R v SB; R v AE; R v MG
[2015] NSWSC 659
•1 May 2015
|
New South Wales |
Case Name: | R v SB; R v AE; R v MG |
Medium Neutral Citation: | [2015] NSWSC 659 |
Hearing Date(s): | 6 March 2015; 13 March 2015; 27 March 2015 |
Date of Orders: | 1 May 2015 |
Decision Date: | 1 May 2015 |
Jurisdiction: | Common Law - Criminal |
Before: | Hall J |
Decision: | SB |
Catchwords: | CRIMINAL LAW – Sentencing – Murder – Juvenile offenders – Extended Joint Criminal Enterprise – Verdicts of manslaughter and murder between co-offenders – Application of principle of parity – Finding of special circumstances – Variation to statutory ratio for non-parole period – Relevance of strict bail conditions - Whether offenders should serve sentence in juvenile detention – Order made directing that offenders serve their non-parole periods as juvenile offenders until attaining age of 21 |
Legislation Cited: | Children (Criminal Proceedings) Act 1987 |
Cases Cited: | Green v R [2011] HCA 49; (2011) 244 CLR 462; (2011) 86 ALJR 36 |
Category: | Sentence |
Parties: | Regina (Crown) |
Representation: | Counsel: |
File Number(s): | 2011/333771; 2011/333563; 2011/333570; |
Publication Restriction: | Pursuant to s 15A Children (Criminal Proceedings) Act 1987, there is to be no publication of any information, picture or other material that identifies or is likely to lead to the identification of the child offenders or any of the underage witnesses. |
JUDGMENT
Introduction
Each of the three offenders, SB, AE and MG, to whom I shall refer in these remarks as “the offenders”, was charged on indictment that on 5 November 2010 he did murder Eden Delir. Each offender entered a not guilty plea to the charge.
The names of the offenders and of certain witnesses have been suppressed from publication under the Children (Criminal Proceedings) Act 1987. That order, however, does not restrict publication of these remarks.
The offenders were tried jointly. Guilty verdicts on the charge of murder in each case were returned against each of the offenders on the following dates:
SB: 21 November 2014
AE: 21 November 2014
MG: 26 November 2014
In sentencing each of the offenders it is necessary to proceed upon the basis that the offence for which each of the offenders has been convicted is the most serious in the criminal calendar. The start point is recognition of the fact that a human life has been taken. In this case, the victim Eden Delir, a 17 year old young man on the threshold of adult life, lost his life in consequence of the carrying out of the joint criminal enterprise with which this case is concerned. The community expects that the sanctity of human life will be protected by the law and that those who take it will be appropriately punished.
I am required to bear in mind the relevant statutory framework that pertains to the sentencing of offenders and to the principles which have been enunciated in the case law authorities that bear upon the issue. I must have regard, amongst other matters, to the purposes of sentencing which are set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (“the Sentencing Act”).
Section 3A provides:
The purposes for which a court may impose a sentence on an offender are as follows:
(a) to ensure that the offender is adequately punished for the offence,
(b) to prevent crime by deterring the offender and other persons from committing similar offences,
(c) to protect the community from the offender,
(d) to promote the rehabilitation of the offender,
(e) to make the offender accountable for his or her actions,
(f) to denounce the conduct of the offender,
(g) to recognise the harm done to the victim of the crime and the community.
I must also, in determining the appropriate sentence, have regard to the various aggravating factors which are set out in s 21A of the Sentencing Act. Suffice it to say that I have had regard to the statutory requirements to which I have referred and given what I have considered to be due weight to the matters I consider as being of particular relevance.
I must also weigh in the balance those matters upon which the offenders are entitled to rely upon in order to mitigate the otherwise appropriate penalty: s 21A(3) of the Sentencing Act.
The Crown put its case to the jury at trial upon the basis of direct responsibility murder, that is, that each of the offenders was a party to a joint criminal enterprise which had as its object the infliction of grievous bodily harm upon the deceased.
The Crown alternatively relied upon extended joint criminal enterprise murder. A joint criminal enterprise of that kind had as its object the assault of the deceased, but in carrying out the joint enterprise, there was a substantial risk within contemplation of the offenders that one or more of the participants to it might commit the offence of causing grievous bodily harm to Eden Delir, with intent to do so.
The Crown case was that at the time of the offence each offender was present and actively participated in the execution of the joint criminal enterprise agreement or at least participated by being ready and willing to provide assistance or encouragement to another or other participants in it in the commission of the crime.
The Crown submitted that the jury’s verdicts, for the purpose of sentence, should be determined as having been reached upon the basis of the existence of a joint criminal enterprise, the object of which was to inflict grievous bodily harm: T 6 March 2015 at p 4:10-15; Crown’s Written Submissions, 6 March 2015 at [1].
Counsel for each of the offenders, however, submitted that the jury’s verdicts should be determined upon the basis of extended joint criminal enterprise murder of the kind to which I have referred.
The maximum penalty for the offence of murder is life imprisonment: Crimes Act 1900: s 19A. The provisions of Division 1A – Standard Non-Parole Periods - of Part 4 of the Crimes (Sentencing Procedure) Act 1999 do not apply to the sentencing of the offenders as each was under the age of 18 years at the time the offence in each case was committed: s 54D(3) Crimes (Sentencing Procedure) Act 1999. Further, in these proceedings there are no grounds to apply the provisions of s 61(1) of that Act, which deal with the imposition of life sentences. There was no submission to the contrary made by the Crown.
It is my duty to determine the facts relevant to sentencing the offenders which are to be founded on the evidence adduced at their trial. My view of the facts must be consistent with the verdicts of the jury and findings of fact I make against the offenders must be arrived at beyond reasonable doubt: R v Isaacs (1997) 41 NSWLR 374. Matters of mitigation may be proved on the balance of probabilities: R v Pilley (1991) 56 A Crim R 202 at 204.
Factual Matters
I turn to the circumstances relevant to the offending conduct. I propose to include transcript references in the written version of these remarks without detailing them during this delivery of them.
On 30 October 2010 the teenage daughter of the occupants of a house in Restwell Road, Ms BT, held a costume-dress Halloween party. A large number of people attended.
