stab wound. In the absence of clear evidence that they were occasioned by the knife, I will assume that those fractures were occasioned by blunt force.

29. However, there was clear evidence of a penetrating eye injury which has ultimately culminated in a loss of vision in the right eye. There were two full thickness lacerations of the right upper eyelid and three full thickness lacerations of the lower eye lid. There was no longer a lens in his right eye and a retinal detachment necessitated surgery which took place some four weeks after the victim initially presented to Royal Prince Alfred Hospital. The significant ocular injury rendered him effectively blind in his right eye and has left him with an ability to perceive hand movement only. The specialist vitreoretinal surgeon expressed the opinion that any further attempt to improve the victim’s vision would require further high risk surgery that would not guarantee success.

30. A detailed psychological report was tendered from Dr Susan Pulman. Dr Pulman sets out the account by the victim as to what he felt when he came out of an induced coma following his hospital admission. He described depression at his loss of sight and having ultimately become fixated on his facial disfigurement. His loss of hearing created additional problems in socialising. The victim described dizziness brought about by the loss of sight in the right eye. He described the possible need for further surgery due to facial palsy.

31. The victim was struggling to adjust to his physical disabilities and there was clearly a need for trauma counselling. He displayed symptoms of Post-Traumatic Stress Disorder.

32. He had been residing at William Booth hostel during the course of his extensive rehabilitation. He had been attending a drug and alcohol rehabilitation program at the time of the assault and the injuries he sustained were considered to possibly trigger a further relapse. The victim had previously relied upon vision in his employment in website design and in the entertainment and music industry. It was unclear as to how his visual impairment might affect his future employment opportunities.

33. Dr Pulman was of the opinion that the victim required ongoing treatment and support to adjust to life with his physical impairments and ongoing psychiatric and psychological support to ameliorate his symptoms of Post-Traumatic Stress Disorder.

VICTIM IMPACT STATEMENT

34. The victim, Brett Halcro, read a prepared Victim Impact Statement in court. He said that the impact to him had been physically, emotionally and financially devastating.

35. Mr Halcro said that he was 37 years of age and was the father of a 5 year-old daughter who lives in Melbourne. He has not been able to see her for a couple of years due to the impact of his injuries. He said that he had come to Sydney to assist his own father with some work. He had only been in Sydney for a few months when he was assaulted whilst on a night out to watch a game of rugby league.

36. The penetration injury to his right eye had left him with an estimated 5% of vision and the prospect of completely losing that eye. He described the loss of hearing in his right ear from the physical kicking. He said that he had previously done sound engineering and lighting work in film and television having studied at Bond University where he attained a Bachelor of Film and Television. He also had a Diploma of Screen Media from the Queensland School of Film and Television.

37. He described his spine being out of alignment and having constant pain. He also referred to the disfigurement to his face which was self-evident. He described the emotional impact as being devastating. He said sometimes the only reason he wakes up is for his daughter and he pushes himself to talk to her on FaceTime or by phone. He said, “She’s my life”. He added to the typed statement and said, “She’s the reason I keep going.”

38. He described having been admitted to psychiatric wards on a number of occasions and having had suicidal ideations. He said that he was currently destitute without housing and finances and unsure of where his life will go. He said the trauma of the crime constantly reminded him of what happened and he felt he could not stay in Sydney.

39. The weight to be given to the detail in a Victim Impact Statement is a matter for the court. I take note of the observations of Basten JA in R v Thomas [2007] NSWCCA 269. I should make it clear that on all of the evidence before this court, including the expert reports and the matters raised and amplified in the Victim Impact Statement, that I am satisfied beyond reasonable doubt that the damage and harm suffered by Mr Halcro was substantial: see R v Tuala [2015] NSWCCA 8.

40. To the extent that such a finding is identified as a statutory aggravating factor and that it informs the determination of objective seriousness, I should make it clear that I have not double counted this aspect.

OBJECTIVE SERIOUSNESS OF THE GRIEVOUS BODILY HARM OFFENCE

41. The objective seriousness of this offence is increased by the use of a weapon, in this case a knife. As the High Court described in Arulthilakan v R; Mkoka v R [2003] HCA 74; (2003) 203 ALR 259, the possession and carrying of knives in public is “reprehensible, dangerous and morally culpable.”

42. The circumstance that the knife, as described by the offender in his oral evidence, appears to have been comparatively small and of a kind which could fold back into the handle, does not reduce the objective criminality. As noted by Wood CJ at CL in R v Randell & McAlister [2004] NSWCCCA 337 at [32], it is “of no avail that the knife used was a folding utility weapon of the Swiss army type. Such a weapon can inflict serious or mortal wounds, and it is disingenuous to suggest that the objective criminality involved in the use of a knife is proportionate to its size.”

43. The use of a knife both informs the objective seriousness of the offending conduct and is itself a statutory aggravating factor (s 21A(2)(c) of the Crimes (Sentencing Procedure) Act 1999 (NSW)). Whilst a relevant factor in the instinctive synthesis by which the ultimate sentence is to be determined, it similarly is important that it should not be double counted.

44. Similarly, the fact that other persons were present, having been involved physically in the initial assault occasioning actual bodily harm, meant that the occasioning of the grievous bodily harm occurred in company. This too is an aggravating factor under s 21A(2)(e) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

45. There is no evidence of preplanning and the offence was essentially one of relative spontaneity. The motivation for the commission of the initial assault carries an air of perceived or possible retribution given the references to a suspicion or assertion that a young woman associated with someone at the party may have been touched in a sexual manner. Notwithstanding statements of such a nature in the Agreed Facts, the present offender denied having any memory of such matters.

46. The assault reflected a degree of what might be described as “gang mentality” and resulted in the punching, kicking and stomping giving rise to the assault occasioning offence.

47. The use of the knife to subsequently inflict grievous bodily harm was itself clearly spontaneous and arose in the course of the continuing assaults on the prone victim.

48. It would appear clear that the offender had likely been using illicit drugs, and I will make reference to the contest which unfolded at the hearing as to whether or not the drug was Xanax. However, whilst drug use might inform why the conduct occurred, it cannot and does not mitigate. It may, likely, have led to the uninhibited violence and frenzy in the infliction of stabs and slashes to the head of the victim.

49. The nature of the injuries and the consequences must be at the forefront of any assessment of objective seriousness. The detail of the physical damage, the loss of sight in the right eye, and the emotional and psychological harm were all significant and occasioned substantial long term disability and trauma.

50. Grievous bodily harm resulting in the loss of use of a hand or arm (see R v Waters [2020] NSWDC 636) or permanent loss of one of the senses such as vision, are crimes which fall well above a mid-range of offending conduct occasioning grievous bodily harm. This is such a case. The harm suffered by the victim was substantial harm. It was greater than that which ordinarily attaches to an offence of the kind charged: see R v Youkhana [2004] NSWCCA 412 at [26].

FACTS RELATING TO THE BREAK AND ENTER OFFENDING

51. As noted earlier in these Remarks, the offender’s fingerprints identified him as a participant in a break and enter which had occurred in April 2020. He was 16 years and 1 month of age at the time of this offending. The premises which were entered were the location of a valuation and accounting business. The business was conducted in two offices within larger premises. CCTV cameras were located at the premises.

52. The owner of the business had secured the premises before leaving at about 7pm on Anzac Day 2020. Shortly after 1:30am in the early hours of 26 April 2020, the offender and a number of other young persons went to the premises where they loitered within the yard of the premises for a number of hours. Various other young persons came and went into the yard during this period.

53. Shortly before 5am, the young person and another unidentified male entered the premises through a window. One of the two then unlocked the front door of the premises from inside and three other persons entered the premises through that door. Various of the young persons subsequently departed the premises holding items taken from within. The Agreed Facts do not describe what those items were.

54. A person described as a “known male” then entered a vehicle belonging to the proprietor of the business, namely a white Ford Falcon, which was kept at the premises. He drove away in that vehicle before returning with it a short time later and parking it on the kerb outside the premises.

55. The premises were located in Werona Avenue, Killara, adjacent to Killara train station. The present offender and other unidentified males then left the location on foot. Two persons, also described as “known males”, stayed behind in the Ford Falcon and fell asleep. These various comings and goings were recorded by the CCTV cameras.

56. At about 8:30am on 26 April 2020 the proprietor, presumably on his way to work, noticed a black suitcase lying on the footpath near his premises. He recognised the black suitcase as belonging to him. When he got to the front door of the property, he discovered the door was not locked. On entering his business property, he saw the window which had been used as a point of entry, as well as cupboards within the office, had all been left open. It appeared that the offices had been rummaged through.

57. The proprietor looked for the car keys to the Ford Falcon and also to a second vehicle that was kept on the premises. On looking outside, he realised that both vehicles were not in their usual positions. The Ford Falcon was outside the fenced area where it was usually kept and was on the kerb, half-parked on the road and half on the footpath. The second vehicle had been moved but was still within the backyard of the premises. Various items were noticed as being missing from the office. When the proprietor went outside and approached his Ford Falcon he saw the two males still asleep inside the vehicle. Police were contacted and subsequently the two “known males” were arrested and charged.

58. Police in due course received CCTV footage from three cameras which had recorded the actions of the present offender and the other young persons during the period of about 4 to 5 hours that they were at the premises.

59. As indicated earlier in these Remarks, the fingerprints of the present offender were subsequently matched with fingerprints taken at the scene of the break and enter. His fingerprints were on the inside of the wooden window sill of the window through which entry had been obtained, on a glass chalice inside the premises, and also on a cabinet in the premises.

60. A forensic report identifying the offender’s fingerprints was received by police in August 2020. In January 2021, police contacted Cobham Juvenile Justice Centre where the offender was in custody. On 12 January, police were advised that he did not wish to participate in an interview. He was subsequently charged.

