R v ST

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2024 0062

Between:
THE KING
‑and‑
ST	Accused

JUDGE:	Croucher J
WHERE HELD:	Melbourne
DATES OF HEARING:	20 December 2024 (plea); 7 & 21 March 2025 (further evidence)
DATES OF REASONS:	2 May 2025 (original reasons) 9 May 2025 (revised reasons)
DATE OF SENTENCE:	9 May 2025
CASE MAY BE CITED AS:	R v ST
MEDIUM NEUTRAL CITATION:	[2025] VSC 227

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CRIMINAL LAW — Sentence — Murder — Intentionally causing injury (“ICI”) — In May 2023, group of four Year 12 students, including ST, armed with machetes and knife, confronted second group of schoolboys in street near busy suburban bus interchange — ST (aged 17) chased VC (aged 16), stabbed elbow with knife, causing injury — ST then chased PL (aged 16), stabbed twice in back, causing death — ST fled scene but handed himself in 12 days later — ST held on remand in youth justice centre (“YJC”) thereafter — ST pleaded guilty to ICI and murder following sentence indication of total effective sentence of 13 years’ imprisonment with non‑parole period of eight years — Planned confrontation in company in disguise with weapons in full view of public — VC and PL unarmed — Profound victim impact on PL’s loved ones — ST intended to cause only really serious injury to PL, not to kill — Plea of guilty to murder despite triable issue on murderous intent — Genuine remorse — Youth (17 then; 19 now) — No prior convictions — Positively good character — While some concerning behaviour on remand in YJC, ST engaged well in education — Strong support from family, former school teachers, and teachers in YJC — Excellent prospects of rehabilitation — Parity — Co‑accused received non‑custodial sentences or diversion on charges arising out of same incident, including affray, weapons offences, and ICI — On murder, proposed sentence of 13 years’ imprisonment with non‑parole period of eight years — On ICI, proposed sentence (as a child) of accountable undertaking — Contrary to (fundamentally flawed) Youth Justice reports recommending otherwise, Court recommends to Adult Parole Board that ST serve some of sentence in YJC, at least to complete education or training — But for pleas of guilty, total effective sentence in order of 18 years’ imprisonment with non‑parole period of 13 years — Sentences foreshadowed today but to be passed next week to allow ST to remain in YJC while Adult Parole Board in interim considers whether he serves some of balance of sentence in YJC before transfer to prison — Crimes Act 1958 (Vic), ss 3 & 18; Criminal Procedure Act 2009 (Vic), ss 207–‍209; Sentencing Act 1991 (Vic), ss 5, 6AAA & 18; Children, Youth and Families Act 2005 (Vic), ss 360–‍362, 363–‍368, 471, 516, 534 & 586.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D Porceddu	Solicitor for Public Prosecutions
For ST	Mr C Terry	Angus Cameron Lawyers
For the Department of Justice and Community Safety	Ms M Pekevska	Department of Justice and Community Safety

HIS HONOUR:

Overview

Two years ago, on a Thursday afternoon in May, soon after school was out for the day, a group of four Year 12 students chased and attacked a second group of schoolboys in the streets near the bus interchange in Sunshine. Two boys in the first group were armed with machetes, and another had a large knife. At least one boy in the second group had a machete.

In the ensuing mayhem, ST,[1] a boy of 17 from the first group, stabbed VC to his elbow with the large knife. Perhaps fortunately, VC, who was 16, suffered only a relatively minor wound as a result.
[1]Because he was only 17 (and therefore a child) at the time of the offending, and because this proceeding arises out of a proceeding in the Children’s Court, I have used the pseudonym ST to identify the accused in order to comply with s 534 of the Children, Youth and Families Act 2005 (Vic) (“CYF Act”). I have taken the same approach to two of ST’s co‑accused (PM and MM), who were also 17 but were dealt with in the Children’s Court, and a related approach to a third co‑accused (ND), who was 18 and whose matter concluded in the County Court. While there is, strictly speaking, no prohibition on publishing ND’s name, I have chosen to give him a pseudonym as well in order to reduce the risk of identifying ST by association with him. Further, given s 534(1)(a)(iii) of the CYF Act, the prohibition applies to witnesses too. Accordingly, I have used pseudonyms to describe them as well.

However, Pasawm Lyhym,[2] who was a friend of VC and others in the second group, was not so lucky. He was at the bus interchange when he saw his friends being chased, so he ran towards them. Unarmed, he picked up a shopping trolley in an attempt to ward off at least one of ST’s group. However, at that point, ST came around the corner and advanced on Pasawm while holding the same knife he had used to stab VC. Pasawm immediately dropped the trolley, and turned and fled on foot as fast as he could along the street. But ST was quicker, and was almost within arm’s reach of him within seconds. When both were still running in the same direction, ST stabbed Pasawm from behind, twice, to the back. ST then turned about‑face and ran off through the streets nearby. Eventually, he left the area in an Uber with one of his group.
[2]While the indictment and some other documents have his given name (or names) written as Pa Sawm, Pasawm is the way their son’s given name was written in his parents’ joint victim impact statement, which is the form I shall adopt in these reasons.

Mortally wounded, Pasawm ran back to the bus interchange, where he collapsed. Paramedics and others tried desperately to save him, but to no avail. While one of the stab wounds was minor, the other was associated with internal damage that proved fatal. Tragically, he died there and then. He was only 16.

Twelve days later, ST handed himself in to police. He was charged with the murder of Pasawm Lyhym and intentionally causing injury to VC.[3] He has remained in detention in a youth justice centre ever since.
[3]At common law and contrary to s 18 of the Crimes Act 1958 (Vic), respectively. ST was also charged with affray and assault with a weapon, but those charges were withdrawn later.

At a sentence indication hearing on 9 August last year, I indicated that, if ST pleaded guilty to both charges, I would impose a total effective sentence not exceeding 13 years’ imprisonment with a non‑parole period of eight years.[4] After considering the matter with his family and his lawyers over the weekend, and notwithstanding he could reasonably have run a trial on the basis that he was guilty of manslaughter, not murder, ST pleaded guilty to both murder and intentionally causing injury on 13 August.
[4]As for the law surrounding sentence indications, see ss 207–209 of the Criminal Procedure Act 2009 (Vic).

On 20 December, I heard the same summary of the Crown case as had been before me at the sentence indication hearing, as well as heartfelt and harrowing victim impact statements, and a plea in mitigation.

Unexpectedly, the plea continued on 7 and 21 March this year so that I could hear viva voce evidence from employees of Youth Justice. KA and MD[5] respectively authored and endorsed a pre‑sentence report to this Court and an assessment report to the Adult Parole Board concerning whether or not ST was suitable to be housed in a youth justice centre when serving any sentence of imprisonment I might impose. Troublingly, in both reports and in their viva voce evidence, KA and MD opined that ST was unsuitable for youth detention, notwithstanding overwhelming evidence that he meets more than one of the several disjunctive statutory tests for suitability.[6] I utterly reject the principal conclusions in both reports and of those two witnesses. While reasonable minds may differ by degrees on matters of the type under consideration, there was no basis for KA and MD’s conclusions. In so far as these reports contain those fundamentally flawed conclusions, they are unsatisfactory documents that should never have been put before either this Court or the Adult Parole Board. Rather than cluttering this judgment — which is long enough as it is — with every criticism that might be made of those reports, and of KA and MD’s evidence, I shall address some of those criticisms separately in an appendix.
[5]I consider it neither necessary nor appropriate to name KA and MD, particularly given some of the views I shall express in these reasons and in the appendix.
[6]See s 32 of the Sentencing Act 1991 (Vic). See also s 471 of the Children, Youth and Families Act 2005 (Vic). These provisions are extracted in the appendix to this judgment.

Now, I must announce the sentences I intend to impose on ST for his crimes. But that is no easy task, as powerful considerations are pulling every which way.

On the one hand, the principal charge is murder, the most serious offence in the criminal calendar. That offence, and the injury offence, were committed by ST in the company of his group and in retaliation for ill‑treatment of one of his number the previous day. While wearing a partial face covering, he chased, and then used a dangerous weapon to stab, two unarmed victims, one of them twice in the back, on a busy public thoroughfare in full view of terrified onlookers, many of whom appeared to be even younger children. Moreover, he should not have been carrying a knife like that in public in the first place. Further, and inevitably, Pasawm’s family and friends are devastated. To lose a loved one so young, just a boy of 16, with his whole life ahead of him, and in such terrifying circumstances, is, well, it’s unfathomable. Their agony, I fear, will be lifelong.

On the other hand, ST, at 17, was only a boy too. Additionally, the Crown accepts that his intention was not to kill when he fatally stabbed Pasawm, but only to cause him really serious injury. Moreover, that intention was formed impulsively and was only fleeting. In mitigation, ST’s plea of guilty to murder is especially significant. This is not only because it is such a grave step for one so young to take, but also because his plea was entered in circumstances where, on my assessment of the evidence, at a trial, a jury might well have had a reasonable doubt about the requisite intent for murder. For those and other reasons, I am also satisfied ST is genuinely remorseful, especially for killing Pasawm and the devastation he has caused his loved ones. In addition, while ST, it seems, has engaged in some concerning behaviour during his time on remand in youth detention, and indeed he has some outstanding criminal charges arising from some of that behaviour, he has no previous criminal history. He has the full support of his loving and law‑abiding family, as well as from four of his former school teachers, who see great goodness in him. Further, those who have been formally educating ST since he has been in youth detention have been impressed with his kind, warm and respectful ways. In those circumstances, and notwithstanding the contrary views expressed by KA and MD in their reports and viva voce evidence, I am satisfied that ST’s prospects of rehabilitation are excellent and that he is particularly impressionable, callow, and likely to be subject to undesirable influences in an adult prison. In addition, his cognitive, psychological and mental health difficulties mean that custody weighs more heavily on ST than others not so afflicted, and there is a serious risk that his mental health will deteriorate in custody.

The law concerning sentence indications is that I must not impose a more severe sentence than indicated previously, but that I may impose the same or a lesser sentence.[7]
[7]See s 209(1) of the Criminal Procedure Act 2009 (Vic).

For the forgoing reasons, and for the more detailed reasons to follow, balancing all matters as best I can, for the murder of Pasawm Lyhym, I intend to sentence ST next Friday as I indicated previously — namely, to 13 years’ imprisonment with a non‑parole period of eight years.