The offenders – SB, MG and AE - were part of a group of young males who were described in evidence as of Middle Eastern appearance. Included in this group were the co-offenders JP and JH. JP was convicted of an offence of manslaughter in respect of the death of Eden Delir by a jury on 4 November 2013 following a separate trial. He was sentenced by me on 30 May 2014 to 10 years imprisonment with a non-parole period of 7 years. The other co-offender JH was also convicted of an offence of manslaughter in respect of the death of Eden Delir by a jury on 13 October 2014. He was sentenced on 12 December 2014 to 10 years imprisonment with a non-parole period of 7 years. The group of young males also included AN, a co-offender who was also charged with murder in respect of Eden Delir’s death. The Crown accepted AN’s guilty plea to the offence of manslaughter and he was sentenced in respect of that offence on 19 December 2014.
The group of young males attended the party uninvited. A number of them arrived together having travelled there in a red Toyota Camry station wagon owned by a member of MG’s family. The car, in which objects associated with the deceased were located, was in due course the subject of police investigations. The offender AE arrived unaccompanied, having been driven to the party by his mother. He then joined the other young males who had arrived together. Some at least of the group were known and referred to in the course of these proceedings as the “Wakeley boys”.
One party-goer, Ms JD, saw the car pull up and saw five young males emerge from it. She recognised the co-offenders JP and JH as members of the “Wakeley boys”. As they walked up the driveway she heard JH say: “Let’s go have some fun boys”: T 557.
Their purpose in attending the party was to confront another group of young males who they believed would be attending the party. The members of the other group were referred to as the “Campbelltown boys”.
After their arrival at the party premises the young males exhibited aggressive behaviour, challenging individual partygoers, asking in loud voices “Are you a Campbelltown boy?”, or calling out “Are the Campbelltown boys here?”. One partygoer, GE, gave evidence that when he was confronted in this way the person asking him that question had a knife which he pointed at him (T 485). Later that evening, police found a knife on a grassed area outside the front of the house where the party took place. The same witness said he saw a member of the group holding a pole. He though that person was JP. Ms JD gave similar evidence (T 555), as did witness A-D (T 608), and JE (T 688). The witness ED also saw one of the group holding a pole (T 750), as did witness KC (T 973-4, 1037).
The Crown referred to this aggressive display at this early stage of the party as evidence that the members of the group of young males in question possessed an aggressive frame of mind and had come prepared for a physical confrontation. As events transpired, there were no Campbelltown boys in attendance at the party. However, the members of the group remained in attendance at the party, although uninvited. The Crown case was that the violent assaults on Eden Delir a little later in the evening, are to be seen against this background. The Crown submitted that the aggressive males had arrived at the party, in effect, primed or ready for a physical and, if necessary, a violent confrontation.
Ms BT, whose party it was, gave evidence that after it started she walked to the front of her house and spoke to the group of young males and asked them not to start a fight because she did not want trouble at her party. She estimated that the “boys” constituting the group were about 15-16 years of age. She told them the Campbelltown boys were not attending her party.
Evidence was given that those who were acting in an aggressive manner had objects in hand and that some of these objects were used to bang on the front door: PP (T 250-251). The group soon moved from the front of the house to the back where they continued to call out aggressively.
There was evidence that one of the group, the co-offender JP, was seen with what was referred to in evidence as a trolley handle (witness AM at T 608). The witness LM said one of the group was holding what looked like a metal pole, perhaps a barbell (T 228, 246). The witness PP said he saw what he referred to as “weapons” that he said were “like car locks …” (T 251).
Miss MH said she recognised JH and told him not to disrespect the house. He told her to “shut the fuck up” (T 821).
Another witness, AH, said he looked out the window and saw Ms BT speaking to the uninvited group of young males. He said they seemed to be aggressive and he saw one of them had a cylindrical metal pole in his left pocket. He said he later saw members of this group in the backyard and subsequently saw them walk to the front yard. At this lastmentioned time, after they had moved to the front of the house, the witness said he saw one of the group pick up a bottle and take it out to the front of the house (T 271, 276, 280). He identified that person as the co-offender JP. The rest of the young males in the uninvited group were out the front of the house when he saw JP do this (T 282). He said JP was attempting to conceal the bottle (T 279). The bottle, he said, was empty or mainly empty (T 286, T 290). The witness AH said he saw a member of the group at that stage with a pole which was sticking out of his pocket (T 279).
The Assault Upon Eden Delir
The ensuing attack upon Eden Delir may be divided into three stages. The first was the prelude to the attack. The second was evidence as to the attack itself. The third concerns the events that followed the smashing of a bottle on the victim’s head which included the intervention of KC and the chase of Eden Delir up Restwell Road.
At the time of the attack it was reasonably dark but there was some light from the front of the house and from a street light. A number of witnesses gave evidence of seeing the group of young males of Middle Eastern appearance standing on the nature strip in front of the house. This was the same group of young males who had been behaving aggressively earlier in the evening. They were talking amongst themselves. Some witnesses said that it sounded like they were arguing. One of them called out to Eden Delir. Two witnesses gave evidence of hearing one of the group of males call out to Eden “come over here you fat cunt” (witness BJ at T 382 and witness LM at T 231-2). Another heard the words as “hey fatty … yeah you… come down here” (witness JE). Another witness, JZ, heard one of the young males call out “hey Eden” (T 839). One witness, ED, said he heard one of the males say “Oh, that’s the guy that snitched” (T 751). He also heard another say “hit him” or “we’re going to hit him” (T 767). The witness, ED, said he walked over to Eden and told him not to go down to the footpath (T 751, 761). However, Eden walked towards the group and said “what’s wrong?” (T 770).
One of the young males distracted Eden by saying “what does it say on your hat?” and pointing to it. The witness JD said one of the young males in the group grabbed Eden’s cap and said “what’s this”.
The evidence was that another of the young males then ran around a parked truck and delivered a powerful punch to the right side of Eden’s head with such force as to cause him to fall to the ground. Witness JE also gave similar evidence. There was no evidence from which the identity of the assailant could be established (T 638).
The witness KC said he saw a group of six young males out the front of the house just before the attack. They were the same group that he had spoken to inside the house and had seen at the back of the house (T 978).
