Regina v GS

[2006] NSWDC 15

CITATION:	Regina v GS [2006] NSWDC 15
JUDGMENT DATE:	8 September 2006
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	Maliciously inflict grievous bodily harm in company.; Conviction. Sentenced to imprisonment.; 9 months non-parole and 15 month balance of term.; Pursuant to s12 of C (SP) Act suspend sentence. ; S12 bond 2 years to commence 8 September 2006.; Be of good behaviour.; Provide Registry your present address.; Notify Registry in any change of address.; Answer to this Court for any reach that is set.; Accept supervision by Juvenile Justice and in particular by Stanmore Intensive Program Unit.; Reside at an address selected by Juvenile Justice.; Participate in counselling (individual, or family provided family members are willing) and group work as directed by Juvenile Justice.; Attend alcohol and other drug programs or treatment by Juvenile Justice.; Submit random drug testing and as required by Juvenile Justice 5 times monthly for 9 months and there after as directed by Juvenile Justice.; Maintain and/or seek education, training including apprenticeship training and/or employment, traineeship as approved by Juvenile Justice and in condition with your person and parents.; Participate in 10 hours of structured physical exercise weekly for the next 9 months. ; Juvenile Justice to report any breach of bond to this court within 24 hours.; Supply prohibited drug; S166 Criminal Children’s Act, 33 (1) (b) – for a period of 12 months.; Goods in custody; S166 Criminal Children’s Act, 33 (1) (b) – bond 6 months.; PSSH DR; S166 Criminal Children’s Act, 33 (1) (b) possessing prohibited drugs – s12 bond.
CATCHWORDS:	Criminal law - Sentence - juvenile - Maliciously inflict grievous bodily harm in company – weapon – knife – unprovoked attack – drug and alcohol abuse – impaired behaviour and emotional control – contrition – strong rehabilitation prior good character – early plea – good rehabilitation prospects – suspended sentence
LEGISLATION CITED:	Children (Criminal Proceedings) Act 1987 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	R v Galdue [1999] 1 SCR 688 at [80] R v Cuthbert [1967] 2 NSWLR 329 R v Rushby [1997] 1 NSWLR 594 R v Hayes [1984] 1 NSWLR 740 R v Buttsworth [1983] NSWLR 658 GDP (1991) 53 AcrR 112 Roger v Simons 543 US 2005 at pp15-16 R v Thompson and Houlton (2000) 49 NSWLR 383
PARTIES:	A Haesler (SC) (Defence) P Jassy (Crown)
FILE NUMBER(S):	06/11/0539

Judgment

HIS HONOUR: This is the matter of GS. S 11 of the Children (Criminal Proceedings) Act1987 prohibits the publication of the name of the offender and nothing must be published which identifies him or could lead to his identification.

1. When sentencing an offender for a criminal offence the task of the sentencing judge is to resolve a number of competing tensions. The resolution of those tensions must ultimately find its expression in the sentence imposed by the Court upon this offender for the harm done to this victim, in this community, see R v Gladue [1999] 1 SCR 688 at [80] . Many tensions in this case are strongly pulling in different directions.

2. Rowan Barker works as a journalist for a leading radio station. On 3 December 2005 he was celebrating the Christmas season with work colleagues at the St Ives Chase home of Justin Kelly, a colleague, about to depart the same broadcasting station. The celebration turned to disaster when four penetrating stab wounds were inflicted by GS, a total stranger to Rowan Barker. The major wound was life threatening. His attacker was a sixteen and a half year old youth, at the time “wasted” on drugs and alcohol, still smarting from an argument with his mother earlier that night. There is no suggestion he had any cause or reason known to the law to plunge a knife four times into Rowan Barker. The only connection between the offender and the victim had commenced minutes before when GS demanded to know the whereabouts of Zeus.

3. That demand must have been incomprehensible to Barker whose immediate response was “Who?” In the space of some fifteen short exchanges between the journalist and the youth Rowan Barker was grievously injured. GS was charged with maliciously inflict grievous bodily harm in company. He pleaded guilty. Today he must answer to the community for his conduct. Although he was only aged sixteen and a half at the time of the offence, he is to be sentenced “at law”; that is, the law as it applies to adults.

4. My initial task requires an assessment of the objective criminality of the offence before the Court. I will need to have regard to matters personal to the offender including his youth. The starting point for such assessments requires a sentencing judge to make findings of fact from the evidence before the Court relating to the offence and to the offender. The offender’s rehabilitation prospects will have to be assessed even if looking through a glass darkly. There are technical questions relating to deterrence and discounts; the impact s 6 the Children(Criminal Proceedings) Act 1987 will have upon my approach to sentence. There are three additional matters before me that would normally be dealt with by the Children’s Court for which sentences will need to be fixed. Finally of course the ultimate penalty to be imposed will need to be fixed. The question of special circumstances will need to be looked at. What weight needs to be given to all of these matters against the imperative that all sentencing should have as its primary focus the protection of the community will also need to be determined, see R v Cuthbert [1967] 2NSWLR 329, R v Rushby [1977] 1 NSWLR 594, R v Hayes [1984]1 NSWLR 740.