As for the offence of intentionally causing injury to VC, having regard as well to the sentences imposed on his co‑accused for like and related offences, and in circumstances where he is to be sentenced for that offence as a child pursuant to the provisions of the Children, Youth and Families Act 2005 (Vic) (“the CYF Act”), I intend to sentence ST next Friday to an accountable undertaking to be of good behaviour for six months.[8]
[8]In my original reasons delivered and published on 2 May 2025, the words “a good behaviour bond for six months” appeared where the words “an accountable undertaking to be of good behaviour for six months” now appear. In the frontispiece to these reasons, I have made corresponding changes by removing the words “good behaviour bond” and substituting the words “accountable undertaking”, and by removing the reference to s 367 of the Children, Youth and Families Act 2005 (Vic) and substituting a reference to ss 363–‍368. These changes are also reflected in these reasons at paragraphs [179] and [180]; and the reasons for these changes are explained in footnote 46, below.

Finally, while it will be a matter for the Adult Parole Board, I recommend that consideration be given to allowing ST to continue to serve his sentence in youth detention for as long as that may be appropriate.[9]
[9]See s 471 of the Children, Youth and Families Act 2005 (Vic).

In order to ensure that he remains in youth detention — instead of being transferred to a prison — pending the Adult Parole Board’s decision on that question during the next week, I shall defer formally passing the intended sentences I have just announced until next Friday (9 May 2025), and remand ST in youth detention to appear here for those sentences to be passed on that day.

Background information

I turn now to my more detailed reasons for those foreshadowed sentences and my recommendation to the Adult Parole Board, commencing with some background information.

Pasawm Lyhym was born in Myanmar in December 2006. He was the youngest of four children. In 2009, his family left Myanmar for Malaysia, and then came to Australia as refugees in 2013. At the time of his death, Pasawm was attending Staughton College in Melton with the aim of pursuing a career in the construction industry.

He was also associated with several boys who were members of a group that went by the acronym “SEA”, which consisted mainly of youths of South‑East Asian heritage. He had the username “genji.sea” on both Instagram and Snapchat.

ST was born in December 2005, and therefore was not quite seventeen‑and‑a‑half at the time of the offending. He and his friends PM and MM (both also aged 17) and ND (aged 18) were all in Year 12 at the same Catholic college. All were also part of group (but not a gang) known as “4C”.

The Crown allege that there was an ongoing feud between members of 4C and members of SEA and their associates. As I understood it, that feud was said to arise out of at least the following events. First, on 3 April 2023, social media messages suggested that PM and some other members of his group planned to go to Sunshine Railway Station after school to fight members of SEA, including AL, who was one of Pasawm’s friends. Second, on 17 May 2023, the day before the offending, while on a bus at the interchange in Sunshine, PM was confronted by a male of Asian appearance who was thought to be a member of SEA. That person was wearing a face mask and carrying a large knife. After a brief exchange with this person, PM fled the bus and ran off through the streets. PM’s assailant followed in hot pursuit, but was unable to catch him.

The offending

I turn now to ST’s offending and that of his three co‑accused: PM, MM and ND. Some, but not all, of these events were caught on CCTV or dashboard cameras.

On Thursday 18 May 2023, after school finished for the day, ST and his three co‑accused caught a bus to Clarke Street in Sunshine, not far from the bus interchange. All were in school uniform.

Upon arrival at their stop, the four accused walked more or less together south along the western side of Clarke Street towards its intersection with Dickson Street. PM and ND each had a machete concealed on his person, whereas ST had concealed a large kitchen knife in his backpack.

The same day, Pasawm, VC and some friends of a similar age spent the afternoon together in and around Sunshine Plaza, which is near the bus interchange. Just before the attack, Pasawm’s friends VC, JK, NJ, VM and AL were congregated at the eastern corner of the intersection of Clarke and Dickson Streets. This was only just across the way from the bus interchange, where Pasawm was at this time.

As his group approached the same intersection on the western side of Clarke Street, PM took the machete from his vest and began running east across the street at the other group. ST, who was behind PM, took the knife from his backpack, dropped the backpack on the footpath, pulled his ski mask up over his face, and ran towards the same group. ND pulled the machete out of his pants and followed PM and ST across the street. MM, who was holding his own backpack as well as PM’s, followed the other three.

As PM reached the opposing group, he stabbed VC with the machete, causing an injury to his right hip. AL, who was also in possession of a machete, intervened by chasing PM away back north along Clarke Street.

ST and ND kept running at VC’s group. JK fell over and scuffed his knuckles on the pavement before getting up and running towards the bus interchange. VM fled along Dickson Street towards Withers Street.

After being stabbed to the hip by PM, VC fell to the ground but got up immediately and tried to run away. ST then chased him, and ND chased NJ, cornering them both in front of a nearby restaurant. As VC tried to flee along the footpath, ST lunged at him with the knife and then chased him again. ST caught up to VC in the middle of Dickson Street, which was when he stabbed him in the right elbow area. VC continued running and managed to get away. ST then turned around and headed west on Dickson Street towards its intersection with Station Place on the south‑west corner.

While this was occurring, ND advanced on NJ and slashed the machete at him, causing minor injury to the index finger on his left hand. After this, ND followed ST briefly along Dickson Street as he chased VC, but then turned to his right, across that street, towards the south‑west corner of the intersection with Station Place.

Meanwhile, Pasawm, who was standing near the bus interchange, saw his friends being chased, and he too ran towards the south‑east corner of Dickson Street and Station Place. He picked up a shopping trolley, apparently in an attempt to ward off ND, who was by this stage walking towards him. Moments later, however, ST, who seems not to have been in Pasawm’s vision initially, came around the corner from Dickson Street and advanced upon him with the knife. Pasawm then threw the trolley at ST, turned, and fled on foot as fast as he could south‑east along Station Place. But ST was too quick for him, and he was nearly within arm’s reach within seconds. While they were both still running in the same direction, ST lashed out with the knife at Pasawm from behind, stabbing him twice to the back. ST then turned 180 degrees and ran off to the north across Dickson Street, along Clarke Street and through the streets nearby.

While ST was off chasing Pasawm, ND and AL attempted to slash each other with their machetes. When AL dropped his machete, ND picked it up, meaning he now had two weapons. He then advanced on AL with both. AL defended himself with the shopping trolley Pasawm had tried to use moments earlier. Eventually, AL was able to walk off to the bus interchange.

As I indicated earlier, after Pasawm was stabbed in the back, he ran in a staggering fashion back towards the bus terminal, where he collapsed. Paramedics and others tried desperately to save him, but could not do so. Sadly, he was pronounced deceased at 3:59 p.m.

As for the stabbing itself, the Crown relied in part on the eye‑witness account of DP, who said this in his statement to police:[10]

The young male probably made it no more than 20 metres before the male with the knife caught up with him and drove the blade of the knife into the young [male’s] back twice. Each time driving the blade … at least halfway into his back. I could see he was using such force [that] the blade could have gone right through him. After driving the knife into the young male for a second time, the tall male turned around and ran towards bay 7, where I was standing, still holding the knife in his right hand. I could see blood covering half the blade.

[10]Depositions, p 197 (my emphasis). I consider it unnecessary to name DP.

The Crown also relied on DP’s evidence at the committal hearing, where he said that the second strike was “more aggressive than the first”, and that “it was like he was trying to drive it right through him”. He also said that the force put into the two stabs made him surprised that the knife did not go right through him. He described the knife as a “decent size carving knife” and estimated its length as 35 centimetres.[11] (I shall return to DP’s evidence later in these reasons.)
[11]Depositions, pp 2379 & 2387–2388.

The forensic pathologist who performed an autopsy on Pasawm opined as follows. He had two stab injuries to his back:

a) The injury to the right side of his back was 2.8 centimetres deep.

b) The injury to the left of his back was about 14 centimetres deep. This wound penetrated between the ninth and tenth ribs. There was a haemorrhage from the intercostal artery of rib nine, with partial incision of rib ten, and “penetration into the left lung lower lobe (through and through) into the hilum (with damage to the pulmonary artery and the left inferior lobar bronchus)”. There was also “a hemopneumothorax (1,300 mL, blood‑stained froth in the airways, haem‑aspiration, and blood in the stomach)”. Only this stab injury to the left side of his back caused death.[12]

[12]Depositions, pp 2246–2248.

ST’s movements after the offending

It is unnecessary to summarise the movements of all of those involved after the offending, save for the following concerning ST.[13] As I have said, after he stabbed Pasawm, ST ran from the scene. In doing so, he dropped his scarf but collected his backpack. Later, he took off his mask and moved his knife from under his school jumper to inside his backpack. ND joined ST in a nearby street, and the two were taken away in an Uber organised by ND’s associate. They were dropped off at ND’s home address. Later, a DiDi driver took ST to his home address.
[13]The movements and actions of others after the offending is detailed in the Crown’s summary (which became Exhibit 1 on the plea).

As indicated earlier, 12 days later, on 30 May 2023, ST handed himself in to police. As was his right, he made a “no comment” interview.

After being charged with the murder of Pasawm and intentionally causing injury to VC,[14] ST was remanded in youth detention, where he has remained ever since.
[14]And with other offences, which have since been withdrawn. See footnote 3, above.

Victim impact statements

Now I turn to the victim impact statements received from Pasawm’s family.

Pasawm’s sister Sang Lyhym fears that her words may fall short of conveying the depth of her family’s pain. Losing her beloved brother was an unimaginable blow, something for which neither she nor other members of her family were prepared. The manner of his loss has left a profound void in her family’s hearts, a wound so deep that words cannot adequately express the anguish they feel. The thought of what her brother may have felt in those final moments makes her heart skip a beat and ache, as if it were wrapped in spiked metal strings. Countless times, she has wished she could have been there, holding him and telling him how much he meant to her. As each day passes, she finds herself missing him more and more. She has become increasingly anxious and worried that something dreadful might happen to her family again. It is a terrible feeling, one that no one should have to endure.

Sang Lyhym also wrote her parents’ joint statement as to the impact on them. Mr and Mrs Lyhym said they are not just grieving parents but a family that is forever changed. Pasawm was their shining light, a loving son with a kind and infectious smile. Their world has been shattered. Their home is filled with an unbearable silence, his laughter replaced by tears and heartbreak. As they said, no parent should have to bury his or her child. They hope that no other family experiences this pain. With commendable restraint and immense dignity, to ST, they urge reflection. A life was taken, and while nothing can bring Pasawm back, to them, accountability matters. They closed by saying that their son’s legacy will not be defined by this tragedy but by the love and light he brought to their lives.

