R v MJR

[2010] NSWSC 653

CITATION:	R v MJR [2010] NSWSC 653
HEARING DATE(S):	17 May 2010, 18 May 2010
JUDGMENT DATE :	18 June 2010
JUDGMENT OF:	Johnson J at 1
DECISION:	1. The Offender is convicted for the crimes of murder and aggravated break enter and steal to which he has pleaded guilty. For the offence of aggravated break enter and steal, taking into account the matters on the Form 1 for this offence, the Offender is sentenced to a non-parole period of two years and six months commencing on 24 April 2008 and expiring on 23 October 2010, with a balance of term of one year and six months commencing on 24 October 2010 and expiring on 23 April 2012. 2. For the offence of murder, taking into account the matters on the Form 1 for this offence, the Offender is sentenced to a non-parole period of 11 years and one month commencing on 24 October 2009 and expiring on 23 November 2020, with a balance of term of five years and one month commencing on 24 November 2020 and expiring on 23 December 2025. 3. An order is made under s.19 Children (Criminal Proceedings) Act 1987 directing that the Offender serve his sentence up to the age of 21 years as a juvenile offender. 4. Although it remains a matter for the Mental Health Review Tribunal to determine under s.59 Mental Health (Forensic Provisions) Act 1990, it is recommend that the Offender be detained in the Forensic Hospital for as long as is reasonably possible, in accordance with law, to assist the process of care and treatment, which will aid his rehabilitation and serve the public interest. 5. The earliest date upon which the Offender will be eligible for release on parole is 23 November 2020.
CATCHWORDS:	CRIMINAL LAW - sentence - pleas of guilty - murder - aggravated break enter and steal - father murdered by 17-year old son - shotgun blast to head while father sleeping - prior good character - offender suffering from undiagnosed juvenile bipolar disorder at time of offence - offender now a correctional patient detained at Forensic Hospital - relevance of mental disorder and youth to sentence
LEGISLATION CITED:	Crimes Act 1900 Firearms Act 1996 Crimes (Sentencing Procedure) Act 1999 Children (Criminal Proceedings) Act 1987 Mental Health (Forensic Provisions) Act 1990
CATEGORY:	Sentence
CASES CITED:	The Queen v Olbrich [1999] HCA 54; 199 CLR 270 Apps v R [2006] NSWCCA 290 R v Holton [2004] NSWCCA 214 R v Borkowski [2009] NSWCCA 102 Collon v R [2009] NSWCCA 187 IE v R [2008] NSWCCA 70 R v Engert (1995) 84 A Crim R 67 R v Hamid [2006] NSWCCA 302; 164 A Crim R 179 KT v R [2008] NSWCCA 51; 182 A Crim R 571
PARTIES:	Regina (Crown) MJR (Offender)
FILE NUMBER(S):	SC 2009/7848
COUNSEL:	Mr P Barnett SC (Crown) Mr R Foord (Offender)
SOLICITORS:	Director of Public Prosecutions (NSW) (Crown) Flynn Conn (Offender)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

Johnson J

18 June 2010

2009/7848 R v MJR

REMARKS ON SENTENCE

1 JOHNSON J: On 23 April 2008, the Offender, MJR, (then aged 17 years) shot his father dead with a shotgun. The weapon had been obtained by the Offender and his elder brother in a burglary undertaken a few days earlier.

2 On 17 May 2010, the Offender pleaded guilty to murder, an offence punishable by imprisonment for life. In addition, he pleaded guilty to aggravated break enter and steal, an offence under s.112(2)(a) Crimes Act 1900 punishable by imprisonment for 20 years.

3 In passing sentence for the crime of murder, I am asked to take into account on a Form 1, offences of being carried in a conveyance taken without consent of the owner under s.154A(1)(b) Crimes Act 1900 and two offences of obtaining money by deception under s.178BA(1) Crimes Act 1900.

4 In passing sentence for the offence of aggravated break enter and steal, I am asked to take into account on a Form 1, offences of possession of an unauthorised firearm without being licensed under s.7A(1) Firearms Act 1996, using an unauthorised firearm without being licensed under s.7A(1) Firearms Act 1996, possession of ammunition without being licensed under s.65(3) Firearms Act 1996 and not keeping a firearm safely under s.39(1)(a) Firearms Act 1996.

5 The crime of murder carries a standard non-parole period of 20 years and aggravated break enter and steal attracts a standard non-parole period of five years. However, as the Offender was under the age of 18 years at the time when these offences were committed, the standard non-parole period provisions do not apply to his sentencing: s.54D(3) Crimes (Sentencing Procedure) Act 1999. I place to one side the standard non-parole periods which should play no part in the sentencing of the Offender.

Facts of Offences

6 It is necessary to make findings of fact for the purpose of passing sentence. An Agreed Statement of Facts was tendered, together with a number of other documents, in the Crown case (Exhibit A). At the request of the defence, the Crown called the Offender’s mother to give oral evidence and be cross-examined (T12-25, 17 May 2010). The Crown tendered a background report dated 11 May 2010 prepared by officers of the Department of Juvenile Justice (Exhibit B). This report fulfilled the requirements of s.25 Children (Criminal Proceedings) Act 1987. Tendered in the defence case was a folder of reports and documents (Exhibit 1). Dr Kenneth Nunn, psychiatrist, gave oral evidence in the defence case (T31-58, 17 May 2010). An email from Dr Nunn dated 18 May 2010 was also tendered (Exhibit 2).

