Crown v Accused

2 The maximum penalty for manslaughter at the time of your offence was imprisonment for 20 years. The maximum penalty for ICSI is also 20 years.

3 Manslaughter and ICSI are both category 2 offences under s 3(1) of the Sentencing Act 1991 ('the Act'). This means that pursuant to s 5(2H) of the Act, in sentencing you I am required to impose a sentence of imprisonment upon you in the absence of the application of one of the exceptions contained in parts (a) to (e) of that subsection. It has not been submitted on your behalf that I should do anything other than impose a term of imprisonment and set a non-parole period.

4 Nathanial was aged 18 at the time of the events. His younger brother Maaka was 17, having celebrated his birthday only ten days before his death. They are the two sons of Stirling and Karli Hakiwai. Mr Hakiwai was from New Zealand of Maori background. He moved to Australia in 1999, meeting his eventual wife shortly after his arrival. They have four children together, the younger two being sisters for Nathanial and Maaka named Leilani and Kiripaeahi.

5 For some years, the family lived on the Gold Coast while Mr Hakiwai worked in various locations on a fly-in fly-out basis. In May 2019, however, he secured new employment in Melbourne. He relocated here in June 2019, and was joined in turn by Maaka and then Nathanial. It was planned that his wife Karli and the two younger children would move to Melbourne to join Stirling and the boys at the conclusion of the 2019 school year. Tragically, because of your criminal actions, that never occurred.

6 At the time of these events, Stirling, Nathanial and Maaka were living together at a house in Main Road West, Kings Park. Nathanial and Maaka had each secured employment shortly after moving to Melbourne, Nathanial at an abattoir and Maaka as a concreter. As they had only been in Melbourne a short time, they did not know many people. They spent their time working, hanging out together and going to the gym.

7 You were 18 at the time of your crimes. You lived in Sydenham with your mother and sibling. You were not working and were a frequent user of illicit drugs. You had already by that time accrued a worrying history of convictions for crimes of violence, marked by repeated offences of robbery and armed robbery. You were friends with two young males named Chol Kur ('Kur') and AM.[1]

8 Nathanial and Maaka spent the morning of Saturday 28 September 2019 at home with their father, Stirling. In the early afternoon , Maaka arranged to meet up with his cousin and go to a gym. Nathanial decided to go with him. Just prior to 2.30 pm, the brothers left their house and walked the short distance to a bus stop on Main Road West, 50 metres west of the intersection with Oakwood Road which was controlled by a roundabout. They waited for the bus to come. Nathanial was wearing a Philadelphia 76ers cap.

9 In circumstances the details of which are not necessary to relate here, but which are set out in the Prosecution Opening on Plea ('the prosecution opening'), on that morning, you, Kur and AM were rear seat passengers in a Toyota RAV4 vehicle being driven by a young female named NW[2] and containing two other young females. The vehicle was driven to a number of locations that day.

10 It so happened that a few minutes after the arrival of Nathanial and Maaka at the bus stop in Main Road West, the vehicle in which you were a passenger arrived at the intersection with Main Road West via Oakwood Road and hence, came upon the Hakiwai brothers who were waiting at the bus stop, minding their own business. There was discussion in the car between AM and Kur about 'drilling', that is, robbing the boys, and an agreement reached between them that they would do this. You were not involved in this discussion. The RAV4 entered the roundabout and completed two full circles before exiting west onto Main Road West. During this process, AM directed NW to stop the car so that he and Kur could go and drill the boys.

11 The vehicle came to a stop a short distance to the west of the bus stop. Nathanial observed a male, alleged to be Kur, put his head out of the rear of the vehicle and yell out, 'Where are youse going?' Nathanial replied that they were off to the gym. Kur got out of the vehicle, followed shortly thereafter by AM. Your two friends approached the Hakiwai brothers. Kur engaged Nathanial in some small talk to disarm him, and then, in reference to the cap being worn by Nathanial, stated, 'Run me that hat'. Nathanial refused to do so. Kur lunged forward and grabbed the cap by the peak and removed it from Nathanial's head. Nathanial grabbed the cap and snatched it back. Nathanial pushed Kur and also pushed AM whom he saw approaching Maaka. Nathanial was then punched by Kur to the mouth and also kicked to the chest. He ended up on the ground. At some point, Kur was also observed by some of the occupants of the car to fall to the ground. As Nathanial was getting up, he observed Maaka being held in a headlock by AM in a somewhat bent-over position. As Nathanial saw it, Maaka seemed confused about what was happening, but was not resisting and his body language was quite relaxed.

