(1) The individual sentences, orders for cumulation, total effective sentence and non-parole period are manifestly excessive.

(2) The learned sentencing judge paid insufficient regard to the principle of totality.

1. At the oral hearing of this application the applicant sought to add a further ground expressed as follows:

Proposed Ground 3

Fresh evidence throws a different light on the circumstances of the applicant's incarceration as they existed at the time of sentence and requires that the applicant be resentenced.

1. We have concluded that we should grant leave to appeal on grounds 1 and 2 and allow the appeal. A total effective sentence of 16 years with a minimum term before parole of 11 years will be imposed in lieu of the original sentence. We shall explain our reasons.

1. The applicant was 15 years and 3 weeks old at the time of the offending. The applicant was due to sit an exam that day but did not attend school as he normally would.
2. After receiving correspondence from the applicant's school as to his absence, Vanna made a phone call at 12:15 pm advising he was sick and would not be attending. Vanna went upstairs at which point the applicant stabbed her. Sothy heard her daughter yell 'Darling, why did you do that?'.
3. The applicant stabbed Vanna multiple times including four significant stab wounds to the neck, chest and abdomen. Vanna also had a superficial incised injury to her left third finger consistent with trying to defend herself.
4. After Sothy heard Vanna scream, she saw Vanna run downstairs with blood on her neck. The applicant ran after her.
5. At around 12:42 pm, Vanna rang 000 and said, 'My son is killing me', and told the operator, 'He stabbed me'. Vanna confirmed their home address and asked them to hurry. She said the applicant was upstairs and thought he had killed his younger sister Caitlin, who was then aged just three.
6. The applicant put a knife to the throats of Sothy and Caitlin, cutting them both. Sothy picked up Caitlin and ran to her bedroom to get her phone, attempting to call a close friend, who did not answer. She tried another friend and told her the applicant was angry and to come and help.
7. As Sothy was on the phone, the applicant stabbed Caitlin to her back. Sothy could see Caitlin's intestines coming out. Sothy tried to protect Caitlin with her body and the applicant stabbed Sothy in the right side of her chest wall to the breast. Sothy picked up Caitlin and ran into another room. She tried to push Caitlin's intestines back into her body.
8. Attempts to revive Vanna ceased at 3:52 pm and she passed away at Dandenong Hospital. Sothy was taken to the Alfred Hospital suffering from catastrophic injuries. With medical intervention she recovered from them. She was discharged from Hospital on 5 January 2021 after 36 days. Caitlin was taken to the Royal Children's Hospital suffering from 10 cm x 10 cm avulsion in her back with intestines revealed. She was treated for an eviscerated large and small bowel. A transverse colon enterotomy was carried out. Her lumbar laceration was closed. The extent of her hospitalisation is unclear on the material but by 19 January 2021 was observed to be recovering well post discharge.

1. Police attended the home at 1:06 pm and officers went upstairs to look for the applicant. Police knocked on the applicant's locked door with no answer. They proceeded to kick down the door.
2. The applicant was sitting at the computer. As police entered, the applicant picked up a large knife and stabbed himself in the neck and stomach. Police deployed capsicum spray, but the applicant continued to stab himself in the neck multiple times and stomach before throwing the knife towards police.
3. The applicant attempted to run but was apprehended by an officer. The applicant was trying to claw at his neck wound as police pinned him down. The applicant vomited a yellow liquid which had a strong smell of alcohol.
4. On 3 December 2020, police formally arrested the applicant. He remained in the Royal Children's Hospital Intensive Care Unit until 22 December 2020 when he was taken into custody.

