R v MJJ

[2004] NSWSC 471

CITATION:	R v MJJ [2004] NSWSC 471
HEARING DATE(S):	03/02/04, 04/02/04, 05/02/04, 09/02/04, 10/02/04, 11/02/04, 12/02/04, 16/02/04, 17/02/04, 18/02/04, 16/04/04
JUDGMENT DATE:	4 June 2004
JUDGMENT OF:	Barr J at 1
DECISION:	The following sentences are imposed: for the malicious wounding of TS with intent to do her grievous bodily harm imprisonment for nine years ; for the malicious wounding of CB with intent to do grievous bodily harm to a person imprisonment for eight years ; for the use of a prohibited weapon without being authorised to do so by licence or permit imprisonment for one year; last sentences to expire on 2 April 2012; the offender will be eligible for release on parole on 2 April 2008.
CATCHWORDS:	Criminal law - sentencing - malicious wounding with intent to do grievous bodily harm - criminal law - sentencing - using a prohibited weapon without a licence or permit - criminal law - sentencing - children
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act s21A Children (Criminal Proceedings) Act s19
PARTIES :	REGINA MJJ
FILE NUMBER(S):	SC 70060/03
COUNSEL:	Crown: Mr L Gray Offender: Mr P Zahra SC
SOLICITORS:	Crown: S E O'Connor Offender: W Grant

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

GRAHAM BARR J

Friday 4 June 2004

70060/03 REGINA v M.J.J.

SENTENCE

1 HIS HONOUR: At the time of the events giving rise to the charges brought against the offender he, the complainants and certain other persons who played a part in them were under the age of eighteen years. The publication of their names is therefore inappropriate and I shall refer to them only by the initial letters of their names.

2 On 7 July 2003 the offender was committed for trial on five counts, which may be summarised as follows-

1. He wounded TS with intent to murder her;
2. alternatively to the first count, he maliciously wounded TS with intent to do her grievous bodily harm;
3. he maliciously threw an explosive substance, namely a petrol bomb, at TS with intent to do her grievous bodily harm;
4. he maliciously wounded CB with intent to do her grievous bodily harm; and
5. he used a prohibited weapon, namely a crossbow, without being authorised to do so by licence or permit.

3 When arraigned on 5 September 2003 the offender pleaded not guilty to the first count but guilty to the second. The Crown did not accept the plea in discharge of the first count. He pleaded not guilty to the third count. To the fourth count he pleaded not guilty but guilty of maliciously wounding CB. That plea was not accepted in discharge of that count. The offender pleaded guilty to the fifth count. At the commencement of his trial on 3 February 2004 the Crown changed the fourth charge, alleging in substance that the offender maliciously wounded CB with intent to do grievous bodily harm to a person. The offender pleaded not guilty. The pleas to the other counts were as before. The offender elected to have his trial by Judge alone. I found him not guilty of the first and third charges and guilty of the fourth. The offender is therefore to be sentenced for the offences named in the second, fourth and fifth charges.

4 On 3 April 2003 the offender fired a bolt from a crossbow. The bolt passed through the body of TS and lodged in the legs of CB. By his plea of guilty to the second count the offender acknowledged that when he wounded TS by firing the bolt he intended to do her grievous bodily harm. By the verdict of guilty on the fourth count the offender was determined to have wounded CB with intent to do grievous bodily harm to a person. That person was TS. By his plea of guilty to the fifth count the offender acknowledged that the crossbow was a prohibited weapon and that he had no lawful reason to use it.

5 The offender was sixteen years old and attended high school. TS and CB attended the same school. The offender and TS had known each other for years. A short time before the end of the 2002 school year they became boyfriend and girlfriend. The relationship did not last long, however. It appears that while not uninterested in the things the offender liked to do, TS wanted to devote time to other interests as well, whereas the offender thought that she should be spending more time with him. On 18 February 2003, not long into the new school year, the offender announced to TS that their relationship was over.

6 Before becoming friendly with the offender TS had had a friendship with another boy. He attended the same school and was a friend of the offender. During the time that the offender was thinking that TS’ commitment to him was not as he would wish, others were telling him that she still spoke about and liked the other boy.

7 The offender harboured a resentment of TS and I am satisfied that about the time when the relationship ended he said in the presence of a group of friends that he would teach her a lesson when she least expected it. On another occasion after the ending of the relationship he said that he was going to “get” TS.