61. Two other offenders who were identified and charged relating to this matter were respectively 15 and 16 years of age.

BREAK AND ENTER OFFENCES

62. The first offence in time regarding the breaking and entering of the Killara premises relates to the offender and the other young male entering into the premises through the window and subsequently stealing items from within. As noted earlier in these Remarks, this is an offence contrary to s 112(2) of the Crimes Act 1900 (NSW) and carries a maximum penalty of 20 years imprisonment. The standard non-parole period of 5 years has no application as a consequence of the offender’s age. He has pleaded guilty to this substantive offence.

63. The second charge relating to this escapade, namely aggravated break and enter with intent to commit a serious indictable offence in company, is an offence under s 113(2) of the Crimes Act 1900 (NSW) and carries a maximum penalty of 14 years imprisonment. The factual circumstance giving rise to this charge was the unlocking of the front door from the inside so as to permit the entry of the other three young persons.

64. That offence has been placed on the Form 1 document relating to the substantive offence under s 112(2). The offender has acknowledged his guilt of this additional offence and the court is asked to take it into account in determining an appropriate penalty for the substantive offence.

OBJECTIVE SERIOUSNESS – BREAK AND ENTER OFFENCES

65. In the Crown’s submissions, the break and enter offending falls within the mid-range of objective seriousness.

66. The submission on behalf of the offender is that the offending falls below the mid-range of objective seriousness.

67. An assessment of objective seriousness requires a consideration of a notional scale, informed by a judge’s experience and research, as to where in relation to other offences, viewed objectively, a particular offence or offending might be assessed to fall, particularly by reference to a mid-range.

68. There is no detailed evidence as to what the group of young persons was doing for the several hours in the backyard at the premises which, in due course, they broke into and stole various items, other than the evidence of the offender that they were drinking. These various, apparently teenagers were loitering in the vicinity of the premises for hours before the offender and his unidentified colleague decided to break in through the window.

69. The joyride in the car by one of the group was short-lived and the car returned, apparently undamaged. The only item specifically identified as being taken, namely a black briefcase or suitcase, was negligently thrown on the ground and no items of any identified or particular value are revealed in the Agreed Facts as having been taken.

70. There was no evidence of damage by the means of entry and, although a serious criminal offence, it appears to have been delinquent and daring and somewhat opportunistic after the group had varied in size and loitered in the backyard, apparently consuming alcohol, for a prolonged period. There was no evidence of any pre-planning.

71. In my view, the objective seriousness of this offending falls well below any identifiable mid-range. It appears to have been opportunistic and somewhat spontaneous after several hours of the young persons congregating and loitering and apparently drinking in the backyard of the premises. Whether there was, as might be anticipated, smoking or other use of drugs in addition to drinking is not revealed in the evidence.

SUBJECTIVE CASE

i. EVIDENCE BY OFFENDER

72. The offender gave evidence in the course of the sentence proceedings. In his evidence-in-chief, he was taken directly to having been at the party at the Pyrmont apartment complex. He said: “I remember arriving, I remember going to the apartment and after that it’s just a bit blurry like…”

73. He said that he remembered drinking and taking a Xanax at the party. He said that he knew he drank first and then took the tablet. He said he had never taken Xanax before and he thinks that he took it to the party with him.

74. He named a number of the other young men who he recalled being at the party and that he knew. He also knew the girl Hall. He did not indicate the name of the girl who went to the same school as one of the other young men, which happened to be the same school that he attended himself. He said that he had no memory of leaving the party. He said he had no memory of ever seeing the victim before, notwithstanding that the victim had been in court that day. He said that when he saw the evidence on the video recording, he remembered that he had taken a knife with him. The offender said that it was common for everyone to carry knives and the people that he hung around with did the same thing.

75. He described having been happy at the school which he had attended when his parents were still together. He said he was the eldest of six siblings. He had apparently been performing well at his initial High School both academically and in sport. He was an elite swimmer and trained every day except for Sunday. The training included eight sessions of swimming per week of between an hour and a half to two hours as well as two additional strength and conditioning sessions of gym work. He was also apparently a representative soccer player.

76. He gave evidence that following the separation of his parents, his father moved to live with his own father, that is, the offender’s grandfather. The offender initially moved to live with a friend from school as a consequence of an Apprehended Violence Order taken out by the offender’s mother against her father-in-law, before ultimately moving in with his grandfather and father and an extended family. The distance he would have been required to travel to his former school led to a decision to look for other options and he ultimately succeeded in obtaining a scholarship to attend a different private school. He changed schools at the commencement of Term 4 in 2019.

77. His parents had initially split up in 2018 when he was 14 years of age. In the lead up to his parents separating, he apparently found the domestic situation stressful and by the time of his parents’ separation, his schoolwork had dropped off and he had started smoking. He described his academic performance as having declined by the end of Year 8 and into Year 9. He said that he felt the stress of “doing too many sports at a high level”.

78. After moving to his new school for Year 10, he described not fitting in and having developed a peer group that used drugs. In the course of 2020, he said that he commenced using a lot of drugs including marijuana, MDMA (ecstasy) and cocaine. He also said he was using alcohol and smoking tobacco. Restrictions brought about as a consequence of COVID-19 meant that he was not carrying out the sporting obligations of the scholarship he had obtained and he regularly skipped school.

79. He denied any recollection of the assault or his actions in the course of the assault, notwithstanding having seen the video recording of what had occurred. He indicated that during his time in custody, the circumstances had been “really life changing”. He said that he had made sure that everything he now does is going to make him a better person especially with his studies. He said he had really got back into his study and also his faith. He said he had identified his main problem to be drugs and for him moving forward he knew that the number one thing would be to not use drugs ever again. He also indicated an understanding of the need to maintain contact with family.

80. In the course of his evidence-in-chief, he was taken back to the circumstances of the break and enter offending in April 2020. He said that he did recall that event and the people that he was with he knew, but that he was not friends with them having only recently met them. He said he could not remember whether any of them were school friends and said that one of them was “just from around the area”. He remembered drinking and said that one of the others had come up with the idea. He recalled breaking into the premises and recalled taking something. He could not remember but didn’t think that he had consumed drugs other than alcohol on that occasion.

81. His evidence-in-chief concluded with him indicating that he intended to finish Year 12. He said: “I’m hoping I’ll score quite high and hopefully, like my goal is to go to UNSW to study engineering and to work in that field.”

82. In cross-examination he again said that he couldn’t remember the details of the people who were with him in the break and enter and said that he did not think they were from school but were just from around the area. He described the people at the party and identified those that he knew from school and others that he had been associating with during the preceding months. He described it as a group of people with whom he “mainly just took drugs and hung out.” He said that he hung around with them every weekend and every couple of days.

83. He said that he was only going to school one or two days a week. He indicated that there had been no swimming or other sport since February 2020 and that as well as drugs, he was drinking alcohol on a weekly basis “mainly on weekends, sometimes throughout the weekdays as well like.” He said that they were going to parties effectively every weekend, sometimes at somebody’s house or at Airbnb premises or at a hotel.

84. He said he had gone to the party with one of the other young persons that he identified and that he had taken the knife just out of habit. He denied having any memory as to where he got the knife from or whether he had bought it. He said that for a period of time it was the knife he always took with him.

85. The offender denied having any memory of going downstairs from the apartment. He said he could not remember where the Xanax came from but he remembered having it before the party. He said that it was a white pill and couldn’t remember how he carried it. He said that he recalled drinking first and then going upstairs in the apartment and taking the tablet. He remembered going to the party by train with one of the other named young persons. He said he intended to take the tablet when he got to the party. He said he knew that it was a Xanax because his friend told him that at the party.

86. The Crown Prosecutor asked him whether there was even a pill or whether he had made it all up. The offender said there was a pill but he could not remember who gave it to him. He disagreed that he was not being honest in his responses. He disagreed with the proposition that there never was a Xanax tablet and that if there had been he would be able to remember the details.

87. The offender said that he had no memory of what had happened to the knife. He said he hadn’t seen it since and had no memory of it after it being in his bag when he first went to the apartment. He claimed that he had no knowledge of what had happened until he was told about it by his friends the next day. He was asked if he got rid of the knife and he replied, “Not that I can remember.”

88. In response to some questions by the Court, the offender said he had no memory of any suggestion that somebody had done something to one of the girls. He described the knife as being a short knife of only about a centimetre between the bottom of the blade to the top of the knife. He described it being able to fold back into the handle. He said he had no memory of going back to the apartment but had a recollection of being in a car driving and going back to his mate’s place later that night. The mate was one of the 16 year-olds who attended the same school as the offender.

89. Following the events of the Friday night, he said that he had stayed at his friend’s house on the Saturday and that he had taken the sim card out of his phone and was not responding to his father. He said he had been told by others what had happened on the Saturday.

90. In further cross-examination by the Crown Prosecutor, it was suggested to the offender that he had a mask and gloves which he put on because he intended to go and do something that he knew was bad or illegal. His responses effectively refuted that suggestion.

ii. PSYCHOLOGICAL REPORT

91. A psychological report from Ms Mariam Breit, psychologist, dated 13 October 2021 was tendered. In addition to a number of interviews with the offender, Ms Breit interviewed the offender’s father, his mother, and a custodial caseworker. She was also provided with written material which has not been provided separately to the court. This included a statement by one of the girls present on the night, Ms Hall, and school records relating to the offender.

91. The psychologist recounted the offender’s familial background which supported the account given by the offender in his evidence. His educational history was similarly consistent with the evidence which he gave himself, noting that the psychologist had specific objective records including the Year 7 results on the NAPLAN test and his academic marks at his second high school.

92. His performance academically whilst in custody places him as one of the top students in the education and training unit with which he is involved. Of significance in the psychological report and in the detailed and extensive cross-examination of the psychologist on the sentence hearing, the effects of benzodiazepine drugs such as Xanax assumed a degree of significance in the psychologist’s assessment of an understanding of the offender’s conduct during the assault. I will return to that topic later in these Remarks.