Additional Facts:-

5. Rowan Barker arrived at Justin Kelly’s premises some time Saturday afternoon. Justin Kelly had scheduled his party to commence at 3pm. In all about twenty-five guests turned up. Dinner was at about 7.15. By 11.30 only some five people were still partying.

6. The front of Kelly’s property has two sections. The first, a fenced area containing a pool; the second, a driveway of some ten metres connected to a double garage. The living area is to the left of the garage and behind the pool. The party was held in the driveway. The adjoining Street, Warrimoo Street, was some thirty to forty metres east of the driveway entrance to Kelly’s house. Kelly’s house is in a different street to Warrimoo Street.

7. It was a warm afternoon and evening. Rowan Barker was wearing jeans and it would seem a light blue t-shirt. By 11.30pm he says that he was moderately affected by alcohol. He still had control of his senses and judgment.

8. Not so his attacker. Having been scolded by his mother, as I say, earlier in the evening, he walked into his bedroom. His evidence is, “I did what I always did when I felt negative feelings, I got wasted. I smoked as many cones [of cannabis] as I could. I opened a bottle of Jim Beam and kept drinking. I remember there to be about half a bottle left.” There is hearsay evidence that he, in fact, consumed the whole bottle.

9. Some time around 11.30 to 11.45 Rowan Barker was seated on the driveway. He saw two young males approach. They were standing about eight metres from him. They appeared to have walked from Warrimoo Street down Kelly’s Street. One of those males was GS. I take up what then happened through the eyes of Rowan Barker:

“The first male [GS] was standing on the eastern edge of the driveway, while the second male was standing towards the western edge just on the roadway. The first guy said “Where’s Zeus?” I said “Who?” He said “Where’s Zeus, man?” I said “I don’t know what you’re talking about, there is no Zeus here” he said “Come on, where is he?” I said “I don’t know what you’re talking about.” He said “Tell Zeus GS wants to speak to him” I said “There’s no-one called Zeus here, I don’t know what you’re talking about”. At this point I stood up and walked over to him and said, “We don’t know Zeus.” he said “Tell Zeus GS wants to talk to him.” Again I said, “I don’t know Zeus, I don’t anyone by that name here”. He said “Tell Zeus to ring George”. At this point the conversation was going nowhere, I just wanted to get rid of him and said “Yeah whatever”. I don’t know if he misunderstood me, thinking that I knew Zeus, and by this stage Justin had walked over and stood to my left basically in front of the second guy. The first guy was becoming extremely agitated. I said, “Mate you should just go, we don’t know Zeus”. He said, “You think we should go do you?” like it was a challenge. I said “Yeah I think you should go”.

The next thing I felt him punching me, well that’s what I thought at the time until I saw my t-shirt was wet with blood. Thinking back on it I think he reached into his jeans pocket at the rear and used his right to strike me. I saw him turn and run towards Warrimoo Avenue and his mate went with him. If felt as though I had been hit about four times. I turned around and started walking back towards the group and the first thing I remember Sarah saying, “Oh my God he’s been stabbed”. I can also recall the sound of an older model sounding V8 motor taking off screeching tyres ...

At no time in my estimation did I initiate this argument or inflame the situation in any way. I was just trying to get him to leave. These two males I have never seen before. The first male was extremely agitated which gave the impression he may have been affected by drugs of some kind. The second may have talked briefly to Justin but I didn’t hear him say anything.”

10. The second male did in fact say something to Justin Kelly. Justin Kelly walked over to the area where Rowan, GS and the other male were. Justin Kelly said to the male “What’s going on?” The male said, “Look I’m sorry about all this”. It was at about that moment that Kelly also saw a jab which he thought was a punch. It became immediately apparently because of the blood soaking into a light-coloured t-shirt that Rowan had been stabbed. Kelly began to chase GS and the other youth as they ran to the motor vehicle in Warrimoo Avenue. The two climbed into the rear seat. GS extended a fist out the rear window raising his middle finger as the motor vehicle sped off along Warrimoo Avenue.

11. I am satisfied the account of Rowan Barker and Justin Kelly set out what actually transpired. The only other account before me is that of GS. To understand that account it is important to remember that at the time of his offending conduct he was experiencing the combined effect of several marijuana cones and a vast quantity of spirits. This account comes from a letter GS has written to the Court. The relevant portion is:

“There was also another dream that I was surrounded by a group of men much older and bigger than I was. I remember feeling as if my life was going to end as if I was going to be killed. I was with Tim and looked over to him to pull me out of that and at that time he backed off as if he was leaving me to be killed. At that point I realised that no matter who says they care for me or have my back that they really just say it but don’t mean it. I started having flashbacks as I thought my life was flashing before my eyes and I was going to be killed. I saw every single time I have been beaten up. When someone approaches me wanting a fight, I just freeze up like a rabbit in the spotlight before it gets run over. In this dream I felt like the whole world had turned on me and that I can’t trust anyone because no-one really cares what happens to me.”