In addition to these statements of great eloquence and pathos, I received three videos of Pasawm’s funeral and his wake, two of which were played in Court. I watched all three in chambers. One of them included a song written by Pasawm’s father, and sung in Matu Chin. The song expresses his feelings about his son’s passing and the void left in his heart by his absence.

The statements and the videos are profoundly moving documents. In so far as it is permissible to do so, I have taken their contents into account in sentencing for the murder of Pasawm.

I wish to add this. I know that there is nothing this Court can say or do to salve, let alone heal, the grief and pain suffered by Pasawm’s loved ones. The sentence I must pass is not a reflection of the worth of his cherished young life. It cannot be. For a start, such a precious thing is immeasurable, at least by a stranger. But, in any event, the sentence I must impose reflects many factors which I am required by law to take into account, only one of which is the impact on victims.

As for the offence against VC, no victim impact statements were filed. That said, I think I can safely take it as read that it must have been a terrifying experience for him.

Nature and gravity of offending

Murder of Pasawm Lyhym

I turn now to an assessment of the nature and gravity of ST’s offending, and his moral culpability, commencing with the murder.

Murder is the most serious of offences. To cause the death of another with murderous intent without lawful excuse or justification is a grave thing to do. A reflection of that proposition is that murder carries a maximum penalty of imprisonment for life.[15] Subject to the existence of a “special reason”, which is neither urged nor present in this case, a custodial sentence must be imposed for murder.[16]
[15]See s 3(1) of the Crimes Act 1958 (Vic).
[16]See s 5(2G) of the Sentencing Act 1991 (Vic).

Although murder also carries a standard sentence of 25 years’ imprisonment,[17] the standard sentence provisions do not apply to ST because he was under the age of 18, and therefore a child, at the time of the offence.[18]
[17]See s 3(2) of the Crimes Act 1958 (Vic).
[18]See s 5B(1)(a) of the Sentencing Act 1991 (Vic).

That said, and notwithstanding his youth, ST’s offence had some serious features about it, including the following.

First, every offence of murder has a grave component in that, by definition, the life of another has been lost in circumstances amounting to a crime. The law must maintain a special concern for the sanctity of human life.

Second, here, the life of a beloved son and sibling, and one who was part of a wider family and circle of friends, aged only 16, has been taken as a result of conduct that, notwithstanding the absence of an intention to kill, the law treats as murder. As we have seen, Pasawm’s loved ones are inconsolable in their grief. What a terrible thing to inflict on them — to lose a child, a sibling, a friend, still just a teenager, in such awful circumstances.

Third, while others from his group were not legally responsible for the murder of Pasawm Lyhym, the offence was committed by ST in their company, two of whom were armed with machetes, and against a background that they, as a group, went to the bus interchange at least to confront others in retaliation for the violence directed at PM the previous day.

Fourth, the offence was also aggravated by the following facts: that ST chased Pasawm, who was unarmed and no realistic threat to him, and stabbed him from behind, twice, with a dangerous weapon he should not have been carrying in public in the first place, and that all of this occurred on a busy public thoroughfare in full view of terrified onlookers.

Fifth, the offence was also aggravated by ST’s attempt at disguise, feeble though it was.

Sixth, ST did himself no credit by his immediate flight from the scene without offering any assistance to his seriously wounded victim. That said, Pasawm was attended to immediately by others.

The foregoing matters must be weighed against factors limiting the gravity of this instance of murder, which include the following.

First, as I indicated earlier, it is accepted by the Crown that ST intended only to cause really serious injury, not to kill.[19] It is sometimes said that this distinction may not matter, as each case must turn on its own facts.[20] Thus, as Priest JA remarked in Walters v The Queen, “[T]he deliberate killing by a person of [his or her] beloved, suffering and terminally ill spouse, motivated by considerations of mercy, might — all other things being equal — be regarded as morally less culpable than a protracted and savage assault where the intention is to cause really serious injury.”[21]
[19]In my opinion, there is much to be said for Lord Steyn’s view, expressed in R v Powell [1999] 1 AC 1 at 14–‍15, that an intention to cause really serious bodily injury should not suffice as an intention for murder at common law. As his Lordship said, a person convicted of murder based on an intention to cause really serious bodily injury “is in no ordinary sense a murderer. … This rule turns murder into a constructive crime. The fault element does not correspond to the conduct leading to the charge, i.e. the causing of death. A person is liable to conviction for a more serious crime than he foresaw or contemplated. … The present definition of the mental element of murder results in defendants being classified as murderers who are not in truth murderers”. However, his Lordship’s view was not taken up by other members of the House in Powell; nor has it been adopted by the legislature in the United Kingdom. Nor, more’s the pity, has this view gained any traction either in the common law of Australia or with the legislature of this State.
[20]See, e.g., Walters v The Queen [2013] VSCA 164 at [5]–[10] (per Coghlan JA) & [25]–[27] (per Priest JA).
[21]Walters v The Queen [2013] VSCA 164 at [26] (per Priest JA).

While I respectfully accept, as I must, that each case turns on its own facts, and that Priest JA’s illustration is entirely apt, nevertheless, in my opinion, the distinction at issue matters in this particular case. All else being equal, to kill another with the specific intention of ending that person’s life involves greater moral culpability than to kill another not intending death but only with an intention to cause really serious bodily injury, as here. I consider it axiomatic that, had all relevant facts been the same, except that ST intended to kill Pasawm when he stabbed him fatally, his crime would have been graver precisely because his moral culpability necessarily involved in intending such an outcome would have been much the higher. It follows that ST’s offence is less serious because his intention was only to cause really serious injury, and not to kill.[22]
[22]Contrast, perhaps, R v Crabbe (1985) 156 CLR 464 at 469, where the High Court (Gibbs CJ, Wilson, Brennan, Deane and Dawson JJ), when considering the level of foresight or knowledge required for reckless murder, said these things: “The conduct of a person who does an act, knowing that death or grievous bodily harm is a probable consequence, can naturally be regarded for the purposes of the criminal law as just as blameworthy as the conduct of one who does an act intended to kill or to do grievous bodily harm. Indeed, on one view, a person who does an act knowing its probable consequences may be regarded as having intended those consequences to occur. … If an accused knows when he does an act that death or grievous bodily harm is a probable consequence, he does the act expecting that death or grievous bodily harm will be the likely result, for the word “probable” means likely to happen. That state of mind is comparable with an intention to kill or to do grievous bodily harm” (my emphasis). I was not asked to determine whether I am satisfied beyond reasonable doubt that, when ST stabbed Pasawm, he was reckless as to death or really serious injury (which is the synonym in this State for grievous bodily harm). Had I been asked, I would have said I am not so satisfied for similar reasons given below concerning my finding that, had he chosen to run a trial on murder, ST would have had an arguable defence to the mental element — namely, an intention to cause really serious injury (see below). On the other hand, one of the reasons Lord Steyn gave for his view, as expressed in R v Powell [1999] 1 AC 1 at 14–‍15, and to which I referred in footnote 18 (namely, that an intention to cause really serious bodily injury should not suffice as an intention for murder), was that not only does the current state of law in England result in convictions for murder of those “who in no ordinary sense [are] murderer[s]” but that it also “results in the imposition of mandatory life sentences for murder when neither justice nor the needs of society require the classification of the case as murder and the imposition of a mandatory life sentence”. With necessary adaptation to the fact that, in this State, murder carries a maximum (not a mandatory) penalty of life imprisonment and manslaughter carries a maximum penalty of 25 years’ imprisonment, the same argument would apply here.

Second, while a group confrontation with weapons was planned, I am also satisfied that ST did not form any intention to cause really serious injury to Pasawm until the moment he stabbed him. Rather, as I shall explain later, in part by reference to psychological opinion about ST, I am satisfied that his formation of that intention was impulsive.

Third, even then, it was only a fleeting intent. After the stabbing, ST did not seek to inflict any further violence on Pasawm, as sometimes occurs in homicides. Rather, as quickly as he stabbed him, he turned and ran away.

Overall, while, for the reasons I have given, the murder is necessarily a serious offence with incalculable victim impact, it is not as serious as many other murders commonly encountered in practice. Indeed, in the circumstances of this case, and particularly because of ST’s impulsive and fleeting intent, and that that intent was only to cause really serious injury, the offence barely crosses the threshold between manslaughter and the lower reaches of the elements of murder at common law — but murder it is.

Intentionally causing injury to VC

Turning now to intentionally causing injury, it is an offence that can vary significantly in its gravity. The offence carries a maximum penalty of ten years’ imprisonment.[23]
[23]See s 18 of the Crimes Act 1958 (Vic).

Less serious examples of the offence may involve very minor injury inflicted without a weapon. Such offences may be dealt with in the Children’s Court or the Magistrates’ Court, and usually are. However, the worst instances of the offence can be quite serious. An example might include an offence involving injury just short of serious injury committed in gravely culpable circumstances by an offender with an entrenched history of violence and no realistic prospects of rehabilitation.

The serious features of ST’s offence of intentionally causing injury to VC are similar to those attending the murder. They include ST’s use of a dangerous weapon, when partly disguised and in company, to stab an unarmed person who was no threat to him on a public street in full view of terrified onlookers.

On the other hand, the wound to VC’s elbow was relatively minor. The medical records in the depositions indicate that the laceration was about two centimetres long. It seems that, after exploratory surgery, the wound was sutured. There is no evidence of any ongoing disability as a result of the injury.

Further, ST’s stabbing of VC’s elbow was impulsive and his intent was fleeting. The moment he stabbed him, he turned and ran in the opposite direction. He did not continue pursuing him and seek to cause any more damage.

Overall, while this offence of intentionally causing injury was terrifying in its execution, the injury sustained was comparatively minor. But for its connection to the murder, given ST’s age, this offence ordinarily would have been dealt with in the Children’s Court in accordance with Part 5.3 of the CYF Act, which concerns the sentencing of children for most offences. I shall return to the relevant provisions of the CYF Act later in these reasons.

ST’s personal circumstances

Four expert reports

I turn now to ST’s personal circumstances. But, before doing so, I note that I received in evidence four expert reports, each of which includes background information about ST, as well as professional opinions. The first report was by psychologist Dr Daniella Kinder, which was completed in 2014, when ST was aged eight. The second was by clinical neuropsychologist Dr Evrim March, completed in September 2023, when ST was 17. The third was by clinical neuropsychologist Dr Michael Takagi, completed in November last year, when ST was 18. And the fourth was by consultant psychologist Ms Gina Cidoni, completed in December last, two days before ST turned 19.