The witness LM said that after Eden had been knocked to the ground he saw him at one point on one knee. By this time the group of young males had surrounded Eden Delir in a circle formation (T 232, 234-5). He said there were six to seven in the circle (T 233). The witness said he saw, at one point, a male hit Eden over the head with a “V” bottle and it shattered. The male holding the bottle was holding it in his right hand (T 234). The witness LM then said other members of the group proceeded to attack Eden for five to ten seconds (T 232, 235, 249). He said all members of the group were engaged in this activity (T 239). He said there were about seven “boys” “throwing punches and kicks” (T 244). He said this came after the bottle attack (T 235). He did not see a pole being used in the assaults (T 235). The witness said he was standing one to two metres away when this happened (T 232). LM said that after the attacks the majority of the attackers fled to a red car, but that one of the group proceeded to pursue Eden and “kept attacking him for a short amount of time” (T 236). He said the male he saw who pursued or chased Eden was not “armed” (T 237). He described that person as “stocky”, “large” (T 237). He had black hair and was part of the group he had seen earlier (T 249).
A number of other witnesses gave evidence of hearing the bottle smash followed by the sound of a scream (T 313). Similar evidence was given by witness GE (T 490). The witness TM also gave evidence of seeing a group of males standing in a circular formation around Eden Delir and they were “kicking and stomping” him (T 340). This, he said, went on for anywhere from five to ten seconds (T 343,373).
Another witness, BJ, saw one of the males in the attacking group holding a pole but he did not see the pole used in any way. This was at a point before Eden Delir went down to the ground (T 386). He confirmed that after the victim fell to the ground members of the group “just started laying into him after that” that is “kicking and punching” (T 384, T 395). Similar evidence was given by other witnesses, including the witness CO at T 435 and witness JE at T 643. JE said that during the barrage of hits, kicks and punches” Eden Delir was in the foetal position with his hands over his head (T 644). She said she heard Eden Delir call out “stop, stop, leave me alone” (T 437-8). She also recalled seeing one of the group holding a pole (T 440) as did witness LD-M at T 461. He said he saw a pole being held during the attack. He said he saw it “being lifted” after he heard the bottle smash but did not see it actually make contact with Eden Delir (T 464).
The witness ED said he saw a member of the group with a pole and that person used it to hit Eden Delir across his head once (T 755, T 799). His recollection was that this occurred before the bottle was used. He saw the punch that knocked Eden Delir to the ground (T 756). He heard Eden screaming. The witness JD said that after that first punch he head Eden yell out “what the fuck”. JD said all of the group then “ambushed him and they were all hitting him” and “kicking and stomping” (T 842). He a little later said that the kicking and stomping was done by two “chubby guys” (T 877). There were more involved in the attack – at least four (T 843). He said that they had surrounded the victim.
The witness KC was one of the invited guests at the party. He was in my opinion a very impressive witness. He was a tall young man who had come to the party dressed in a gladiator’s outfit. As will be discussed, he exposed himself to the risk of being caught up in the attack upon Eden Delir when he intervened in an endeavour to stop further assaults upon the victim who by then was in an extremely vulnerable and injured condition.
KC’s evidence, importantly, established a number of facts. These included:
The use of a pole. He said the first thing he saw in the early part of the attack was the shining of a pole as it was being swung – reflecting off a streetlight or lights from another source (T 980-1) He said it was being swung like a baseball bat (T 980).
He heard a bottle smash but did not actually see it hit Eden Delir (T 987).
He said he saw the group of young males punching and kicking Eden Delir during two altercations. The first was after the bottle was smashed. He then saw Eden break away from the group. He saw two males peel off from the group. He heard Eden Delir scream something and saw him fall down. Four or five of the young males eventually caught up to him and started punching and kicking him wherever they could (T 982). The second, or next altercation, occurred at the bottom of the driveway about 5-10 metres from the first (T 982). Two more males peeled off from the group. He saw Eden stand up and start running but two other males from the group pursued him – one wearing a blue shirt was pushing Eden and the other had a pole (T 981-3). He believed the latter person was the one who he had seen swing a pole at Eden Delir before the bottle incident (T 1040). He described seeing that male trying to line Eden up to hit him again, by using the pole “like a batter swings a baseball bat” (T 984). The male in the blue shirt was trying to push Eden from behind.
He said Eden Delir was being kicked and punched and that it appeared to him that they were trying to hit him as hard as they could (T 997). He said he saw blows delivered to the victim’s head, mostly kicking – he saw Eden was holding has hands over his head.
On my assessment of the evidence, it establishes to the requisite standard, and I so find, that the male who was chasing Eden Delir together with a second male and who was carrying a pole, was the same person that a number of witnesses identified as the one who had earlier swung a pole at Eden Delir striking him on the head with it. The evidence of those witnesses identified SB as that person: (T 984, 1041, 1046); (Witness TD: T 339, 343, 351-2, 353, 371, 373, Exhibit Z; Witness CO: T 440, 441-2, 452-3; Witness LD-M: T 461-2, 464, 481, 478; Witness ED: T 755, 770, 777, 799, Exhibits BW, BX; Witness KC: T 984, 981-3, 997, 1028, 1040-1, Exhibit CY.)
The Crown additionally relied upon what it contended constituted admissions by SB in an intercepted telephone call on 4 November 2010 in which he stated “no, nothing we just hit him”.
Whilst accordingly there was evidence which in my assessment established that SB earlier in the attack struck the deceased with a pole, and later was chasing him with a pole, I accept, as Mr Stratton submitted, that Dr Wills indicated that there was no evidence that any striking by use of the pole was sufficient to have occasioned visible signs of injury.
Apart from SB, the evidence of the above witnesses, in particular that of KC, identified the other male who was chasing and pushing Eden Delir as the offender AE.
Whilst the above evidence as to the chase involving SB and AE was relied upon by the Crown as one factor that supported a finding that they intended grievous bodily harm for reasons given in these remarks, I do not accept that the evidence supports that proposition. The evidence does, however, reflect the active involvement of SB and AE in the attack upon Eden Delir and supports the conclusion to the requisite standard that they considered, up to the point of the chase by them, that in their minds Eden Delir was deserving of physical punishment for his supposed “snitching” concerning JH’s role a separate attack on Eden Delir which had occurred in February 2010.
The attack upon Eden Delir plainly involved planning and coordination made in the short period between Eden Delir being seen at the party and the attack upon him. The coordination involved one member of the group calling Eden Delir over to where the group members were standing, then distracting him. That was almost immediately followed by another member delivering a forceful blow to the right side of his head causing him to fall to the ground, followed by a series of further attacks.