7 The Court may not take facts into account on sentence, in a way that is adverse to the interests of the Offender, unless those facts have been established beyond reasonable doubt. On the other hand, if there are matters which the Offender relies upon in mitigation of penalty, it is enough if those matters are proved by the Offender on the balance of probabilities: The Queen v Olbrich [1999] HCA 54; 199 CLR 270 at 281 [27]-[28].

8 The Offender was born in February 1991.

9 In April 2008, the Offender’s father (“the victim”), then aged 47 years, resided on a 25-acre property near Mudgee with his 19-year old son, HR. The Offender resided with friends at a nearby property at Mudgee, where he worked as a jackeroo.

10 On Monday, 21 April 2008, the Offender arrived at his father’s house, and he was to stay there for the remainder of the week with his father’s consent.

11 On 22 April 2008, the Offender and HR travelled to the nearby property at which the Offender had been residing and working. There they broke into the locked garage and locked firearms’ cabinet and stole five firearms, a Winchester .222 calibre rifle, a Winchester .22 calibre rifle, a Sportco .22 calibre rifle, a Pietro Beretta .410 shotgun and a Hollis & Sons 12-gauge double-barrel shotgun together with ammunition.

12 HR later told the police that the firearms were taken so that he could intimidate a person who owed him money to secure the payment of the debt. The Offender told police that the firearms were taken for HR to sell to a friend. The evidence does not permit a finding adverse to the Offender (as opposed to his brother) with respect to the motive for stealing the firearms. However, the fact that the Offender lived at the premises where the firearms were stored supports a finding that he used his knowledge of their location to assist the planning of the theft and the theft itself. The Crown acknowledged in submissions that there was no evidence to support a finding that the Offender had stolen the firearms for the purpose of using them against any person, including his father.

13 The brothers took the stolen firearms back to their father’s house where they were staying. The firearms were placed in a shed at the premises and later in HR’s bedroom cupboard. At no time whilst the firearms were in the possession of the Offender and HR were they stored in accordance with the Firearms Act 1996, giving rise to the offences to be taken into account on the Form 1 in passing sentence on the aggravated break enter and steal matter.

14 HR and the Offender also maintained possession of ammunition which had been stolen with the firearms. Neither the Offender nor HR were licensed to possess firearms or ammunition, giving rise to a further offence to be taken into account.

15 After stealing the firearms, both the Offender and HR fired the .22 calibre rifle and the .222 calibre rifle on their father’s property on the afternoon of 23 April 2008. Neither the Offender nor HR held a Firearms Licence/Permit, giving rise to a further offence to be taken into account on the Form 1.

16 The Offender and HR were present at their father’s house on the evening of Wednesday, 23 April 2008. At about 9.15 pm, the victim arrived home from his work as a service engineer at a nearby mine. He drove home in a Ford Falcon sedan, a vehicle owned by his employer, which the victim was entitled to drive as part of his employment.

17 There were no issues or problems between the victim and the Offender during the evening. The Offender and HR watched television in HR’s room until about 10.00 pm. At that time, the victim went to bed. Alcohol and drugs were not detected in the victim upon post-mortem examination. It is clear that he was not intoxicated in any way. It appears that HR fell asleep whilst watching television.

18 There is some suggestion that the Offender had consumed alcohol or cannabis earlier in the evening, although the evidence is unclear in this respect. At about 10.30 pm, the Offender went to the cupboard in which the firearms were located and removed the Hollis & Sons 12-gauge double-barrel shotgun. He loaded it and cocked it, and then lay down with the shotgun and continued to watch television.

19 Later in these remarks on sentence, I will make findings concerning the motive for what followed and the Offender’s mental state at that time.

20 After a time, the Offender got up and walked into the victim’s room where he found his father sleeping. He turned on the bedroom light. I am satisfied beyond reasonable doubt that the Offender moved close to his sleeping father, so that the muzzle of the shotgun was between 50 centimetres and one metre from the victim’s head. The Offender fired the weapon, inflicting a single and immediately fatal gunshot wound to the back of the victim’s head.

21 According to the pathologist who undertook the post-mortem examination of the victim, the pattern of the injury including the presence of lacerations, powder and smoke deposition and unburned powder particles was consistent with the shot being fired at a range of no more than 50 centimetres from the head of the victim. Assuming the victim was shot in the position in which he was found (and there was no evidence that he had been moved after the shooting), the pathologist concluded that the shot was fired from the opposite side of the bed, at a slightly downward angle, and almost directly across the bed.

22 Christiaan Pieterse, of the Police Forensic Ballistics Investigation Section, expressed the opinion that the muzzle of the shotgun was held at a distance not further than one metre away from the victim at the time of discharge and that, if the ill-defined band of powder deposition which was observed was soot like or carbonaceous deposits, then the distance between the muzzle and the victim could have been as close as 50 centimetres.

23 In light of the forensic and ballistic evidence, I do not accept the Offender’s account to police that he was between 3.5 and five metres away from the victim when the shotgun was fired. I am satisfied beyond reasonable doubt that the Offender discharged the weapon whilst standing in close proximity to the victim and when aiming the shotgun towards the head of his sleeping father.