12 At this point, you left the vehicle by the rear drivers' side door, armed with a large knife which had the appearance of being a weapon rather than a kitchen-style knife. You walked straight over to where Maaka was still being held by AM. As Nathanial observed it, although I note at this point that your counsel disputes that I should be satisfied of the correctness of this aspect of Nathanial's evidence, you placed one hand on Maaka's back, and with the knife in the other hand, stabbed him once to the abdomen in an upwards motion towards his chest. What on any view, no matter my conclusion as to the precise mechanism, was a vicious thrust of the weapon, penetrated sufficiently deep into the body of Maaka to cause the catastrophic injuries which I will later detail. Maaka could do no more than say, 'What the fuck?' He tried to run but almost immediately collapsed to the ground.

13 Nathanial himself tried to run but stopped when he saw his brother fall to the ground. He yelled out for help. Not content with what you had just done to Maaka, you then turned your attention to Nathanial. You came at him with the knife. He tried to fend you off but you got past his outstretched arms and without saying a word, stabbed him to the outer side of his left thigh. He fell to the ground and tried to defend himself from further attack by kicking out with his legs whilst screaming for help. You tried to stab him again while he was on the ground. He managed to get to his feet and started yelling at you. You stabbed him again to the outside of the thigh, this time thrusting the knife all the way through. You then immediately pulled the knife out of the thigh of Nathanial.

14 After you had stabbed Nathanial, inflicting serious injury upon him which I will later detail, Kur went up to him and removed the Philadelphia 76ers cap from his head.[3] You left your two seriously injured victims lying bleeding on the ground as you, in company with Kur and AM, ran back to the RAV4. The vehicle was driven quickly from the scene.

15 In the immediate aftermath of the stabbings, Nathanial continued to yell for help. He asked an elderly couple across the road to call an ambulance. He then telephoned his father, informing him that he and Maaka had been stabbed. Stirling ran immediately to the scene, finding his two stricken sons lying blood-soaked and seriously injured on the ground near the bus stop. Nathanial was in and out of consciousness. Maaka was unconscious, and lifting his shirt, Stirling was horrified to observe the knife wound to Maaka's abdomen and some of his bowel protruding from the wound, which he tried to push back in. He did his best to help his two sons and showed courage and great love in doing so. The police arrived at the scene a few minutes later. The product of body-worn cameras operated by police members which was played to the Court during the plea hearing revealed the full extent of the tragedy unleashed by your senseless acts of mayhem. The terrible trauma to which your actions exposed the devastated father of Maaka and Nathanial as he grappled with the realisation of the serious condition of his two sons was plain to see on the footage. So too were the sensitive and calm efforts of Victoria Police and Ambulance Victoria members as they sought to save the lives of your victims.

16 Paramedics found Maaka to be unresponsive and in cardiac arrest. They commenced efforts at resuscitation, which were continued as Maaka was transported by ambulance to Royal Melbourne Hospital. Although Maaka intermittently regained cardiac output, upon arrival at the hospital at approximately 3.30 pm, he was in cardiac arrest with no pulse. Following an emergency thoracotomy, it was found that the peridcardium (heart sack) was tense and full of blood. The heart was empty of blood, not beating, and found to be damaged in two locations. Despite all efforts made by the trauma team, Maaka was unable to be saved due to the severity of his injuries. He was declared deceased at 3.58 pm.

17 Nathanial, having been stabilised at the scene by paramedics, was transported by ambulance to The Alfred Hospital. He was observed to be in shock as a result of substantial blood loss. He had low blood pressure and a high heart rate as well as impaired liver function due to the severe blood loss. He was found to have two stab wounds to the outside of the left thigh. He underwent emergency surgery to repair damage to his popliteal vein[4] and to his profunda femoris artery,[5] both of them major blood vessels which ran deep in the leg in close proximity to the femur. There was also damage to one of the muscles of the thigh which needed to be surgically repaired. Nathanial received in excess of two litres of blood products during his treatment. He remained in hospital for 13 days. His injuries were considered to be life threatening. I am satisfied that had he not received prompt medical treatment of a high standard, he, too, would have died.

18 Returning to the aftermath of your crimes as it concerned you, the three of you having arrived back at the car, AM told NW to drive away, which she did, at speed, as it happened being followed by a nearby motorist who was able to obtain the registration number of the car. You were still in possession of your knife, and Kur was holding onto the stolen cap. There was a good deal of yelling in the vehicle, and some condemnation of your actions, for which you apologised to AM and Kur. You said that you had fucked up, and did not mean for it to go that way. You were heard by one of the female occupants of the vehicle to say, 'Did I really just shank them?', and by another to say, 'I hope I didn't get him in the heart'. You were seen to place the knife, which had blood on it, into a black cover. You later placed the knife in your bum bag. The knife was never recovered by investigating police. I am satisfied beyond reasonable doubt that you must have disposed of it.

19 After the vehicle was driven to a number of locations, you were dropped off in Caroline Springs. In the early hours of the next morning, one of the female occupants of the car telephoned you and informed you that one of the people you had stabbed had died. You asked, 'Which one?'.