It is clear on the evidence, “snitching” – the reporting to police of criminal activity by another or others – was considered in the relevant group culture, of which the three offenders and three co-offenders were part, as a treacherous thing to do. “Snitching” – providing information to police – was in effect considered by the offenders and others in their group to be a breach of what was seen as a code of silence that existed to protect those who engaged in criminal activity. The evidence established that such a perverted sense of group solidarity was one that was strongly held or entrenched amongst the offenders and the other participants in the joint criminal enterprise and seen as justifying violent retaliation. It was the matter that was central to the motivation for the attack upon Eden Delir.
Medical Evidence
The medical evidence tendered during the trial established that the overall pattern, position and nature of the injuries suffered by the deceased revealed upon the post-mortem examination of the deceased performed on 9 November 2010 by Dr Stephen Wills, Forensic Pathologist, that there had been assaults upon the deceased involving several points of blunt impact to the head, the face and an additional sharp force injury together with other injuries as specified in the evidence. In that respect, multiple bruises on the deceased’s right arm, and bruising to areas of the lower limbs, it was accepted by Dr Wills could be caused by kicks or direct blows.
A CT scan showed an acute left-sided subdural haematoma. This, it was explained by Dr Wills, caused pressure within the skull to rise with secondary effects upon the brain, in particular, starving it of blood and oxygen. The increase in pressure compromised blood flow into the skull and caused damage to the brain due to starvation of blood. In the joint trial involving the offenders it was accepted that head injuries giving rise to the subdural haematoma resulted from injuries caused by the co-offender JP smashing a bottle on the head of the deceased.
The Verdicts
The Crown case against the offenders, as I have earlier indicated, was brought upon the principles of joint criminal enterprise or extended joint criminal enterprise.
As earlier mentioned, the Crown submitted that the agreement to which the offenders were parties involved a joint criminal enterprise to do grievous bodily harm to Eden Delir: Crown Submissions, T 6 March 2015 at p 4:10-15; Crown’s Written Submissions on Sentence at [1].
In the Crown’s oral submissions, the Crown pointed to factors such as the evidence of pre-planning, and the coordinated manner of the attacks upon Eden Delir, to support the proposition that the offenders were parties to an agreement to apply what was referred to as “the full force of violence”. The Crown also pointed to particular matters relating to the offenders SB; AE and MG at T 5-6. The Crown submitted that the matters it relied upon to support these submissions arose, in part, as a matter of inference: T 6:20-25.
On grounds which I will shortly identify, I have concluded that the jury’s verdicts of murder against each of the offenders was returned upon the basis that the jury was satisfied beyond reasonable doubt that each offender was a party to an agreement to assault the deceased and that in the course of carrying out the agreement the parties to it assaulted Eden Delir, including in particular the assault by the co-offender JP by smashing the bottle over Eden Delir’s head. I am also satisfied that the jury found that, although the infliction of grievous bodily harm was not within the agreement, the offenders contemplated that in the course of carrying out the agreement to assault the deceased, one or more parties to the agreement might deliberately apply physical force to the body of the deceased with an intention of inflicting grievous bodily harm.
It has been necessary in determining the basis for the jury’s verdicts to examine the matters established by the evidence adduced at the combined trial. That evidence established beyond reasonable doubt the following:
(1)That Eden Delir was lured over to the group and then deliberately distracted by one member whilst another delivered the forceful blow to the right side of his head, causing him to fall to the ground.
(2)That members of the attacking group then adopted a circle formation around Eden Delir which obstructed him escaping.
(3)Following a flurry of attacks by all of the group members, the co-offender JP, one of the attacking group, smashed an empty or at least part empty bottle of wine over Eden Delir’s head.
(4)Members of the attacking group continued to punch, kick and stomp on Eden Delir after he was wounded by the assault with the bottle.
(5)Throughout the attacks on Eden Delir, members of the group, by their presence and actions, provided encouragement and support to each other.
(6)Following this series of events, Eden Delir broke away from the group that was attacking him, fell down and members of the group of young males caught up to him and kicked and punched him.
(7)Eden Delir got up again and ran when two males pursued him, one in a blue shirt pushing him and the other holding a pole. The person with the pole was lining up to strike Eden Delir with the pole but was prevented from doing so when one of the partygoers, KC, intervened and prevented him from doing so.
Evidence in relation to the above series of events was given by a number of witnesses including KC.
The Crown case accepted that it was the act of the co-offender JP in striking the deceased with the bottle that inflicted the injury that resulted in the acute left-sided subdural haematoma. The deceased was on life support until the life support system was discontinued on 5 November 2010.
I return to the issue of the basis of the jury’s verdicts. The evidence established to the requisite standard that each of the offenders was present during the series of events to which I have referred in points (1) to (7). The evidence also established to that standard that each of the offenders was part of the attacking group in the circular formation to which I have referred and that each participated in assaulting Eden Delir. That participation involved, subject to comments I will shortly make, kicking, punching and stomping upon the deceased as earlier described. By their presence and participation, each of the offenders provided encouragement and support to members of the attacking group.
In relation to the series of assaults which the offenders participated in, the evidence did not detail the precise number or nature of the individual assaults specifically by the offenders by other participants. That is, of course, explained by factors such as the speed at which events moved, the lighting conditions, the shock engendered by the events and the number of persons carrying out the various assaults. Additionally, the medical evidence did not link any one or more of the many injuries detected at the postmortem examination as attributable to any particular or specific assault by one or other of the three offenders who now stand for sentence.
In summary the jury’s verdicts of murder in relation to each of SB, AE and MG were returned as and upon the basis of the following matters which were by the evidence, established beyond reasonable doubt:
(1)That SB, AE and MG were parties to an agreement to assault the deceased and that in the course of carrying out the agreement the co-offender JP deliberately struck the deceased on the head with the bottle with an intention to cause grievous bodily harm.
(2)That each of the three offenders contemplated that in the course of carrying out the agreement to assault the deceased, a party or parties to the agreement might deliberately apply physical force to the body of the deceased (as the co-offender JP did), with the intention of causing grievous bodily harm whilst participating in the execution of the agreement.
Accordingly, for the reasons I have stated, each of the offenders is to be sentenced on the basis of extended joint criminal enterprise murder.
Subjective Factors
I turn to consider the evidence that addressed the subjective factors of each of the offenders. First, the offender SB.
SB
The offender SB is presently aged 20 years and was aged 16 years at the date of the subject offence. He was interviewed on four occasions for the purpose of a Juvenile Justice Background Report dated 20 February 2015. He was granted bail on 17 September 2013 and remained on bail until his date of conviction on 21 Novembers 2014.