12. As best I can determine from the evidence the group of men, if this dream relates to the facts of the incident, were two in number, that is Barker and Kelly. This account is remembered through a drunken haze. There is nothing which suggests to me that any of the guests at Justin Kelly’s party showed any aggression towards GS. The account does reflect unfounded paranoia being experienced by GS. As will be seen this is a condition professionals have diagnosed. I am satisfied he was experiencing a drug-induced paranoia that was in existence prior to that night. I am satisfied that the paranoid ideation that the strangers, he was in fact harassing, harboured ill will towards him, was a factor in him determining to use a weapon on Rowan Barker. I will have more to say about this paranoia later.

Objective Criminality:

13. From the facts as he finds them to be a sentencing judge is required to assess what is called the objective criminality of the offence as an essential step in assessing the seriousness of the criminal behaviour of the offender. That is done by comparing objectively the criminality exhibited in the instant offence with criminality of offences of a similar genre. It is in this way that the seriousness of the criminality of this offence can be evaluated. The objective criminality has perhaps the most important impact upon the sentencing outcome.

14. The assault upon Rowan Barker was a serious breach of the peace that the criminal law is designed to preserve. Further, the injuries inflicted were both wanton and truly serious. One of the measures of criminal conduct is the quantum of damage inflicted upon a victim, see R v Buttsworth [1983] 1 NSWLR 658 .

15. Dr Brereton, the head of cardio-thoracic surgery at Royal North Shore Hospital was called to attend emergency surgery. The primary wound had caused bleeding in the sac around the heart, high blood pressure, elevated venous - that is vein - pressure, severe rapid beating of the heart. In respect of this wound alone Dr Brereton observed, “If the wound had been one centimetre deeper or closer to the mid-line of the body, or if Barker had been further from medical care, or had not received expert immediate resuscitation, he would not have survived”.

16. There were three other wounds, to the left arm, the left upper abdomen and one to the back adjacent to the left armpit. The wound to the left upper abdomen penetrated to, but not into the left lung. Rowan Barker spent two days in intensive care and thereafter substantially more days on the recovery ward at the North Shore Private. His condition was such that for several days there was a restriction on his visitors. In May of this year he said this:
“As a result of the operation I have a surgery scar which runs down the middle of my chest and is about eight or nine inches long. I also have four separate scars from the stab wounds which are, one to my left abdomen, one on my left chest, one to my upper left back and one to my left upper arm. I also have a couple of further surgery related scars. The stabbing of my left upper arm - has caused nerve damage. At times I feel numbness to my left forearm, intermittent pain and pins and needles to my arm. Since the stabling, my left arm’s movement has been restricted due to the muscle damage. My arm definitely isn’t as strong as it used to be. I am seeking medical advice in relation to the left arm.”

17. The offending conduct was unprovoked. I have earlier described it as gratuitous. While not in his own home, Rowan Barker was a guest on private property, and entitled to feel secure from strangers walking the streets. The offence was impulsive and impetuous.

18. There is no suggestion on the evidence before me the other male present played any part in the offending conduct. True it was he arrived with and departed with the offender, but otherwise it seems he had nothing to do with the offence. Rowan Barker puts him on the other side of the driveway. Barker says that he was unable to hear the conversation occurring between that man and Justin Kelly. The man was apologising to Kelly for the aggression and behaviour of GS moments before he wielded the knife. True he ran but that action was as consistent with panic as with any wrong-doing by him.

19. Nor am I satisfied the driver of the car had any knowledge anything had happened, other than something had gone on, or wrong, because the two passengers arrived in his car running, seeking to escape from Justin Kelly. I am sure the driver of the car was told within moments of the car leaving something of what had happened. But on the evidence before me his offending conduct related to aiding an escape, rather than participating in the wounding.

20. Grievous bodily harm was occasioned to Rowan Barker. It should be understood that the plea of guilt to the charge before me, coupled with the use of a weapon, clearly establishes that the offender intended physical harm to be inflicted on each of the occasions he struck his victim. However, it does not establish that he intended each of the actual injuries inflicted. Nor does it establish that he intended that the sum of the injuries would, or any of them would, amount to grievous bodily harm.

21. The infliction of multiple stab wounds using a knife does of course amount to an aggravating feature of his offending conduct.