20 An autopsy was carried out on the body of Maaka on Sunday 29 September 2019 by a forensic pathologist, Dr Greg Young. During the examination, Dr Young observed a sharp force injury entering the upper abdomen just to the left of the midline. The external appearance of the wound was of an inverted V-shape which may have been indicative of movement of the edged weapon. The wound track produced by the weapon proceeded upwards, backwards and slightly to the right side of the body, damaging the left lobe of the liver, the stomach wall, the colon, the left costal cartilage, the left diaphragm, and the pericardium or heart sac. A through-and-through penetration of the right ventricle of the heart was observed, and damage to the front wall of the aorta. The depth of the injury from skin to aorta was ascertained to be approximately 10 centimetres. There were also injuries by way of abrasions and bruises to the face, arms, hands and right leg of Maaka indicative of blunt force. Dr Young was of the view that, in light of the fact of there being damage to the costal cartilage, the degree of force used to inflict the wound was at least moderate. I note that that description did not put an outer-limit on the degree of force.

21 The cause of death of Maaka was determined to be blood loss resulting from this wound.

22 The registration number of the RAV4 quickly led investigators to the father of NW who was the owner of the vehicle. NW was arrested on the evening of 28 September 2019 and provided your name to the police as the person responsible for the stabbings.

23 You were arrested at the Sunshine Market Place on the afternoon of 8 October 2019. You were later interviewed and made no comment.

Trial, offers to plead guilty and question of remorse

24 You stood trial on charges of common law murder, statutory murder, ICSI and recklessly causing serious injury ('RCSI') in March 2021. When arraigned in front of the jury on 15 March 2021, you pleaded not guilty to the charges of murder but guilty to manslaughter. You pleaded not guilty to ICSI and RCSI but guilty to intentionally causing injury.

25 On 30 March 2021, you were found not guilty of both forms of murder by the jury but guilty of manslaughter. You were also found guilty of ICSI.

26 Prior to your plea of guilty to manslaughter in front of the jury on 15 March 2021, you had, on 25 March 2020, made an earlier offer to plead guilty to that offence. You also later offered to plead guilty to the charge of ICSI.

27 Your counsel submitted that you should receive a substantial discount in sentence for your early offer to plead guilty to both offences of which you were eventually found guilty by the jury. As he put it, you should receive a discount for both of what have been known for some time as the objective and subjective criteria of your plea offers.[6] In respect of the discount for the utilitarian benefit of your plea of guilty, Mr Norton submitted this should be increased because of the impact of the COVID-19 pandemic.

28 The prosecution accepted that you are entitled to a reduction for the notional utilitarian benefit of your offer to plead guilty to manslaughter. It was disputed, however, that you should receive a benefit for your offer to plead guilty to ICSI, because you did not plead guilty to this charge before the jury, being willing to acknowledge guilt only of a lesser charge.

29 I do not accept that your failure to plead guilty to ICSI before the jury should prevent you from receiving the benefit of your earlier offer to plead guilty to this charge. The fact that you did not renew the earlier offer did not detract from the fact that had that earlier offer been accepted by the Crown, a trial on the charge of ICSI would not have been necessary.[7]

30 I am satisfied that you are entitled to a reduction in sentence on both charges on account of the utilitarian benefits attaching to the plea offers you made. Had those offers been accepted, no trial would have been necessary, and there would have been the corresponding saving of time, resources and emotional energy expended in the trial. I also note and have regard to what was said by the Court of Appeal in Worboyes v The Queen[8] as to pleas of guilty in these COVID-19 times carrying with them greater utilitarian benefit than at other times.

31 Turning to the subjective aspects of your plea offers, such as remorse, a willingness to facilitate the course of justice, and an acceptance of responsibility, as indicated already, Mr Norton sought a reduction for these as well. He submitted that your early offer to plead guilty to manslaughter was not a strategic one , but rather a reflection of your intention to take responsibility for your offending at an early time. He pointed out that your offer at least in respect of manslaughter was repeated on a number of occasions, including in front of the jury. Furthermore the trial was contested on a very narrow basis, and involved a concession by you that you caused the death of Maaka and the injuries to Nathanial, and did so with a weapon.

32 Mr Norton submitted that there is evidence of genuine remorse in your case. He pointed to the early offers to plead guilty, the manner in which the trial was conducted, the utterances to others in the RAV4 in the immediate aftermath of your crimes, and things said by you to the clinical psychologist who assessed you, Dr Matthew Barth.

33 On that score, Dr Barth, in his report dated 6 June 2021,[9] having described you as difficult to assess, guarded in your answers, very immature, unsophisticated, and of below average intelligence, noted your claim to him of having used ice the night before your offending, Xanax throughout the day, and of having no recollection of your offending behaviour or the events surrounding it as a result of the intoxicating effects of the Xanax. He went on to say:

Mr Horton had considerable difficulty discussing his feelings for his offending behaviour. Through sustained questioning, he was able to express his understanding of the consequences of his offending conduct. Mr Horton expressed remorse for his offending in these terms:

'I'm sorry for the family. If I had a son and that happened, I would be devastated'.[10]

34 Mr Norton submitted that when assessing the question of your remorse, the Court should not expect to see from a person with your limitations of intellect, education and personality the same sort of expressions of remorse as would be given by an eloquent and educated person.