93. The psychologist undertook a number of clinical tests which indicated that the offender was in the mid-range for depression. He was in the moderate to severe range on the anxiety axis and also on the stress axis. The psychologist opined that these results indicated that the offender was suffering significant psychological distress during the months prior to the offence in July 2020.

94. Based on the history given and the results in a Drug Abuse Screening Test (DAST-10) she found that the offender had substantial abuse and dependency issues in the months leading up to July 2020. Additional assessments which were carried out indicated that his primary manner of coping fell into the avoidant category, where he relied heavily on substance abuse, on self-distraction, and disengagement.

95. In her report the psychologist outlined the circumstances in which Xanax (Alprazolam), a benzodiazepine, was classified as a controlled drug in Australia in 2015. The reasons for that reclassification included that the drug was fast acting and highly addictive. People who used it were said to be prone to behaving erratically and their judgment became impaired. On some occasions, extreme violence and aggression occurred. Various safety advisory warnings were issued by both Commonwealth and NSW state authorities in June and July 2020 regarding the taking of counterfeit Alprazolam, or Xanax.

96. Potential side effects of benzodiazepine were said to include a person being more impulsive or agitated. A so-called rare paradoxical side effect is described as increased anger, hostility and aggression.

97. The psychologist’s report included expressions of remorse and regret by the offender as expressed to the psychologist. I will return to that issue later in these Remarks.

98. The psychologist was extensively cross-examined by the Crown Prosecutor, principally on the issue of the claimed ingestion of Xanax and the possible effects derived from such a drug.

iii. LETTER FROM OFFENDER’S FATHER

100. The offender’s father described his son as, in his earlier years, having been “a determined young man who wanted to learn and master sports, study and concepts, applying himself to achieve the highest level he could. This was demonstrated by his involvement in representative soccer clubs, his state swimming accomplishments and his high academic achievements.” His father further described him whilst growing up as having “always been a determined, hardworking, friendly, diligent, bright, talented young man.”

101. The offender’s father recounted that his son, whilst in detention, had shown remorse for the acts he had committed. He described his son as having “expressed his disappointment in himself and discussed that he does not want to associate or spend time with the other people involved in this incident.”

102. The offender’s father set out his understanding of his son’s recommitment to his Christian faith. He described his understanding of his son’s study in theological topics and commitment to reading the Bible. He said that he had supported, encouraged and guided his son whilst in custody through his study for Year 11 and in the forthcoming Year 12 progression to the Higher School Certificate. His father also noted having made plans to help rehabilitate the offender into society and to reset his life to be a productive, upright young man after he is released.

103. The offender’s father was not required for cross-examination.

iv. LETTER FROM CHAPLAIN IVAN HARRIS – COBHAM YOUTH JUSTICE (ANGLICARE)

104. Chaplain Harris provided a reference in which he indicated that he was the full-time chaplain at Cobham Youth Justice Centre. He first met the offender when he arrived at Cobham in August of 2020 where the offender remained until May 2021 when he was moved to the Riverina Youth Justice Centre. The chaplain subsequently discovered that the offender’s father was a known acquaintance through Christian circles in Sydney.

105. He described counting it as a privilege to have met with the offender each week during the period between August 2020 and May 2021. He described in glowing terms the encouragement which had come from the offender to the chaplain himself with respect to wrestling with matters of faith with rigour. Chaplain Harris said:

“He has an inquisitive mind, that loves to dive deeply into understanding the logic of rational belief. He never does anything half-hearted. I have not met many young men like him, especially in Cobham.

His interpersonal skills, seen when interacting with other boys on the unit, are exemplary. He knows when to use humour to disarm a tense conversation, as well as humour to give a loving rebuke to newfound friends. I have seen him encourage other boys: to have healthier self-esteem (aim higher in life), encourage boys in personal fitness, and is a great example to the boys about disciple (sic) (query “discipline”) in study habits and setting goals to achieve them. He is often reading high level books for his age.”

106. The chaplain described the offender’s pursuit of reconnecting with his education. He said:

“(Matthew) is a bright boy with a good education, and he sets himself a high academic bar. Something that is quite rare inside Cobham. For example, (Matthew) didn’t have enough time to study given the strict routine of Cobham’s schooling. He managed to get extra study time approved after he wrote to the centre manager and the school for him and another inmate. This shows initiative and his willingness to go the extra mile and be a voice for others. He has set his goals high and pushes himself personally. At his request, I have given him some theological books that only university educated people would normally be able to read and engage with.”

107. He described the offender’s capacity to show forgiveness to other boys when on the receiving end of assaults, whether in words or actions without cause. The offender was described as having shown leadership and having the courage to speak up in public. He was further described as having given constructive feedback on a course which had been conducted in the centre. He was able to do it in front of the presenter and with grace and humility.

108. The chaplain expressed his own belief that the offender had “learnt from his mistakes and could go on to become someone who has opportunity to turn this tragic story into a life lived to the full.” He also expressed the belief that the offender could become an encouragement to others and an example of what a repentant life looks like.

109. The chaplain similarly was not required for cross-examination.

iv. CONFIDENTIAL BACKGROUND REPORT – YOUTH JUSTICE

110. A report prepared by the caseworker dealing with the offender dated 9 June 2021 was tendered as part of the Crown Sentence Bundle. It provides detailed information regarding the offender during his time in the juvenile detention centre. It also includes the results of detailed consultation and conversations with the offender regarding his circumstances and attitudes following the breakup of his parents’ marriage. I do not repeat some of the personal detail included in the report other than noting that an inability to manage his emotions around the circumstances of his parents’ divorce and actions taken by his mother with respect to selling the family home appear to have had a substantial effect on the then 14 and 15 year-old.

111. The caseworker, Ms Carol Lee, described the change in the offender’s attitudes towards his elite swimming and his attendance at school, together with his engagement with drug and alcohol use in the months leading up to the commission of the offence.

112. She described the offender’s difficulties in recalling his actions on the night of the offence and said that the offender had recognised he was intoxicated “when agreeing to try Xanax for the first time.” In the absence of any cross-examination of the offender regarding this description, I reach no concluded view as to the circumstances in which he came into possession with what he claims was Xanax.

113. The report details the apparent sincerity of his expressions of remorse and his insight into the effects of his actions on the victim. He was described as being “a model detainee who was well behaved and compliant and who had immersed himself in all centre-based programs, in particular his education.”

WAS THE OFFENDER UNDER THE INFLUENCE OF XANAX?

114. A substantial period of time on the sentence hearing was taken up by the question of whether or not the offender was truthful in giving evidence that he had taken a pill which he believed to be a Xanax, or to refer to it by its pharmaceutical description, Alprazolam. A collateral question as to what effect whatever drug was ingested had on the offender, assuming that he was truthful in his description of what he took, was pursued at length.

115. In short compass, the offender indicated a recollection of having taken with him a pill which he subsequently consumed at the apartment premises in Pyrmont. He believed and claimed to have been told that it was a Xanax.

116. The psychologist retained on behalf of the defence, notwithstanding that opinion evidence on the effects and side effects of drugs was, strictly speaking, beyond her professional expertise, undertook a deal of reading and research on the assumption that it was indeed Xanax that had been ingested.

117. Her research into the topic included enquiries via the internet and also discussions with a professor of pharmacology.

118. Ultimately, evidence of a reported rare and paradoxical side effect was outlined. It is clear that Xanax was effectively banned from its previous availability by the Commonwealth Therapeutic and Drug Institute in Australia as a consequence of various problems with the medication including its high level of addiction and reported behavioural problems in some persons.

119. The learned Crown Prosecutor challenged the honesty and reliability of the account given by the offender and strenuously sought to challenge the expressed opinion of the psychologist as being beyond her expertise.

120. I have ultimately come to the view that reported problems with Xanax and the restrictions on its availability are matters of notoriety which the court, in a general sense, was aware of. Whether the offender in fact took Xanax, or perchance a counterfeit drug purporting to be Xanax, is not a matter in respect of which the court could make any positive finding. However, the proposition that the offender ingested some illicit substance or substances on the night of the party at the apartment is a matter which the court would find established, well past the balance of probabilities.

121. The circumstance that he may have taken Xanax is not a factor which operates in mitigation. Self-ingestion of alcohol and/or narcotic substances may provide an explanation or understanding for otherwise inexplicable behaviour. It does not provide an excuse.

122. Accordingly, although the state of the evidence regarding the ingestion of Xanax was less than perfect and the detail of the reported paradoxical side effects derived from a psychologist rather than from a pharmacologist, the evidence provides a possible explanation for the otherwise bizarre and frenzied infliction of grievous injury to the face of a prone victim by this offender.

REMORSE

123. The offender pleaded guilty at the earliest opportunity and will be entitled to a 25% discount with respect to the utilitarian value of that plea. The entering of a plea of guilty is also a demonstration of remorse. The offender, as I have earlier indicated, gave evidence in the sentence proceedings. He was asked what he would say to the victim if he were present in court. Matthew said in his evidence: “I can’t apologise enough like I’m just so sorry for the physical and emotional damage I’ve caused to him and that, yeah, I’m just really sorry.”

124. Although challenged about his asserted lack of memory of various matters including the source and subsequent disposition of the knife, his expressions of sorrow towards the victim were not challenged. The offender expressed remorse in the Confidential Background Report prepared by the Youth Justice Caseworker. Ms Lee in that report said that he displayed remorse for his offending behaviour and blamed himself for what happened that night. She indicated that he acknowledged the impact the offence had on the victim.

125. The psychologist’s report expressed the opinion that the offender’s responses were genuine and indicated that he had thought deeply about himself and his actions. The psychologist recorded that the offender was horrified at what he had done and thought that he would continue to feel like that for the rest of his life. He expressed what she described as “a lot of remorse and regret for what had happened.”