22. I cannot be satisfied that Justin Kelly’s premises and guests were deliberately targeted. While the evidence establishes the offender had been to the premises next door on previous occasions, the evidence is silent as to whether either of the persons accompanying him knew the person “Zeus” or had previously been to his premises. I should indicate that Zeus, as it turned out, was the nick- name of a person who lived next door to Kelly.

23. Given GS’s high level of intoxication it is possible there was confusion between the three as to precisely where they were heading and why. That being so, there is no evidence to suggest the knife attack or any other form of assault was planned.

24. There are a number of other factors that played some part in the offender’s commission of this offence. I have referred to one already, GS’ unfounded paranoid ideation that the adults in the driveway, it would seem particularly Rowan Barker from whom he was demanding the whereabouts of Zeus, were harbouring ill will towards him. It would seem that the offender felt they were not co-operating with him, but also in some way harboured him ill-will.

25. The offender describes himself as “wasted”. He had ingested both marijuana and copious quantities of alcohol. These drugs would have impacted upon his capacity to make judgments, to process the information he was given, to recognise with clarity his surroundings, all of which may have had some impact upon his conduct.

26. The offender’s immaturity to deal with the situation in which he found/imagined himself to be in is apparent. That immaturity first reveals itself in the offender’s response to his mother’s scoldings, and took a near lethal turn when he lashed out with a deadly weapon without any real appreciation of the awful seriousness of his acts.

27. I have had regard to matters of aggravation, some of which are enumerated in s 21A of the Crime (Sentencing Procedure) Act 1999 . I have sought to deal with all matters of aggravation in my reliance upon the common law and relevant factors of aggravation in assessing the objective criminality. This is not a case where I would regard factors of aggravation being so prominent as to require them to be considered anew by reliance upon the statutory provisions contained in s 21A.

Subjective matters:

28. I turn now to the subjective factors. I am entitled and required to do that. Not only am I sentencing for the criminal offence but I am also sentencing this offender for it. Each offender coming before the Court varies from other offenders who stand or have stood for sentence. Circumstances personal to the offender may offer to the Court some explanation or insight into the commission of this offence by this offender or some reason why a more or a less sentencing outcome is appropriate.

Personal background and family dynamics:

29. GS was born in April of 1989. He is currently seventeen years old, he was sixteen years and eight months at the time of the incident. He is a single youth although he has been in relationship with a girl Kelly for some time. Kelly’s parents are both school teachers and their influence on this offender in recent times has been important and beneficial. GS was born in England, the second of four children. He comes from a strongly supportive and caring middle class family without any obvious abuse from them towards him or each other. For much of his life his mother has been bedevilled by and battled with depression. He experienced early health problems. He suffered major ear afflictions with at least seven burst ear drums in his first two years of life.

30. He had been from very early childhood anxious, timid and clinging. As a toddler he displayed excessive temper tantrums. He was difficult to discipline. As a pre-schooler he displayed separation anxiety. As a young person he was hyper-sensitive and had difficulty with socialisation. There were a number of periods when his mother was absent from home, either because she was overseas or on other occasions hospitalised with depressive illness.

Education and work skills:-

31. Through his education years there have been developmental and other problems. In pre-school he had difficulty separating from his mother. While there he developed a number of odd, but apparently non-aggressive behaviours. During primary school there were speech problems and a need for speech therapy. Those speech problems may have reflected in later schooling. There were difficulties with concentration, reading and writing through primary and secondary school. In high school there was bullying. During the high school years he began to abuse alcohol and cannabis, to which I shall come in more detail later. There is hearsay evidence that the offender got into bad company and “put on acts like a gangster”.

32. Kam Wong, a consultant psychiatrist treating the offender, expressed the opinion that the offender “being a victim of bullying and aggression has coped by using the defence of identification with the aggressor in order to protect himself”. The offender told Dr Wong that older students who had been bullying him told him they had put a “contract” on him. Dr Wong reports that both the offender and his mother report receiving numerous phone threats against his safety. The offender gives these threats as an explanation for carrying a knife with him on the night.

33. GS commenced his high school studies at a well-known North Shore Catholic independent school. There he completed year seven and most of year eight. In the latter part of year eight his then girlfriend became pregnant. GS and the girlfriend took time out of school for some three weeks in order to find someone who would administer an abortion. Neither child had access to Medicare cards. The girl did not wish to tell her parents. This information became known to his school which then expelled him.

34. He went to a State school. His English teacher was keen to foster a competence in speaking publicly. Students were required to give short speeches before the class. Such was GS’s level of social phobia that he truanted the school rather than speak to his class.

35. Until recently that was the end of his formal schooling. In more recent times he has been competing his school certificate (year ten) via correspondence. He harbours plans of eventually completing his higher school certificate possibly through TAFE.