It is apparent that, when assessing ST, Ms Cidoni had to hand Dr Kinder and Dr March’s reports, but not Dr Takagi’s. It is convenient to address ST’s personal circumstances, his cognitive abilities, his psychological presentation, and his mental health, mostly through the report of Ms Cidoni, with references to the other reports where necessary.

Family

I commence with ST’s family history.

ST was born in Egypt to South Sudanese parents. His family migrated to Australia when he was aged about 11 months. He is the middle child of seven, with three brothers and three sisters. ST grew up in a bilingual household in suburban Melbourne, speaking Dinka with his parents and English with his siblings.

His father is employed at a hotel. His mother is qualified as a learning support officer and works in that field. None of ST’s siblings have been in trouble with the law.

His parents and siblings have visited him regularly while he has been in custody. His family remains a significant source of support and connection for him.

ST described witnessing his father engaging in both physical and verbal abuse against his mother when he was younger. He credited his older sister as a protective and stabilising influence in his upbringing.

Ms Cidoni mentioned that Dr March’s report highlighted the psychological impact of early exposure to family conflict, noting the potential for this to shape emotional responses and decision‑making in adolescence. She also noted that Justice Health records described in Dr March’s report commented on the supportive role of ST’s family in his rehabilitation efforts.

Delayed early development

Turning to ST’s early childhood, his mother described an unremarkable pregnancy and birth. Developmentally, he began crawling within the normal range, but he experienced delays in walking, which occurred between 13 and 18 months. His speech development was also delayed, with first words emerging between 19 and 24 months, two‑word combinations by over two years of age, and sentences by three to four years.

Education

As for ST’s formal education, he attended a local Catholic school during his primary years. This is where concerns regarding his academic progress were first identified. At the age of eight, while in Grade 3, his school expressed significant concerns about his ability to keep pace with his peers, including other Sudanese students. He struggled with comprehension, following instructions, oral language development, time management, and basic life skills. The school sought an assessment from Dr Kinder and others. In her 2014 report, Dr Kinder described him as an active child who was easily distracted and had trouble concentrating. He showed developmental delays, a mild intellectual disability (including an IQ of only 61, where 99.5 percent of children his age would do better), and severe expressive and receptive language difficulties. The school implemented strategies to support his learning, including small group sessions focused on comprehension, vocabulary, sound knowledge, and numeracy, as well as using visual aids, timetables, and personal reminder cards. Despite these efforts, his academic progress remained below expectations.

On the other hand, during his secondary schooling at a local Catholic college, ST appeared to make better academic progress than he did in primary school. ST told Dr March in September 2023 that he felt he had been doing well at school, and that he was aiming to undertake an automotive mechanic apprenticeship. Similarly, ST reported to Ms Cidoni that, while he initially struggled with reading and writing, he made improvements over time and showed some strength in numeracy. He was enrolled in the regular academic stream and had never attended a special school for intellectual disability. He believed some support was provided during secondary school but could not recall receiving one‑on‑one assistance. Despite occasional difficulties remembering instructions and requiring clarification, he continued to make an effort to engage with his studies.

While in custody, ST has continued his education, initially completing some Year 12 coursework via correspondence with assistance from his teacher at the Catholic college. He has also attended Parkville College within the youth justice system. He has earned a White Card and participated in classes on hospitality, cooking, sport and recreation, and welding.

Jack McCombe, who is the Transitions Team Leader at Parkville College, provided a report detailing ST’s studies towards his VCE Vocational Major (“VCE‑VM”). The subjects he has completed are in numeracy, automotive studies, and business services. The subjects he is currently undertaking are in literacy, work related skills, numeracy, and personal development skills.

Mr McCombe went on to say these things about ST:

In our classrooms, [ST] has consistently treated stakeholders, service providers and education staff with respect. Parkville College staff observe that [ST] diligently follows staff direction and advocates for himself and his peers in the most respectful ways in class. He communicates effectively and has strong and positive relationships with all education staff. In Literacy and Numeracy spaces, [ST] is regarded as a mature and self‑aware young man who is connected to his education and motivated to complete the VCE‑VM. [ST] has faced challenges in his learning journey but has approached each of these challenges with patience and commitment. [ST’s] teachers wish to commend him for the perseverance to learning and education he has consistently demonstrated, which is a remarkable quality given the challenging dynamics in a custodial setting.
[ST] has similarly shown his enthusiasm for learning beyond his core classes, taking every opportunity to engage in extracurricular activities. [He] has participated in groundskeeping, barista training and running the coffee cart and has been a key member of community programs inside the precinct. In these programs, teachers note the pride [ST] demonstrates for his community and the joy it brings to him.
As a student from an African background, [ST] participates in the Umoja program, a cultural education program for all young people who identify as from the African Diaspora community. In Umoja, students cover many topics about cultural heritage, pride, implications of migration and the resilience of migrants in the Diaspora. [ST] is an active participant in the Umoja program. He has a grounded understanding of the values and aims of the program and always participates with confidence. In class discussions, [he] treats his peers with fairness, understanding and respect, and confidently supports his peers to express their opinions and beliefs. In a class where discussions are sensitive and invoke a lot of emotion for students, [ST’s] ability to empathise and support his peers shows a level of kindness and care that is remarkable, particularly in a custodial setting.
Parkville College staff hold the utmost respect and care for [ST]. Throughout his time here, he has shown his capacity to care and show kindness is vast and extended to all. [He] has consistently treated staff with respect and shows a level of kindness in interactions that is unique to his warm and open personality. In conversations with trusted teachers, [ST] has revealed reflections on his life that demonstrate he desires to be a role model to his family and his community. He hopes to complete his Year 12 studies to make his family proud and go on to continue studying. Given the challenges [ST] has faced in his life and continues to whilst in custody, this gentleness and level of reflection is significant.
We ask the court to consider the significant impact [ST] has had on our staff and students and acknowledge the commitment to education he has shown. Our school is proud of the growth and development we have seen in [ST] and we ask that he is able to continue pursuing his education at Parkville College so he can achieve his goal of completing Year 12. Our school is fully supportive of him completing his high school studies and has full belief in his ability to do so.

Sports

Turning to his interest in sport, ST has been actively involved in various sports since the age of ten, including cricket, basketball and Australian rules football.

He aspired to play cricket professionally. His talent was such that he played A‑grade cricket at the age of 16. The same year, he received an award for being the most valuable player at his age level in his region’s junior cricket association. He was selected at representative level for The Crusaders programme, which involved him being coached by former national level Australian cricketers and playing representative matches in Echuca and Cairns and surrounds.

Employment

As for employment, ST’s first job was at Hungry Jack’s, where he began working at the age of 14 and remained employed there for 18 months. At the time of his arrest, he had been working part‑time at McDonald’s for two years, including while doing Year 12.

Medical history

ST’s medical history is unremarkable. He broke his shoulder at age 13 while playing football. Additionally, he broke his ankle while playing cricket, which was reinjured while in custody during a game. At 15, he briefly lost consciousness after being elbowed in the head during a game of football, resulting in a mild concussion with no lasting effects. He reported no significant illnesses or injuries in recent years beyond those related to sports.

Mental health

As for ST’s mental health, Dr March’s report noted a diagnosis of post‑traumatic stress disorder (“PTSD”). Justice Health records, which are referred to in Dr March’s report, outlined the ongoing management of ST’s PTSD symptoms while in youth detention, noting improvements in emotional regulation through structured therapy. The records also highlighted occasional challenges with mood stability and concentration, which were attributed to situational stressors within the custodial environment.

ST reported to Ms Cidoni that he was experiencing nightmares, difficulty sleeping, flashbacks of the offence, and trouble getting distressing images out of his head. He demonstrated avoidance and reported hyperarousal symptoms, such as feeling on edge and a startle response. He also expressed feelings of sadness, tearfulness, depression, and anxiety. He said he experienced fleeting thoughts of self‑harm but denied any attempts.

To manage his symptoms, he has used melatonin for sleep. He has also been prescribed prazosin to address his nightmares. He reported minimal discussion about the offending in counselling. He reported twice‑weekly counselling sessions through Orygen Youth Mental Health Services and participation in their Behaviour Support Service Youth Offending Programme. He told Ms Cidoni that he feels these supports have benefited him.

In relation to other trauma, he described being affected by domestic violence during his childhood. While he has no personal memories of war, ST acknowledged that his parents and older siblings were exposed to atrocities during the civil conflict in Sudan.

Alcohol and substance use

As for substance use, ST acknowledged occasional binge drinking at the age of 17 but denied regular or daily alcohol consumption. He admitted to intermittent cannabis use, including a short period of more regular use. He denied using other drugs or prescription medications. He also reported no involvement with gambling.

Cognitive deficits

Turning to ST’s cognitive abilities in more recent times, Dr March’s testing in September 2023 showed that his verbal comprehension fell within the extremely low to borderline range; his perceptual reasoning was within the low average range; and his working memory was in the borderline to low average range. As poor as these results were, they were generally better than those he achieved when tested by Dr Kinder at the age of eight.

In his report of November 2024, Dr Takagi noted that his cognitive testing of ST was largely consistent with his performance for Dr March’s assessment a year earlier. Dr Takagi also opined that, as poor as his results were in some domains, he performed above the range expected for intellectual disability. Further, in his view, other factors inconsistent with intellectual disability were that ST was able to perform at a competent level both in his VCAL and VET course in Year 11 and in multiple units at Parkville College, and that he had been employed at fast food stores.

Dr Takagi pointed out, however, that this does not mean ST does not experience cognitive difficulties. He does. He has significant deficits in his expressive and receptive language; his verbal abilities have consistently been assessed in the borderline to extremely low range; and he has been diagnosed with a developmental language disorder (“DLD”), which is a diagnosis Dr Takagi supports.

Dr Takagi explained that those with DLD can be easily led, as they struggle with the ability to reason verbally through the consequences of their actions and provide a counter argument as to why an action should not be taken. This, he explained, is consistent with the description of ST in the Justice Health notes, where it was said that “[he] appears to be vulnerable to the pressure of other young people when it comes to engagement in offending”. Dr Takagi went on to explain that he was not, however, making a direct link between ST’s DLD and the murder. That said, he also noted that language difficulties are a notable risk factor for future behavioural challenges. He explained that several Australian studies have found that poor language ability in the early years of childhood increases the risk of anti‑social behaviour by early teenage years, and that one study found that about 50 percent of young offenders met criteria for language impairment.