24 I am satisfied beyond reasonable doubt that, at the time when he pulled the trigger, the Offender intended to kill the victim. Mr Foord, counsel for the Offender, submitted that the plea of guilty to murder had been entered upon the basis that the Offender had acted with reckless indifference to human life, but not intent to kill. I will return to the consequences of this finding in this respect later in these remarks on sentence.

25 It was immediately apparent to the Offender that he had killed his father. HR came into the room and saw what the Offender had done. HR checked the victim and reported no signs of life. A towel was placed over the victim’s head.

26 The Offender then went outside and fired the other shotgun cartridge off into the air to empty the firearm. He then placed both fired cartridges into a container which police later found in the victim’s work vehicle.

27 Neither the Offender nor HR called for assistance or to report the death of the victim. I am satisfied beyond reasonable doubt that the brothers, in a state of panic, decided to flee in the victim’s work vehicle. To this end, the brothers agreed that it was necessary to obtain money to assist their flight. The brothers took the victim’s credit card and travelled in his vehicle to Mudgee where, at 11.27 pm on 23 April 2008, the sum of $1,000.00 cash was obtained from an ATM machine at the Westpac Bank. At 11.29 pm, a further attempt was made to obtain $1,000.00 cash, but this was declined by the ATM, no doubt because of the daily ceiling on cash withdrawals. The Offender and HR remained in Mudgee and, at 12.03 am on 24 April 2008, a further $1,000.00 in cash was obtained from the victim’s account through the ATM machine. With the $2,000.00 in cash, the Offender and HR returned to the property where they packed a number of personal items into the vehicle.

28 When interviewed by police initially, the Offender and HR falsely omitted to tell police of the visit to the Westpac Bank in Mudgee for the purpose of obtaining cash using the victim’s card. However, bank records provided clear evidence of the time of these transactions, and the Offender asks that two offences of obtaining benefit by deception be taken into account on sentence for murder.

29 When interviewed by police, the Offender said that, after the shooting, he stayed up for the rest of the night watching television and HR went back to bed. I accept that this is what happened after the brothers returned from obtaining the cash in Mudgee. Once again, the Offender and HR took no steps to report the matter to the authorities.

30 I should mention that the Offender made an early admission as to what he had done. At about 12.35 am on 24 April 2008, the Offender sent a text message to an 18-year old female friend of his saying “I have done something bad that can get me 15 year in gaol”. The friend rang the Offender and a discussion followed in which the Offender said “I done something bad” and that “I shot my dad”. The Offender said “I’ve drank two bottles of wine and I don’t even feel drunk”. The friend did not believe the Offender’s claim to have shot his father, thinking that he was drunk and making it up.

31 On the morning of Thursday, 24 April 2008, the Offender and HR set off from the property in the victim’s vehicle. They had packed some clothes into the vehicle and had placed all of the firearms, including the shotgun used to murder the victim, into the boot of the vehicle before leaving the property. The taking of the vehicle gave rise to the offence of being carried in a conveyance without consent of the owner, also to be taken into account on sentence for murder.

32 The Offender and HR drove to Penrith where the Offender purchased some new clothes and a new mobile phone while HR purchased two video games.

33 At about 8.45 am on 24 April 2008, the Offender’s mother (then living at St Marys) received a text message from the Offender saying “Mum call me now it’s really urgent”. The Offender’s parents had separated in about 1997, when the Offender was six years of age. The Offender’s mother immediately rang back enquiring as to what was wrong. The Offender sounded distressed at the time and said “I shot Dad and he’s dead”. After further discussion, the Offender said “I shot him in the back of the head with a shotgun. There’s only a small hole”. The Offender’s mother became hysterical and commenced to scream and the Offender said “I knew you’d react like that. Call police because otherwise no one will find him”. The mother then made telephone calls to report what the Offender had told her. She told police of the conversation and that both the Offender and HR were in a car that had left Mudgee.

34 Shortly after 9.15 am on 24 April 2008, the victim’s mother (the Offender’s grandmother) walked from the nearby property on which she was living to the victim’s property. Before that, she had received a confusing telephone call from a woman suggesting that there had been a “bad accident”. She decided to walk over to the victim’s property. She saw two police vehicles in the driveway, and the vehicles stopped and reversed back to the road. The Offender’s grandmother entered the house and discovered the victim’s body lying in bed with a towel over the head. She went to the verandah and used her umbrella to wave to the police at the front gate. Police entered the victim’s home and investigations commenced. It was noticed that the victim’s work vehicle was missing from the property.

35 At about 10.15 am, police telephoned HR’s mobile phone which was answered by the Offender. During the telephone call, the Offender stated that he was responsible for shooting the victim. When asked by the police officer what it was all about, the Offender said “I really don’t, just dad’s been friggin’ treatin’ me and my brother like shit for several years and, I’ve just, I don’t know, for some reason I just snapped”. The Offender was asked to go to a nearby police station, or to provide his actual whereabouts, but he refused to do so, stating that he did not want to be caught by the police. Over the following two-and-a-half hours, police continued to negotiate with the Offender by telephone. During that time, he refused to provide his whereabouts or to attend a police station. During this time, HR was driving the vehicle and the Offender was in the passenger seat.