35 The Crown submitted that there was nothing beyond the offer to plead guilty and the pleas of guilty themselves to indicate true remorse on your part. The capacity of the plea of guilty to indicate remorse should be assessed in light of the considerable strength of the prosecution case. The plea of guilty could be seen as a pragmatic decision made to your forensic advantage, it was submitted. Your actions in the aftermath of the crime were not indicative of remorse. You immediately fled the scene. In the car, you made the callous statement, 'Did I really just shank them?' Although you apologised to your associates, it was only in response to being chastised by them. As for the psychological report of Dr Barth, a true reading of that would indicate a lack of genuine remorse. Nearly two years after the events in question, and in the face of sustained questioning, your limited utterances were not indicative of real remorse, and indeed, showed that you still failed to grapple with the enormous impact of your conduct on its victims. In respect of the assertion that your limited intelligence and other aspects of your personality may have hindered your ability to make clear statements of remorse, Ms Lenthall for the Crown submitted that expressions of remorse need not be eloquent, and that even a child can express remorse and regret.

36 Ms Lenthall submitted that beyond the plea of guilty itself, there was insufficient other material to warrant a finding on the balance of probabilities that you are truly remorseful.

37 The law does not permit me to take the strength of the prosecution case into account in arriving at the discount you should receive for the utilitarian benefit of your rejected plea offer.[11] I do not do so. As I have already indicated, you are entitled to a reduction in sentence to reflect your offer to plead guilty, and the timing of it. But the position of the subjective criteria is different. The apparent strength of the prosecution case is relevant to an assessment of those matters.

38 From the time you went into police custody, you undoubtedly realised that there would be a very powerful case showing that you were the person who, for no good reason, stabbed the two Hakiwai brothers, killing one and seriously injuring the other. In those circumstances, and bearing in mind you were facing a prosecution for murder, your offer to plead guilty to manslaughter and ICSI could not be considered to be evidence of the existence of remorse or the other subjective aspects of a plea of guilty.

39 On the specific matter of remorse, I accept the submissions of the prosecution. I do not believe there is any evidence which would warrant a finding by the Court that you are genuinely remorseful for your offending. Of course you are not to be punished for that fact, but it does mean that a mitigating circumstance seen in many cases is not present in your case.

40 In summary, then, I indicate that in formulating the appropriate sentence to impose upon you, I have had regard to your relatively early offer to plead guilty to the crimes of which you were eventually convicted, and have reduced your sentence to reflect a reduction for the objective aspects of that offer. I make no such reduction for the subjective aspects, and note that I am not satisfied that you are, even now, truly remorseful for your crimes.

41 You are now 20 years old. You were brought up in the north-western suburbs of Melbourne. You have a younger half-sister. You were educated at Sydenham-Hillside Primary School and then Taylors Lakes Secondary College where you exhibited significant behavioural problems including aggressive behaviour towards fellow students and failure to attend. You were suspended a number of times before being ultimately expelled. You never knew your biological father, and took the name of your step-father. You strived for a paternal connection with him, but his presence in the home during your early years had a negative and destabilising influence upon you. He was a violent drug addict, and as well as being the victim of his violent conduct directed towards you, you witnesses his physical abuse of your mother, and carry with you feelings of regret that you were unable to protect her in the face of a particularly serious instance of family violence which occurred when you were 13. Your mother separated from your step-father following this incident, which, according to your mother, caused you to feel abandoned. As it was put before me, your life started to unravel from that time, although not for the want of ongoing support of your mother, which continues to this day. From that age, you ceased your previous involvement in sport, began socialising with other disaffected youths, and commenced using drugs, moving rapidly from cannabis to ecstasy and methylamphetamine ('ice'). You also commenced a rapid descent into criminality marked by a disturbing tendency towards violence and a lack of concern for the welfare of others.

42 You have an extremely limited employment history, confined to two brief periods of work at an auto repair store. You have completed a barista course but have not pursued any vocational opportunities, other than being employed for a short time in the prison system. You remain unclear about a potential career although you have expressed a desire to work in the music industry.