8 About a month before he shot TS and CB the offender told friends that he was going to buy a crossbow. He asked them to keep quiet about it. He said that he wanted to use it to shoot pigs. He did not want his parents to know and asked one friend whether he would take delivery of the crossbow at his house. The friend refused and he asked another. That friend agreed.

9 At 5:18pm on 17 February 2003, the evening before he told TS that their relationship was over, the offender sent an email message to John and Lyn Clark of Goolwa, South Australia, who traded under the name Ausbow. The message was as follows-

My friend has a property and we are going to go halves in a good crossbow for hunting, we think the Paradox looks good, though, we are not sure if the price listed is for all that is nessesary (sic) for it to be ready to go. Does it come with everything but the bolts? Or do I need to get the strings for it aswell, and if so, which strings are required for this particular bow & price, aswell as which bolts go with it & price for them too. You’ll have to excuse us if we sound dumb, but we’ve been thinking about it for ages, and now we want to know more about it….thanks a lot,

10 Mr Clark replied at 6:56pm as follows-

Thanks for your enquiry.

Firstly, I need to advise that crossbows are illegal in NSW, except for target shooting at designated archery clubs. It is not illegal for us here in SA to supply crossbows to NSW, but there are heavy fines if you get caught.

The price for the PARADOX is currently $940.00 and that is just the basic crossbow with no accessories or bolts. Otherwise it is ready to shoot.
Changing strings on a compound crossbow such as the PARADOX is really a workshop job and unless you have an archery dealer nearby I would not recommend it. You can change strings on a recurve bow (VIXEN, EXOCET and EXOMAG) easily and without tools).
Attached please find our price list. I hope you can read it ok.

11 There was this exchange later on during the same evening-

The offender: Yes, OK, now all I need to know would be which bolts are best suited for me, you tell me because I don’t have a clue. Thnx
Clark: The bolt choice is yours – aluminium alloy or carbon. Either will do the job. To start with I would suggest aluminium – 2117-V20. Your will need some target points, The choice of broadheads is personal.

12 On 26 March 2003 the offender ordered a crossbow, six carbon broadheads, six target points and six aluminium alloy bolts fitted with plastic flights, known as fletching. He paid by quoting particulars of a credit card he had removed without permission from his mother’s handbag. He requested delivery to the house of the friend I have mentioned. The goods were dispatched by the supplier, addressed to the offender at that place and in due course the offender’s friend received a note from the post office requesting collection of a parcel. He told the offender and they went to the post office together. There the offender identified himself and collected the goods. That was on 2 April 2003. The two of them took the parcel to the offender’s house and there opened it. With the crossbow, the bolts and the heads were an instruction manual and a video-tape. They assembled the crossbow.

13 A crossbow consists of a stringed bow, mounted horizontally at right angles across a shaft which ends in a handpiece not unlike the stock of a rifle. In order to prepare a crossbow for firing it is necessary to do two things. First the string has to be drawn up along the shaft towards the stock until it engages in the firing position. Then the bolt has to be placed in a groove in the shaft and drawn backwards up the shaft into the firing position with the end of the bolt touching or close to the string. Below the stock is a trigger, much in appearance like that which one would see on a rifle. There is a safety catch which when engaged inhibits the pulling of the trigger. When the safety catch is released the bolt may be fired simply by pulling the trigger. The string is pulled forward as the bent arms of the bow straighten and the arrow is propelled forward along the shaft. Sights may be attached.

14 The offender and his friend tried cocking the bow but each found it impossible to pull the string back far enough. They managed to carry out the procedure jointly. They “fired” the bow without inserting a bolt. They were joined by the friend’s brother, an older and stronger person, and he cocked the bow by himself. The friend and his brother left. Although the videotape I have mentioned contained instructions for assembling the bow I think that they probably did not watch it before assembling the bow. I accept the evidence of the friend in that respect. The crossbow remained cocked with the safety catch on until the following day.

15 By his purchase the offender had obtained two kinds of heads for his bolts, namely target points and broadheads. Target points have a rounded tip and are designed to be fired at targets. Broadheads are designed to kill animals. No doubt the supplier suggested broadheads because the offender had told him that he wanted a bow to hunt on a property. He would have understood that the offender wanted to kill animals.