36 Eventually, the pair agreed to surrender and they went to the Castle Hill Police Station where they were arrested. The vehicle in which they had been travelling was searched and the four stolen firearms, together with a large amount of ammunition, was located in the boot.

37 The Offender took part in an electronically recorded interview and was subsequently charged with the present offences. He admitted in the interview that he had shot his father. He told police that the victim had mistreated him.

38 He has remained in continuous custody since 24 April 2008.

HR’s Sentences

39 HR was also charged with offences arising from the events of 23 and 24 April 2008. On 4 September 2009, HR pleaded guilty in the Supreme Court to offences of being an accessory after the fact to murder, aggravated break enter and steal and two counts of obtaining money by deception. On 4 December 2009, HR was sentenced by RA Hulme J to terms of imprisonment for these offences, together with offences to be taken into account on a Form 1. In sentencing HR for the offence of being an accessory after the fact to murder, an offence of take and drive conveyance was taken into account. In sentencing HR for the offence of aggravated break enter and steal, offences of possession of firearms whilst unlicensed and using firearms whilst unlicensed, possession of ammunition whilst unlicensed and not keeping firearms safely were taken into account on a Form 1. In addition, HR pleaded guilty to a related summary offence of driving whilst disqualified.

40 On the charge of aggravated break enter and steal (taking into account the firearm offences on the Form 1 document), RA Hulme J sentenced HR to imprisonment comprising a non-parole period of two years and six months and a balance of term of 10 months, with a non-parole period commencing 24 April 2008 and expiring on 23 October 2010 and with the balance of term to expire on 23 August 2011. For the offence of accessory after the fact to murder (taking into account the offence of taking and driving a conveyance without the consent of the owner), HR was sentenced to imprisonment comprising a non-parole period of two years and a balance of term of one year and nine months, with the non-parole period to commence on 24 April 2009 and to expire on 23 April 2011 with the balance of term to expire on 23 January 2013. Fixed terms of imprisonment of three months were imposed for the obtain money by deception offences, commencing on 24 April 2009 and expiring on 23 July 2009. A concurrent sentence of imprisonment was imposed for the drive whilst disqualified offence.

41 Accordingly, the total effective sentence imposed on HR comprised imprisonment for a full term of four years and nine months with a non-parole period of three years.

The Offender’s Mental Health

42 The Offender was examined, at the request of his solicitors, by Dr Bruce Westmore, forensic psychiatrist, in March 2009 and reports of Dr Westmore dated 27 March 2009, 15 April 2009 and 5 January 2010 were tendered in the Offender’s case. In addition to examining the Offender, Dr Westmore undertook a document review. A number of psychiatric issues were raised, none of which constituted a realistic defence that could be advanced at trial for murder.

43 A sentencing decision in this case requires findings to be made, to the extent that it is possible, as to why a 17-year old youth came to murder his father.

44 The Offender has no prior criminal history. The evidence reveals a history of impulsivity and disturbance leading to medical and psychological assessment in 2001 and 2002 for what was diagnosed as attention deficit hyperactive disorder (“ADHD”), with the Offender being prescribed Dexamphetamine. Behavioural problems persisted thereafter. There is some history of alcohol and substance abuse.

45 As previously mentioned (at [38]), the Offender has been in custody since his arrest on 24 April 2008. Up to September 2009, the Offender was housed in facilities run by the Department of Juvenile Justice, principally the Kariong Juvenile Detention Centre. The evidence before the Court reveals a number of severe mental health problems encountered by the Offender whilst in juvenile detention facilities, including severe depression, hallucinations and feelings of self-harm, sometimes acted upon. Extensive psychiatric supervision and treatment was undertaken with limited effect.

46 Because of the deterioration in the Offender’s mental health, he was admitted, between 1 and 25 September 2009, to the Forensic Hospital at Long Bay. After discharge from that facility, he returned to Kariong Juvenile Detention Centre, where he remained until readmission to the Forensic Hospital on 10 December 2009.

47 Since 10 December 2009, the Offender has been housed in the Bronte Adolescent Forensic Intensive Care Unit (“Bronte Unit”) within the Forensic Hospital. The Forensic Hospital is a new facility, comprising a 135-bed high-security environment for male and female adults and adolescents operated by Justice Health at Long Bay. The Bronte Unit, which specialises in the treatment of adolescent forensic patients and correctional patients, is the first of its kind in Australia. The facilities and treatment available at the Forensic Hospital, and the Bronte Unit, constitute a most welcome addition to the resources available in this State for the detention, treatment and care of forensic patients and correctional patients.

48 Following transfer to the mental health facility at the Forensic Hospital, the Mental Health Review Tribunal undertook a review of the Offender’s case for the purposes of s.59 Mental Health (Forensic Provisions) Act 1990. It was determined that the Offender, as a mentally ill person, should continue to be detained at that mental health facility.

49 Dr Nunn, the Senior Consultant Child and Adolescent Psychiatrist attached to the Bronte Unit, gave evidence at the sentencing hearing. By 18 May 2010, Dr Nunn had seen the Offender on more than 60 occasions individually for periods of between 30 and 45 minutes, and on many more occasions with staff and other young men who are patients within the Bronte Unit. The Court was informed that the Offender requires ongoing care and treatment in a specialist mental health facility.