43 Your first interaction with the criminal justice system occurred when you were only 14 years old, I was told, in the context of your involvement with antisocial peers, and experiencing difficulty at school. Your first disposition in the Children's Court was when you were dealt with for two charges of armed robbery and other offences on 5 February 2018 for offending which took place in November 2017 when you were 16. Those armed robberies involved you and a co-offender, wearing balaclavas and armed with hammers, robbing employees at a Subway store and a café, in the course of which gratuitous violence was inflicted upon the victims. Over the following year-and-a half until the current crimes, you accrued an unenviable record of offending, comprising 26 findings of guilt dealt with at five separate court hearings. Overall you were dealt with for three armed robberies, one attempted armed robbery, an attempted robbery, two affrays, several charges of assault, and a variety of other offending including committing indictable offences whilst on bail. The pattern of committing crimes of violence in company with others whilst armed with weapons was repeated a number of times. In terms of sentences, you fairly quickly ran the gamut of the available dispositions of the Children's Court, arriving at your first period of detention in a youth justice centre in October 2018 when ordered to be detained for 7 months for charges of affray, attempted robbery and recklessly causing injury. On a number of occasions, sentences you received had components built in to deal with your drug problem and lack of vocational training. Unfortunately, your lawless behaviour continued unabated.

44 On 22 July 2019, you were placed on a bond for a further affray, assault, and other crimes. You were subject to this bond at the time of the present crimes.

45 As indicated already, you were assessed by Dr Barth in preparation for the plea hearing. You detailed no formal psychiatric history, although you did apparently receive counselling to cope with the emotional effect upon you of the separation of your mother and step-father. Dr Barth detailed your history of transient periods of dysphoria in your mid to late teenage years, predominantly due to your turbulent lifestyle, drug use, and dissatisfaction with the trajectory of your life.

46 In dealing with the background to your current offending, as noted earlier, Dr Barth indicated that you claimed to have no recollection of your offending or the events surrounding it due to the intoxicating effects of the use of Xanax. Not surprisingly, Dr Barth challenged you about this claim but you stood firm.

47 I should say two things about this claim you made to Dr Barth. First, I do not accept it. There is no evidence at all to indicate that you were noticed to be affected by any substance by any of the people who saw you or were in your company before, during or after your offending. Some of these people were in your presence at close hand for a number of hours. If you were so substantially affected by a substance as to wipe your memory for the very notable events in which you involved yourself, someone would have noticed it. No one apparently did. You gave no account to the police or evidence to the Court suggesting impairment by drugs or a loss of memory. In my view, it was an implausible-sounding claim which you made to the psychologist for some reason which is unclear. I do not accept that the claim was a truthful one.

48 Secondly and in any event, even if was true that you have no memory of the crimes you committed, it would say nothing at all about the deliberateness and brazenness of your offending and would not provide any significant context to the lack of remorse seemingly indicated by your overall behaviour, about which I have already had something to say.

49 Dr Barth considered the most salient feature of your mental state when he assessed you to be reactive depressive symptoms of mild intensity. He considered that you do not meet the criteria for any mood disorder, anxiety disorder or adjustment disorder. Furthermore, there are no indications, he considered, that you were labouring under the effects of any such disorder at the time of your offending.

50 I have already touched on Dr Barth's opinion as to your below-average level of intelligence. He concluded that notwithstanding this, you are not intellectually impaired and there are no deficits in your ability to appreciate the wrongfulness of your behaviour.

51 Turning to your personality, he described your personality and behavioural adjustment as 'markedly dysfunctional'[12] and said that your entrenched personality and behavioural problems can be traced back to your childhood and have been intensified by your subsequent lifestyle. You have a distorted self-identity, in which you have 'placed a considerable emphasis on projecting an intimidating and aggressive persona to others to compensate for the emptiness and resentfulness he has felt about his life'.[13] You are poor at regulating emotional reactions and experience an intense escalation of feelings of hostility when you feel challenged. As a result, your ability to manage conflict effectively is very limited and you place a premium on dealing with conflict by resorting to overtly aggressive behaviour.

...Mr Horton lacks the adequate life skills and behavioural control to function effectively in mainstream society. His decision making is impulsive and focused solely on short term gratification. Mr Horton's behaviour subsequently became more disinhibited in the context of his drug addiction and turbulent lifestyle.

Mr Horton displayed significant delinquent behaviours during his adolescence and he continues to exhibit entrenched antisocial traits. Mr Horton's maladaptive personality traits are intensely problematic and clearly meet DSM-5 diagnostic criterial for an 'Antisocial Personality Disorder'.[14]

53 Dr Barth also diagnosed you as suffering from Stimulant-Use Disorder and Cannabis-Use Disorder, both at the severe level, but in remission due to the controlled environment in which you have been held. He said that your insight into your drug-taking behaviour is poor and that with your entrenched involvement in drugs subculture, you would pose an elevated risk of relapse when released into the community. This would represent a critical criminogenic factor which would need to be contained to reduce your risk of future offending.