36. He is presently unemployed. He claims that is because of the stringent bail conditions imposed upon him. In the past he has done casual work as a “trolley boy” for Woolworth’s. In 2005 he began full-time work at a paper factory. He lasted five months. He left there as older staff were making threats against him because he was not working fast enough. He still however counts as one of his friends a man, James, aged twenty-one whom he has known for five years who also worked at the factory.

Health:-

37. At the time of this incident the offender weighed forty-five kilograms. He now weighs seventy-five. He reports that he is a more active and less lazy person. He told Juvenile Justice that he now enjoys jogging with his present girlfriend’s father.

Mental health issues:-

38. This offender first referred to Dr Wong in early January of this year. Having taken a history, including his childhood and developmental problems, Dr Wong diagnosed:

...“There is little doubt that he has been suffering from a chronic anxiety disorder, depression, attention deficit disorder and low self-esteem. Unfortunately he has resorted to the use of illicit substances as a self-medication for his chronic dysphoric and anxious state. Unfortunately his cannabis and alcohol abuse have resulted in the undesirable consequences of paranoia, increased irritability, further cognitive impairment and poor judgment and insight, not to mention increased anxiety and deepening of depression. Being a victim of bullying and aggression he has coped by using the defence of identification with the aggressor in order to protect himself...

GS is a young man with emotional, psychological and social immaturity. He uses immature defence mechanisms, makes poor judgments and is easily influenced by his peers. Due to his many “wasted” years he has few coping and life skills.”


39. GS was also sent to an experienced clinical psychologist who specialises in child and adolescent mental health. Dr Christopher Lennings administered a number of tests in late July of 2006. He found:
“Mr S’s most severe psychopathology, falling into the severe clinical range, included symptoms associated with post-traumatic stress disorder, depression and interpersonal problems, but he also obtained very high scores on scales assessing general anxiety disorder, disturbance of self-concept and a high risk score on suicidal rating scale...he remains a highly psychologically vulnerable young man...”
40. Dr Lennings found from a cognitive assessment that the offender was in the low average end or better than the bottom thirty-two per cent of the population. Dr Lennings thought such an estimate was perhaps conservative, but described GS’ cognitive ability as “adequate”. There were areas of impoverishment - his ability to remember, and associate words and short stories. It would appear there was also impoverishment of cognitive organisation, that is, recall from memory. There were signs emerging from the testing of mild impairment affecting executive functioning and memory. Executive functioning is important because it is involved in the control of behaviour. It was Dr Lennings' observation:
“Given that both marijuana and alcohol could be expected to significantly affect behavioural and emotional control, it is likely that the offence occurred within the context of the effects of the substances further impacting upon already somewhat impaired cognitive function. The cause of such cognitive dysfunction cannot be determined from the nature of this assessment.”

41. Matters mitigating the offender’s criminality would need to be proved on the balance of probabilities. If there were pre-existing deficits in behavioural and emotional control, exacerbated by the marijuana and alcohol taken that night that would in my view amount to a mitigating factor. I am well satisfied of the ingestion of copious quantities of alcohol and marijuana. I am satisfied without the need of specialised pharmacological evidence that both consumed in quantities impact upon behavioural and emotional control. From histories taken by Dr Wong and Dr Lennings and others who assessed the offender and their observations I am satisfied there was pre-existing behavioural and emotional control issues. I have cited in these remarks on sentence the two pertinent passages from Dr Wong and Dr Lennings.

42. It should be understood that this mitigating factor does not amount to any excuse for the offender’s acts, nor is it any finding that his acts were unwilled. It simply explains that his decisions to act as he did were in some way impacted because behavioural and emotional inhibitions were at some impaired level from two sources. While this matter has been analysed in the course of dealing with subjective matters, the mitigating impact of the impaired behavioural and emotional control affects the objective seriousness of the offending conduct.

Alcohol and drugs:

43. In September 2003 GS was referred to the Hornsby Child Adolescent Medical Health Service. At that stage he had been expelled from the independent Catholic school earlier referred to. For the year following he was disclosing to his social worker significant alcohol abuse nightly until he passed out. At that time he was thirteen to fourteen years old. He was on-referred to a drug and alcohol counsellor but refused the counselling. He told Dr Wong he had been abusing cannabis up to twenty cones daily. He told Juvenile Justice that he was smoking thirty to fifty cones daily and then began to sell to his friends. At the time of the offence it was the situation that he was smoking 100 cones daily.

44. A hundred cones daily is a mammoth quantity of cannabis. He began to experience severe levels of paranoia. At some stage during his cannabis history he reduced. There was an incident where he says he was beaten up and then went back to cannabis increasing his consumption to 100 cones daily. He was smoking at this level just prior to his offending conduct. He would experience blackouts and memory loss brought on by alcohol and perhaps cannabis abuse. He would feel out of control, nothing would make sense to him.