50 Dr Nunn described the Offender as “a very challenging patient to diagnose accurately and with certainty”. However, the opportunity to assess the Offender over a lengthy period of time has led Dr Nunn to diagnose juvenile bipolar disorder that has developed within a traumatic and conflicted family context. Dr Nunn considers that the condition is likely to have been present in the Offender for some years. The condition is characterised by so-called rapid cycling, ultradian volatility and mixed mood states. The Offender is presently being treated with very substantial doses of Quetapine Fumarate (a medication used to treat psychosis and mood disorder) to reduce his levels of emotional arousal and agitation, these being dosages equivalent to those used in the treatment of acute schizophrenia. In addition, the Offender is being treated with two mood stabilisers, Lithium Carbonate and Sodium Valproate (also used for epilepsy) in substantial doses. Dr Nunn states that these combined medications have reduced the volatility of his emotions and the intensity of his propensity for self-harm and his rage. The medication has enabled him to sleep at times when he was most prone to suffer extreme feelings of desperation. Dr Nunn described a long-term treatment plan which it was hoped could be maintained with the Offender remaining at the Forensic Hospital.

The Offender’s Mental State on 23 April 2008

51 Both Mr Foord and the Crown submitted that the Court should find that, at the time of the offences in April 2008, the Offender was suffering from juvenile bipolar disorder as described by Dr Nunn. It was common ground in submissions that the Court could be satisfied that the Offender has developed post-traumatic stress disorder since the commission of the crimes and whilst in custody. In addition, I am satisfied that the Offender suffered from depression in the months before April 2008, which spiralled into a deep and severe depression following his arrest and detention in custody.

52 I am satisfied on the balance of probabilities that at the time of the commission of these offences, the Offender was suffering from juvenile bipolar disorder which was untreated. I am satisfied that this condition impacted upon the Offender’s mental processes at the time of the offences and, in particular, the murder. His emotional state was affected by volatility which could bear upon his judgment. These considerations, of course, do not provide a form of defence to the charges. The Offender has pleaded guilty. Rather, this matter is relevant to the assessment of the Offender’s moral culpability and the determination of an appropriate sentence to be passed, in particular, on the murder count.

53 The psychiatric evidence bears upon a further issue as well. When interviewed by police on 24 April 2008, the Offender was asked how and why he came to kill his father. He stated that, after taking the shotgun from the cupboard, loading it and cocking it, he started thinking about past incidents where his father had punished him physically. He said that he then walked into the victim’s bedroom, turned on the light and soon after discharged the shotgun towards his father. He maintained to police that his intention was to fire it into the wall near the victim’s bed in order to scare him. I have rejected that account, which is entirely inconsistent with the forensic and ballistic evidence concerning the proximity of the muzzle of the shotgun to the victim’s head. I have found that the Offender acted with intent to kill his father.

The Relationship Between the Offender and the Victim

54 What does the evidence reveal concerning the relationship between the victim and the Offender? As I have mentioned, the victim and his wife had separated in 1997 when the Offender was about six years of age. Thereafter, the Offender and his brother remained with their mother living at Penrith until the Offender was about 10 years’ old. The parents then negotiated for HR to move to his father’s place at Mudgee, with the Offender remaining with his mother at Penrith. When the Offender was 12 years’ old, ongoing behavioural issues resulted in the parents agreeing to move him to live with his father at Mudgee. Behavioural issues arose during the Offender’s secondary education, marked by suspensions. He attended several schools, but left school in Year 11. The Offender enjoyed agriculture and outdoor activities. He worked as a farmhand, then as a jackeroo, the employment he had in April 2008.

55 A number of statements were taken by police from family members after the murder of the victim. Some persons mentioned that the victim had been a strict and domineering father. However, the evidence does not rise above that, and certainly does not disclose a history of physical or emotional abuse on the part of the victim towards the Offender. The Offender’s mother gave oral evidence at the sentencing hearing. In some respects, she was critical of the victim’s attitude towards his sons, however her statement to police did not disclose significant issues in this respect.

56 There had been an argument between the Offender and his father in October 2007, in which the police were called. After speaking to the Offender and the victim, it does not appear that further action was taken. It does not appear to have been a significant incident, except to demonstrate that there was some friction between the victim and the Offender.

57 I am not satisfied on the balance of probabilities that there was a history of physical or emotional abuse by the victim towards the Offender which may have played some part in explaining the offence. In my view, the evidence rises no higher than the victim being a relatively strict father, a scenario which is not uncommon in our society and which ought not attract criticism. I keep in mind, as well, that the Offender displayed behavioural difficulties. It has not been demonstrated that any conduct of the victim towards the Offender serves to explain why it came to pass that the Offender murdered his father.

58 There had been past friction between the Offender and the victim. However, it is entirely clear that there was no argument or conflict between the victim and the Offender on the evening of the murder or in the preceding days when the Offender had been living at the victim’s property.

59 The issue which does arise is whether the Offender believed or perceived that his father had been in some way abusive towards him, with this belief affecting his judgment and thought processes on the evening of the murder. The evidence of Dr Nunn concerning the manifestations of juvenile bipolar disorder provides support for this conclusion.

60 I am satisfied on the balance of probabilities that the Offender believed that his father had acted in an unduly harsh fashion towards him, despite the lack of objective evidence for such a belief, and that this belief affected the Offender’s judgment leading up to the murder. He mentioned issues of this type to police in later explaining why he came to shoot his father.