54 Dr Barth carried out a violence risk assessment of you with the use of Historical Clinical Risk Management-20 Version 3 (HCR-20 V3) a widely used actuarial measure of the risk of violent recidivism. The test comprises 20 risk assessment items scored across three domains. The results you obtained led Dr Barth to the view that you pose a high risk of future violent offending. He stated:

An assessment of Mr Horton's risk of violent recidivism indicated the presence of several significant criminogenic factors. In particular, his antisocial personality, his significant substance abuse issues, his history of engaging with antisocial peers and his propensity to resort to violent behaviour as a means of achieving his personal and material goals. Further to this, Mr Horton lacks insight into his behaviour, his coping skills are poor and he has little realistic concept of the steps required to establish a healthier lifestyle.[15]

55 As he put it, your ability to engage appropriately in offence-specific treatment for violent offenders will be critical in determining your long-term rehabilitative prospects in the community.

56 Dr Barth expressed the clear opinion, however, that there is no indication that your psychological functioning was impaired at the time of your offending. Further to that, I note the concession of Mr Norton that no reliance is placed on your behalf on any of the principles set out in the decision of R v Verdins.[16]

57 Dr Barth detailed some of the treatment which would be essential to reduce your risk of violent recidivism and increase your prospects of rehabilitation. This would include psychological treatment for your antisocial personality disorder, offence specific treatment focussing on your violent offending, substance abuse treatment and vocational education and training.

58 In respect of your prospects of rehabilitation, Dr Barth stated:

I remain guarded about Mr Horton's prognosis. Without comprehensive, integrated and sustained psychological treatment and strict supervision, Mr Horton's rehabilitative prospects when he is ultimately released into the community are poor. To his credit, he expressed his desire to participate actively in any treatment offered to him to change the trajectory of his life. From a psychological perspective, this is encouraging. Nevertheless, he faces an extensive period of intense rehabilitation if his issues are to be addressed effectively in the long-term.[17]

59 22 victim impact statements were placed before the Court, in all but one case being read aloud either by the particular victim, or by Stirling Hakiwai. These statements were compiled by or on behalf of a very large number of the family members of Maaka and Nathanial, including, at the centre of the process, Stirling and Karli Hakiwai, the heartbroken parents of the boys. The material was presented over a period in excess of one full day of Court time. The statements set out in vivid, intelligent, and emotional manner, sometimes with the use of poems, songs, photographs and video presentations, the completely devastating effect your criminal conduct has had and undoubtedly will forever have on the life of the close-knit and loving family of Maaka and Nathanial. It would be quite impossible to overstate the eloquence and power of the tragic picture portrayed by the material.

60 Mr Norton, at the commencement of his plea in mitigation, in clearly heart-felt and decent words, said of the victim impact statements:

...what we have been witness to over the last day and a half has been extraordinary on any view and anyone that was present for it could not but be affected by it. The material itself...is incredibly powerful but the manner in which it has been delivered, the cultural significance of it and the dignity with which those involved have carried themselves really one can only describe it as profound and what that brings with it, your Honour, is a very real challenge in terms of ensuring that the sentencing exercise isn't swamped by it and even with your Honour's vast experience, it's important to guard against that swamping, accepting...as I do immediately in the pure legal sense that the victim impact in this matter is high. I'm not sure there's a higher than high but...no issue is taken with the pure gravity of it.[18]

61 All but one of the victim impact statements was aired in open court, and all were tendered in evidence as part of Exhibit C. I will not pause, now, to set out any of the specific content of the many accounts of the loving mother, father, brother, sisters, grandparents, aunts, uncles and other relatives of Maaka and Nathanial. Suffice to say that Mr Norton's description of the material was no more than fair and accurate. The victim impact statements present a clear depiction of the ongoing anguish, fear, sense of loss, anger and almost overwhelming sadness produced by your heartless actions. In addition, as I said to the authors of the statements, in commending them for having had the courage and fortitude to set down their innermost thoughts in writing and then convey them to the court, the victim impact statements and the way in which they were presented painted a powerful picture of the wonderful, supportive and loving family from whom Maaka and Nathanial are fortunate to come.

62 It is true that the sentencing exercise in which I must engage must not be allowed to be swamped by the power of the victim impact statements. I will guard against that, in the clear knowledge that the impact of your offending on its victims, the injury, loss and damage resulting directly from your crimes, and the personal circumstances of the victims are but some of the many matters which I am required to take into account pursuant to s 5(2) of the Act.

63 I note, also, that not surprisingly, many of the victim impact statements contain material which would go beyond that which is permitted by s 8L(1) of the Act. No criticism is intended of them in so saying. In particular, it is hardly surprising that the grief-stricken loved ones of a deceased child would feel inclined to demand that strong punishment be meted out by the sentencing judge to the offender responsible for their pain. Having said that, it should be observed that on the whole, the victim impact statements contain material which is admissible and entirely appropriate to be considered by the Court.

64 I am fully conscious of the fact that no sentence I can lawfully pass would provide any measure of satisfaction to the family of Maaka and Nathanial. Nor can any sentence alleviate their pain. They can be assured, however, that their loss and suffering will be taken into account by me as permitted and required by law, and will be reflected in the sentence I will pass.