SB’s family has demonstrated support for him. He has engaged positively in programs in custody, including school, drug and alcohol counselling and sporting activities. There have been four Minor Misbehavior Reports. He has sought and obtained counselling services and has engaged positively with the same. He has generally been cooperative and has interacted positively with staff and other detainees. Reference was made in the Background Report to his lack of acceptance of responsibility towards his offence.
I note that SB was prepared to disclose to the Juvenile Justice officers who prepared the Background Report facts concerning his involvement in the offence. Though minimising his involvement he accepted that his actions were reckless and dangerous with minimal regard for the victim and the possible consequences. I consider his preparedness to acknowledge his involvement in the subject offence supports a positive prospect for his rehabilitation. This is especially so given that the Background Report indicates an absence of entrenched patterns of impulsive, risk taking or challenging behavior. Overall, I consider that SB has very favourable rehabilitation prospects.
The Background Report also refers to SB’s expression of sorrow as to the death of Eden Delir upon Eden’s family; an expression of sorrow I consider to be entirely genuine. Indeed, Dr Furst, Consultant Forensic Psychiatrist, noted in his report that he expressed remorse about his actions stating “I regret it one hundred per cent. Now I know what’s right and wrong”.
The offender’s engagement in programs and with services that have been available to him in custody, including his Year 11 studies and the fact that he is endeavouring to get on with his life in a productive manner are additional matters, along with the support he has from his family, that all enhance his prospects of rehabilitation as I have previously stated.
Dr Furst noted in his report dated 2 March 2015 (p 4) that SB had used his time in juvenile detention constructively completing a number of courses and seeking counselling.
Dr Furst also stated that he would benefit from continued counselling in Juvenile Detention. He considered that he has good prospects of being successfully rehabilitated and generally had a low risk of re-offending. I accept that the risk of him reoffending is low.
The specific matters raised in the submissions of Senior Counsel on behalf of SB, include:
(1)That he offered to plead guilty to manslaughter and did not dispute his presence at the party at the time of the attack.
(2)His expression of contrition.
(3)The principles that apply to the sentencing of juvenile offenders.
(4)The fact that he has no prior criminal record.
(5)His good prospects of rehabilitation and low risk of re-offending.
(6)The restrictions on him from the bail conditions imposed.
(7)Credit to be given for the significant period he has spent in custody.
(8)The facts and circumstances that support a finding of special circumstances for the purpose of s 44 of the Sentencing Act.
Special Circumstances
SB has a strong subjective case to support a finding of special circumstances in terms of s 44(2) of the Sentencing Act. These included:
His age (15 years at the date of the offence; presently 20 years of age).
His expression of contrition.
His good prospects of rehabilitation.
His acknowledgment, to a point, of his personal involvement and responsibility in the offence.
His full use of programs that have been made available to him in custody.
These factors in their totality justify a finding of special circumstances. I have had regard to them in determining the appropriate variation to be made to the statutory ratio.
AE
The offender AE was aged 16 years and 4 months as at the date of the offence.
He was interviewed by Juvenile Justice officers for the purpose of assessment which led to the production of a Background Report dated 25 February 2015. The report notes that AE has, concerning his period in custody in a Juvenile Justice Centre, been of good behavior, easily managed and is liked by his peers and staff. There were no breaches whilst he was on bail. He has had positive family relationships and continues to have strong family support.
Before the subject offence he previously had entered into an apprenticeship and undertaken a TAFE course. In custody he has completed some theory components in automotive mechanics. He is reported as having a good work ethic.
The Background Report provides observations as to AE’s attitudes and beliefs about violence in general and some justifications, as AE sees it, for the use of violence.
The report observed that such attitudes are considered risk factors to violence recidivism. The report observed that they are capable of being targeted with cognitive behavioural therapy.
Any assessment of AE’s risk of future offending, of course, must bring into account his attitude to his serious offending. In the Background Report (p 4) the authors, Mr Warton, Juvenile Justice Counsellor and Ms Greeks, Area Manager, record AE’s statement to the effect that he believed that he must support his friends if he perceives they have been wronged or are in trouble. In terms of his future risk of reoffending, much will, of course, depend upon whether AE receives and responds appropriately to therapy or counselling referred to in the Background Report.
Affidavit evidence of AE’s sister dated 6 March 2015 was read at the hearing. In paras [12]‑[16] his sister provided evidence as to the restrictive nature of her brother’s bail conditions. A copy of AE’s bail conditions imposed on 17 July 2014 was tendered in evidence.
Special Circumstances
In determining the question of special circumstances of AE, the following matters are to be taken into account:
The fact that there has been “significant personality maturation” since the commission of his offence: Background Report at p 4.
His youth (age 16 years 4 months at the date of the offence).
His behaviour and progress in custody.
The benefits from being able to pursue work in the community to his rehabilitation (possibly in the automotive mechanics trade).
His lack of criminal antecedents.
MG
The offender MG is presently aged 20 years. He was 15 years and 10 months of age at the date of the offence. The fact that he was a juvenile at that time, as I have indicated, is a relevant matter to be taken into account in relation to a number of considerations involved in sentencing. These include the fact that less weight should be given to general deterrence and retribution. It was submitted by Mr Steel of counsel on his behalf that his cognitive, emotional and/or psychological immaturity is likely to have played a significant role in his offending behaviour. I accept that submission. The Background Report by Juvenile Justice was unable to assess these matters as the offender was reluctant to discuss the circumstances of his offending when interviewed. I accept in general terms that he offender’s immaturity did play a role in the subject offence.
At the time of his offence he did not have criminal record. After the offence he was dealt with by the Parramatta Children’s Court for a number of offences committed after the subject offence in late 2010. Good behaviour bonds were imposed on him in respect of three counts of Break and Enter a Dwelling House and Steal and a bond in respect of an offence of Damage Property by Fire.
Following his arrest on 19 October 2011 he complied with all his bail conditions, bail having been granted on 20 October 2011. His bail was revoked following his conviction on 26 November 2014.
He has not committed any offences since being on bail other than those to which I have referred.
He was interviewed by officers of Juvenile Justice on five occasions for assessment on the basis of which a detailed Background Report by Juvenile Justice dated 23 February 2015 was prepared and tendered at the sentencing hearing.
The report comments upon MG’s largely positive behaviour and program participation whilst in custody and the strong and consistent family support that he has received.
Reference was made in the report to the offender’s low literacy level and problems encountered during his schooling and the effects of the marital breakdown of his parents’ relationship.