61 My conclusion in this respect is fortified by the absence of any other motive presenting itself for the Offender to murder his father. There was no financial advantage which the Offender could obtain (putting aside the ATM cash withdrawals which were a panicking response to the crime). There was no argument or fight leading up to the use of the firearm. Although the Offender and his brother fled, it was the Offender who rang his friend that evening and his mother the following morning, and told each of them that he had shot his father. It is apparent that the call to the mother was intended to minimise the prospect of someone else, such as the Offender’s grandmother, stumbling onto the scene of the crime. Although there was a half-hearted effort to avoid the police for a short period, the Offender and his brother surrendered themselves to police. The fact that the Offender and his brother took the stolen firearms with them is a troubling feature. However, the firearms were not used again in any fashion by the Offender or his brother after they had fled their father’s property.

62 I am satisfied that the Offender’s undiagnosed and untreated mental disorder, in the form of juvenile bipolar disorder and his depression, affected his judgment and contributed to the commission of this terrible crime.

Objective Seriousness of Offences

63 As the standard non-parole period provisions have no application to this case, it is not necessary (for that purpose) to make an assessment of where the murder and aggravated break enter and steal offences lie on the range of objective seriousness.

64 However, an assessment of the objective seriousness of the offences is an important and necessary part of the sentencing function and counsel addressed the Court on that issue.

65 The offence of murder involved the Offender approaching the victim, who was sleeping in his bed, with the shotgun being discharged in relatively close proximity to the victim’s head. The Offender had obtained the shotgun from a cupboard and loaded it, before considering what he was going to do with it. He then proceeded to shoot his sleeping father with intent to kill.

66 There was no argument or incident as between the victim and the Offender leading up to the crime which may serve to explain why the Offender would act in this way. The offence was committed on what might be considered to be an ordinary and unremarkable evening where members of a family had dinner, watched television and then went to bed. The explanation for this bizarre crime lies in the Offender’s wish to harm and kill his father in circumstances where an undiagnosed and untreated mental disorder had an impact upon his judgment. The Offender acted out of anger and revenge for what he perceived, unreasonably, to have been past wrongdoing on the part of the victim towards him. The Offender’s mental disorder affected his judgment in such a way as to reduce his moral culpability for this crime.

67 Although it has been said of the crime of murder that an intent to kill, as opposed to an intent to cause grievous bodily harm or reckless indifference to human life, is a consideration pointing to greater objective seriousness (Apps v R [2006] NSWCCA 290 at [49]), it remains a matter for assessment of the facts of the particular case. Even if this case could be characterised as one based upon reckless indifference to human life, there is no prima facie presumption that this type of murder is less culpable than murder resulting from specific intention: R v Holton [2004] NSWCCA 214 at [59]. If accepted, the submission of Mr Foord that the Offender acted with reckless indifference to human life (and not intent to kill), would not lead to a materially different finding concerning the objective seriousness of the offence. There would be little difference between a scenario where the Offender held the shotgun close to the victim’s head and fired it in that direction, where the Offender foresaw or realised that his act would probably cause the death of the victim, but he continued regardless of the risk of death (reckless indifference to human life) and the scenario where he so acted with intent to kill. As I have said, I am satisfied, beyond reasonable doubt, that the Offender acted with intent to kill.

68 An assessment of the objective seriousness of the crime of murder in this case involves consideration of facts which relate directly to the commission of the offence, including those which may explain why it was committed and which bear upon the Offender’s moral culpability. Having regard to the findings which I have made, I accept the Crown submission that this murder falls, at best, at the bottom of the middle range of objective seriousness.

69 The aggravated break enter and steal offence was not a spur of the moment offence. It involved the forced entry of the safe storage facility maintained for the firearms, and the taking of several firearms and ammunition. The Offender knew that the firearms were there from his residence and employment at the premises, and his involvement in this offence was more serious because of the planning which exploited his knowledge of the location of the weapons. The firearms were taken for the purpose of HR using them to intimidate another person or for their illegal sale. On either version, the purpose to which the firearms were to be put was criminal and serious.

70 RA Hulme J assessed HR’s aggravated break enter and steal offence as falling close to, but just below, the middle of the range of objective seriousness. To the extent that the Offender’s mental disorder may play a part in the assessment of the objective seriousness of this offence as it bears upon his judgment, I take it into account. Having done so, I am satisfied that the Offender’s crime lies just below the middle of the range of objective seriousness.

The Offender’s Pleas of Guilty

71 Although the Offender pleaded guilty to the offences before me on 17 May 2010, he had pleaded guilty to the same charges on 4 February 2010. For technical reasons, it was necessary to arraign the Offender before me again with fresh pleas being taken. However, for the purpose of assessing a discount for his pleas, I approach the issue on the basis that pleas were entered on 4 February 2010. At that time, the Offender was to stand trial before the Supreme Court at Dubbo commencing 1 March 2010. The Offender’s solicitor had written to the Crown on 18 January 2010 indicating the Offender’s preparedness to plead guilty to murder and aggravated break enter and steal.