16 A broadhead comprises a tapering metal, probably copper, shaft ending in a pointed black metal tip. Running along the shaft are three narrow grooves. The broadhead is assembled by inserting into each groove a triangular flat piece of what looks like high-speed steel, much like a razor blade. The base of the triangle fits into the groove and the apex has an angle of about one hundred degrees. So fitted, the leading edge of the triangle slopes back from the shaft at about twenty degrees. It is very sharp. The grooves and therefore the blades are set equidistantly around the shaft of the head, so the blade surfaces diverge from one another at an angle of one hundred and twenty degrees. The apices of the blades are 9mm proud of the shaft and 2.4cm apart.

17 The bolt is assembled by screwing the assembled broadhead into the leading end of the shaft. Towards the rear of the shaft are fixed three plastic vanes, offset to make the bolt rotate as it flies. As with a rifle, the intention is to make the missile fly true. A necessary result is that the blades of the broadhead are rotating when they strike their target, though there was no evidence as to the speed of rotation.

18 The offender assembled the broadheads and fitted them, rather than the target points, to the bolts. He loaded one bolt into the crossbow.

19 He had researched the internet and had learned how to make bombs. He decided to make some. A week or more before the shooting he purchased bottles of sauce and emptied and cleaned them. He obtained petrol and oil. He made two bombs by putting into each of two bottles a mixture of petrol and oil. He screwed down the caps and taped a sparkler to each bottle. He obtained a can of deodorant spray containing an inflammable fluid mixture.

20 He lived at his parents’ house a few kilometres from school. He was usually driven to school and occasionally cycled. He never walked. On 3 April 2003 he got up very early and left a note for his parents to tell them that he was walking to school. He put the crossbow, loaded with the broadhead, into a suitcase. The bow was too long and the stock protruded. He covered it with a garment. He also put into the suitcase a fishing rod which also protruded. He took those measures so that no one would suspect what he was doing.

21 He put the incendiary bombs and the can of deodorant spray into his school backpack. He took a lighter with him.

22 He walked to school and arrived a short time before 8:00am outside a science laboratory. He knew that pupils, including TS, gathered there at that time of the morning.

23 TS saw him approaching with the suitcase and turned her back to him. He put down the suitcase and bag and took out the crossbow. He walked towards her, carrying it. She glanced at him and saw that he was carrying something but did not know what. She began to walk round the corner of the building from the eastern to the southern side. She saw that the offender was holding something up to her, which she thought might have been a strange toy. She did not remember, and she may not have heard, but the offender walked after her and told her to turn round. She did not do so. He fired the bolt. He was between two and two and one-half metres from her when he did so.

24 The bolt made a clean, straight wound through the thickness of TS’s chest, entering to the left of the spine and emerging high on the left breast. Having passed through the body of TS, the bolt struck CB, who was seated on a low bench. It penetrated the whole thickness of the calf muscle on the lateral aspect of the right leg about one third of the way between the knee and the ankle and entered the antero-medial aspect of the left leg above the knee, narrowly missing the patella. The point of the broadhead took a divot out of the distal femur and came to rest there.

25 TS was bleeding and walked back to the eastern side of the building and sat down. A schoolmate sat beside her and tried to comfort her. In the meantime the offender had walked back to the place where he had left his suitcase and backpack. He took out one of the bottles and lit the sparkler with the lighter. When it was burning he threw the bottle in the direction of the building next to which TS and her friend were seated. It landed near their feet. The glass smashed as intended but the sparkler did not ignite the contents of the bottle.

26 Still standing next to his bag, the offender removed the second bottle, took the lighter and made to light the sparkler. Before he could do so he was tackled by a number of boys.

27 For reasons which I explained when I returned the verdicts of the Court, I am satisfied that the offender prepared and used the petrol bombs not to attempt further injury to TS but to delay his arrest.

28 Ambulance officers treated TS and CB at the school. They severed the bolt which was pinning CB’s legs. Both complainants were taken to hospital and treated.

29 TS was admitted to hospital. Her left lung had collapsed because blood and air had entered the chest cavity. She could breathe unaided but it hurt her to breathe deeply. The surgeon who treated her, Dr Mihrshahi, thought that the bolt probably passed between the ribs, back and front. Any resulting bone damage did not show up on X-ray, though the effect of the surgeon’s evidence was that minor damage might not be able to be detected by that means. I conclude that if there was any bone damage it must have been slight.