The Background Report indicates that the offender has struggled to accept responsibility for his offending behavior and minimised his responsibility (p 8).
In a further Juvenile Justice Report dated 19 March 2015, it is observed that MG has a need for an intensive literacy program and has progressed under an earlier Literacy Program.
MG was assessed by Dr Olav Nielssen, Consultant Forensic Psychiatrist, on one occasion who provided a report dated 26 February 2015. I have noted the history and observations made by Dr Nielssen including the possibility, on the symptoms related to him by MG, of the possible future development of a psychotic illness that may require observation and anti-psychotic medication if it does develop.
In a further report dated 11 March 2015, Dr Nielssen provided his opinion in support of MG’s detention in the Juvenile Justice System for a further year.
Dr Nielssen identified the factors that favour MG’s rehabilitation, in particular, his young age, growth in maturity and greater self-awareness and prospects for future employment. I find that MG has reasonable rehabilitation prospects.
Submissions were made by Mr Steel on MG’s strict bail conditions, a copy of which were tendered on sentence. It was contended that the conditions imposed were akin to home detention but with even further restriction prohibiting internet access, or access or possession of a mobile phone.
The submission was that the bail conditions may be taken into account at sentence.
Mr Steel submitted that a finding of special circumstances should be made based on MG’s youth, the fact that this is the first time he has spent in custody and that he will require counseling on release to parole. I propose to make a finding of special circumstances having regard to these matters.
As to the circumstances of the offending, it was submitted that there was no evidence of any specific role performed by MG and that his offence was at the lower end of the range of objective gravity. His criminal responsibility, it was submitted, should be found on an extended joint criminal enterprise basis.
Special Circumstances
In determining the question of special circumstances in relation to MG, the following matters must be taken into account.
His youth (15 years 10 months at the date of the offence, presently 20 years of age).
His positive behaviour in custody and program participation.
The evident benefits to his rehabilitation of him entering an occupation in the community, having regard to his literary deficits as a matter of importance in his rehabilitation.
His lack of criminal antecedents.
These factors provide a basis for a finding of special circumstances.
The issue of special circumstances arising under s 44 of the Sentencing Act involves a discretionary exercise of power: R v Simpson (2001) 53 NSWLR 704, 718, per Spigelman CJ. The range for the proper exercise of the discretion as the Chief Justice observed in Simpson is required to take into account the gravity of the particular offence: at 718. I have, of course, had regard to the offence in question including the matters to which I have earlier referred namely the objective and subjective factors earlier discussed. Having done so, I have determined the ratios of the non-parole periods to the parole periods of each sentence as are reflected in the sentences I will impose.
Parity
I turn to consider the application of the parity principle. That principle is of importance when sentencing each of the offenders and is not confined to sentences imposed upon co-offenders who have committed the same crime or offences. It can, in particular, be applied to sentences imposed upon persons who are co-offenders by virtue of having been engaged in the same criminal enterprise, regardless of the charges that have been actually laid against them: Green v R [2011] HCA 49; (2011) 244 CLR 462; (2011) 86 ALJR 36 at [30]; Jimmy v R [2010] NSWCA 60; (2010) 77 NSWLR 540 at [136]. The principle is also to be applied where co-offenders in the same criminal enterprise have been convicted of different offences, as in the present proceedings where three co-offenders have been sentenced on the basis of the offence of manslaughter and three co-offenders are to be sentenced for the offence of murder: see Jimmy v R, supra, at [200].
The High Court in Green, supra (French CJ, Crennan and Kiefel JJ) observed that in relation to a case where there is no formal identity of charges against offenders whose sentences are compared, there can be significant practical difficulties in comparing the sentences of participants in the same criminal enterprise who have been charged with separate crimes, a matter recognised by Campbell JA in Jimmy, supra, at [201]-[202] of his Honour’s judgment.
Equal justice considerations which underlie the principle of parity need to be considered in order to ensure there is no unjustified disparity between the offenders’ sentences and the sentences imposed on co-offenders JP, JH and AN. Differences in their subjective circumstances will also need to be considered.
In the present proceedings, I am required to consider the respective roles and respective culpability of each of the three offenders SB, AE and MG and additionally with due regard to the respective roles and culpability of their co-offenders, in particular JP and JH.
As to the co-offenders, SB, AE and MG, on the evidence and the findings on the evidence which I have earlier set out, I have concluded that whilst there are some factual differences in their participation (including SB’s use of a pole) there does not, in my assessment, exist a sufficient basis in the evidence for differentiating the objective criminality of SB, AE and MG one from the other. They each were, as I have stated, participants in carrying out the joint criminal enterprise in the particular respects to which I have referred in para [56_Ref418152395] of these remarks.
I will refer to the subjective factors relevant to SB, AE and MG shortly.
The issue of parity, as I have indicated, is to be considered having regard to the criminal liability of the co-offenders JP, JH and AN in respect of their respective convictions for the offence of manslaughter. Due consideration is required of their roles and participation in the criminal enterprise having regard to the established facts and events in their separate trials relevant to the objective seriousness of their manslaughter offences and the sentences imposed upon each of them.
The co-offender AN entered a guilty plea to the offence of manslaughter, which was accepted by the Crown in full satisfaction of the indictment: R v AN [2014] NSWSC 1879. On the Agreed Facts it was not part of AN’s liability that he had physically attacked the deceased. He was present and was taken as willing and able to assist physically if needed and thereby encouraged or assisted others [10].
The Crown submission on sentence was that his culpability was at the lower end of the hierarch at [39]. He was given a 15% discount on sentence for his guilty plea: at [81].
Subjective factors were significant in that his father died when AN was 15 years of age which event had affected his life to an extreme extent, occasioning stress: at [69]-[70]. He was assessed as having good prospects of rehabilitation.
The role of the co-offender JP was significant and his actions in attacking Eden Delir, and then smashing the bottle over his head which caused injury to the brain, and ultimately death, was objectively extremely serious. He did that in the course of what was found to have been a coordinated attack although the planning for it only commenced a short time before the attack. The objective seriousness of JP’s role and participation in the events in relation to which six co-offenders have now been convicted, I consider to have been of a higher order than that of the offenders SB, AE and MG and of AN who, as I have stated, entered a guilty plea.