Ms Cidoni took a similar view of ST’s cognitive deficits. She assessed his full‑scale IQ as 79, which places him the borderline range. As we shall see, however, in contrast to Dr Takagi, I understood Ms Cidoni to draw a more direct link between a combination of ST’s afflictions and his offending on this occasion.

Other psychological concerns

Another assessment[24] conducted by Ms Cidoni revealed that ST had symptoms consistent with a range of psychological conditions, with some areas showing significant concerns. There was evidence of symptoms related to anxiety, heightened stress responses following past trauma, including intrusive thoughts, nightmares, hyperarousal, avoidance behaviours, and difficulty concentrating, as well as periods of emotional distress. Additionally, there were signs of prolonged sadness, low mood, and a lack of interest or pleasure in usual activities. Notwithstanding his report to her about his use of drugs and alcohol, Ms Cidoni also considered that patterns indicative of substance use, both in relation to alcohol and drugs, were also present and of clinical significance, reflecting potential challenges in managing these behaviours.
[24]In particular, the Millon Clinical Multiaxial Inventory‑IV (MCMI IV). See Ms Cidoni’s report (6 December 2024) at [65]–[72].

In Ms Cidoni’s view, these findings point to ongoing struggles with emotional and psychological regulation, as well as the impact of past traumatic experiences. Further, his personality patterns indicated traits consistent with social withdrawal and a preference for isolation, as well as social difficulties. There were also notable tendencies towards avoidance in situations perceived as stressful or anxiety‑inducing, accompanied by a tendency to rely on others for emotional support and decision‑making. In addition, there were general traits consistent with a melancholic disposition, characterised by a tendency towards sadness and pessimism and patterns of emotional instability with a tendency to be emotionally reactive or impulsive.

Risk assessment

By application of the Structured Assessment of Violence Risk in Youth, Ms Cidoni assessed ST’s risk of future violent offending as low. She explained that the static risk factors include his history of exposure to domestic violence and the commission of serious offences at the age of 17. Dynamic risk factors include his borderline intellectual functioning, which affects his impulse control and decision‑making, and his association with delinquent peers. Protective factors include his strong family support, as evidenced by regular visits and emotional backing; his educational commitment, demonstrated by completing Year 12 coursework while in custody; and his engagement with mental health services, indicating a willingness to participate in rehabilitation.

Ms Cidoni added that these protective factors also indicate that ST’s prospects for rehabilitation are favourable. In her opinion, his demonstrated remorse, emerging insight into his actions, and active engagement with educational and therapeutic programmes suggest readiness for positive change.

Mitigating factors

Pleas of guilty

I turn now to the mitigating factors urged by Mr Terry, who appeared for ST, commencing with his pleas of guilty. For several reasons, this is a very significant factor in mitigation.

First, while there was a committal hearing and the pleas were not entered at the earliest stage, they were entered well before trial. Earlier in the process, ST had offered to plead guilty to manslaughter, which was rejected by the Director. Ultimately, the pleas of guilty to murder and the injury offence were entered following the sentence indication. Mr Porceddu, who appeared for the Director, accepted that these were pleas entered at a reasonably early stage. I agree.

Second, in my view, while it is always a significant step to plead guilty to murder, it is even more significant to do so when the accused was aged only 17 at the relevant time. Many would be tempted to rely, at least in part, on the folly of youth in an attempt to explain why a jury should not be satisfied of murderous intent. That ST eschewed that course indicates an acceptance of responsibility for his offending and a willingness to facilitate the course of justice.

Third, a related, but more important, consideration is that ST’s plea of guilty to murder was entered despite the evidence giving rise to a viable defence to the intention required — which, in this case, was conceded to be, and could never be any more than, an intention to cause really serious injury, not to kill. For the following reasons, a jury might well have doubted that element:

a) First, earlier, I mentioned the evidence of DP, who witnessed the stabbing of Pasawm. He said that “[e]ach time [ST drove] the blade … at least halfway into his back”, that “he was using such force [that] the blade could have gone right through him”, that “it was like he was trying to drive it right through him”, and that the force put into the two stabs made him surprised that the knife did not go right through him. But these parts of his evidence are no more than opinion evidence, and would not have been admissible at trial.[25]
[25]See s 76 of the Evidence Act 2008 (Vic).

b) Second, and in any event, it is arguable those parts of DP’s evidence are inconsistent with the medical evidence and what can be seen on the CCTV footage. The non‑fatal wound was only 2.8 centimetres deep, whereas the fatal wound was 14 centimetres deep. Given the size of the knife that can be seen on the CCTV footage, and which DP himself estimated was 35 centimetres long, these injuries do not suggest that ST was “trying to drive [the knife] right through him”. Had that been his intention, it is reasonable to think that he would have achieved it.

c) Third, the CCTV footage of the incident rather suggests that it was at least arguable that, in a dynamic and fast‑moving situation, ST simply wildly lashed out at Pasawm from behind when barely within arm’s reach and with no more than an intention to wound, as he had done in relation to VC, rather than in a more controlled and targeted manner that might be consistent with only an intention to cause really serious injury.

d) Fourth, the fact that ST did not seek to stab Pasawm any further, but instead turned and ran off as quickly as it happened, does not, to me, suggest an intention to cause really serious injury. Rather, again, it is arguably consistent with a much lesser and fleeting intent, perhaps to harm or wound, but no more.

Thus, ST had a viable basis to secure an acquittal of murder at trial and to be convicted of manslaughter instead. Hence his very early offer to plead guilty to manslaughter. In the face of the Director’s decision to reject that offer, many in ST’s position, quite reasonably, would have taken their chances on murder before a jury. A plea of guilty to murder in those circumstances is of especial weight in mitigation.[26]
[26]See, e.g., R v De Macedo (unreported, Supreme Court of Victoria, Court of Criminal Appeal, 4 February 1992) at 5–‍7 (per Phillips CJ, with whom Beach and Gobbo JJ agreed.

Remorse

Next, I am satisfied that ST is genuinely remorseful, particularly for the murder of Pasawm and the devastation it has caused his family. There are three sources of evidence for that conclusion.

First, I am persuaded that ST’s pleas of guilty, and the circumstances in which the murder plea in particular was entered, imply remorse.

Second, I received references from four professionals involved in ST’s formal education, all of whom have known him for years: Michelle Buckley, who taught at the primary school ST attended; Matthew Shawcross, who was the Deputy Principal at the same school; Gerard Broadfoot, who was the Principal at the same school; and Stephanie Banks, who is a Deputy Principal at ST’s secondary school. All four have spoken to and/or visited ST since his incarceration. All have observed him to express remorse for what he has done and its impact on others.

Third, as I indicated earlier, Ms Cidoni observed ST to have feelings of remorse. When asked about the victims and their families, he was tearful and acknowledged the harm his actions caused. In her view, he demonstrated an understanding of the lasting impact his behaviour had on the victims and their families.

Absence of prior convictions

The third matter in mitigation is that ST has no prior convictions or findings of guilt.

However, according to reports provided by Youth Justice, ST has been charged with three groups of offences arising from his time on remand in youth detention:

a) A charge of assault against the Safety and Emergency Management Team was laid concerning an alleged incident at the youth justice centre at Malmsbury (“Malmsbury YJC”) on 3 September 2023. The matter was due to return to the Children’s Court on 16 March 2025, but I assume that has since been adjourned pending sentence in the current matter.

b) Charges arising out of alleged riotous behaviour at Malmsbury YJC on 27 September 2023 were laid but then struck out in the Children’s Court on 7 February this year.

c) ST has pleaded guilty to 15 charges arising out of alleged riotous behaviour on 3 October 2023 at Malmsbury YJC. Sentencing was due to occur on 16 April 2025, but, again, I assume that would have been deferred until after the imposition of the current sentence.

Given that the first charge is undetermined and the fact that the second set of charges has been struck out, none of those charges can have any bearing on sentence.

As for the third set, while ST has pleaded guilty to some charges, I have not been told what those charges allege, nor have I been given any summary of the relevant circumstances said to give rise to the charges. Rather, the reports from Youth Justice merely summarise some allegations, which may or may not form part of any charge or summary of facts. In those circumstances, all I can say for present purposes is that he has pleaded guilty to some charges connected with allegations of riotous behaviour when he was at Malmsbury YJC on 3 October 2023.

The Youth Justice reports also detail ST’s other alleged behaviour while in youth detention that is not the subject of any criminal charges. The allegations range from minor disciplinary matters (such as ST and peers refusing directions to return to their units, refusing to comply with lockdowns, and possibly having contraband — namely, a vape) to aggression and threats towards staff members, and assault of other detainees. Strangely, also listed is an incident or incidents where ST is the alleged victim of assaults by four other detainees from a different unit.

Given Dr Takagi’s opinion and Justice Health’s notes concerning ST’s DLD and his vulnerability to the pressure of other young people when it comes to engagement in offending, I am satisfied that, when in the confines of youth detention with other young detainees, that vulnerability or impressionability is likely to explain why a young person who is otherwise of good character has engaged in concerning behaviour, at the instigation of or under pressure from other young detainees (whether that instigation or pressure be express or implied).

Positive character traits

Next, whatever may be said about his behaviour in custody, quite apart from his lack of prior convictions for criminal matters, there is evidence, from those who have known him for a long time, that ST has been a child or young person who has continually demonstrated a positively good character.

For example, Ms Buckley, ST’s former teacher, was a chaperone for his two‑week cricket tour to Cairns in 2022. She said that he was exceptionally well behaved on the tour. She observed him to be quiet and respectful, preferring to stay at the accommodation venue of an evening when other boys his age were going out. She recalls that, one evening after a pizza meal at their accommodation, ST quietly moved around and cleaned up tables and returned crockery to the kitchen staff. Ms Buckley has also visited ST a number of times in custody. She has found him to be the same as he always was — lovely and respectful. In her view, to say that she considers the offending to be out of character for ST is an overwhelming understatement.

Similarly, Mr Shawcross pointed out that ST always demonstrated sincere gratitude, through both words and actions, for any assistance provided to him. For example, he would always help his cricket coaches and other parents to pack up equipment, put rubbish in the bins, and lock up and alarm the clubrooms. Mr Shawcross would thank him, and ST would say that it was the least he could do. Mr Shawcross has known ST since he was aged two. He, like Ms Buckley, considers his offending to be completely out of character.