30 TS remained in hospital for almost a week while the lung was repaired. Unfortunately, the repair was not immediately successful and she was obliged to re-enter hospital for further surgery. She remained there for almost another week. She must have found the whole experience frightening. Her school and social activities were seriously disrupted for a considerable time. She has been left with scars where the bolt entered her back and left her chest. She still has occasional pains in the chest and some muscle weakness, but there is no suggestion that these effects will last long.

31 The Crown put before the Court the report, dated 1 April 2004, of a counsellor, who, as such, saw TS at school early in 2004. The counsellor observed that TS is outwardly strong and confident but inwardly troubled as a consequence of the attack. She is troubled when events remind her of the attack. She is hypervigilant and wary of strangers and untrusting of friends. She would like to understand why the attack took place but cannot. I accept that TS is experiencing these effects.

32 The counsellor goes on to express opinions about the seriousness of these effects for TS and how long they will persist, but I think it inappropriate to accept those opinions. They are offered by a person who implies that she is an expert but who does not state her qualifications or experience. More importantly, she does not acknowledge that she has read the Court’s Expert Witness Code of Conduct, so the report (at least as far as it is used to tender any opinion) is inadmissible.

33 I think that TS is a strong person who has an admirable attitude towards the things that have happened to her. I accept that she is troubled in the manner explained by the counsellor and I infer that these effects may last for some time. However, there is no evidence that she has suffered any long term psychological harm or that she may need treatment in the future.

34 CB was admitted to hospital. Her wounds must have been very painful. Fortunately the bolt missed the perineal nerve of the right leg. The wound was explored and cleaned and the leg recovered well. There is permanent scarring at the entry and exit points and resulting from a surgical incision. The bolt missed an artery in the left leg. The wound was explored and closed. As with the right leg, no permanent damage has resulted and there is no suggestion of orthopaedic impairment, but the scars are permanent.

35 CB, too, must have found the events terrifying. Although her wounds have healed and her pain has gone, it is to be expected that she is and will continue to be embarrassed by the appearance of her scars; more so, I think, during the rest of her formative years. It is also to be expected that her mind has and may continue to be troubled by her experience, with consequent disruption to her school and social life, but fortunately there is no evidence of any long term psychological harm.

36 I have dealt with the consequences for TS and CB according to the evidence. There are also written Victim Impact Statements. That of TS is a substantial and detailed statement, setting out many of the things that have happened to TS and describing her thoughts and concerns. TS read her statement to the Court and the assembly. The statement made on behalf of CB was written by Ms Kerry Lane, psychologist. Ms Lane has not apparently attended upon CB professionally or tested or treated her. For the most part the statement merely repeats what CB has told Ms Lane. In parts, however, the statement purports to offer a professional opinion about the seriousness of the effects on CB and about her probable future.

37 The purpose of Victim Impact Statements is to give victims of crime a voice in the proceedings in which offenders are sentenced. However, the intention of the law is not to subject victims of crime to any further ordeal, so they are not obliged to give such statements and cannot be compelled to do so. And if they do, or if statements are given on their behalf, whether or not they are read in Court, those victims are not required to take an oath or make a solemn promise to tell the truth and cannot be tested by cross-examination on the contents of their statements. It is not the purpose of the law to make them witnesses and subject them to the burdens that ordinarily fall upon witnesses. This difference between the treatment in Court of Victim Impact Statements and evidence given in the ordinary way is justified by the purpose of the legislation.

38 Sometimes assertions of fact or opinion in Victim Impact Statements may go further than the evidence. Although there may be no difficulty if that happens, the Court may need in a particular case to make clear that it determines an appropriate sentence by reference only to the evidence.

39 Some of the material in the Victim Impact Statements used in the present case, particularly the one written by Ms Lane, comprises arguments and opinions which go further than the evidence. It is therefore important for me to explain to those who hear or read these reasons that I have determined the sentences to be imposed upon the offender according to the evidence. The Court acknowledges the contents of the Victim Impact Statements and expresses the hope that their use in the proceedings has played its part in the healing of injury. The Court expresses its sympathy to TS and CB for their undeserved injuries and suffering and wishes them a complete recovery.