126. The letter from his father similarly indicates expressions of remorse.

127. The Crown in supplementary written submissions raised a question mark with respect to the level of the claimed memory loss by the offender. In particular, his description to the psychologist of his actions being “irrational” and having occurred in the “heat of the moment”, notwithstanding that the offender said that they were not his precise words, was said, in the Crown’s submission, to give insight to his attitude to the offending and were reflective of more memory of the events than the young person was prepared to admit.

128. It was submitted by the Crown that the evidence should not be accepted as either truthful or reliable whereby the offender claimed effectively, complete amnesia from shortly after arriving at the party until essentially the next morning, albeit with a vague memory of being in a motor car going to a mate’s place later that night.

129. Whilst I have already indicated an inability to come to a firm view with respect to the claimed ingestion of Xanax, it remains a distinct possibility that such an account is true. The printout tendered as Exhibit 4 from the Food and Drug Administration in the United States refers to Xanax and alcohol taken together being associated with memory loss. The combination of both substances is said to increase the risk of a blackout and an inability to remember what had happened.

130. I am unable to exclude those circumstances as a possible rational explanation for the asserted memory loss. In all of the circumstances, despite a degree of some scepticism, I accept the expressions of remorse as genuine.

REHABILITATION

131. This young offender came from a background which was the antithesis of the circumstances referred to in Fernando and subsequently in Bugmy. He was the eldest of six children and attended a privileged private school while his parents were still together. While the detail of the marital breakup has been alluded to in general and somewhat opaque terms, there is little doubt that it was the cause of not insignificant psychological trauma to the then 14 year-old. No evidence as to the detail of implied problems between the offender and his mother have been disclosed although following the initial separation of his parents, it appears that he first lived with a school friend. The detail of apprehended violence orders taken out by his mother against his grandfather were similarly alluded to but not revealed with any particularity.

132. However, he thereafter appears to have been successful in securing a scholarship to another privileged private school in a different geographical part of Sydney. His descent from what appears to have been a high achieving soccer player and elite swimmer and a good academic performer, on the evidence before me, appears to have commenced with the breakup of his parents’ marriage.

133. He started using alcohol and in the period following his commencement at the new private school, approximately 10 or 11 months before the commission of the violent assault, he began using illicit drugs. His academic performances dropped off substantially and his elite swimming and representative soccer, despite an absence of detail in the evidence, effectively ceased. This was undoubtedly in part due to the COVID-19 restrictions as well as what appears to have been not insubstantial truanting from his school.

134. On the unchallenged evidence, he was part of a group of predominantly 15 and 16 year-olds who partied and took illicit drugs regularly in the fashion to which I have earlier referred.

135. Ironically, his arrest and charging and consequent continued custody since that time has provided the opportunity for appropriate remedial steps towards proper rehabilitation to be undertaken.

136. The contents of the letter from the Chaplain at Cobham is clearly indicative of a remarkable turnaround by this young offender from the conduct leading up to and culminating in the assaults.

137. His pursuit of theological education and an apparent return to his Christian faith, as well as his reinvigorated pursuit of academic excellence, bode well for his prospects of appropriate rehabilitation.

138. His vocational aspirations provide similar cause for optimism.

CHILD OFFENDERS

139. The offence of causing grievous bodily harm with intent is a “serious children’s indictable offence” pursuant to s 17 of the Children (Criminal Proceedings) Act 1987 (NSW). Accordingly, such a matter is required to be dealt with according to law. The court, when sentencing a child or young person “according to law”, is required to act according to relevant principles which are applicable to sentencing young offenders. Those principles were stated as follows by McClellan CJ at CL in KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571 at [22]-[26]:

“22. The principles relevant to the sentencing of children have been discussed on many occasions. Both considerations of general deterrence and principles of retribution are, in most cases, of less significance than they would be when sentencing an adult for the same offence. In recognition of the capacity for young people to reform and mould their character to conform to society’s norms, considerable emphasis is placed on the need to provide an opportunity for rehabilitation. These principles were considered in R v GDP (1991) 53 A Crim R 112 at 115-116 (NSWCCA), R v E (a child) (1993) 66 A Crim R 14 at 28 (WACCA) and R v Adamson (2002) 132 A Crim R 511; [2002] NSWCCA 349 at [30].

23. 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. Accordingly, allowance will be made for an offender’s youth and not just their biological age. (R v Hearne (2001) 124 A Crim R 451; [2001] NSWCCA 37 at [25]). The weight to be given to the fact of the offender’s youth does not vary depending upon the seriousness of the offence (Hearne at [24]). 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. (Hearne at [25]; MS2 v The Queen (2005) 158 A Crim R 93; [2005] NSWCCA 397 at [61]).

24. Although accepted to be of less significance than when sentencing adults, considerations of general deterrence and retribution cannot be completely ignored when sentencing young offenders. There remains a significant public interest in deterring antisocial conduct. In R v Pham & Ly (1991) 55 A Crim R 128 Lee CJ at CL said (at 135):

“It is true that courts must refrain from sending young persons to prison, unless that course is necessary, but the gravity of the crime and the fact that it is a crime of violence frequently committed by persons even in their teens must be kept steadfastly in mind otherwise the protective aspect of the criminal court’s function will cease to operate. In short, deterrence and retribution do not cease to be significant merely because persons in their late teens are the persons committing grave crimes , particularly crimes involving physical violence to persons in their own homes. It is appropriate to refer to the decision of Williscroft (1975) VR 292 at 299, where the majority of the Full Court of Victoria expressed the view that, notwithstanding the enlightened approach that is now made to sentencing compared to earlier days, the concept of punishment ie coercive action is fundamental to correctional treatment in our society.”

25. The emphasis given to rehabilitation rather than general deterrence and retribution when sentencing young offenders, may be moderated when the young person has conducted him or herself in the way an adult might conduct him or herself and has committed a crime of violence or considerable gravity (R v Bus, unreported, NSWCCA, 3 November 1995, Hunt CJ at CL; R v Tran [1999] NSWCCA 109 at [9]-[10]; R v TJP [1999] NSWCCA 408 at [23]; R v LC [2001] NSWCCA 175 at [48]; R v AEM Snr, KEM and MM [2002] NSWCCA 58 at [96]-[98]; R v Adamson (2002) 132 A Crim R 511 at [31]; R v Voss [2003] NSWCCA 182 at [16]). In determining whether a young offender has engaged in “adult behaviour” (Voss at [14]), the court will look to various matters including the use of weapons, planning or pre-meditation, the existence of an extensive criminal history and the nature and circumstances of the offence (Adamson at [31]-[32]). Where some or all of these factors are present the need for rehabilitation of the offender may be diminished by the need to protect society.

26. The weight to be given to considerations relevant to a person’s youth diminishes the closer the offender approaches the age of maturity (R v Hoang [2003] NSWCCA 380 at [45]). A ‘child-offender’ of almost eighteen years of age cannot expect to be treated substantially differently from an offender who is just over eighteen years of age (R v Bus, unreported, NSWCCA, 3 November 1995; R v Voss [2003] NSWCCA 182 at [15]). However, the younger the offender, the greater the weight to be afforded to the element of youth (Hearne at [27]).”

140. Additional relevant comments were made by Hodgson JA in BP v R [2010] NSWCCA 159 at [4]-[6]:

“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 R [2008] NSWCCA 158 at [33] – [36].

5. 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). 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 Elliott [2006] NSWCCA 305; (2006) 68 NSWLR 1 at 27 [127]. As shown by R v Hearne [2001] NSWCCA 37; (2001) 124 A Crim R 451, youth may be a material factor in sentencing even a 19 year old for a most serious crime.

6. Third, I do not think courts should 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. In the present case, the offence is a very serious one; but it did not involve significant planning or reflection, or any other indicia of mature decision-making. The applicant was 16 years old, and in my opinion the circumstances of the offence suggest rather that emotional immaturity and less-than-fully-developed capacity to control impulses were likely to be contributing factors.”

141. Hodgson JA qualified his remarks in BP in AI v R; R v SB & AI [2011] NSWCCA 95 at [69]. His Honour said:

“However, I do accept that, in relation to crimes of violence committed in the streets by groups of young persons, considerations of general deterrence should be given substantial weight, notwithstanding the youth of the offenders: cf R v DGP [2009] NSWSC 1154 at [101]-[103].”

142. In R v DGP [2009] NSWSC 1154, Hall J had said at [101]-[102]:

“Crimes of violence committed by young offenders have been the subject of particular attention by the Court of Criminal Appeal and by single judges of this court in recent times.

Whether or not there has been an acceleration in the incidents of unprovoked violent crimes by young male offenders (and there is some evidence to suggest that it has), young offenders who do engage in crimes of violence that culminate in the death of an innocent victim,” - or, I interpose, in the case of causing grievous bodily harm – “may expect sentencing courts to impose substantial sentences that adequately reflect the need for general deterrence in the community.”

143. The principles set out in s 6 of the Children (Criminal Proceedings) Act 1987 (NSW) are required to be considered. These include that children who commit offences bear responsibility for their actions but, because of their state of dependency and immaturity, require guidance and assistance. The section also requires a court to have regard to the principle that it is desirable, wherever possible, to allow the education or employment of a child to proceed without interruption and that it is desirable that children who commit offences be assisted with their reintegration into the community.

144. These are significant principles that courts must take into account when sentencing a child. Of course, the application of those principles to an individual case depends to a large extent on the age of the offender and the nature of the offence committed. The court is also required, subject to those principles, to give consideration to the effect of any crime on the victim.

145. The need to balance the competing considerations of rehabilitation on the one hand with respect to a child and the need for general deterrence with respect to a crime of violence particularly, on the other, requires careful consideration. In the present matter, although rehabilitation remains a significant consideration, it cannot, in my view, be afforded paramountcy.