Mr Broadfoot has known ST since 2010, when he was four going on five. When he thinks of ST’s time in primary school, he is reminded of his respect for family and his school. He regards ST as a young person of outstanding character, who comes from a close and supportive family who have maintained close and ongoing contact throughout his incarceration. Mr Broadfoot struggles to connect ST’s offending to the young person he knows.

Finally, and similarly, Ms Banks, who has known ST since Year 7 at school, said the news that ST was charged with murder came as a profound shock. To her, the offending is entirely out of character. Throughout his years at secondary school, ST was an active participant in his education and extracurricular activities. He represented his school in various sports with distinction, including excelling in basketball. His commitment to the school was recognised early in 2023 with a community achievement award. His eligibility for the award included performing random acts of kindness, assisting others, representing the school admirably in excursions, and displaying strong leadership skills.

I accept this evidence. It is, of course, also wholly consistent with the way in which ST has impressed those educating him in youth detention, as explained by Mr McCombe in the passage from his report I extracted earlier.[27]
[27]ST’s mother also provided a passionate reference for her son, which I have taken into account.

Thus, the fourth matter in mitigation is that I accept that, notwithstanding concerns about his behaviour in other aspects of his time in youth detention, ST is, and has been, a child and young person of otherwise positively good character.

I should add that, in my respectful opinion, the world is a far better place because of people like ST’s former and current teachers. For they have the decency and moral courage to stand up for a young person who has done something terrible, and attest to his good qualities, when others might just turn away.

Youth

The fifth matter in mitigation concerns ST’s youth, which, like his pleas of guilty, is a very significant consideration. He was only 17 at the time of the offending, and is still only 19.

One of the great aims of the criminal law is to rehabilitate younger offenders. The young are usually treated more leniently in recognition of the fact that they are less mature, less able to form moral judgments or control their impulses, and less aware of the seriousness and consequences of their actions. This is especially so in the case of offences committed impulsively,[28] as here. ST’s offending is, at least in part, a product of youthful limitations of those kinds.
[28]See, e.g., DPP v JA & Ors [2023] VSC 531 at [26]–[27] (per Hollingworth J).

Given his youth, and the psychological opinion and Justice Health notes to the effect that ST is easily led, I am also satisfied that ST was, and is, a particularly callow and impressionable young person. Moreover, for the same reasons, as well as his cognitive limitations, I am also satisfied that ST is even more likely to be subjected to even more undesirable influences in an adult prison.

In addition, as we have seen, ST has no prior criminal history and, some of his conduct in custody aside, has otherwise been of positively good character. In addition, as we shall see shortly, he also has excellent prospects of rehabilitation.

Thus, in my opinion, this is not a case in which the weight to be accorded to youth is to be subjugated to other considerations, let alone extinguished, because of ST’s alleged behaviour in youth detention or the nature of his offence, serious though the murder is.[29] Instead, youth, immaturity and impressionability, and the aim of rehabilitating a young offender with such outstanding prospects, remain important considerations in sentencing him.
[29]See, e.g., Azzopardi v The Queen (2011) 35 VR 43 at 53[34]–‍57[44] (per Redlich JA; Coghlan AJA and Macaulay AJA agreeing).

It is of course a pity that, as a result of the sentence to be imposed, ST will have to continue to develop his values and attitudes in a custodial environment — whether that be in youth detention for a while yet or in prison soon — and for a substantial period. That, of course, is an unavoidable consequence of the nature and gravity of his offence. In a case as serious as this, the applicable sentencing purposes (which I shall come to later) require such an outcome. But the sentence still must be tempered, and markedly so, by reason of ST’s youth, immaturity and impressionability. In my view, it would be wrong and counterproductive to fail to do so.

Increased vulnerability to engaging in violent behaviour impulsively

The sixth factor in mitigation concerns Ms Cidoni’s opinion regarding ST’s increased vulnerability to engaging in impulsive and reactive violent behaviour. She put it this way in her report:[30]

[89] [ST’s] offending reflects a combination of developmental, cognitive, and social factors that increased his vulnerability to engaging in violent behaviour. During adolescence, the underdeveloped prefrontal cortex, which governs decision‑making and impulse control, makes individuals more susceptible to risk‑taking and peer influence. For [ST], this immaturity was compounded by borderline intellectual functioning and other cognitive deficits, which impaired his ability to foresee the consequences of his actions, navigate complex social dynamics, and resist peer influence. Additionally, his background, marked by domestic violence exposure and transgenerational trauma, likely contributed to emotional dysregulation and reduced coping capacity. Collectively, these factors created a context in which he was more prone to impulsive and reactive behaviour.

[30]Report of Ms Cidoni (6 December 2024) at [89].

While ST and his co‑accused planned to confront the other boys with weapons, for the reasons Ms Cidoni gives, I am satisfied that ST’s psychological makeup contributed to his impulsive decisions actually to stab VC and Pasawm, and to his impulsively formed and fleeting intention to cause Pasawm really serious injury.

Hardship of custody and risk of deterioration of mental health

The seventh and eighth potential matters urged in mitigation concern whether I am satisfied, first, that ST has found, and will find, custody more burdensome than others because of various of his afflictions, and, second, that his mental ill‑health is likely to worsen in custody.

In addition to the matters mentioned earlier in these reasons and elsewhere in her report, Ms Cidoni expressed the following opinions in the conclusionary section of that report:[31]

[92] [ST’s] experience in detention is significantly shaped by a combination of mental health challenges, cognitive impairments, and the stressors of the custodial environment. His PTSD symptoms, including nightmares, flashbacks, heightened arousal, and avoidance behaviours, have likely worsened due to the reminders of his offence and the challenges of incarceration. Emotional instability, compounded by feelings of guilt and regret, creates additional fragility in his psychological state. His cognitive impairments, such as difficulties in verbal comprehension and working memory, hinder his ability to navigate the custodial environment, especially in contexts requiring quick comprehension or decision‑making.
[93] There is a risk that [ST’s] mental health may deteriorate further in detention if appropriate support is not provided. The additional stressors of incarceration, combined with his PTSD and cognitive limitations, present a significant risk to his emotional wellbeing. Structured interventions, including trauma‑informed care and targeted mental health support, are essential to mitigate this risk.
[94] If [ST] were to be incarcerated in a prison setting, these challenges would likely become even more pronounced due to increased stressors and a lack of tailored support.

[31]Report of Ms Cidoni (6 December 2024) at [92]–[94].

Dr Takagi addressed these same two questions in the concluding parts of his report. He said this:[32]

[110] Having a DLD alone places [ST] at an elevated risk of developing and maintaining mental health difficulties. As described in the above section, [his] language limitations could be a significant barrier to his ability to effectively engage in psychological support (e.g., difficulties articulating treatment goals, engaging in therapy). Treating clinicians will need to support [him] throughout treatment to ensure effective communication. In that sense, because [he] is more likely to experience mental health difficulties and his mental health is more difficult to treat because of his language challenges, a prison sentence may weigh more heavily on him than it would a person … without a language disorder.
[111] Further, as highlighted previously, [ST] is at an increased risk of being taken advantage of by malevolent individuals while in custody because of his limited language abilities. When reading through [his] medical records, the notion that he is led by peers to engage in anti‑social activities is identified numerous times.
…
[112] In my opinion, there is not a serious risk that imprisonment will have a significant adverse effect on [ST’s] language abilities. They are static and have been present since early childhood. His language abilities will not get worse, but without treatment they will also not improve.
[113] With respect to mental health, it is difficult to predict the risk of significant adverse outcomes following imprisonment. Based on the medical records from Justice Health and my own observations for the present assessment, currently, [ST] does not show any symptoms of severe psychiatric illness (e.g., psychosis). However, his mental health status may change over time (e.g., major depressive disorder) and considering [his] language challenges, he should be closely monitored by mental health services throughout any period of imprisonment.

[32]Report of Dr Takagi (30 November 2024) at [110]–[113].

As to the first issue, I accept both Ms Cidoni and Dr Takagi’s opinions. In particular, I am satisfied that, for reasons they give, the combination of ST’s afflictions has made, and will continue to make, his time in custody weigh more heavily on him than it would on a person who does not have that same combination of afflictions. This, then, is a factor in mitigation.[33]
[33]See R v Verdins (2002) 16 VR 269 at 276[32](5) (per Maxwell P, Buchanan and Vincent JJA).

As to the second issue, notwithstanding the ongoing management of his PTSD symptoms mentioned in Dr March’s report of September 2023, which included improvements in emotional regulation through structured therapy, and notwithstanding Dr Takagi’s more equivocal opinion on the point, I accept Ms Cidoni’s opinion concerning the risk of deterioration in ST’s mental health while in custody. In particular, I am satisfied that there is a serious risk that a custodial sentence will cause ST’s mental health to deteriorate further. This risk, I accept, will be greater to the extent that he may be housed in prison rather than in youth detention. Either way, I accept that this is also a factor tending to mitigate punishment.[34]
[34]See R v Verdins (2002) 16 VR 269 at 276[32](6).

Excellent prospects of rehabilitation

Turning to the final factor in mitigation, I am satisfied that ST has excellent prospects of rehabilitation.

Among the reasons for that conclusion are his pleas of guilty, his genuine remorse, his youth, his lack of prior convictions, his positively good character, his low risk of future violence, the educational gains he has made as a student despite his cognitive limitations, and the support he enjoys from his family, his former school teachers, and his current teachers within Parkville College.

In coming to this conclusion, I have taken account of the concerns about ST’s behaviour in youth detention, which I have outlined earlier. This, it must be understood, is an exceptional case. In my view, the matters I have just listed plainly overwhelm any concerns expressed in the two Youth Justice reports about ST’s behaviour in custody.

As for those concerns, I note also that Dr Takagi reported that he was able to speak with KA, who was (and still is) ST’s Youth Justice case manager. To him, KA described ST as among the most engaged young people at Cherry Creek and said that he “hit the ground running” with Youth Justice. She said he is pleasant, respectful, and engages well with Youth Justice. She confirmed that he is close to his family, who often visit him in custody.

This, I should add, is the same KA who, in her written reports and her viva voce evidence, opined that ST did not have reasonable prospects for rehabilitation and that he is not impressionable, immature or likely to be subject to undesirable influences in an adult prison. For the reasons I have given, and on which I shall expand in the appendix, those opinions are just piffle.