The moral culpability of the co-offender JH was at a higher level than that of the three offenders who now stand for sentence. On the evidence in his trial, JH acted on an understanding that Eden Delir had “snitched” to police about his (JH’s) role in the February 2010 attack. JH was involved in the decision to launch the group attack on Eden Delir. On the evidence he encouraged the other co-offenders to do so. On those bases, his moral responsibility was determined at sentence to have been at a high level. JH’s actions it was clear were motivated by his intention to inflict physical punishment upon Eden Delir as a form of retribution or revenge for having spoken to police about the February 2010 attack.
Whilst the primary Crown case against the co-offenders JP and JH was that they were each a party to a joint criminal enterprise to inflict grievous bodily harm, the juries in the respective trials of each clearly were not satisfied on the evidence that the infliction of grievous bodily harm was in fact within the agreement.
In relation to subjective factors, in JP’s case, whilst it was found that he had some rehabilitation prospects, it was difficult on the evidence to say how strong those prospects were: R v JP [2014] NSWSC 698 at [132]. Additionally, whilst it was accepted that he showed some remorse as to what had occurred it was found to be difficult to assess its extent or level: ROS at [121].
In JH’s case, his rehabilitation prospects were assessed, with caution, as moderate: R v JH [2014] NSWSC 1845 at [106]. The conclusion was expressed that he had not shown any genuine remorse or contrition: ROS at [87].
In my assessment, SB, AE and MG each have stronger subjective cases than either the co-offender JP or the co-offender JH.
In applying the parity principle in this case, in addition to the matters to which I have referred, whilst the evidence in the joint trial of SB, AE and MG established that JP had a bottle in his hand when he joined the group at the front of the premises followed by some conversation with other members of the group, by my assessment there was no evidence capable of establishing to the criminal standard that SB, AE or MG knew that JP would or might use the bottle as a weapon as he did. In so concluding I have not lost sight of the fact that, on the evidence, each of the three offenders may well have seen JP holding the bottle and additionally the fact that the members of the attacking group (including SB, AE and MG) continued with the attack on Eden Delir apparently undeterred by the bottle having been brutally used as a weapon in the way it was used. Absent direct and/or inferential evidence on that matter capable of proving, to the requisite standard, knowledge in one or other of the three offenders as to JP’s intentions before the attack began, SB, AE and/or MG cannot be found to have in fact had forewarning of JP’s intentions. The evidence did not establish that SB, AE or MG in fact had such knowledge to the requisite standard. The evidence established, as I have previously stated, in accordance with the jury’s verdict, that SB, AE and MG had in contemplation that one of more might inflict grievous bodily harm on Eden Delir.
So far as the co-offender JH is concerned, of the group his role as an instigator of the attack is also distinguishable from that of SB, AE and MG and differentiated in terms of objective seriousness as I have previously discussed.
Though SB, AE and MG were willing parties in the criminal enterprise, each were, in carrying it out, at least in part, acting at JH’s instigation or by reason of his encouragement.
Accordingly, the matters to which I have referred are required to be considered in determining the application of the parity principle along with the fact that the offences of co-offenders JP and JH were assessed on sentencing as extremely grave manslaughter offences R v JP Remarks on Sentence at [105] and R v JH Remarks on Sentence at [132].
In the present case the offence of murder with which each of the offenders SB, AE and MG have been convicted is, of course, a more serious crime than that of their co-offenders, JP and JH’s convictions for manslaughter. That is an important matter to bring into account in the application of the parity principle, along with the roles and participation of all co-offenders (including JH’s role in instigating the criminal enterprise and JP’s role in inflicting injury which was the substantial cause of death).
In determining the sentences to be imposed I am required to consider the objective and subjective factors relevant to the offence committed by each of the offenders and the aggravating and mitigating factors in accordance with the provisions of s 21A of the Sentencing Act and relevant sentencing principles. I have closely considered those factors so far as relevant to the case of each offender.
Principles Relevant to Sentencing Young Offenders
The relevant principles are well-established and play an important role in the sentencing of young offenders.
Section 6 of the Children (Criminal Proceedings) Act 1987 sets out legislative guidelines relating to the exercise of functions under the Act.
The case law principles establish a number of additional considerations. They include:
That the considerations of general deterrence and the principles of retribution are, in most cases, of less significance than they would be when sentencing an adult for the same offence.
There is a need to provide an opportunity for rehabilitation.
Cognitive, emotional and/or psychological immaturity in a young person, it is recognised, contributes to their breach of the law. Allowance is to be made for an offender’s youth and not just their biological age.
Where the immaturity of the offender is a significant factor in the commission of the offence, the criminality will be less than if the same offence was committed by an adult.
See e.g. R v AEM (Snr) [2002] NSWCCA 58; R v Hearne (2001) 124 A Crim R 451 at 458-9; KT v R [2008] NSWCCA 51 at [20]-[26].
There is confirmation in the Background Reports in relation to each of the offenders identifying a number of factors relevant to their rehabilitation prospects. These include in each case positive signs of progress in custody, which is consistent with an increase in maturity and constructive early steps towards rehabilitation. I have had regard to such matters in determining special circumstances and the extent of the variation to be made in the statutory ratio of non-parole to the total term of sentence to be imposed. The elimination of negative peer influences in the future is likely to enhance the rehabilitation prospects of each offender.
Victim Impact Statements
In these proceedings, Victim Impact Statements prepared by the parents and the sister of Eden Delir were received by the Court. The statements express in clear and very dignified terms the grievous effect and the immense loss arising from the death of Eden Delir and the impact it has had upon each of them. The loss of a young person in the circumstances with which this case is concerned is exceptionally painful and tragic. On behalf of the Court I extend my condolences to the family of the deceased for the immense loss that they have endured and that they will continue to endure. Nothing of course can address that immense loss.
I have noted the provisions of Division 2 (Victim Impact Statements) of Part 3 of the Sentencing Act, in particular, s 28 thereof. I have, of course, closely considered the victim impact statements in this case as significant material before the Court. I have determined the sentence to be imposed on the basis of the evidence and findings to which I have referred above. As there were no submissions made in relation to s 28, I have determined that any sentence should not be increased by virtue of the statements to which Division 2 applies in this case.
Bail Conditions
In accordance with accepted sentencing principles it is open to a sentencing judge to take into account onerous conditions of bail in assessing sentence, but he or she is not obliged to do so: R v Webb [2004] NSWCCA 330; 149 A Crim R 167 at [19] per Grove J, Simpson and Shaw JJ agreeing.