1. The applicant's mother was of Cambodian origin and his father Vietnamese. His parents separated when he was a small child. His mother met and partnered with the applicant's stepfather in about 2011. Their relationship was turbulent and there was significant verbal conflict in the home. According to psychiatric evidence,[2] the applicant internalised his distress and retreated to the safety of his bedroom. Up until the age of 13 the applicant was led to believe that his stepfather was his biological father. In February 2020, when the applicant was 14, a final no contact Family Violence Intervention Order was made against the applicant's stepfather to protect the applicant, his mother, his younger brother and younger sister.
2. The applicant initially did well at primary school. Teachers described him as quiet, shy, respectful and obedient. He was socially awkward. At 12 years of age he commenced secondary school. At about that time his family noticed changes in his behaviour. He stopped speaking Khmer at home, stopped attending family functions and spent most of his time secluded in his bedroom playing computer games. His mental health deteriorated. He experienced low mood, negativity, low self-worth and suicidal ideations. Subsequent to the offending his mental state has, unsurprisingly, been the subject of close scrutiny by various health professionals. We shall return to this evidence but it is sufficient here to observe that at the time of offending the applicant had undiagnosed autism spectrum disorder together with an undiagnosed major depressive disorder. He had poor eye contact, minimal conversation, and displayed repetitive behaviours.
3. It is common for children on the autistic spectrum to behave well at school but to become angry and distressed in the home environment. There was psychiatric evidence that the lack of consistency, structure and routine in the home caused the applicant to retreat further into the safety of his bedroom.
4. Dr Adam Deacon, consultant psychiatrist, interviewed the applicant on three separate days in 2021. He was provided inter alia with the request for a psychiatric report, the hand-up brief, hospital records, Victoria Police Forensic Medical Report, Child Protection Reports, daily reports from Parkville and Malmsbury Youth Justice Centres, school reports and a copy of a Family Violence Intervention Order.
5. Dr Deacon reviewed the applicant's personal history as reported by the applicant, his family history, his reported history of mental health problems, his account of the offence, an autism and neurodevelopmental assessment conducted by Dr Sian Hughes, clinical information and school reports. In summary his opinion was that the applicant:
   • had an unremarkable childhood, albeit his capacity to provide meaningful insight was limited;
   • is formally diagnosed with Autism Spectrum Disorder - Level 1. This diagnosis assists in understanding the complexity of his presentation;
   • experienced an unrecognised major depressive disorder, compounded by family based issues;
   • became less communicative and more disengaged from his family over the last few years prior to his arrest - he mostly spent time alone in his room playing computer games; and
   • was never recognised as being autistic.
6. Dr Deacon further opined:

[The applicant's] persistent depressive disorder and autism spectrum disorder can be considered predisposing factors germane to the commission of the offences. [The applicant] described a persistent sad and angry mood state experienced over three years. He became sensitised to family issues, including being readily annoyed by his younger brother's noise. His sensitivity to his brother's noise may relate to autism. He also developed ill-feelings for his mother. He reported that he had previously enjoyed a good relationship with his mother. His feelings for his mother abruptly changed when he purportedly observed her...with a male family friend in early 2020. His mother purportedly sought his understanding and forgiveness, but instead he declined and withdrew further. He felt disgusted with his mother. His autism likely contributed to a rather rigid and poorly processed response that consolidated a persistent state of disrespect for his mother.

[The applicant's] autism and depressive disorder are germane to the offences. However, it is clear that neither diagnoses in unison or combination can be considered to represent a mental impairment as defined in criteria under section 20 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. [The applicant] was able to understand the nature and quality of the conduct. [The applicant's] autism predisposed him to ruminating about the offence. [The applicant's] autism contributed to him internalising and avoiding self-disclosure and help-seeking. [The applicant's] autism diminished his social cognition and ability to work through his difficulties. [The applicant's] autism explains his cognitive rigidity and difficulty with problem solving. Despite these marked deficits, he understood that the offences he committed were wrong. He experienced a heightened emotional state marked by anger and hatred that compromised his judgement. His heightened emotional state limited his capacity to think rationally and reasonably. Autistics can be predisposed to experiencing significant difficulties with self-regulation during periods of heightened stress.

1. In his second report, Dr Deacon considered the applicant's future risk of violence is likely to be low, contingent upon him receiving tailored intervention in custody, and he is likely to be a reasonably good candidate for rehabilitation. Dr Deacon gained the strong impression that the applicant is generally remorseful for and guilt-ridden by his offending.
2. Dr Sian Hughes is a paediatrician with an expertise in neurodevelopmental behavioural paediatrics. She was provided with background material and asked to perform an autism assessment on the applicant. She has been assessing children for autism for 30 years and prepared a report co-signed by Vivien Williams, Senior Speech Pathologist after both signatories conferred with the applicant for two hours and 15 minutes at the Malmsbury Youth Justice Centre on 6 July 2021. A six stage autism assessment was conducted. Observations of his behaviours during the assessment tasks were catalogued. The applicant was considered to be very immature for his age and his answers were considered very limited, displaying concrete unimaginative thought. Despite a cooperative attitude he showed little ability to understand situations from different perspectives and his understanding of relationships was also considered to be very immature. The authors concluded that the applicant does have an autism spectrum diagnosis. They further opined that the applicant 'struggled to contain his feelings throughout his childhood', had no means of expressing his rage and 'in the end he exploded with devastating results'. They concluded by stating:

It is common for children on the Autism Spectrum to behave well in the class environment and be cooperative but when they return home from school they get extremely angry and distressed. This would seem to us a good explanation of why [the applicant] committed this dreadful act, especially given that he doesn't seem to have a psychotic or significant mental health diagnosis.