65 For the most part, the prosecution and the defence were at one as to the many factors which mark the obvious seriousness of your offending. I will turn to some of these shortly. First, I will focus on the actual mechanism of your fatal stabbing of Maaka, which was in some dispute.

66 The prosecution opening on the plea asserted that while Maaka was being held in a headlock by AM, you left the RAV4 armed with the knife. As stated in the opening:

Whilst Maaka was still being held by [AM], Horton walked directly over to them and placed one hand on Maaka's back and, with the knife in his other hand, stabbed Maaka once to the abdomen, in an upwards motion towards his chest. [19]

67 This account was based principally on the sworn evidence of Nathanial.

68 Mr Norton, through his written outline and oral submissions, asserted that for reasons he spelt out, 'it is not possible to make a finding, consistent with the jury verdict, to the requisite standard that the blow was landed in the manner described in the Prosecution Opening on the plea'.[20] The requisite standard as he put it was beyond reasonable doubt, reflecting the proposition that such a finding would be about an aggravating circumstance and would require proof to that standard. I note that Mr Norton did not urge upon me any alternative finding as to the precise circumstances of the stabbing of Maaka. Nor was any such alternative finding advanced for the consideration of the jury.

69 The matters pointed to as calling the account of Nathanial into question were the conflicting evidence of JD,[21] some evidence of the pathologist Dr Young as to the unlikelihood of the particular injuries sustained by Maaka having been inflicted by the type of mechanism described by Nathanial if Maaka was bent over when struck, and the fact that in a number of respects Nathanial had expressed uncertainty about aspects of his account.

70 Having made these submissions, Mr Norton conceded that no matter whether I made a finding of fact consistent with the evidence of Nathanial on the one hand, or whether I was unable to make a finding as to the specific mechanism of the stabbing on the other, the difference in terms of seriousness of the offending would be marginal.

71 The position of the Crown was that the precise mechanism of the stabbing was not an aggravating circumstance, but rather simply a description by the closest and best eye witness of what occurred in the attack. In any event, Ms Lenthall submitted that I would be well entitled to act on the evidence of Nathanial as to the precise nature of the mechanism, even if proof beyond reasonable doubt is required.

72 I have re-read the evidence of Nathanial in its entirety, and the other evidence relied on by your counsel as calling Nathanial's evidence into question in the specific respect now being considered. Having done so, and reflected on the submissions on both sides, and accepting for the purposes of the argument that the precise mechanism of the stabbing of Maaka is an aggravating circumstances in respect of which proof beyond reasonable doubt would be required, I am satisfied to that standard that you stabbed Maaka in the way described so clearly and strongly by Nathanial.

73 Nathanial observed the fatal stabbing of his brother from very close range. He made it clear that he was watching carefully as this shocking event unfolded in front of him. Whilst he expressed some doubts about some aspects of his evidence, no such doubts were expressed about this central aspect. It was not put to him that he was wrong, and nor was any alternative mechanism advanced on your behalf during the trial or before me on the plea. The observations of JD were made from some distance away through the window of the motor vehicle. This witness made it clear during her evidence that her memory was not very good. She was mistaken about a matter so fundamental as the order in which Maaka and Nathanial were stabbed. As for the evidence of the pathologist, it must be remembered, of course, that he, unlike Nathanial, did not witness the infliction of the stab wound. He was able to comment only on the appearance and orientation of the wound and its track. He could not say how it was inflicted. To my mind, neither the evidence of JD nor that of Dr Young undermined the clear evidence given by Nathanial Hakiwai about how you stabbed Maaka. Furthermore, there was nothing about the objective findings as to the wound track inconsistent with the wound having been inflicted as Nathanial said it was. I am satisfied beyond reasonable doubt that the stabbing of Maaka occurred as described by Nathanial in his evidence before the jury.

74 That takes me, then, to a consideration of your offending. Your offending comprised brazen acts of violence carried out in a suburban street on a Saturday afternoon. Your victims were young, unarmed and doing nothing wrong when you decided to launch your attack on them. They were unknown to you and did nothing to warrant your attention towards them, other than being there and in the case of Nathanial, at least, justifiably resisting the efforts of Kur to rob him. Your crimes occurred in the context of your friends or associates, Kur and AM, having, to your knowledge, selected Maaka and Nathanial as targets of a robbery in which you were not involved, and then being met with some resistance.

75 It was asserted on your behalf that your offending was unplanned and that you joined the physical action only in response to your compatriot being knocked to the ground.[22] The Crown challenged that contention on the basis that there is no evidence before the Court that this was in fact your state of mind. It was submitted on your behalf that to accept the Crown's contention would be to deny you the full benefit of the verdict of the jury, it having been run on your behalf in the trial that you got out of the vehicle in response to the falling over of one of your friends rather than because you were involved in the robbery.