40 The offender was born on 14 January 1987 and was a little short of sixteen years and three months old when he committed these offences. He is the youngest of the three sons of a stable family. He has always had a good relationship with his parents and with his eldest brother. The second brother, who is three years older than the offender, began bullying him at an early age. When the offender started primary school the brother encouraged other school children to bully and tease him as well. Their parents punished the elder brother, but apparently his misbehaviour continued. As a result the offender pursued a somewhat lonely course through school. He misbehaved occasionally, in response, I should think, to the behaviour of others. Sometimes he played the fool. It was twice suspected that he had attention deficit disorder, but that was never confirmed. The bullying and teasing continued into high school, where a group of students would make fun of him and sometimes assault him. His behaviour deteriorated and he was suspended three or four times for fighting. He told Ms Holme, who wrote a report for the Court, that after being tormented for longer than he could bear he just snapped and hit back. Apparently he was referred to counsellors at school, but it does not appear what, if anything, became of that.

41 The offender is intelligent and describes his academic performance as above average. He is most interested in science and design and technology.

42 Although he got on with a number of school colleagues and saw them outside school hours, the offender formed no lasting friendships. At the time of the offences, he reported, there were only two friends whom he trusted. It seems that he tended to keep his own company, and spent a considerable part of his leisure hours playing computer games alone.

43 There seem to be several reasons why the offender was bullied into isolation. Congregations, including groups of school children, sometimes reject those whom they see as unconforming. The offender does not look significantly different from other young people. He is of slight build, but not remarkably so. He is uninterested in and takes no part in sport. That might have been important in a community which regarded sporting achievement as important. He is a religious person, something that might have set him apart. He would have nothing to do with drugs, which, he said, made him “uncool”.

44 The most important reason seems to be the offender’s lack of ability to respond to others in an appropriate manner. For almost any child the school environment is a testing one and can be cruel. Children appropriately psychologically equipped learn how to modify their speech and behaviour so as to not attract unwelcome attention to themselves. The offender seems to have been unable to do so, to conform.

45 There are three reports of expert witnesses which offer some explanation for the offences. At the request of the Court, and in accordance with relevant legislation, a counsellor, Ms Holme, provided a specialist background report. Ms Holme is a psychologist involved in the Violent Offender’s Program of the Department of Juvenile Justice. Her report is well researched and very helpful. Much of the offender’s personal history which I have already related is taken from it.

46 The results of tests administered by Ms Holme suggested to her that before entering custody the offender was quite depressed, with loss of appetite, low energy levels and sleep difficulties. She thought the offender passive and inhibited in his social interactions. She said that the offender felt a considerable emotional distance from others and believed that he was not liked, not understood and not cared about. He felt that there was no-one he could rely on. The test results also suggested that the offender frequently experienced intense, angry feelings, but suppressed them, expending a good deal of energy in calming himself down. Such a pattern of coping, Ms Holme said, can reduce an individual’s awareness of the need to deal assertively with circumstances.

47 The offender was seen by Dr Langeluddecke, a clinical psychologist. Dr Langeluddecke reviewed the offender’s history and the available professional reports. She noted that when referred to the Hunter Mental Health Service in 2001 following aggressive outbursts which resulted in suspension from school, the offender was described as odd, struggling socially, having poor insight and being a concrete thinker. Dr Langeluddecke noted that in the same year a clinical psychologist said that he took things personally and could not handle teasing. After the offence Professor Greenberg, psychiatrist, described him as having a fragile personality structure and low self-esteem.

48 Dr Westmore, psychiatrist, saw the offender and noted the history, including incidents at school between 1999 and 2001 when, in response to teasing, the offender had struck a girl in the face and had twice retaliated by stabbing a pupil in the arm with a ball point pen. Dr Westmore noted the long history of teasing and bullying and expressed the view that the offender had probably suffered from depression for some years. That condition had become clinically significant in more recent times. There was a dysthymic disorder. Dr Westmore noted the offender’s weight loss, poor sleep patterns and the exacerbation of asthma during the weeks before the offences.

49 TS was the offender’s first girlfriend. Theirs was not a sexual relationship. She knew how he was treated by other pupils and sympathised with and supported him. The explanation of the events that followed lies in the offender’s perception of what was happening and what others, particularly TS, thought of him. I do not think that he necessarily saw things as they were, conditioned as he was by years of difficulty in personal relationships and affected as he was by his depression and dysthymic disorder.

50 The offender announced to TS that their relationship was at an end and I am satisfied that he did so because he believed, rightly or wrongly, that TS was interested in somebody else. To him she appeared happy at the announcement. Whether she was does not matter. Her friends later told him that she felt sorry for him and had been waiting for him to end their relationship. They and friends of his began teasing him about the ending of the relationship. The offender was hurt and felt rejected.