45. After his offending conduct he re-presented himself to the child adolescent mental health services. Thomas Campbell, reporting for the Hornsby Child Adolescent Mental Health Service, makes this observation:

“In regard to Mr S’s second presentation to our services in December 2005 there has been a much more successful outcome. Mr S has grown in maturity and in his attitude to a remarkable extent. He has said that he is determined to have good relationships with his family and girlfriend prior to any incarceration. He has taken on board whole-heartedly our recommendations eg attending drug and alcohol counselling and rehabilitation. His abstinence over the last six months has been apparent. He has actively sought to patch up relationships with his family. He has become much more able to understand the triggers for his change in mood, his lack of confidence in certain areas and how to deal with anger...

Given his relative youth at the time he commenced his substance abuse it appears clear to me that his psychological and social [and possibly physical] development has been severely impacted by this problem. When sober and drug-free Mr S is of a different character in that he is able to take much more responsibility for his actions. Over the last six months (of sobriety) for instance there has been a noticeable emotional development in him...” (my inclusion)



Criminal history:-

46. This offender has no prior criminal history. While it is clear that in a period of perhaps as much as a year or so prior to the offending conduct he was supplying cannabis, apparently to support his habit, he was never charged with any offence. Nor does his offending come on top of having been held accountable before a court previously for offending conduct. This is his first appearance, as I understand it, on such a basis in court. With youth one often one experiences within the criminal justice system that a court appearance can be a turning point. In this case the first turning point would appear to have been the offence, but one would hope this appearance would act as a support to that.

Attitude to the offence:-

47. Every professional youth worker or expert witness who has interacted with this offender since the offence has been impressed with this offender’s sense of remorse. He has verbalised his remorse, privately in counselling sessions, publicly in the Court. He has written a letter to the victim. It commences:
“I know I am probably in no place to be contacting you. I know that you might read this first sentence and want to throw the letter out and I totally understand if you are thinking who do I think I am, but I would appreciate if you heard me out on this. I’m getting sentenced shortly and I just can’t go away without letting you know how I feel. I can’t even begin to stress how deeply sorry I am for stabbing you. I feel terrible and my heart is with you and your family. I know you might not want to hear all this but whether or not you accept this I don’t expect you to accept my apology, I don’t see that to be possible, but for my own peace of mind explaining myself to you is something I have to do. There is no way I want to continue living with the trauma and the guilt every day for the rest of my life, particularly when I’m trying to sleep, but writing you this letter will at least stop me thinking to myself ‘If only he knew how I felt.’. I can’t help but to think that perhaps you believe that I do not feel guilty for what I have done.”.

48. He has sought to apologise in person to the victim. Without seeking in any way to put pressure on either the victim or the offender, because conferencing of this kind requires expert and proper preparation, it is nonetheless an important matter for the Court to take into account that his contrition is such that he would be willing to apologise personally.

49. The offending conduct and its horrific consequences appear to have been a watershed event, causing the young person to attempt to gather himself together and accept a path to rehabilitation. For the past nine months he has made substantive progress. Considerable positive changes to his lifestyle are noted by those working with him.

The plea of guilty:

50. The offender was charged at the outset with serious offences of what are known to lawyers as crimes of specific intent. The issue at the Committal Hearing in the Local Court was whether the Crown was able to prove, beyond a reasonable doubt, the necessary specific intent. Once the committing magistrate ruled in the offender’s favour, the Crown accepted a plea to the present charge at the Local Court. The offender has been committed for sentence on that charge. He can be given the benefit for an early plea. Apart from legal argument at the Local Court, the resources of the Crown have not otherwise been extended. The committal was done on written documents the Crown was always obliged to tender at the Local Court.

Rehabilitation Prospects:-

51. There are a number of positive rehabilitation factors:

• Strong support from his family, girlfriend, her family, the extended family and family friends. Fourteen references and letters from that group were tendered for my consideration. Not surprisingly, because they were tendered by the defence, but impressively nonetheless, all of the letters supported the view of the professionals that remarkable progress has been made in the past nine months. They are also evidence of the strong support at community level that the offender has.
• Persistent efforts being made by GS over the past nine months to address causes of offending behaviour through continual counselling and psychiatric treatment.
• Persistent efforts during this year to deal with drug abuse through abstinence and counselling, for example the Taking Charge Program run by Father Riley’s group through July and August of this year.
• Some effort to address inadequacies in education.
• Profound contrition for his conduct and insight into its impact upon his victim.
• Improvements in physical health and some participation in physical activity.

52. There are some negative indicators that cannot be discounted, including:

• Serious as yet unresolved psychological issues such as guilt, and unresolved grief over the untimely death of the man Tim.
• A past history, since the age of thirteen, of serious drug and alcohol abuse.
• A past resort to drugs and alcohol, in circumstances where he was experiencing emotional and mental pain, and possibly in circumstances of manipulation by him of the family dynamics.
• Past association with negative peer groups:
• Absence of useful employment skills.
• His post sentence plans (meaning these Court proceedings) do not appear to have developed any long-term focus. That may, of course, be readily explainable by a recognition of the likelihood of detention.