146. The aggravated break and enter is not by definition a “serious children’s indictable offence.” However, as an indictable offence, the court is obliged to make a determination as to whether such a matter should be dealt with pursuant to the children’s legislation or whether it should be dealt with “at law”: see s 18 Children (Criminal Proceedings) Act 1987 (NSW). The Crown written submissions urge that the indictable offence should be dealt with according to law having regard to the seriousness of the offending; the nature of the indictable offences; the age and maturity of the offender at the time of the offences and at the time of sentencing; and, considering the entirety of his criminal conduct, including that one of the offences must be dealt with according to law as a serious children’s indictable offence.

147. To proceed to deal with the indictable offending pursuant to the children’s legislation would involve the simultaneous application of two different sentence regimes.

148. In PD v R [2012] NSWCCA 242, the Court of Criminal Appeal dealt with a challenge to an aggregate sentence which was imposed on a 16 year-old offender. The sentencing judge, Robison DCJ, had dealt with all matters at law. It was contended on behalf of the applicant that the sentencing judge did not properly consider whether some of the offences should have been dealt with in accordance with Division 4 of Part 3 of the Children (Criminal Proceedings) Act 1987 (NSW).

149. Beech-Jones J, with whom Basten JA and Hall J agreed, stated that dealing with the offences in different sentencing regimes would not be impermissible. However, his Honour noted that it may be an exercise in futility to apply Division 4 of Part 3 to various minor offences when a relatively long custodial sentence was required for a serious children’s indictable offence committed by a young offender as part of the same course of conduct.

150. Notwithstanding that the indictable offending of the break and enter was not part of the same course of conduct, the wide discretion given to the determination of whether a matter should be dealt with according to law permits the court to consider as relevant, an avoidance of the type of futility which may be occasioned by proceeding pursuant to a different jurisdictional basis.

151. I am of the view that when the nature of the offending pursuant to s 112(2) and the manner in which it arose and the objective seriousness, or comparative lack thereof, is taken into account, that a likely disposition in the Children’s Court would not have included the imposition of a control order.

152. Taking into account the overall circumstances attending the present offender, I intend to deal with the matter as a matter properly dealt with under the relevant children’s legislation.

COVID-19

153. No specific evidence was presented to the court with respect to the impact of the present pandemic on conditions of custody either in correctional centres or detention centres. However, the court is aware that tensions and problems of various kinds have arisen in various centres of both types of institution. The court is regularly advised by Community Corrections memoranda and advice published by the Judicial Commission of ongoing problems. The unavailability of contact visits and other restrictions, despite telephone and video conferencing being made available, has caused problems in numerous proceedings before the court. The general impact of the present pandemic is a matter which I can and should take into account generally on the question of sentence.

PARITY

154. No question of parity arises with respect to the infliction of grievous bodily harm by the knife yielded by the offender. He is the only one charged with that particular offence.

155. With respect to the assault occasioning in company, various of the other offenders have been dealt with in the Children’s Court. The court has been provided with the remarks on sentence of the Children’s Court magistrates. It suffices for present purposes to observe that the various 15 and 16 year-old co-offenders were placed on probation without conviction for periods of 12 months. One of the offenders was also ordered to perform community service.

156. None of the offenders received control orders requiring them to spend any time in custody.

157. With respect to the youths involved in the break and enter at Killara and related offences including, presumably, the taking of the motor vehicle, the court has been advised by the Crown that two identified co-offenders were charged. They were respectively 15 and 16 years of age. One received a young offender’s caution pursuant to the relevant legislation whilst the other has an incomplete defended hearing which is part-heard in the Children’s Court.

COMPARATIVE CASES

158. The Crown in its written submissions provided citation references to four cases which were relevant in general principle to the question of the significance of general deterrence as contrasted with rehabilitation in sentencing a young offender. None of those cases other than JM v R [2012] NSWCCA 83 provided any useful assistance with respect to an appropriate range of sentences with respect to the present offender.

159. The court has undertaken the exercise of looking at the broad range identified in the JIRS statistics, frequently referred to as a “blunt tool” and has undertaken a level of research with respect to cases which bear some appropriate factual comparison with the circumstances of the present offending.

160. It is, of course, to be observed that the consistent application of principle is a paramount consideration.

161. The guidance offered by appellate courts and a comparison with appropriate first instance decisions can, however, provide useful assistance in guiding an appropriate determination.

162. It is noted, of course, that each case and each offender is individual. As observed by Bell and Gageler JJ in R v Pham [2015] HCA 39; (2015) 256 CLR 550 at [46], the “reasonable consistency” which the judgment of the High Court in Hili v The Queen (2010) 242 CLR 520 had referred to with respect to sentencing outcomes, was “an acknowledgment both that sentencing is a discretionary judgment and that the mix of factors that must be weighed in determining the appropriate sentence will never be precisely the same as in a past case or cases.”

163. In the interests of complete transparency I propose to set out in summary the various cases to which I have had reference.

R v FD; R v JD [2006] NSWCCA 31

164. R v FD; R v JD [2006] NSWCCA 31 were conviction and sentence appeals by two offenders following a jury trial in the Supreme Court for murder. The trial had derived from a factual background of an advertisement placed in the Trading Post by a Mrs Taylor to sell a diamond engagement ring for $15,000. The ring had been given to her to sell by her son following the breakup of his engagement. Arrangements were made by FD for a meeting at premises in Glebe, purportedly with a view to effecting a purchase of the diamond ring. In fact, the offenders would appear to have intended to steal the ring. Mrs Taylor went to the designated address together with her husband and son carrying the ring and some documents relating to valuation. Whilst still outside the premises, JD appeared carrying a replica pistol and confronted the Taylors. A bag containing the ring was snatched from Mrs Taylor. JD was pursued by Mrs Taylor’s son Simon who tackled him. Whilst they were on the ground, Simon Taylor was stabbed four times by FD and subsequently died. Mrs Taylor’s husband, Robert Taylor, was also stabbed in the chest by FD. He suffered a punctured lung.

165. At trial, FD was found guilty of robbery whilst armed with a knife; malicious wounding of Robert Taylor with intent to cause grievous bodily harm; and the murder of Simon Taylor. JD was acquitted of murder of Simon Taylor but convicted of manslaughter and found guilty of robbery while armed with an offensive weapon.

166. FD was in breach of a good behaviour bond at the time he committed the offences. He was sentenced to 12 years imprisonment with respect to the malicious wounding with a non-parole period of 9 years. He was sentenced to a concurrent fixed term of 6 years for the robbery. With respect to the murder, he was sentenced to 24 years and the commencement date of that sentence was deferred by two years after the commencement of the malicious wounding sentence. The effective sentence was 26 years with a non-parole period of 20 years.

167. An appeal against severity by him was dismissed with respect to the individual sentences and the totality of the overall sentence. A Crown appeal against inadequacy of the overall sentence did not seek to argue inadequacy of the specific sentence for the malicious wounding. The remarks in the Court of Criminal Appeal indicate that JD was the younger brother of FD. JD was a juvenile and was approximately 16 or 17 years of age at the time of the offending. FD was 20 years of age at the time of the offence and 22 years of age when sentenced.

R v Khosravi [2008] NSWDC 298

168. R v Khosravi [2008] NSWDC 298 was a sentence proceeding in the District Court before Nicholson SC DCJ. The stabbing in that case arose as a result of an affray at a party held without parental supervision in premises at Carlingford. Some 15 to 20 uninvited males invaded the party in the course of the night. A significant brawl ensued with up to 30 to 40 people involved. Bottles were smashed and thrown as well as chairs. People were punched and kicked. Following the affray, the victim pursued some of the invaders. A number of offenders attacked him and he was punched and kicked to the ground. The offender Khosravi stabbed or slashed the back of the victim as he lay on the ground with a broken beer bottle. The wounding was forceful and caused a gaping wound to the victim’s back. The open wound exposed a number of deep seated inner organs and tissue. The wound occasioning the grievous bodily harm extended for a distance of about 40cm across the length of the back and was clearly deep and gaping.

169. The offender was 22 years of age and had been using drugs and alcohol from his late teenage years. He had a variety of prior criminal offending including possession of car breaking implements, larceny, affray and failing to appear, all of which had been dealt with in the Local Court. He pleaded guilty to the charge of maliciously inflicting grievous bodily harm with intent.

170. Nicholson SC DCJ sentenced the offender for the malicious wounding and also for his participation in the affray and an additional charge relating to the hindering of the police investigation into a robbery. He was sentenced to 3 months fixed term for the hindering of the police investigation and to a fixed term of 18 months deferred by 3 months with respect to the affray. With respect to the malicious infliction of grievous bodily harm, a starting head sentence of 9 years was reduced by 25% for the plea of guilty. The individual sentence was of 6 years 9 months and the commencement date of that sentence was deferred by 7 months from the commencement of the first sentence imposed. The non-parole period for the malicious wounding was 3 years and 9 months which gave an effective minimum term to be served of 4 years 4 months.

AI v R; R v SB & AI [2011] NSWCCA 95

171. Three teenage boys were charged with wounding with intent to cause grievous bodily harm pursuant to s 33(1)(a) of the Crimes Act 1900. They were respectively 15, 17 and 18 years of age. Following a jury trial, the 15 year-old was found not guilty, the 17 year-old was found guilty of an alternative count of reckless wounding in company, and the 18 year-old was found guilty of the principal charge of wounding with intent. The 17 year-old was sentenced to an effective term of 3 years with a non-parole period of 18 months. That sentence was directed to be served as a juvenile offender.