1. The judge was satisfied that 'at the very least the undetected interaction of [a major depressive disorder and autism spectrum disorder] over an extended period of time substantially contributed to [the] tragic outburst of violence...'.
2. The judge noted that '[o]n 29 November 2020 (one day before the offending) [the applicant] recorded the following two messages on [his] computer.' They read:

Sure there's a few bright colours there and there, but in the end it's all grey. This world is fucking gay. I hate every fucking shit in this world. I'd rather just die. Goodbye. If you come looking for me I will kill myself straight on the spot, but I'll probably be dead already when you find me. Fuck you, ha ha ha. Well, this is cringe, just me being a dumb ass teenager.

If I killed my family. I killed my family out of hatred. That is all I will say. Although there may be more to that than that reason, but I refuse to say any more than that.

1. The judge also observed that the applicant apparently stayed up all night on 29 to

30 November, stayed in his room instead of going to school and drank some alcohol in the morning. The judge then set out the offending conduct. He observed that the applicant's two surviving victims appeared, physically at least, to have made a good recovery from their life threatening injuries. 2. The Victim Impact Statements were reviewed and the judge, appropriately, commended the applicant's grandmother for extreme bravery in defending her three year old granddaughter. It would be remiss of us not to endorse this commendation. In the face of a family nightmare, her actions were heroic. 3. The judge considered that objectively viewed the offences were upper-range examples of the offences of their types involving ferocious attacks upon defenceless victims. The applicant's personal circumstances were then reviewed and we shall not repeat them. Various relevant portions of Dr Hughes' report were set out. The judge then stated:

I am satisfied by the expert evidence of Dr Deacon and Dr Hughes that you were afflicted by a major depressive disorder and autism at the time of your offending. I am satisfied that principles one, three, four, five and six of Verdins[[3]] apply to you.

Your moral culpability is reduced by your mental health conditions at the time of your offending, principle one. General deterrence, principle three, and specific deterrence, principle four, should be sensibly moderated in sentencing you because of those conditions.

I am satisfied on the balance of probabilities that incarceration will be harder for you in the long run because of your autism, principle five, and that there is a serious risk of incarceration having a significant adverse effect on your mental health when you are eventually transferred to an adult prison, principle six.

1. The judge then referred to other mitigating factors. The applicant pleaded guilty at the first available opportunity and was entitled to a 'substantial discount' for that, especially in the time of pandemic with large case backlogs. The judge accepted that the plea demonstrated genuine remorse, confirmed by Dr Deacon's similar opinions. The judge accepted that youth remained a sentencing factor, albeit involving reduced weight because of the seriousness of the offending.
2. His Honour was satisfied that the applicant had good prospects for rehabilitation with prior and subsequent good character. The judge also took account of Covid-19 restrictions in custody, although limited this given the applicant's (then) positive progress at the Malmsbury Youth Justice Centre. Finally the judge stated that comparable cases were 'of some assistance' and that he gave effect to the principle of totality in making orders for cumulation and to avoid a crushing sentence.
3. The judge recommended that the Adult Parole Board arrange that the applicant serve his sentence in a Youth Justice Centre for as long as possible.