Sentencing purposes

Sentencing purposes for murder

I turn now to the purposes of sentencing, commencing with those for murder. Section 5(1) of the Sentencing Act provides that the only purposes for which sentence may be imposed are, to use the shorthand, general deterrence, specific deterrence, denunciation, protection of the community, just punishment, and rehabilitation.

General deterrence, denunciation and just punishment

In my opinion, and notwithstanding ST’s tender age, general deterrence, denunciation and just punishment are, in varying degrees, important sentencing purposes in this case.

Recently, in a less serious homicide than this,[35] I remarked that all persons, whether young or old, should understand that the carrying of knives can lead to tragic consequences of the kind that occurred here. No good can come from carrying weapons like these. It just has to stop. The same sentiments apply here. All should also understand that any person who, with an intention to cause really serious injury, stabs an unarmed person to death with a knife, on a public street, usually will receive a substantial term of imprisonment for murder, even if that person is young and has excellent prospects of rehabilitation and/or other compelling mitigating factors.
[35]See R v Shumski [2025] VSC 148 at [149].

Further, the loss of Pasawm’s life in these circumstances, and the profound impact that his death inevitably has had on his loved ones, must be denounced and met with just punishment. However, principally because of ST’s youth, but also in light of his afflictions detailed earlier in these reasons, the weight to be accorded to denunciation and just punishment must be less than it would be for, say, an adult without any such afflictions.

Specific deterrence and protection of the community

Next, given ST’s youth, his previous good character, his plea of guilty and remorse, and his excellent prospects of rehabilitation, I consider that personal deterrence and protection of the community are of substantially less weight than they might be otherwise. Further, in this regard, it is significant that Ms Cidoni’s assessment of ST is that his risk of future violent reoffending is low, which I accept.

Adjournment to 9 May 2025 for imposition of sentence

I now adjourn this matter to next Friday 9 May 2025 at 9:30 a.m. and remand ST in custody in youth detention to appear here then. On that morning, I shall formally impose the sentences and make the declarations I have just foreshadowed. This will allow ST to remain in youth detention in the interim while the Adult Parole Board determines whether, once sentenced, he is to remain in youth detention for a period considered appropriate or whether instead he is to be transferred to prison immediately to serve the balance of his sentence.[47]

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Appendix: Youth Justice reports and viva voce evidence

[47]Justice Elliot adopted this procedure recently. See Director of Public Prosecutions v XQ [2025] VSC 188 at [71]–[75]. The Adult Parole Board has been advised that I would be taking the same course in this matter.

Background

After the plea hearing on 20 December 2024, with the concurrence of counsel, I called for a report on ST’s suitability to remain in youth detention to serve at least some of his prison sentence. The sentence date was to be 25 February 2025.

Subsequently, my chambers received two reports from Youth Justice about ST. The first in time, which was entitled Assessment Report: Transfer from Prison to a Youth justice centre, and dated 7 February 2025, was compiled by KA, Advanced Case Manager, West Metropolitan Region; was endorsed by MD, General Manager, West Metropolitan Region; and was approved by AD, the Commissioner, Youth Justice (apparently on 15 February 2025). This is a report compiled for the Adult Parole Board for the purposes of considering whether, pursuant to s 471 of the CYF Act, following sentence, the Board would direct that ST be transferred from a prison to a youth justice centre. I shall call this the APB report.

The second report, which was entitled Pre‑Sentence Report: Suitability for Youth Justice Centre Order, and dated 18 February 2025 on its frontispiece, was authored by KA, whose title on this document was Case Manager, Northwest Metro Region, and endorsed by MD, General Manager, Northwest Metro Region. Both KA and MD signed the report on 3 March 2025. I shall call this the pre‑sentence report.

The two reports were forwarded to the parties.

The reports were striking in that, despite the overwhelming evidence to the contrary, they offered the following conclusionary opinions and recommendations. The pre‑sentence report concluded in this way:

Youth Justice respectfully recommend after careful consideration and on balance, that [ST] does not meet the suitability criteria specified in [s] 32 of the Sentencing Act … to serve his sentence in a youth justice centre.

The APB report concluded in this way:

While there is a place available, Youth Justice respectfully recommend that after careful consideration and on balance, [ST] is assessed as not suitable to transfer from prison to a youth justice centre pursuant to [s] 471(1)(a) of the [CYF Act].

After receiving these reports, the sentence date was vacated so that KA, as author of them, could give evidence about her reasons for forming those conclusions. My chambers indicated that KA would be required to give viva voce evidence on 7 March 2025. As it turned out, KA was away from work with illness on that day, so MD came to give viva voce evidence in her stead. Notwithstanding MD’s evidence, both Mr Porceddu and Mr Terry agreed that it was still necessary to hear from KA. I agreed. So, on 21 March 2025, KA ultimately came along and gave viva voce evidence as well.

The relevant provisions

Relevantly, subsections (1), (2A), (2C) and (2D) of s 32 of the Sentencing Act are in these terms:

(1)Subject to subsections (2A), (2B), (2C) and (2D), if a sentence involving confinement is justified in respect of a young offender a court may make a youth justice centre order … if it has received a pre‑sentence report and—
(a)it believes that there are reasonable prospects for the rehabilitation of the young offender; or
(b) it believes that the young offender is particularly impressionable, immature or likely to be subjected to undesirable influences in an adult prison.

(2) In determining whether to make a youth justice centre order …, a court must have regard to—
(a) the nature of the offence; and
(b) the age, character and past history of the young offender.

(2A) A court must not make a youth justice centre order in respect of a young offender who at the time of being sentenced is under the age of 15 years.
…
(2C) If a young offender is to be sentenced for a category A serious youth offence,[48] a court must not make a youth justice centre order … in respect of the young offender unless the court is satisfied that exceptional circumstances exist.
(2D) If—
(a) a young offender is to be sentenced for a category B serious youth offence; and
(b) the young offender has previously been convicted of another offence that is a category A serious youth offence or a category B serious youth offence —

a court must not make a youth justice centre order … in respect of the young offender unless the court is satisfied that exceptional circumstances exist.

[48]Murder is a “category A serious youth offence” (see s 3(1) of the Sentencing Act 1991 (Vic)).

Section 471(1) of the CYF Act is in these terms:

If the Adult Parole Board considers it appropriate in the interests of a person under the age of 21 years imprisoned in a prison to transfer that person to a youth justice centre, the Adult Parole Board may if satisfied, after considering a report from the Secretary, that—
(a)that person is suitable for detention in a youth justice centre; and
(b) a place is available in a youth justice centre—

direct that that person be transferred to a youth justice centre.

MD’s viva voce evidence

A summary of parts of MD’s viva voce evidence on 7 March 2025 follows.

MD was asked, given ST was only 17 at the time of the offending, had no previous involvement at all in the criminal justice system, had a supportive family, had strong character references from teachers who have known him since he was very young, and had a strong reference from Mr McCombe about his engagement in education, and notwithstanding the alleged incidents while in youth detention, how anyone could conclude that he does not have at least reasonable prospects for rehabilitation. Her answer was that the main factors were his refusal to engage, or only sporadic involvement, in forensic clinical support on offer.

As for the conclusion that he is not particularly impressionable, immature or likely to be subject to undesirable influences in an adult prison, MD referred to the pattern of concerning behaviour by ST in custody, some of it leading to charges. In the next breath, MD accepted that, soon after coming into custody, ST was placed with gang members, and that this was a recipe for disaster. That said, MD pointed out, reasonably I think, the difficulty of managing competing risks — in particular, I understood her to mean, on the one hand, the risk of corruption in placing ST with gang members with whom he may have some connection and, on the other, the risk of physical harm to ST from rival gang members were he not placed with others.

MD accepted that peer influence appears to have been significant in his behaviour in custody, but she also asserted that he had instigated some things himself. MD agreed that the latter point does not alter the fact that he is impressionable.

As for ST being subject to undesirable influences in an adult prison, MD pointed to the nature of the incidents in which he has been involved in youth detention. But, in the next breath, nonsensically to me, she accepted that she “not[ed] his vulnerability to an older cohort in an adult system speaks to … the way [ST] manages himself in a custodial environment”.

MD conceded that she could not bring to mind any report she had authored or endorsed concluding that a young person did not have reasonable prospects of rehabilitation in circumstances where, like ST, the detainee was 17 at the time of offending, had no criminal history, had strong family support, and had glowing reports from teachers who had known him all his life.

Notwithstanding the foregoing concessions, which, to my mind, tended to destroy her opinions, MD maintained the conclusions she had endorsed in the two reports.

KA’s viva voce evidence

I turn now to a summary of parts of KA’s viva voce evidence on 21 March 2025.[49]
[49]On this day, Ms Pekevska applied for leave to appear on behalf of the Secretary to the Department of Justice and Community Safety. Ms Pekevska explained that she was “here in a capacity to assist [me] if anything arises”. She did not expect that I would hear from her. Neither Mr Porceddu nor Mr Terry objected to my granting her leave to appear, which I did. Ms Pekevska made no submissions.

KA accepted that the compilation of the reports involved a collaborative assessment of both custodial and management members of Youth Justice, including people who had never met ST (such as, for example, MD). She agreed with MD’s evidence to the effect that a team in Youth Justice’s central office had oversight of the process of producing these reports. None of them would have met ST either.

KA had been involved in ST’s management since May 2024. She would see him face‑to‑face at Cherry Creek once every two or three weeks.

KA had spoken to Mr McCombe, and she had no reason to doubt the views he expressed in his letter to the Court.

KA agreed that any detainee’s participation with Orygen’s mental health services is voluntary, that ST sought out their assistance, and that that was borne of a genuine desire to engage in a support service that would help him. KA understood that, from ST’s perspective, he reached an impasse with Orygen because he did not want to take the anti‑depressant medication they were prescribing, which caused him to disengage their services earlier. On other occasions, he disengaged because he did not wish to speak about his issues, which he found difficult, at the time. KA accepted that, while disengagement for those reasons should not be held against him, this was used in fact against him in the reports. Other than possibly missing appointments over the last four weeks or so, ST had been engaged with a particular Orygen therapist since October 2024.