72 Mr Foord submitted that it was necessary for the Offender’s lawyers to explore all psychiatric issues in the case and that this process took some time. In addition, the Offender’s mental state and his location within the custodial system meant that consideration of appropriate pleas required both time and care to allow proper investigation. Mr Foord submitted that a four-week trial had been fixed at Dubbo, and that there was a significant utilitarian value to be derived from the Offender’s pleas of guilty. He submitted that, in the circumstances of the case, a discount of 25% ought be allowed for the pleas of guilty.

73 The Crown submitted that the pleas were entered after the matter had been listed for trial and some four weeks out from the trial itself. It was submitted that the allowance for the pleas ought be less than the approximately 17% allowed to HR, who had entered his pleas of guilty at the time of arraignment.

74 I have had regard to the factors referred to by Howie J in R v Borkowski [2009] NSWCCA 102 at [32]. The discount for the utilitarian value of the pleas will be determined largely by the timing of the plea so that the earlier the plea, the greater the discount. Generally, the reason for the delay in the plea is irrelevant because, if it is not forthcoming, the utilitarian value is reduced.

75 I accept that the Offender’s lawyers acted responsibly and with due despatch in exploring the psychiatric issues in the case, before the Offender came to instruct that pleas of guilty be entered. There are unusual features in the case, including the psychiatric issues and the youth of the Offender.

76 However, the focus of attention must be the timing of the plea and its proximity to trial with the reason for delay being immaterial.

77 There was no dispute that the Offender had shot the victim. The trial of the Offender, based upon mental health arguments, would have had some complexity but, in my view, would not have been particularly complicated or lengthy.

78 In Collon v R [2009] NSWCCA 187, an argument similar to that advanced for the Offender in this case was put suggesting a discount of 25% was appropriate, instead of the 15% allowed by the sentencing Judge, in circumstances where defence lawyers had carefully explored possible psychiatric defences, thereby delaying the time when the plea of guilty was entered. The Court of Criminal Appeal at [49]-[51] acknowledged (as in this case) that the defence lawyers had acted responsibly and with due despatch, but that the determining issue remained the utilitarian value of the plea, with that value diminishing as the date of trial approaches, unless the case is expected to be unusually long or complex. In my view, a similar approach should be taken in this case. I take into account as well the discount allowed for HR, a co-offender.

79 I assess the discount to be allowed for the utilitarian value of the pleas of guilty in this case at 15%. Of course, consistent with authority, I have placed to one side, for the moment, issues of remorse and contrition to which I will turn shortly.

The Offender’s Youth and Other Subjective Circumstances

80 I take into account on sentence, the Offender’s prior good character.

81 I have regard to the Offender’s youth: KT v R [2008] NSWCCA 51; 182 A Crim R 571 at 577-578 [22]-[26]. Although accepted to be of less significance than when sentencing adult offenders, consideration of general deterrence and retribution cannot be ignored when sentencing young offenders: KT v R at 578 [24]. The greater the objective gravity of an offence, the less likely it is that retribution and general deterrence will give way to the interests of rehabilitation: IE v R [2008] NSWCCA 70 at [16]. In this case, the Offender is to be sentenced for murder and aggravated break enter and steal. The common law principles underlying s.6 Children (Criminal Proceedings) Act 1987 are of less assistance to the Offender in this case. He was 17 years and two months’ old at the time of the offences and his offences fall within the category of adult crimes of very considerable gravity: KT v R at 578 [25]-[26].

82 I do have regard, however, to his disturbed and fragmented upbringing and family history and features of emotional and psychological immaturity apparent in his case: KT v R at 578 [23].

83 The Offender’s mental health at the time of the commission of the offences and since is relevant to the question of sentence. I have had regard to this issue in assessing the moral culpability of the Offender, particularly for the crime of murder.

84 The evidence reveals the present existence of serious psychiatric disorders in the form of juvenile bipolar disorder, depression and post-traumatic stress disorder requiring intensive treatment of the Offender in a mental health facility for a considerable period of time.

85 The Offender’s mental health renders him less suitable to be a vehicle for general deterrence and specific deterrence. In addition, I accept that the Offender’s mental health will render his time in custody harsher and more difficult after he moves (as he will, at some point) from the Forensic Hospital to an ordinary prison setting. Balanced with these considerations is the need to protect the public in the future, and the concern that the Offender’s mental health may give rise to problems in the future when he is released, if proper treatment is not afforded to him in the community. That said, the Offender does not appear to have a history of violence which may constitute a greater problem for him in this respect. In taking into account the Offender’s mental health, I have had regard to the principles in R v Engert (1995) 84 A Crim R 67 at 70-71 and R v Hamid [2006] NSWCCA 302; 164 A Crim R 179 at 196-201 [92]-[118].

86 I accept that the Offender has demonstrated genuine contrition and remorse for his crimes. He rang his mother on the morning of 24 April 2008 to tell her of what he had done. Other statements made by him orally and in writing emphasise the depth of his contrition and remorse. These include letters written by him from custody to his aunt and grandmother in 2008. The depth of his despair in custody prior to his admission to the Bronte Unit fortifies a conclusion that the Offender is deeply remorseful for what he has done.

87 The Offender’s family history is an unhappy one and reveals instability and movement from one parent to the other. As I have said earlier, medical assessment of the Offender’s apparent disturbances in 2001 and 2002 led to what now appears to have been an erroneous diagnosis of ADHD. The Offender’s personal history sheds light upon the circumstances in which he comes before this Court for sentence and may be taken into account in his favour.