1. No issue was taken with his Honour's careful reasons for sentence. It was contended, however, that notwithstanding this, the individual sentences and orders for cumulation were manifestly excessive resulting in a manifestly excessive total effective sentence. The respondent resisted these submissions, contending that the objective gravity of the overall offending meant that such sentences were inevitable regardless of the strong mitigatory circumstances.
2. It is convenient to consider grounds 1 and 2 together as ground 2 is, essentially, a particular of ground 1.
3. This court routinely observes that grounds of manifest excesses are difficult to establish. Where no error of principle can be identified, to establish this ground an appellant must demonstrate that the impugned sentence is wholly beyond the range available to the sentencing judge in the reasonable exercise of his or her sentencing discretion.[4]
4. In oral argument the applicant's counsel focussed on the sentence of 16 years for the charge of murder. It was submitted that an autistic child of 15 years and 3 weeks, immature even for that age and suffering from an undiagnosed major depressive illness well justified the judge's finding that Verdins principles 1, 3, 4, 5, and 6 were engaged. That being the case given the applicant's strong prospects for rehabilitation, his genuine remorse, his early pleas of guilty made during the pandemic, and the principle of totality, a sentence of 16 years for the charge or murder failed to give sufficient weight to the combination of these factors.
5. Similar submissions were advanced on the attempted murder charges and on the level of cumulation ordered by the judge.
6. Senior counsel for the respondent relied on the judge's finding that this was, objectively, a high end example of the crime of murder, and contended that the sentence of 16 years imprisonment demonstrated comprehensively that the judge did take into account the all relevant mitigatory factors. Senior counsel developed this argument by submitting that an adult offender, on a guilty plea and untroubled by autism or depressive illness could anticipate a sentence far longer than in this case. Senior counsel reminded us that there was some premeditation and submitted that the autism was mild, compared to more profoundly disabling examples.
7. The respondent contended that the objective seriousness of the overall offending well justified a total effective sentence of 20 years imprisonment on the applicant notwithstanding the mitigating features.

1. On the charge of murder, an adult, in objectively the same position as the applicant, would be confronted by a standard sentence of 25 years. That standard sentence would be one of the many factors a sentencing judge would need to consider in the exercise of the instinctive synthesis. A child under the age of 18 is not subject to the standard sentence regime, presumably - as counsel for the respondent conceded - because its operation is considered too harsh to be part of the sentencing synthesis for child offenders.
2. As a consequence of the gravity of the offending the applicant was sentenced under the Sentencing Act 1991 rather than the Children Youth and Families Act 2005, and thus is subject to the Sentencing Principles set out in Part 2 of the Sentencing Act 1991. In

DPP v JF,[5] Hollingworth J was dealing with a 15 year old child found guilty by a jury of murder. We respectfully endorse her Honour's observation concerning child offenders:

Your age is another very relevant sentencing consideration. Because you were 15 at the time of this offending, you are to be sentenced as a child offender.

Very different sentencing principles apply to children, and very different sentences are imposed on children, 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 consequences of their actions.

The law says that the youth of an offender should be a primary consideration for a sentencing court, where the matter properly arises. In the case of such an offender, rehabilitation is usually more important than general deterrence; rehabilitation benefits the community as well as the offender.

However, those principles are not absolute; due regard must be had in each case to other relevant matters, including the seriousness of the offending, and whether there has been any prior offending. Generally speaking, the more serious the offending, the less the weight to be attached to youth. But the mitigatory effect of youth will be extinguished only in circumstances of the gravest criminal offending, and where there is no realistic prospect of rehabilitation.

The standard sentence scheme, which applies to adult offenders, does not apply to child offenders.

All of these considerations can and do lead to children receiving sentences which would be regarded as entirely inappropriate in the case of older individuals.[6]

1. In that case, the applicant committed a vigilante attack with others, upon a disabled victim who was mistakenly thought to have committed a sexual assault. There was no engagement of Verdins principles 1 to 4, however principles 5 and 6 were enlivened as a result of the accused's PTSD, depression and post-offence diagnosis of schizophrenia. JF pleaded not guilty, and the judge considered him to be remorseful. He was sentenced to 14 years imprisonment with a minimum of 9 years before parole.
2. In DPP v Wentworth (a pseudonym)[7], a 16 year old boy pleaded guilty to murdering his grandfather by stabbing him 24 times. The child's motive was that he believed his grandfather had behaved inappropriately towards his (the child's) sister some years earlier. The child displayed some emerging features of Borderline Personality Disorder, but did not suffer from a diagnosable mental disorder. There were some findings consistent with autism spectrum disorder and post-traumatic stress disorder but there was no established medical support for that. On this basis the judge found that there was no mental disorder, and the prospects for rehabilitation were reasonable and he was not a high risk of offending. He was sentenced to 16 years imprisonment with a non-parole period of 11 years.
3. We agree with the judge that these two cases were of some assistance.
4. A number of other cases of lesser similarity to the present offending were placed before the judge[8] although we consider these to have been of little assistance and were not referred to in his Honour's reasons for sentence.
5. We have not needed to look beyond his Honour's conscientious reasons for sentence to understand that, in this case, there were very substantial factors weighing in the applicant's favour. In summary:

(a) The interaction of undiagnosed autism spectrum disorder and an undiagnosed major depressive disorder over an extended period of time substantially contributed to the tragic outburst of violence.[9]

(b) As a consequence the applicants' moral culpability on all charges is reduced.[10]

(c) The need for general deterrence must be sensibly moderated.[11]

(d) The need for specific deterrence must be sensibly moderated.[12]

(e) Incarceration will be harder for the applicant when he is transferred to adult prison, than for others not affected by autism.[13]

(f) There is a serious risk of incarceration having a significant adverse effect on the applicant's mental health when he is transferred to an adult prison.[14]

(g) The applicant is genuinely remorseful.