51 As I have already observed, the offender began his enquiries about the crossbow just before those events. The only direct evidence of his reasons for doing what he did comes from the accounts he has given from time to time to the police, to the Court and to the expert witnesses. It is not unknown for offenders to give biased or untruthful accounts on such occasions in order to try to justify their actions. However, I have formed the strong opinion that the offender has tried to give an honest account, particularly in explaining his reasons for his actions. I note that he insisted against legal advice on being interviewed by investigating police officers and knowingly making serious admissions.

52 The offender told Ms Holme that he chose the crossbow in order to “provide the biggest visual impact”, to shock his schoolmates. He felt that he had to go through with it. Afterwards he felt relieved, not happy. Ms Holme is of the opinion that the offences were “a culmination of ongoing torment, rejection and feelings of powerlessness”.

53 The offender told Dr Langeluddecke that he thought that he was depressed at the time. He told Dr Westmore that he felt nothing, indifferent. He wanted TS to see him and the weapon, he wanted her to know how he felt. Dr Westmore considered that a frank statement. He continued, “In many ways his behaviour has the characteristics of a somewhat powerless, impotent individual who commits an act of significant powerlessness and destructiveness, probably due to a range of mixed conflicted emotions, including revenge, a reassertion of his rights and an attempt to regain his sense of lost power, authority and perhaps personal dignity”.

54 Dr Westmore thought it probable that the offender’s emotional understanding of what he had done would only come later.

55 I am satisfied that the offender’s attack on TS and the associated events were the result of yet another uncontrollable and irresistible build-up of pressure. This time, instead of playing the fool or snapping back in some superficial way, the offender set out on a course of action which he knew would see him removed from the hell he could no longer abide. I accept that when he decided to order the crossbow he did so in order to shock. He must have realised when he ordered it that he would use it, though I think that it was probably not until later on that he decided that it was TS that he would shoot.

56 The Crown submitted that this case, or at least the wounding of TS, fell into the worst category of cases of its kind. Such a case would attract a very high sentence indeed. The maximum penalty for each of the two counts of wounding with intent to do grievous bodily harm is twenty-five years’ imprisonment. The maximum penalty for the unauthorised use of a crossbow is fourteen years’ imprisonment.

57 The Crown drew attention to a number of aggravating features, namely that the offences involved the use of a weapon, that the injuries and emotional harm caused to TS and CB were substantial and that the offences were committed without regard for public safety: Crimes (Sentencing Procedure) Act s21A (2)(c), (g) and (i).

58 The offences were very serious and were made worse by the features pointed to by the Crown. The very look of the broadhead bolt that he chose is frightening. It might have inflicted injuries of the gravest kind. The preparation and use of the petrol bombs and the offender’s readiness to use the deodorant spray, even though defensive in nature, placed a great many people in danger of serious injury.

59 However, there are several reasons why the offences do not in my opinion fall into the most serious category. First, there is the age of the offender. He was sixteen years and three months old when he committed the offences. The law has long recognised that the sentencing of children is different from that of adults. For children there is a far greater public interest in the imposition of sentences which promote rehabilitation and a correspondingly lesser interest in the imposition of strongly deterrent sentences.

60 Even so, in some cases the circumstances are so grave that even children must be given strongly deterrent sentences. There are examples where children have carried out serious criminal activity as well organised as that of adults in every way as though they were adults. The Crown submitted that the offender’s criminality was so great that for him the interests of rehabilitation ought not to prevail.

61 I am unable to accept that submission. Of course, the community has an interest in discouraging the use of weapons of the kind used by the offender and the creation of the risk that such use brings with it, but it is necessary to look at all the circumstances of the case.

62 While the injuries and disabilities which resulted from the use of the bolt might have been of the gravest kind, by chance they were not. While serious and disfiguring injury might have resulted from the use of the petrol bombs and the deodorant spray, by chance it did not. These conclusions have to be taken into account, and they mitigate the seriousness of the offences.