88 An assessment of the Offender’s prospects of rehabilitation must be somewhat guarded in the light of the current medical evidence. It is clear that he requires long-term mental health treatment in an appropriate facility. I acknowledge the substantial progress being made with treatment of the Offender in the Bronte Unit. It is highly desirable that the Offender be located within the Forensic Hospital for as long as is reasonably possible, consistent with the need for effective treatment. All of this will serve his prospects of rehabilitation in a positive way. This is very much in the public interest and the protection of the community, when the time comes for the Offender to be released conditionally from custody.

Imposition of Sentences

89 The circumstances of this case bring together difficult and competing considerations relevant to sentence. The Offender’s crimes are very serious and significant sentences of imprisonment must be imposed.

90 Mr Foord submitted that, in all the circumstances of this case, a total non-parole period in the order of 10 years would balance the community’s expectation of severe punishment for serious crimes with the community’s interest in the rehabilitation of the Offender and his ultimate return as a worthwhile member of the community. The Crown submitted that such a combined non-parole period would lie below the tariff although it “may not be greatly below it” (T83.35).

91 It is the responsibility of the Court to determine sentence. The Court has been greatly assisted in this case by the careful submissions of the Crown and counsel for the Offender.

92 I have taken into account the objective seriousness of these offences and the subjective circumstances of the Offender referred to in these remarks on sentence. With respect to the offence of murder, and taking into account the specified Form 1 offences, an appropriate sentence, before application of the 15% discount, would be a non-parole period of 13 years with a balance of term of six years. Applying the 15% discount for the plea of guilty, the non-parole period is 11 years and one month with a balance of term of five years and two months. In determining this sentence, I have found special circumstances for the purpose of s.44 Crimes (Sentencing Procedure) Act 1999 by reference to the youth and mental health of the Offender, the need for an extended period of supervision in the community and the fact that this is the Offender’s first experience of custody.

93 For the aggravated break enter and steal offence, the parity principle applies given the sentence imposed upon HR, the co-offender. A sentence of four years’ imprisonment was considered appropriate by RA Hulme J before allowance for the plea of guilty discount. In my view, a similar approach should be taken with this Offender. An appropriate sentence for this offence, taking into account the specified Form 1 offences, is a term of imprisonment comprising a non-parole period of two years and 11 months with a balance of term of one year and nine months. Applying the 15% discount for the plea of guilty, a non-parole period of two years and six months will be fixed with a balance of term of one year and six months. Again, I note that I have found special circumstances to vary the statutory ratio, being the circumstances to which I have referred in the context of the murder sentence.

94 It is necessary to consider the issues of accumulation, concurrency and totality. These were two discrete crimes committed at different times and in different circumstances. I am satisfied that a measure of accumulation is appropriate in this case. I consider that there ought be an accumulation of 18 months as between the sentences.

95 Both Mr Foord and the Crown submitted that a direction ought be made in this case under s.19 Children (Criminal Proceedings) Act 1987 that the Offender’s sentence of imprisonment be served as a juvenile offender until he reaches the age of 21 years. As the Offender has been sentenced to imprisonment with respect to a serious children’s indictable offence (namely murder), he is not eligible to serve a sentence of imprisonment as a juvenile offender after he 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: s.19(3)(a) Children (Criminal Proceedings) Act 1987. Section 19(4) confines the grounds upon which a finding of special circumstances may be made under s.19(3) of the Act. In this case, I am satisfied that a finding of special circumstances should be made having regard to the Offender’s vulnerability on account of mental illness (s.19(4)(a)) and the fact that, if he was committed to a correctional centre, there would be an unacceptable risk of him suffering physical or psychological harm due to his mental illness (s.19(4)(c)). I record these reasons for making a finding of special circumstances in discharge of the obligation under s.19(4B) of the Act. The substantial volume of evidence concerning the Offender’s mental health, and the reasons for his present confinement in the Bronte Unit at the Forensic Hospital, all fortify the finding of special circumstances in this case.

96 MJR, will you please stand. I convict you of the crimes of murder and aggravated break enter and steal to which you have pleaded guilty. For the offence of aggravated break enter and steal, taking into account the matters on the Form 1 for this offence, I sentence you to a non-parole period of two years and six months commencing on 24 April 2008 and expiring on 23 October 2010, with a balance of term of one year and six months commencing on 24 October 2010 and expiring on 23 April 2012.

97 For the offence of murder, taking into account the matters on the Form 1 for this offence, I sentence you to a non-parole period of 11 years and one month commencing on 24 October 2009 and expiring on 23 November 2020, with a balance of term of five years and one month commencing on 24 November 2020 and expiring on 23 December 2025.

98 I make an order under s.19 Children (Criminal Proceedings) Act 1987 directing that the Offender serve his sentence up to the age of 21 years as a juvenile offender.

99 Although it remains a matter for the Mental Health Review Tribunal to determine under s.59 Mental Health (Forensic Provisions) Act 1990, I recommend that the Offender be detained in the Forensic Hospital for as long as is reasonably possible, in accordance with law, to assist the process of care and treatment, which will aid his rehabilitation and serve the public interest.

100 The earliest date upon which the Offender will be eligible for release on parole is 23 November 2020.

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