(h) The applicant pleaded guilty at an early stage, during the pandemic. His plea bespeaks remorse and carries with it significant utilitarian benefit.

(i) The applicant was 15 years and 3 weeks at the time of offending. He is immature although the seriousness of the offending requires this to be given less weight than it would carry in lesser offending.

(j) The applicant has good prospects for rehabilitation.

1. The judge's finding that the applicant's major depressive disorder and autism spectrum disorder substantially contributed to this violence is of particular importance. The effect of a mental state on moral culpability is informed by the extent to which the impairment contributed to the offending. In this case, the judge found the applicant's disorders contributed to the offending in a substantial way. This results in a corresponding reduction in the level of his moral culpability for this offending, and consequently calls for significant moderation of the sentence.
2. In our view the potent combination of these factors is not adequately reflected in the total effective sentence of 20 years imprisonment. After anxious consideration we are satisfied that the sentence of 16 years imprisonment for murder, and the cumulation ordered on that base sentence are wholly outside the range of sentences available to his Honour in the sound exercise of his sentencing discretion. We consider the sentences for attempted murder to be higher than we would impose, but within the range of sound judicial discretion.
3. As a consequence it will be necessary to resentence the applicant on all charges and impose fresh orders for cumulation.
4. It is unnecessary to consider proposed ground 3, although some of the 'fresh' evidence that was sought to be introduced is relevant to the resentencing exercise and we shall refer to it in that context.

1. It is unnecessary to repeat the mitigating factors summarised in paragraph [35]. To them can be added that the applicant's actual custodial circumstances have recently become more onerous. A letter from Ms Isabella Clark, Team Leader with the Department of Justice and Community Safety, was tendered on the appeal, conditionally received as being relevant to resentencing, should we reach that stage. It sets out the applicant's excellent behaviour and attitude in his two years in detention, albeit that, through no fault of his own, his circumstances have recently changed, and his access to educational and rehabilitative programs has been reduced in the face of inconsistency of staffing and instability within the unit. This has led to a decline in the applicant's mental health and overall presentation. His Autism Spectrum Disorder requires consistency, predictability, structure and routine to support his functioning. Youth Justice are currently taking steps to respond to 'the clear decline in [the applicant's] performance'.
2. The applicant will be resentenced as follows:

(1) On charge 1 he will be sentenced to 13 years' imprisonment. This will be the base sentence.

(2) On charge 2 he will be sentenced to 6 years' imprisonment.

(3) On charge 3 he will be sentenced to 6 years' imprisonment.

(4) Eighteen months of the sentence imposed on charge 2 will be cumulated on the base sentence.

(5) Eighteen months of the sentence imposed on charge 3 will be cumulated on the base sentence and the sentence imposed on charge 2.

(6) The total effective sentence is 16 years' imprisonment. A minimum term of

11 years must be served before parole eligibility.

(7) Pre-sentence is declared to be 729 days.

(8) But for the applicant's guilty plea he would have been sentenced to a total effective sentence of 19 years with a minimum of 16 years before parole eligibility.

1. We recommend that the Adult Parole Board arrange for the applicant to serve his sentence at a Youth Justice Centre for as long as possible.

[1] Children, Youth and Families Act 2005 (Vic).

[2] Report of Dr Adam Deacon dated 4 October 2024. Exhibit B on the plea.

[3] R v Verdins [2007] VSCA 102; (2007) 16 VR 269 ('Verdins').

[4] Clarkson v R [2011] VSCA 157; (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA).

[5] [2021] VSC 328 ('JF').

[6] JF, [70]-[75] (Hollingworth J).

[7] [2021] VSC 435.

[8] JPR v The Queen [2021] VSCA 50; DPP v Todd [2019] VSCA 585; Mangione v R [2006] VSCA 34.