172. The 18 year old received a head sentence of 7 years with a non-parole period of 4 years. After dismissing an appeal against conviction by the 17 year old (AI), the court dealt with Crown appeals against the inadequacy of each of the sentences which had been imposed by North DCJ. The factual circumstances leading up to the wounding were of short compass. The three teenage boys were seated at a bus interchange when the victim and another male walked past where the three of them were seated. After a verbal exchange, the 17 year-old (AI) challenged the two passers-by to a fight. A number of punches were exchanged between the 17 year-old and the 15 year-old with the two passers-by. The 18 year-old (SB) then came up to the victim and stabbed him, causing him to fall to the ground.

171. It was established that the victim suffered wounds to the back of his left arm and to his left buttock; two knife wounds to his chest, one from the front and one from the back; that the victim lost 4 to 5 litres of blood; that the stab wounds to the chest were potentially fatal; and that considerable force had been required to inflict the wounds.

172. The Crown case against the younger boys was based on a joint criminal enterprise.

173. The judge at first instance found that the initial intention of SB was to defend his younger brother, the 15 year-old JB, from being injured by the much larger victim following the initiation of a fight. The judge accepted that the initial non-aggressive behaviour by SB and the use of the knife “in the agony of the moment caused by his brother being attacked” by the victim, to some extent lessened the objective gravity of the offence. His Honour found that the fact that SB did not launch an unprovoked attack made the matter objectively less serious than if it had been an unprovoked attack. His Honour came to the conclusion that the objective seriousness fell below the “middle range” (sic) for offences of this kind but not appreciably so.

174. The subjective case for SB was supportive of the finding by the sentencing judge that the stabbing was the use of excessive self-defence in defence of his 15 year old brother. The victim was a much larger person and SB himself was described as being very short in stature and quite light in weight being approximately only 5 feet tall and weighing only 55 kilograms.

175. He was on a bond which had been imposed some 9 or 10 months earlier for offences which were described as involving non-violent crimes.

176. The offender had left school during Year 11 and had a history of drug use from the age of 16. However, the offender claimed to have not been under the influence of either drugs or alcohol at the time of the stabbing and to have not used drugs for 4 months prior to his arrest.

177. The Crown appeal with respect to the alleged inadequacy of the sentence with respect to SB argued two grounds. The first ground was an alleged error in the assessment of the objective seriousness of the offence and the second ground was an asserted failure to impose a sentence that reflected the objective seriousness of the offence. The Court of Criminal Appeal found that with the aid of a viewing of the CCTV recording and facts which were not in dispute, the Court was in a position where it could make a finding beyond reasonable doubt that the continued stabbing of the victim after he had fallen to the ground was not motivated by an intention to continue to defend the younger brother. However, the court was not satisfied that the trial judge had erred in not making that finding, nor in treating the whole episode as excessive defence of his younger brother.

178. The court also found that although there was considerable force in the Crown’s submission that the fact that SB was involved in provoking a fight in a public street while armed with a knife, that he used the knife to cause life-threatening injuries and permanent damage to the victim, and that he that left the victim in the street with those life-threatening injuries, meant that the objective seriousness of the offence must be above mid-range. However, the court was not satisfied that the trial judge’s conclusion as to objective seriousness was so wrong as to justify appellate intervention.

179. Notwithstanding that finding, the court also held that there was considerable force in the Crown’s submissions with regard to manifest inadequacy.

180. After referring to the expression of principles regarding the relevance of the youth of an offender stated by McClellan CJ at CL in KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571, Hodgson JA also adhered to additional comments that he had previously made in BP v R [2010] NSWCCA 159.

181. His Honour ultimately held that the sentence passed on SB, although not insubstantial, was lenient. His Honour concluded:

“However, particularly having regard to the assessment of objective seriousness (which is not set aside), to the youth of SB and to the circumstance that this was a case of excessive defence of his brother, I think the sentence was at the bottom of the range available to the trial judge, rather than being outside that range.”

184. The Court of Criminal Appeal accordingly dismissed the Crown appeal.

R v A; R v Hurst [2012] NSWDC 186

185. In R v A; R v Hurst [2012] NSWDC 186, the victim had been physically assaulted causing grievous bodily harm before being stabbed thereby suffering additional grievous bodily harm. The offending was drug-related and arose against a background of the three offenders travelling from Casino to Brisbane for the purpose of purchasing ecstasy tablets. The principal offender, Hurst, was 20 years of age with a prior juvenile criminal history of no great significance. His girlfriend, Ms A, was 17 years of age at the time. She came from a troubled background including being involved in a violent and controlled relationship with a drug addict who was 18 years of age when she was only 14. At the time of the offending, she was engaged in significant drug abuse and by that time was the sole parent of her two young children, one of whom was a toddler and the other still a baby. A third offender, a Ms Pankhurst, also travelled in the victim’s motor vehicle on the trip to Brisbane.

186. In the event, the group was unsuccessful in obtaining drugs in Brisbane. They had waited at a nominated spot for some hours waiting for associates of Hurst who were supposed to arrive with the drugs. That did not occur.

187. The four protagonists then left Brisbane to return home to Casino. A detour was taken to an isolated location where, in due course, the victim was violently attacked. Hurst stabbed the victim twice in the back and kicked him to the ground where he started to kick the victim in the head. The two females, Ms A and Ms Pankhurst, then came over to where the victim was lying on the ground. Ms A willingly participated in kicking the victim in the head. She was then given the knife by Hurst and she stabbed the victim at least twice. Ms Pankhurst was then handed the knife and she delivered a further stab to the victim’s left side. The victim was then dragged to a slightly different location. He was subjected to what the sentencing judge described as some very cruel taunts by Ms A.

188. Ultimately, the victim was pushed down a steep embankment where he lay seriously injured for some time. The offenders departed driving the victim’s motor vehicle and returned to Casino. The victim, despite his injuries, eventually made his way back up the embankment. Because of the remote location he was nowhere near assistance and eventually walked a number of kilometres in his injured condition until he obtained help. He was ultimately ascertained to have suffered 5 stab wounds to his back as well as the stab wound to his left side. All of the stabs, except the most serious to his back, were between 0.5 to 2cm deep. The most serious stab in his back was some 3 to 5 cm in depth. In the physical kicking he had sustained a fractured jaw.

189. The motivation for the assault was found to have been pre-existing antagonism between the victim and Hurst which had been fuelled by the failed drug deal in Brisbane. Hurst considered that the victim had ruined his reputation with the drug vendors in Brisbane and was determined to exact revenge. Hurst’s subjective case revealed a very difficult upbringing. Domestic difficulties had arisen after his parents separated and within a couple of years, he was using amphetamines, cocaine, LSD and ice. He left school in Year 11 and by 18 was using drugs daily, partying, and using drugs such as ecstasy. He manifested aggressive and unpredictable behaviour in his late teens and had attempted suicide at 16 years of age. The sentencing judge found that his psychological situation and drug addiction had been affecting him mentally at the time of the incident. Her Honour, Murrell SC DCJ, found that his judgment was very much clouded at the time of the incident. Her Honour said:

“That is not an excuse, but it is something of an explanation for the bizarre behaviour and some of the remarks that were made to the victim during the course of the incident.”

190. With respect to Hurst, her Honour imposed a fixed term sentence of 2 years 5 months after a discount of 20% for the plea with respect to the offence of assault occasioning grievous bodily harm. With respect to the wounding offence, her Honour partially accumulated a sentence of 4 years 10 months following a discount of 20% from a starting sentence of 6 years. Her Honour partly accumulated the sentences resulting in an effective sentence of 5 years 5 months and an effective non-parole period of 2 years 11 months.

191. Ms A was sentenced with respect to both offences to an effective term of 2 years 5 months with a non-parole period of 12 months. The stabbing offence component was 3 years with a 30% discount which included cooperation. The discounted sentence for the s 33 offence was 25 months imprisonment.

BC v R [2020] NSWCCA 329

192. In BC v R [2020] NSWCCA 329, the offender had been aged 17 years at the time of a stabbing. The facts giving rise to that offence arose against a background of an earlier assault by the offender against a 14 year-old boy. The circumstance of that earlier assault was known to that earlier victim’s older sister and also to the sister’s boyfriend.

193. At a subsequent date, the offender was at the West Point shopping centre at Blacktown when he was recognised by the earlier victim’s sister who was in the company of her boyfriend. After a verbal exchange, the offender “invited” the boyfriend to go outside and engage in a fight. The invitation was declined and the sister and her boyfriend walked off. As they were leaving the shopping centre complex, the offender armed himself with a yellow “wet floor” sign, ran from behind them and threw the sign at the boyfriend. In the same motion, he reached into his pants and pulled out a knife which he had purchased earlier that day. He then ran towards the boyfriend and stabbed him in the left chest. After stabbing him once with a 24cm-long knife, the offender ran from the scene. The victim was described as having almost died. He underwent serious treatment and remained in hospital for some 2 months.

194. The sentencing judge found the objective seriousness of the wounding was slightly above mid-range. The offender’s subjective circumstances included psychological problems which initially stemmed from the death of his older brother from a drug overdose when the offender was 12. His own life thereafter “began to unravel” including drinking alcohol, consuming cannabis, and hanging out with undesirable influences.

195. The sentencing judge, Colefax SC DCJ, said that had the offender been an adult at the time of the offences without psychological or psychiatric issues, he would have been sentenced in the range of 15 to 16 years. However, because of his youth and psychiatric conditions, an appropriate sentence for the wounding was 9 years imprisonment before application of a discount of 10% for a late plea which resulted in a head sentence of 8 years after the discount. A non-parole period of 4 years was fixed.

196. Leave to appeal against the severity of this sentence was refused. Price J, with whom Gleeson JA and Wright J agreed, said (at [182]):

“In the present case, the JIRS statistics demonstrate that the applicant’s sentence is at the upper end of sentences for a s 33(1)(a) offence committed by an offender of the applicant’s age. However, they do not show that the sentence was outside the legitimate exercise of his Honour’s sentencing discretion.”