In R v Fowler [2003] NSWCCA 321, the Court (Tobias JA, James and Howie JJ) observed:
“242 We accept that in an appropriate case the length and terms of an offender’s period on bail awaiting trial or sentence is a matter relevant to the determination of the proper sentence to be imposed. What weight is to be given to such a matter will vary from case to case, depending upon what other factors need to be considered and what sentence is required in the particular case to address the purpose of punishment. Where that purpose is the protection of the community and the conditions of bail are particularly onerous, such as where the offender has been required to reside at a rehabilitation establishment, very significant weight might be placed upon such a factor where it is appropriate having regard to the nature of the offence. However, in other cases, less weight may be given to such consideration, particularly where the imposition of a sentence of imprisonment is required for the purposes of denouncing the crime and reflecting the general deterrence.”
In that case, the Court determined that there had been an obvious and significant disruption to the appellant’s life and restrictions upon his liberty over a lengthy period of time as a result of the offence committed. However, it was held that the sentencing judge was not required to reduce the sentence because of such considerations: at [243].
See also R v Dennis (NSWCCA, 14 December 1992, unreported); R v Khamas (1999) 108 A Crim R 499 at [27].
I have had regard to the bail conditions tendered on behalf of each of the offenders and have noted the restrictions that were imposed upon each of them. I accept that the conditions requiring that a nominated person accompany a person on bail when out of his home is a stringent condition. However, I do not consider that a condition of that kind, nor the other conditions specified in the bail undertakings given by the offenders, constituted such a severe restriction as to attract the case law principles to which I have referred. I do not consider that the sentences to be imposed should be reduced on the basis of the bail conditions imposed on each offender.
Sentencing as a Juvenile Offender
In certain circumstances, if a court sentences a person under 21 years of age to imprisonment for an indictable offence it may direct that the whole or any part of the term of the sentence be served as a juvenile offender: s 19(1) Children (Criminal Proceedings) Act 1987.
Section 19(3) of the lastmentioned Act provides that a person who is sentenced to imprisonment in respect of a serious children’s indictable offence (as in the present case) is not eligible to serve a sentence of imprisonment as a juvenile offender after the person has attained the age of 18 years unless one or other of the matters set out in subparagraphs (a), (b) or (c) are satisfied.
The eligibility to serve a sentence of imprisonment imposed in respect of a serious children’s indictable offence as a juvenile offender after a person has attained the age of 18 years, in this case, would depend upon whether or not a finding of special circumstances can and is made under s 19(4) of the Act (in particular, subparagraphs (a) or (b) or (c) thereof).
In respect of the offender SB, a Juvenile Justice Report written by Phoebe Mitsik and Sarah Abusharif dated 18 March 2015 was tendered at the sentencing hearing on 27 March 2015.
In respect of the offender AE, a Juvenile Justice Report written by Tim Warton and Helena Greeks dated 25 March 2015 was tendered at the hearing on 27 March 2015.
In respect of the offender MG, a Juvenile Justice report written by Stephanie Wong and Sarah Abusharif dated 19 March 2015 was tendered at the hearing on 27 March 2015. Mr Steel on behalf of MG also relied on a report prepared by Dr Olav Nielssen dated 11 March 2015 which dealt with MG’s mental health and rehabilitation needs. Dr Nielssen in this report indicated his belief that MG would be more likely to receive specialist supported education relevant to his learning disabilities in juvenile detention than in an adult facility.
The Juvenile Justice reports tendered on 27 March 2015 were relied upon by counsel for each of the offenders in addition to the Juvenile Justice background reports previously tendered on 6 March 2015 to establish a basis for making a finding of special circumstances. The reports, in particular, dealt with the education facilities and benefits available in juvenile detention centres which are unlikely to be available in adult facilities as well as therapeutic and vocational programs which may have an impact upon the offenders’ prospects of rehabilitation.
It was acknowledged by the Crown in oral submissions on sentence that there was material in the reports tendered in relation to AE and MG sufficient for an order to be made under s 19(4). In relation to SB, the Crown submitted that an order should be made because SB was completing his secondary studies in juvenile detention and would be unable to do so in an adult prison (T 27 March 2015: 44).
I consider that the evidence tendered on this question in relation to each offender establishes that special circumstances exist in terms of s 19.
A finding of special circumstances under s 19, of course, does not permit an order to be made that goes beyond the offender’s 21st birthday.
Sentencing Orders
I note that the sentences to be imposed are to be backdated in respect of each offender to take account of time spent in pre-sentence custody, particulars of which are as follows:
SB was in custody, bail refused, between 19 October 2011 and 17 September 2013, a total of 1 year, 10 months and 29 days. He was then released on bail until the date of his conviction, 21 November 2014.
AE and MG were each in pre-sentence custody for one day prior to being released on bail on 20 October 2011. AE was returned to custody following his conviction on 21 November 2014. MG was returned to custody following his conviction on 26 November 2014.
SB, you are convicted of the offence of murder. I sentence you to a non-parole period of imprisonment of 8 years to date from 23 December 2012 and to expire on 22 December 2020. There will be a parole period of 4 years to commence on 23 December 2020 and to expire on 22 December 2024. Accordingly, the head sentence is a term of imprisonment for 12 years with a non-parole period of imprisonment for 8 years. The first date upon which you will be eligible to be released to parole accordingly will be on 23 December 2020.
AE, you are convicted of the offence of murder. I sentence you to a non-parole period of imprisonment of 8 years to date from 20 November 2014 and to expire on 19 November 2022. There will be a parole period of 4 years to commence on 20 November 2022, to expire on 19 November 2026. Accordingly, the head sentence is a term of imprisonment for 12 years with a non-parole period of imprisonment of 8 years. The first date upon which you will be eligible to be released to parole accordingly will be on 20 November 2022.
MG, you are convicted of the offence of murder. I sentence you to a non-parole period of imprisonment of 8 years to date from 25 November 2014 and to expire on 24 November 2022. There will be a parole period of 4 years to commence on 25 November 2022 and to expire on 24 November 2026. Accordingly, the head sentence is a term of imprisonment for 12 years with a non-parole period of 8 years. The first date upon which you will be eligible to be released to parole accordingly will be on 25 November 2022.
I make an order in relation to each offender pursuant to s 19(1) and 19(3) of the Children (Criminal Proceedings) Act 1987, that the offenders, SB, MG and AE serve their non-parole periods of the respective sentences imposed as a juvenile offender until the day upon which each attains the age of 21 years.
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