KA said that ST had also missed some education classes at Parkville College, and that he had missed some sessions of an anti‑violence programme for adolescents that he had enrolled in. She accepted that those absences sometimes concerned classes he had completed previously, when he had COVID for a period, when he had a clash of classes, or when he had to attend for a medical appointment (such as an x‑ray). However, in relation to some other absences, ST told her they resulted from his being too tired or sleeping in or that he could not be bothered. She accepted that peer influence was another reason for ST missing some classes or sessions, whereas other times it had been his own decision. KA agreed that one might not expect that, a young person who was under peer influence to skip classes or sessions, would disclose the fact of that peer influence when giving reasons for not attending. Indeed, as I understood KA, it was only when others had observed peer influence that his absence was put down to that consideration — as opposed him disclosing that fact. For example, there were times when staff had observed others telling ST that, if he attends a particular programme, he is “retarded”. KA agreed that shows he is impressionable. He did not disclose to KA that peer influence was a reason for any non‑attendance. In the end, I took KA to accept that a person in ST’s position is unlikely to disclose to her that peer influence is the cause of a non‑attendance, even when it is.

KA has observed ST “pretty upset” when discussing the offending. ST had agreed with remarks of hers to the effect that “no one should lose their life that young” and that “the loss of a child is one of the most traumatising incidents a family could go through”. She said that he has also expressed vulnerability, sadness and shame for what has occurred. However, in her reports, she had said that “this presentation appears somewhat superficial” given that he had been involved in negative behaviour in custody.

As for her opinions that he did not have reasonable prospects for rehabilitation and that he was not impressionable or immature, KA said that she understood he had no prior convictions, a very supportive family and glowing references from teachers who have known him for years who find the charged events out of character, and that these things point in his favour on that score. But she said that the contraindicators — such as his behaviour in custody, including incidents where he has been one of the last to engage in anti‑social behaviour — point the other way.

As for ST being likely to be subjected to undesirable influences in an adult prison, KA said that that could be so, especially since this is his first time in any form of custody. However, she added that he has told her and others that he has several connections in adult custody with whom he would feel safe. However, KA conceded that ST would have no control over where or with whom he would be housed in adult custody and that he could be placed with some terribly undesirable characters.

As for indicators and contraindicators of the criteria for suitability for youth detention contained in s 32 of the Sentencing Act — for example, whether a young person is particularly impressionable or immature — KA said she is given “internal practice guidelines” to consider these matters. In applying those guidelines, she said, for instance, if a young person had all of the positive indicators highlighted but there were no contraindicators, “that will lead the discussion down that way”. Whereas, in ST’s case, she said, it was “a very complex situation because he had some indicators and contraindicators, and then they led to us discussing what out‑balances what from those indicators”. KA said she was not aware whether or not the guidelines were underpinned by any psychological or risk management tool.

KA explained that this was the first time she had ever written a report concerning the suitability of a young person to be in youth detention.

KA accepted that she had twice become upset or emotional either when discussing the reports with ST or soon after her assessment of him.

KA said she was not under pressure from other people to conclude, ultimately, that ST was not suitable for detention in a youth justice centre.

Counsel’s submissions

Mr Terry submitted that I should accept the following matters:

a) First, ST has engaged with Orygen in the past and again in more recent times.

b) Second, given the reasons for any previous disengagement, that disengagement should not count against him.

c) Third, no one questioned Mr McCombe’s opinion about ST’s progress in education, and I should accept his evidence.

d) Fourth, notwithstanding the opinions in the reports, I should conclude that ST’s prospects of rehabilitation are very good or excellent.

e) Fifth, ST’s discussions with KA about the offending show insight and remorse.

f) Sixth, his alleged poor behaviour in custody does not undermine the view that he is genuinely remorseful for his offending, albeit I may take that behaviour into account in considering his otherwise excellent prospects of rehabilitation. At the same time, the circumstances in which at least some of that alleged behaviour has occurred coincided with ST being housed in custody at Malmsbury with young persons involved in gangs.

g) Seventh, I should reject the conclusions or opinions of MD and KA concerning the criteria in s 32 of the Sentencing Act and s 471 of the CYF Act concerning ST’s non‑suitability for youth detention.

Mr Porceddu submitted the following:

a) First, ST does have (at least) good prospects of rehabilitation.

b) Second, I should take into account that he has pleaded guilty to some charges acknowledging wrongdoing arising out of his time in youth detention.

c) Third, I may take into account the observations of others of him in custody.

For the reasons I have given in the body of this judgment, as well as those in this appendix, I accept all of these submissions.

Adjourned for sentence

At the conclusion of the hearing on 21 March, I adjourned the matter until today, 2 May 2025, for sentence.

At that time, I was intending to provide my draft reasons for sentence to the Adult Parole Board (and the parties) in the days before the sentence so that the Board could make its decision on whether, once sentenced to imprisonment, ST should remain in youth detention for an appropriate period or be transferred to prison forthwith.[50]
[50]Or, perhaps strictly speaking, given the terms of s 471 of the Children, Youth and Families Act 2005 (Vic), either be transferred from prison to youth detention or be kept in prison by declining to direct any transfer under s 471.

In the interim, however, I thought better of that process and determined instead to adopt the procedure identified earlier in the judgment.

KA’s solicitors, unsolicited, forward a statement

The next significant event was that, on 17 April 2025, KA’s solicitors, under the hand of a paralegal, sent my chambers, and copied counsel in on, an email attaching an unsworn statement of KA of the same date.

In the email, KA’s solicitors did not deign to seek the Court’s leave to file the statement. All the email said was that the firm acts for KA; that they had been instructed to forward the statement to me and the relevant parties; that it would be appreciated if counsel could circulate the statement to their instructors; and that any correspondence relating to KA should be directed to two members of counsel (who were named) “moving forward”.

That behaviour (by the solicitors) was highly irregular. The hearing had concluded, and the matter had been adjourned for sentence. At the very least, the solicitors should have sought leave to file the statement. I should say, I attach no blame to KA for this behaviour. She was not to know. But her solicitors should have known better. I trust that it won’t happen again.

All of that said, neither ST nor the Crown has taken any objection to my receiving the statement. Nor has either party called for the opportunity to cross‑examine KA again. In those circumstances, I shall receive the statement in evidence.

KA’s statement

While other things are mentioned in the statement, KA’s main point is this. During her evidence on 21 March, I had asked her, “Have any of your opinions that you proffered in the first draft or earlier draft been removed?” KA answered, “Not that I know of, Your Honour. I’ve read the reports. Not that I can see.” KA said that, since giving evidence, she has had time to review the transcript and reflect on her answers. The purpose of her statement, she said, was “to clarify and further expand on [her] answer”.

As this was her first report on a young person’s suitability for youth detention, she sought guidance from MD as well as her Practice Manager in formatting, expression and analysis of the material. Her Practice Manager requested that she provide an email detailing her preliminary views on suitability. In a subsequent email, KA duly provided her preliminary view that ST was suitable and should be endorsed for a youth justice centre order (“YJC order”).

Subsequently, however, KA reviewed a document compiled by the Classification and Placement Unit regarding ST’s incident involvement and behaviour, and she looked more closely at the records, which indicated other incidents and observations by custody staff. This new material gave her further information surrounding ST’s “attitudes in custody, his participation in services, and other highly relevant information”. She then “cross‑referenced the complete record with [her] preliminary opinion”. This, she said, “led [her] to [her] own final conclusion that [ST] was in fact not suitable for a YJC order”. She went on to say that the report contains her view that ST is “unsuitable for a YJC order”.

KA explained that, at the time she was giving evidence, it did not cross her mind to provide this information to the Court, as she did not consider her email to be a “draft report”. At the time of answering the question, she recalls looking at “the physical document” in front of her. In her mind, she was “answering the question literally about a physical report”. In reviewing the transcript, she now understands that the Court was asking her about any previous opinion, not just draft reports. She did not “process this” at the time of answering the question.

KA closed by apologising “if [her] answer to [the] question was not detailed enough”, and offering “to assist the Court further if so required”.

Conclusions

I turn to my conclusions.

First, I accept KA’s explanation for her omission of her preliminary recommendation from her viva voce evidence.

Second, in the body of this judgment, I have already explained that, notwithstanding the evidence of concerning behaviour by ST in custody, the matters in his favour compel the views: (a) that he has more than reasonable prospects of rehabilitation — in fact, they are excellent; (b) that he is particularly impressionable; (c) that he is immature; and (d) that he would be subject to undesirable influences in an adult prison (indeed, it is plain that he has already been subject to such influences in youth detention).

Third, this is also an exceptional case precisely because, for the reasons I explained earlier, the murder only barely crosses the threshold of the elements of that offence, and it is attended by a powerful constellation of mitigating factors that apply to ST (which I need not list again here).

Fourth, as for MD’s evidence, the concessions she made mostly served to confirm that her opinions and conclusions as to ST’s unsuitability for youth detention were plainly wrong and unjustified. The same is true of KA’s evidence. The propositions they accepted show that KA’s preliminary recommendation (expressed in an email to her Practice Manager) was the correct one. She should have stuck with it. For neither the adverse information contained in the reports nor MD or KA’s viva voce evidence, when considered alone or in combination and set against the factors I have mentioned in ST’s favour, was capable of denying the opinion that he is suitable for detention in a youth justice centre and that it would be appropriate for the Adult Parole Board, under s 471 of the CYF Act, to direct that he be transferred from prison to a youth justice centre.

Fifth, in this case, then, it seems plain to me that, in accordance with s 471, after the Adult Parole Board considered the APB report (but putting aside its flawed conclusions and opinions), the Board would be well within its power to “consider it appropriate in the interests of [ST] to transfer [him] to a youth justice centre” on the basis that it is “satisfied … that [he] is suitable for detention in a youth justice centre”. But, while that is my recommendation based on my findings in relation to ST, it is, of course, a decision for the Board, not this Court.

Sixth, if, as MD and KA also explained or accepted in their evidence, the compilation of the two reports was indeed a collaborative assessment of both custodial and management members of Youth Justice, then Youth Justice has failed miserably to ensure that the reports sent to this Court and the Adult Parole Board contained well‑reasoned and justifiable opinions and conclusions. As I said in the body of the judgment, the opinions and conclusions in the reports are so unsatisfactory that they should not have been put before this Court or the Board (or at least not in their current iteration). These reports are meant to assist — not mislead or hinder — the Court and the Board. In my view, the result is that Youth Justice has failed in its duty to the Court and to the Adult Parole Board.

Seventh, because of the unsatisfactory nature of these reports, the Court has had to spend two extra days hearing evidence from MD and KA. Moreover, ST’s sentence has been delayed as a result, as has the Adult Parole Board’s consideration of its statutory task under s 471. Finally, the reports risked decisions being made by this Court and the Board on a flawed and misleading basis.

I trust that this will never happen again. Ever.

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[2025] VSC 227

2 May 2025