53. If his path was to continue as it has in the past nine months the likelihood of his re-offending would be remote. But one must take him with his history. His recent past suggests his rehabilitation prospects are positive. His past conduct means it still must be a focus in the immediate future.

Setting the Sentence:-

54. Custodial history of the offender:- This offender has spent eight days in custody. For him these eight days appear to have had a profound impact. That personal impact of his own detention took on new meaning because the other man present at the scene, Tim, committed suicide, in part caused by physical abuse experienced by him, including apparent repeated sexual abuse in prison. The offender’s newly found perception of the darker side of custody has caused him anxiety and stress in the past nine months.

Deterrence:-

55. General deterrence plays a crucial part in the sentencing of adult offenders, and in the case of young persons who conduct themselves like adults in the way in which they commit serious offences. Generally, however, the punitive-retribution paradigm of sentencing associated with general deterrence gives way to considerations of rehabilitation among the young. Considerations of rehabilitation are expected to play a more important part when sentencing young offenders.

56. In my analysis of the objective criminality I have noted the significant part the offender’s immaturity played in his offending conduct both in dealing with his mother’s scolding and dealing with the situation his paranoia led him to believe he was in. I have also found an impairment in his behavioural and emotional control exacerbated by his copious consumption of alcohol and cannabis.

57. Most of those dealing with the offender since his offence have noted change in the offender, since the event, pointing to his growing maturity, his loss of immaturity and his growing emotional development. In this case rehabilitation can and should be a primary aim of sentencing, see GDP (1991) 53 A.Cr.R. 112 at 116.

Maximum Penalty:-

58. The maximum available penalty for this offence is ten years imprisonment. Even though this offender is being sentenced “at law” the principles set out in s 6 of the Children’s (Criminal Procedure) Act 1987 apply. On the question of sentence for this offence three of those principles have resonance.

Principles relating to the exercise of criminal jurisdiction.

(6) A court in exercising criminal jurisdiction with respect to children shall have regard to the following principles:
...
(b) That children who commit offences bear a responsibility for their actions but because of their state of dependency and immaturity require guidance and assistance.
(c) That it is desirable whenever possible to allow the education or employment of a child to proceed without interruption.
(d) That it is desirable wherever possible to allow a child to reside in his or her own home.
(e) That the penalty imposed on a child for an offence should be no greater than that imposed on an adult who commits an offence of the same kind.
59. In his full and helpful submissions Mr Haesler SC, counsel for the young person, sought to advance concepts crystallised in an American case as underpinning the relevant jurisprudential philosophy applying in children’s cases and reflected by s 6. The case relied upon was a death penalty case, but nonetheless the rationale of an approach with a more muted focus on retribution and punishment has a wider relevance that was called for in that case. I have accepted Mr Haesler’s point form summary of the points made by Kennedy J in Roper v Simmons 543 US 2005 at pp 15-16:-
• Juveniles are more vulnerable or susceptible to negative influences and outside pressures including peer pressure.
• The character of a juvenile is not as well formed as that of an adult. The personality traits of juveniles are more transitory, less fixed.
• The susceptibility of juveniles to immature and irresponsible behaviour means their irresponsible conduct is not as morally reprehensible as that of an adult.

• Their own vulnerability and comparative lack of control over their immediate surroundings means juveniles have a greater claim than adults to be forgiven for failing to escape negative influences in their whole environment. From a moral stand point it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that the minor character deficiencies will be reformed.
• The relevance of youth as a mitigating factor derives from the fact that the signature qualities of youth are transience; as individuals mature the impetuousness and recklessness that may dominate in younger years can subside.

Impact of guideline judgment:-

60. Thompson and Houlton (2000) 49 NSWLR 383 applies in this case. The offender is allowed the full benefit of the discount; I set that discount at twenty five percent.

Parity:-

61. I have held the offender acted alone. Whilst he was in company I do not regard the Crown proving beyond reasonable doubt that company as participating other than by being present. There is no evidence that they had any knowledge the offender had a knife, or that he was likely to use it in the circumstances in which he found himself. Tim, who was present at the driveway, is deceased. He was never dealt with at court. The other person in the nearby vehicle was not present. He appears to have been an accessory after the fact. In any event he did not receive a custodial penalty.

Balancing the objective and subjective matters:-

62. At the outset of this judgment I remarked that the competing tensions fall strongly in different directions. The objective features of this case, particularly the viciousness of the attack, its unprovoked nature, the repetitive use of the weapon and the horrific injuries inflicted elevated this offence to a serious crime. These features were mitigated by other matters, including the offender’s immaturity and the role it played in his criminal conduct, his impaired emotional and behavioural controls, his impaired judgment, the prominence of paranoid thinking.