R v Talimalie; R v Leavai; R v JL [2020] NSWDC 229

197. R v Talimalie; R v Leavai; R v JL [2020] NSWDC 229 was a decision of Lerve DCJ following a jury trial. The three offenders were found guilty by a jury of having violently assaulted the victim in the main street of Young in the early hours of 1 October 2017. The assault included kicking or stomping on the victim while he was on the ground leading to the victim sustaining fractures to his jaw and skull amongst other injuries.

198. The sentencing judge found that the nature of the injuries sustained were less than mid-range for injuries that are contemplated by the expression “grievous bodily harm”. His Honour concluded that the offence was “very marginally” below the mid-range of objective seriousness. He did not find it possible to distinguish the criminality as between the 3 offenders. JL was 16 years and 6 months at the time of the offending. Talimalie was his cousin who was approximately 7 years older and was 23 at the time of the offending. Leavai was approximately 20 years of age at the time of the offending. In addition to each of the offenders being found guilty of intentionally causing grievous bodily harm contrary to s 33(1)(b) of the Crimes Act 1900 (NSW), each was also found guilty of assault occasioning actual bodily harm to a second person and an additional charge of affray.

199. Of relevance for the purposes of comparison, the two adult offenders received indicative sentences for the s 33(1)(b) offending of 6 years with a non-parole period of 4 years 2 months for Talimalie; 5 years with a non-parole period of 3 years 4 months for Leavai; and 3 years 6 months with a non-parole period of 1 year 9 months with respect to the juvenile JL. I should note in passing that the juvenile received an aggregate sentence, taking into account the additional offending, of 4 years 3 months with a non-parole period of 2 years 3 months. I should also note that the sentencing judge was not satisfied that there were special circumstances justifying the detention of JL as a juvenile offender given that he had attained 18 years of age as at the time of sentence. His Honour also noted that the non-parole period was longer than that contemplated by s 19(3)(b) or (c) of the Children (Criminal Proceedings) Act.

R v Waters (a pseudonym); R v Mook [2020] NSWDC 636

200. An additional sentencing judgment to which I have had regard is R v Waters (a pseudonym); R v Mook [2020] NSWDC 636. The two offenders had pleaded guilty to two offences, namely causing grievous bodily harm with intent and assault occasioning actual bodily harm. The charges respectively relied upon principles of joint criminal enterprise with the actual infliction of injury being occasioned by each of the offenders giving rise to the separate charges. The victim was a young man who was violently assaulted following a disagreement about sharing “ice” or methamphetamine. The juvenile, Waters, attacked the victim with a machete. The first blow almost severed the victim’s arm while the second blow with the machete caused a deep wound to his left leg. Mooks’ involvement in that charge relied upon common purpose.

201. The second infliction of harm on the victim was occasioned by Mook who used a blowtorch to the head of the victim burning him behind the ear and towards the top of the neck. Only a small burn was inflicted by what the sentencing judge, Haesler SC DCJ, described as a “particularly vicious weapon”. Waters’ guilt with respect to the assault occasioning actual bodily harm based on the actual bodily harm caused by the blowtorch, similarly arose pursuant to common purpose.

202. Waters was indigenous and had been the subject of a substantially deprived upbringing. The family background included drug use, drug dealing and prostitution, as well as physical abuse.

203. He had received minimal formal education and was illiterate. He had spent only 1 hour in high school in a special program intended to meet his needs because of behavioural problems and truanting when in primary school. He was assessed as being of extremely low-range of general intellectual capacity and in one report as having “mild mental retardation.” He had spent long periods in custody with increasing aggression including sustaining injuries following behavioural outbursts in custody. He had demonstrated a lack of remorse with repeated comments indicating no regrets or concerns for his victim and the possibility of posing a threat to the victim in the future. He had already been transferred to an adult gaol from juvenile detention following his 18^th birthday and prior to the passing of sentence. He had been on parole at the time of the commission of the offending.

204. Haesler SC DCJ noted that following Waters’ arrest, he had been serving the balance of parole in respect of 5 other sentences. Most of them had been committed whilst in custody.

205. In a difficult balancing exercise, the detail of which is clear from a perusal of his Honour’s judgment, Waters received a term of imprisonment with respect to the causing grievous bodily harm with intent of 8 years 3 months. A non-parole period of 5 years 9 months was specified. The assault occasioning actual bodily harm was a sentence of 5 months fixed term which was served concurrently with the greater offence.

206. Whilst dealing with a different offence, some broad assistance with respect to an appropriate disposition, as I’ve already indicated, may also be gleaned from cases where the use of a knife by a young offender resulted in the death of the victim. Regrettably, there are numerous cases where such an outcome ensued.

R v WA [2012] NSWSC 1317

207. One of the cases which I have perused in this regard is R v WA [2012] NSWSC 1317. This was a sentence which proceeded before Button J in the Supreme Court. The offender was 16 years of age at the time that he and his brother, together with a cousin, pursued a violent confrontation with a person who had possibly been involved in the deliberate arson of a motor vehicle registered to the offender. The offender was 16 years 10 months at the time. In the course of the approach to a physical confrontation, the offender fired four bullets from a semi-automatic 0.22 calibre rifle in quick succession in the direction of the victim who was unarmed and telling the offender, his brother and his cousin, to drop their weapons being a baseball bat and a machete and engage in a fist fight. One of the shots which was fired by the offender struck the victim in the back and penetrated his heart. He died as a consequence.

208. The offender stood trial for murder and on the 12^th day of the trial, a plea of guilty to manslaughter was accepted by the Crown. That carries a maximum penalty of 25 years. An offer to plead to manslaughter many months before the commencement of the trial had apparently been made. The offender had a not insignificant criminal record which included control orders at the age of 14 for an aggravated break and enter and inflicting actual bodily harm. He had a large number of property offences as well as resisting police, escaping police custody, and stalking or intimidating.

209. The offender was ultimately sentenced to a head sentence of 8 years with a non-parole period of 6 years. The offender was 20 years of age at the time of sentence and had been in custody for approximately 3 years. Button J made a finding of special circumstances to which I will make specific reference in due course and directed that he remain in a children’s detention centre until the offender attained the age of 21 whereupon he would be transferred to an adult gaol for the balance of his non-parole period.

R v PO [2017] NSWSC 757

210. In R v PO [2017] NSWSC 757, a fight involving four males erupted in a street in the CBD of Port Macquarie. The 25 year-old victim suffered two penetrating and immediately incapacitating stab wounds to his chest and abdomen which killed him.

211. The offender was 16 years 8 months at the time of the stabbing. An offer to plead to manslaughter was not accepted by the Crown and in due course a jury returned a verdict of guilty to murder. The sentencing judge, Fullerton J, found that the intention of the offender in inflicting the stabbing wounds was to cause really serious injury. Her Honour noted that in some cases of murder, an intention to kill renders the objective seriousness of the offence of greater order than if the causative act is accompanied by an intention to cause really serious harm. However, her Honour said at [46]: “where the level of violence employed is considerable, as it was here with two stab wounds delivered by the offender in quick succession, each of which was causative of death, the impact on sentence of finding that the intention was to inflict grievous bodily harm is limited.”

210. The offender had a prior criminal history which had included a bond and a probation order. He was 19 years of age at the time of sentence. He was sentenced to a term of 15 years with 9 years non-parole. Her Honour found that various therapeutic services specific to the offender’s mental health needs within juvenile detention, together with vocational training and other education-based courses that were unlikely to be available in an adult prison, together with a view that he would be physically and psychologically unprepared to deal with exposure to an adult prison population immediately, satisfied the requirement for special circumstances and her Honour directed that he continue to serve his sentence as a juvenile offender until the age of 21.

R v AN [2014] NSWSC 1479

213. In R v AN [2014] NSWSC 1479, Hall J dealt with a young offender who had pleaded guilty to an offence of manslaughter. An assault had taken place by a group of young men who attacked the victim in the vicinity of a fancy dress Halloween party at which a large number of people were in attendance. The group of young males attended the party uninvited. The victim was, by arrangement, the intended victim. It was not a random attack and the assault included the use of items used as weapons.

214. One of the group had a cylindrical metal pole and other items were described as looking like car locks. The actual cause of death was an injury which had been inflicted when the deceased was struck to his head with an empty wine bottle.

215. AN pleaded guilty to a charge of manslaughter on the basis of a joint criminal enterprise. It was accepted that he did not inflict any physical blows on the deceased and that his moral culpability arose from his presence and willingness to assist. He was 15 years of age at the time of the manslaughter. He did not have any criminal antecedents. He subsequently committed an offence of break and enter and an offence of taking and driving a conveyance. He was placed on a s 33(1) bond under the children’s legislation.

216. The Crown accepted, and the sentencing judge found, that the offender’s role marked out his criminality at the low end of the hierarchy of objective seriousness. His Honour determined a starting point of 7 years which, after applying a discount of 15% for the guilty plea, resulted in a sentence of 5 years 11 months (rounded out). A finding of special circumstances led to a variation of the statutory ratio and a non-parole period of 3 years was specified. In the absence of evidence at that time, the proceedings were adjourned part-heard and Juvenile Justice was directed to prepare a report for the purpose of ascertaining whether there were circumstances falling within the provisions of s 19(4) of the Children (Criminal Proceedings) Act 1987 (NSW) so as to permit the offender to remain in a juvenile detention institution until the age of 21. I will make further reference to s 19 shortly.

R v SB; R v AE; R v MG [2015] NSWSC 659

217. R v SB; R v AE; R v MG [2015] NSWSC 659 were three co-offenders of AN who were each found guilty by a jury of the murder of the victim. Hall J found facts consistent with the verdict of the jury that each of the three offenders were party to a joint agreement in which they contemplated that in the course of carrying out an agreement to assault the deceased, a party to the agreement might deliberately apply physical force to the victim, as a co-offender JP in fact did when he struck the deceased on the head with the bottle, with the intention of causing grievous bodily harm. Accordingly, Hall J sentenced each of the offenders on the basis of extended joint criminal enterprise murder.