63 Moreover, the gravity of the offences can only be assessed by reference to the reason why they were committed. I find the case extraordinary. The offender did not wickedly go about the preparation and execution of the offences for the sole and calculated purpose of inflicting serious injury on others. Of course, he knew that what he was doing was wrong and he knew that injury would result, but I am satisfied that he did it because he was at his wits’ end. He said this to Dr Langeluddecke-

“It built up over years. I didn’t talk about it – I bottled it up inside me and it got worse. Towards the end I snapped and I couldn’t take it anymore. I knew what would happen. I knew I would get caught. I had to do it. I didn’t care if the police shot me. I am sorry I did it. I wish I had got it out of my system another way. Wish I had got help. Really, I wanted to leave school but I knew my parents wouldn’t understand. I couldn’t take the bullying anymore. I did what I had to do to get out of school”.

64 It is necessary to deal with a further submission by the Crown about the offender’s motives and honesty. It was submitted that he had tried to improve his position by pretending that he felt hurt and rejected by TS. The Crown referred to a number of answers the offender had given the police in their interview about why he acted as he did. There were these questions and answers-

Q. What did you say? Turn around?
A. I don’t know, even then she was considering me as being just a joke, I suppose, just, well, just oh, just walk away from me, she’s…
Q. How did you feel?
A. Not good.
Q. Was she not paying you attention?
A. Yeah. I don’t know what she was thinking but um..
Q. Did you have thoughts of jealousy from the day before when she was with the other boy you’d seen?
A. It’s not so much jealousy.
Q. What was it?
A. Well, um, she, she was, when I um, broke it off she, she wasn’t upset at all.
Q. Were you?
A. Yeah, I mean, I, I wasn’t, I didn’t want to break it off with her, I mean, I still liked her.
…
Q. What was the reason you had the crossbow there at that time and you wanted her to turn around?
A. Why, why I wanted her to turn around?
Q. Yes.
A. I don’t know, I guess just so she could face me instead of just ignoring me.
Q. Did you want her to see the crossbow?
A. No. I mean, of course she would have seen it but that’s not what, it wasn’t just look at this, it wasn’t, no.
Q. Was it there to scare her?
A. I guess a bit, yeah.
Q. Was it there to make her do something that you wanted to make her do?
A. No.
Q. Now, you said you shot her. Why did you shoot her?
A. Well, well, that’s not, she didn’t do anything there that was the reason.
Q. No, but why did you shoot her, what was the reason?
A. Right at that point?
Q. What was the reason you shot her at that point?
A. It’s from things, it’s not from something she did then.
Q. No, but what was it, what was it that made you shoot her? It might not have been from that but I’m asking you, what was it from?
A. It’s lots of things um…
Q. Can you tell me?
A. Well, I can try.
Q. Ok.
A. Um, I, when we, when, before I broke it off with her, before she started to lose interest I shared a lot about her, ok um, um, so yeah, she didn’t care that um, I broke it off with her because of all the stuff that she did um, so, you know, that, that was really bad for me, I s’pose, um, I dunno, I guess after that I just, maybe I had a nervous breakdown or something, I don’t know but yeah, it wasn’t, I don’t think it was more, I don’t think it was being angry at her, I think, I dunno.
Q. Did you want to hurt her?
A. I didn’t want to kill her.
Q. Did you want to hurt her?
A. Yes.
Q. Why did you want to hurt her?
A. To show her that I, how, my disapproval of what she’d done.

65 The Crown submitted that nowhere in the interview did the offender mention having being teased by TS or her friends, yet he told the expert witnesses who interviewed him that that was what happened. A single passage from Dr Westmore’s report will illustrate the point-

I inquired after the relationship ended, possibly on 20 February 2003 he said, did he have further contact with her and he said he saw her every day at school but he didn’t see her after school. He told me he wasn’t really getting on with her stating he was upset about what happened in their relationship.
I then asked him directly was TS also teasing him at school and he said at times. I inquired had she teased him before the relationship as well or only after the relationship ended and he said only after. I asked him how had that made him feel and he said, “Surprised and sad, I didn’t think she could do something like that.” I asked him was he angry and he said, “Yeah I guess so.”
I then asked him directly what did he do with TS and he said, “Shot her.” I asked him why he had done that and he said, “I don’t know, at the time she was the source of the pain.” I asked him what he meant by that and he said, “There was the bullies as well but she was what caused me the most hurt.” I asked him what had she done and he said, “She was happy.” I asked him what he meant by that and he said, “With the splitting up.” He said, “She was going around, he dumped me, he dumped me, I saw her, it was as if it was the best thing that ever happened to her.”