63. The offender’s subjective case is, remarkably, perhaps even extraordinarily strong. Those who support him have spoken of the event being a catalyst. It would seem it has been an epiphany for him. I have determined but for the plea of guilty I would have set an overall sentence of two years and eight months imprisonment for this offence. I would discount that by twenty five percent making it a term of imprisonment of two years.

64. I have anguished long over whether the offender should be returned to custody and if so for how long. At the end of the day however I have determined to suspend the sentence, but upon the stringest of conditions.

65. My reasons for so doing include the principles set out in s 6 of the Children (Criminal Proceedings) Act 1987 , the rehabilitation progress made to date in the community, the fear of disrupting that progress by a period of custody [s.5 Crimes (Sentencing Procedure) Act 1999 ] the unfavourable influences that the offender may be exposed to within the detained population, the recommendation of Juvenile Justice and other authorities and to avoid, if possible, returning him to custody, and the personal deterrence effect of a suspended sentence.

66. Juvenile Justice wrote:
“Taking into account the aforementioned issues the unit respectfully suggests that any community based order handed down should include [a number of conditions]...It is acknowledged, however, that the offences committed by the person are serious in nature and therefore the Court may wish to deal with this matter by way of a custodial sentence. Should this be the case it is respectfully recommended that G receive a suspended sentence with supervision provided by Stanmore Intensive Programs Unit.”.


There is an alternative suggestion of a short period in custody followed by a longer period of parole.

Special circumstances:-

67. This is a case in which special circumstances should be found. This offender’s response to rehabilitation since the offence was committed demonstrates that his best prospects for rehabilitation are in a community based setting. It is recommended by Juvenile Justice who are expert in this matter. He has genuine deep felt anxieties over and beyond what normally one might expect in respect of returning to custody.

Formal Orders:-

68. Would you stand up, please. GS, I convict you of the offence that you maliciously inflicted grievous bodily upon Rowan Leslie Barker while you were in the company of Timothy Mullins. For that offence I sentence you to a non-parole period of nine months and an additional term of fifteen months, making an overall sentence of two years.

69. Pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999 it is my intention to suspend that sentence provided that you agree to my so doing and provided that you enter into a bond to be of good behaviour for a period of two years from today.

70. That is not some empty request that you are to consider because that bond will have serious conditions attached to it. They will include these:-

That you will be of good behaviour.
That you will provide to the registry here at Penrith your present address and that you will notify that registry of any change in your address.
That you will answer to this Court for any breach of the conditions that I am setting.
That you will accept supervision by Juvenile Justice and in particular by the Stanmore Intensive Programs Unit.
That you will reside at an address as directed or as selected by Juvenile Justice.
That you will participate in counselling individual, family (provided family members are willing to so participate) and group work as directed by Juvenile Justice.
That you will attend alcohol or other drug programs and/or treatment as directed by Juvenile Justice.
That you will submit at your own expense to random drug testing at least five times monthly for the next nine months and thereafter as required by Juvenile Justice.
That you will maintain and/or seek appropriate education/training - including apprenticeships - and/or employment as approved by Juvenile Justice in consultation with you and your parents.
That you will participate in ten hours of structured physical exercise, such as jogging or gym work, perhaps dedicated is better than structured, weekly for the next nine months.
And then one for Juvenile Justice that any breach of the bond is to be notified to this Court within forty eight hours.

Now have a discussion with your solicitor, with your legal counsel, and if necessary with your mother. Do you want me to take a morning tea adjournment?

HAESLER: No, I don’t think so your Honour. My instructions are that strict though they are he will accept all those conditions.

HIS HONOUR: 71. All right. The formal order I make then is that you are convicted, that the sentence as I announced them will be imposed, that is a nine month non-parole period and a fifteen month balance of term. That sentence will be suspended conditional upon you entering into a bond to be of good behaviour for a period of two years. I am not going to go through those conditions again unless formally requested.

72. Pursuant to s 166, I will treat these matters pursuant to the provisions of the Children (Criminal Proceedings) Act 1987 , for the supply of prohibited drug I find you guilty and you are subjected to a bond to be of good behaviour pursuant to s 33(1)(b) of the Children (Criminal Proceedings) Act 1987 for a period of twelve months.

73. In respect of the unlawfully obtain goods charge I find you guilty and because the maximum sentence for that is six months imprisonment I would only impose a bond of the same length, six months, pursuant to the same section.

74. For possessing prohibited drugs I find you guilty and a 12 month bond pursuant to the same provisions.

75. For the purposes of those bonds being executed and rather than see you go into custody, although I thank the custodial officer for being here, I remand you into the custody of your instructing solicitor and, do you want to be responsible Mr Haesler?

HAESLER: I’m happy to be responsible your Honour.

**********