218. SB was 16 years of age at the time of the offence and was 20 years of age at the time of sentence. He had been on bail between September 2013 until the date of his conviction in November 2014. Since going back into custody, he had engaged in programs including his Year 11 studies. AE was 16 years 4 months at the time of the offence. MG had been 15 years 10 months at the time of the offence. Each of these three offenders were sentenced to 12 years imprisonment with 8 years specified as a non-parole period. The material before the court focused in particular on education facility benefits available in juvenile detention centres which were unlikely to be available in adult facilities as well as therapeutic and vocational programs which might have an impact on the offenders’ prospects of rehabilitation. Special circumstances were found with respect to s 19(4) of the Children (Criminal Proceedings) Act and each of the offenders was directed to serve their non-parole periods as a juvenile offender until they attained the age of 21.

JM v R [2012] NSWCCA 83

219. JM v R [2012] NSWCCA 83 was an appeal against the severity of a sentence imposed by English DCJ for an offence of causing grievous bodily harm with intent. The offender was 17 years and 4 months at the time of a vicious attack on a 16 year-old who was substantially smaller in a public street in Wagga after the participants had left a party. The victim had been attacked by a number of other boys but the principal offender had intentionally hit the head of the victim into the bitumen as well as kicking and punching him. Various other kicks were inflicted upon the victim by a number of other persons giving rise to an offence of affray.

220. The substantial principal offence against JM related to intentionally inflicted injuries to the victim’s head which left him with serious long-term cognitive deficits. Alcohol and ecstasy were said to have been consumed in the period before the commission of the offence. The offender had demonstrated remorse and officers from the then office of Juvenile Justice described him as having demonstrated a willingness to pursue vocational programs with a positive view of rehabilitation.

221. Judge English had allowed a 10% discount before imposing a sentence of 7 years imprisonment with a non-parole period of 4 years.

222. The appeal by the offender was successful but not on the basis of severity. Whealy JA and Hoeben J were not of the view that the sentence was manifestly excessive. Simpson J would have upheld this ground.

223. However, considerations of parity with other offenders led the court to intervene and resentence. The offender was resentenced to a term of 5 years with a non-parole period of 3 years.

SECTION 19 CHILDREN (CRIMINAL PROCEEDINGS) ACT 1987

224. I will shortly pronounce the sentence which is appropriate with respect to the offending before this court. The minimum time which will be required to be served will extend beyond the 18^th birthday of this offender, noting that he turns 18 next month. Section 19(1) permits a court sentencing a person under the age of 21 to a term of imprisonment in respect of an indictable offence to make an order directing that the whole or any part of the term of the sentence be served as a juvenile offender. The effect of such an order is that the person to whom such an order relates will be committed to a juvenile detention centre rather than to an adult prison or correctional centre.

225. The power to make such an order is qualified by other provisions in s 19. Section 19(3) mandates that a person sentenced to imprisonment in respect of a serious children’s indictable offence is not eligible to serve a sentence of imprisonment as a juvenile offender after the person has attained the age of 18 years unless the sentencing court is satisfied that there are special circumstances justifying detention of the person as a juvenile offender after that age. There are other provisions which do not have application for present purposes.

226. Subsection (4) permits a finding of special circumstances on one or more of the following grounds and not otherwise. Those grounds are, firstly, that the person is vulnerable on account of illness or disability within the meaning of the Anti-Discrimination Act 1977; or secondly, that the only available educational, vocational training, or therapeutic programs that are suitable to the person’s needs are those available in detention centres; or thirdly, 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.

227. Section 19(4A) specifically states: “In particular, a finding of special circumstances may not be made simply because of a person’s youth or simply because the non-parole period of the person’s sentence will expire while the person is still eligible to serve the sentence as a juvenile offender.”

228. In the matter of JM v R, to which I have made reference earlier, the Court of Criminal Appeal was of the opinion that there was insufficient evidence to justify an order under s 19 with respect to that particular offender. I note in passing that her Honour English DCJ had in fact made a recommendation rather than an order. There are, in various of the cases, including a number of the comparative cases to which I have made particular reference, examples where judges, both in the Supreme Court and in the District Court at first instance, have proceeded to make orders pursuant to s 19 on what might objectively be viewed as a comparatively slight quantity of justifiable material.

229. I should make it clear that on the information presently before the court, I would be satisfied that there are special circumstances relating to the educational facilities available to the offender leading to his Higher School Certificate which would warrant the making of an order under s 19 at least until the completion of those studies.

230. Regrettably however, no updated Youth Justice report has been sought or obtained and no focus by a psychologist or otherwise has been brought to the court’s attention in evidence as to other possible circumstances which would justify and permit a finding of special circumstances. I will shortly deal with that aspect of the sentencing process.

231. I intend to adopt the same approach as to that taken by Hall J in R v AN [2014] NSWSC 1879 and R v AN (No 2) [2015] NSWSC 308.

CONSIDERATION

232. Notwithstanding the simultaneous application of different sentencing regimes, taking into account my intended disposition of the serious children’s indictable offence under s 33, I propose that the section 112(2) break and enter offence, together with the matter on the Form 1, should be dealt with according to the Children (Criminal Proceedings) Act 1987 (NSW).

233. This offence was not part of the course of conduct involving the assault on Mr Halcro. It involved a variable sized group of younger teenagers, those able to be identified were respectively either 15 or just 16, who were drinking over a period of many hours in the backyard of non-residential premises. In the early hours of the morning, two of the young outdoor partygoers, including the offender, entered the premises through a window in what was obviously a spontaneous and unplanned escapade. It was a delinquent act. Although the internal offices were apparently rummaged through and some items removed, there is no evidence that they were of any particular value or significance. There was no evidence of damage to the premises. One member of the group took and drove one of the vehicles from the premises but returned it undamaged a short time later where it became, in due course, the repository for two of the young men to sleep in. They remained in that state of repose where they were discovered by the proprietor the following morning. As I indicated earlier, one of the boys received a caution pursuant to the young offenders provision while another, who I can only presume claims to have done nothing but to sleep in the car or simply to have been present, is conducted a defended hearing.

234. Had the matters of break and enter which were charged as two offences based on the initial entering and stealing and the subsequent opening of the front door to allow others in, been dealt with in the absence of the later more serious offending, I am firmly of the view that the matter would have proceeded in the Children’s Court and would have been dealt with without the imposition of any form of custody. Accordingly, I propose to deal with the matter under the Children’s legislation. Taking into account the matter on the Form 1, I direct that the offender enter into a bond to be of good behaviour for a period of 12 months. The requirement to be of good behaviour will exist and have effect notwithstanding that he will be in an institutional facility.

235. With respect to the offence under s 33, Matthew Cole committed an act of physical violence with a repetitive degree of ferocity which is difficult to rationalise. The initial attack occurred in the context of what I have earlier described as a group mentality and mirrored the types of assaults by gangs of youths that are reflected in the cases to which I have made reference and, regrettably, all too common in this city and in proceedings before this court and in the Supreme Court. The physical injuries sustained by such a victim often include fractures as well as bruising as a consequence of the infliction of multiple punches and kicks. As I have noted, this offence is to be taken into account on a Form 1 document and consideration needs to be given to the manner in which other offenders have been dealt with taking into account their youth.

236. The principal offence involved the deliberate intention to inflict grievous bodily harm on the unconscious and prone victim. The disfiguring injuries to his face are obviously multiple as a direct consequence of the number of strikes of the blade. The conduct was despicable and cowardly. The Crown’s submission was that the conduct required condign punishment. Such a submission is understood to mean that the punishment should be that which is appropriate and merited for the conduct.

237. I have already indicated that when viewed against the offender’s personal background and the demonstrable impression of his character and true personality since being placed into custody, it is an inexorable conclusion that the likely ingestion of illicit substances and alcohol was a causative factor in the conduct that ensued. There is a real possibility that the drug which the offender believed he ingested, namely Xanax, might provide some explanation for the conduct. As I noted earlier in these Remarks, self-induced intoxication, whether by alcohol or drugs, which affects an offender’s behaviour may go some way to explain conduct but does not excuse it.

238. I am satisfied that the offender’s exemplary conduct whilst in custody, and his excellent prospects for appropriate rehabilitation into the future warrant a finding of special circumstances such as to permit a variation to the statutory ratio relative to the imposition of a non-parole period.

239. Taking into account the matter on the Form 1, he will be required to serve a non-parole period of 4 years which will be backdated to commence on the day he went into custody, 3 August 2020, and will therefore expire on 2 August 2024. There will be an additional term of extended supervision for a period of 4 years which will expire on 2 August 2028. This is an effective head sentence of 8 years with a non-parole period of 4 years.

240. I direct that a report be prepared by Youth Justice NSW in relation to the offender for the purpose of ascertaining whether there are circumstances falling within the provisions of s 19(4)(b) and/or (c) of the Children (Criminal Proceedings) Act 1987 (NSW) and in particular, whether such circumstances continue after the presumed attaining of the Higher School Certificate by the offender. In addition to directing the obtaining of such a report, I grant leave to the offender to file any report or affidavit evidence relevant to such issues. The sentence that I have imposed is subject to a determination to be made as to whether an order may be made under the provisions of s 19(4) of the Children (Criminal Proceedings) Act 1987 (NSW) following the receipt of a report from Youth Justice and the receipt of any additional evidence on behalf of the offender.

241. For the purposes of s 19, the period of incarceration in a juvenile detention institution can only operate until the age of 21 years if the provisions of s 19(4) of the Children (Criminal Proceedings) Act 1987 (NSW) apply. Accordingly, in that respect, and for that purpose, the proceedings are stood over part-heard to 25 March 2022.

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Decision last updated: 29 June 2022