66 I have already spoken about my impression of the offender’s truthfulness. I do not think that the conclusion contended for can be drawn from any precise comparison of what the offender has said from time to time about his motives. One of the real difficulties about the matter is that in my opinion the offender lacks a proper understanding of why he offended. I think that he has tried to tell the truth.

67 I conclude that because of the offender’s age and the unique circumstances in which he committed the offences he is entitled to be dealt with in every way as a child. In imposing sentences I must therefore give more weight to the need for rehabilitation and less to retribution and deterrence. The circumstances of the offences are so unusual that no sentence imposed is likely to deter the commission of such offences generally. I accept the evidence of the experts, particularly Ms Holme and Dr Westmore, that the offender is in urgent need of psychological or psychiatric counselling so that he can better understand why he acted as he did and the effect that his actions have had on others. Programs are available within the juvenile justice system but the offender will not be eligible to join them until he has been sentenced.

68 The interests of the community require the offender to learn to recognise what has happened and to guard against any repetition. He needs access to treatment programs, psychological and psychiatric services, education and vocational services.

69 This special need for professional services is a circumstance for the purposes of s19(5) Children (Criminal Proceedings) Act which will make it necessary for me to direct under s19(1) that the whole of the non-parole period of the sentence I have in mind should be served in a Detention Centre. The same reasons also justify the fixing of a parole period which exceeds one quarter of the total effective head sentence.

70 I trust that the offender will soon be able to make a start in the task he must undertake. Already the signs are good. He has set about study for the higher school certificate by correspondence and has done well, topping his class in some subjects.

71 The offender is of prior good character. He pleaded guilty at the earliest opportunity to the second and fifth counts. Although he pleaded not guilty to the fourth count, his defence was only ever technical. He never challenged the facts and always acknowledged having wounded CB and having intended to do the relevant harm to TS. His counsel always acknowledged that if the short (it was dealt with in half an hour) point of law was lost the offender would have to be found guilty. His pleas were intended and apt to spare TS the ordeal of giving evidence. The fact that TS had to give evidence in a trial for offences he did not commit does not affect the significance of his pleas. He is entitled to maximum consideration for their utilitarian value.

72 Although he has not always been able to say so or to say so clearly, I am satisfied that insofar as he realises what he has done the offender is sorry. Dr Westmore thinks so, and I accept his evidence. The offender’s pleas of guilty, his forthright and honest approach to the police and to the Court are in his favour. I think that he is remorseful, though I do not think that he will fully realise for a long time the consequences of what he has done.

73 All three offences lay in a single bout of criminality committed for a single reason. A substantial degree of concurrency is therefore appropriate. Although the two counts of malicious wounding with intent to do grievous bodily harm contemplate the infliction of different wounds, the intended harm is the same. Any partial accumulation must therefore be modest.

74 In imposing sentence I take into account the totality of the offender’s criminality. My intention is to devise sentences with an effective non-parole period which will expire when the offender is about twenty-one years and three months old. That will enable him to remain in a Detention Centre under the provisions of s19 Children (Criminal Proceedings) Act until he has completed the whole of his non-parole period. I would expect that those then responsible for his oversight would devise conditions appropriate to promote what I anticipate will be his continued rehabilitation in the community on parole.

75 I have also adjusted the relative lengths of the parole and non-parole periods of the sentences for the second and fourth counts because of the partial accumulation. I have imposed a fixed term for the sentence on the fifth count because it is wholly subsumed by the non-parole period on the second count.

76 For the malicious wounding of TS with intent to do her grievous bodily harm the offender is sentenced to imprisonment for nine years. The sentence will be taken to have commenced on the day of his arrest, 3 April 2003 and will expire on 2 April 2012. I fix a non-parole period of four years, expiring on 2 April 2007.

77 For the malicious wounding of CB with intent to do grievous bodily harm to a person the offender is sentenced to imprisonment for eight years. The sentence will be taken to have commenced on 3 April 2004 and will expire on 2 April 2012. I fix a non-parole period of four years, which will expire on 2 April 2008.

78 For the use of a prohibited weapon without being authorised to do so by licence or permit the offender is sentenced to imprisonment for one year. The sentence will be taken to have commenced on 3 April 2004 and will expire on 2 April 2005.

79 The offender will be eligible for release on parole on 2 April 2008.

80 I direct pursuant to the provisions of s19 Children (Criminal Proceedings) Act that the whole of the non-parole period of the sentences be served in a Detention Centre.

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Last Modified: 06/07/2004