76 I do not accept Mr Norton's submission. The jury verdict on the charge of statutory murder means no more than that the jury was not satisfied beyond reasonable doubt of the existence of all of the elements of the crime. One of the elements of the crime was that at the time of stabbing Maaka, you had knowledge of the essential circumstances of the robbery which was in progress, and intended to assist or encourage the commission of that crime. The jury verdict of not guilty does not imply any particular conclusion by the jury as to your motivation in getting out of the vehicle and going up and stabbing Maaka. For example, the jury verdict would not rule out a view by the jury that your motivation in the attack was wholly punitive, and not out of any concern for your friends.

77 On the available material, beyond observing that you did not get out of the vehicle until such time as one of your friends fell to the ground, I can reach no conclusion about precisely why you left the vehicle at the point when you did. As to what you had it in mind to do, that is clear enough. You had armed yourself with a large knife. You proceeded straight over to where Maaka was being held by AM. Without any further ado, and without saying a word, in the very deliberate way described by Nathanial in his evidence, you stabbed this defenceless and helpless young person in the abdomen.

78 Your stabbing of Maaka was directed at a vulnerable part of his body, and aimed upwards in the body. Significant force must have been involved. The knife penetrated sufficiently deep into the body to damage a large number of vital internal structures, ending with the heart itself and the aorta. From the time you carried out this action, Maaka was destined to quickly die. That eventual outcome could have come as no surprise to you. You were a person of normal intelligence. The thrusting of a knife deep into the abdomen and chest of another human being was something anyone would know, and something you knew, would carry with it the very high risk, if not the inevitability, of at least serious injury being caused. This was a very serious mechanism for the carrying out of the crime of manslaughter.

79 You carried out this shocking and entirely unwarranted attack upon Maaka in the presence of his brother, who watched on in horror from only metres away.

80 Having carried out that crime, and having seen the victim of your crime fall to the ground a short distance away, and not content with the result you had brought about, you focused your attention on Nathanial, another person who constituted no threat to you whatsoever. It speaks volumes as to your immediate lack of regret and concern for the plight of the victim of your first stabbing that you so quickly turned your attention to a second prospective victim. Having done so, you pursued Nathanial, and despite his efforts to retreat and to defend himself, you managed to stab him to the thigh, causing him to fall to the ground. Again, not content with the violence you had already inflicted, you sought to stab him further when he was on the ground, and then succeeded in stabbing him again when he had got to his feet. One of the stabbing actions led to the knife penetrating all the way through Nathanial's thigh. Serious damage was caused to vital blood vessels deep in his leg. As put by the prosecution, this was a sustained act of physical aggression which involved concerted effort to injure Nathanial.

81 The effect of this attack upon Nathanial could not have been more devastating, following closely, as it did, your fatal attack upon his younger brother only seconds before. The physical scars your crime left upon Nathanial are graphically shown in photographs admitted with his victim impact statement. Neither these, nor the emotional scars of which his statement spoke so eloquently, will ever truly heal.

82 One of the aspects of your crimes upon which some reliance was placed during the trial and the plea was the speed with which things unfolded. A CCTV camera in place on a nearby house recorded the time which elapsed from your departure from the rear driver's side of the vehicle until your return there as being only 16 seconds. To my mind, that short period speaks volumes about the brutal efficiency of your crimes and your capacity for extreme violence.

83 Manslaughter is of course a crime which is inherently serious, involving as it does the taking of a human life. In Vu v The Queen,[23] the Court of Appeal stated:

The sentencing range for the crime of manslaughter is strikingly wide, as is the range of criminal conduct that can cause the relevant unlawful killing. The range of conduct commences with 'a joke gone wrong' and extends to conduct 'just short of murder'.[24]

84 In that case, as the sentencing judge, I characterised the manslaughter as being at the upper end of the range of seriousness for that crime. The Court of Appeal agreed with that characterisation and stated that the manslaughter in that case could legitimately be characterised as 'just short of murder'.

85 Before me, the prosecution submitted that your crime of manslaughter falls just short of murder. It was submitted that your moral culpability can only be described as high. Mr Norton on your behalf did not dispute that the objective seriousness of the crime is high. His written outline set out a number of the features of the crime which would warrant that conclusion. He accepted that I should sentence you on the basis that at the time you stabbed Maaka, you knew full well that your action was extremely dangerous and likely to cause at least serious injury.

86 On the question of your moral culpability for your offending, Mr Norton relied on your young age and disadvantaged background as reducing, to some extent, your moral culpability. I will say something more about the matter of your age and the question of moral culpability shortly.

87 Having considered all of the objective features of your offending, I am satisfied that your crime of manslaughter is a most serious one falling just short of murder. This crime was carried out by you upon a defenceless 17 year old child who had done absolutely nothing to warrant any attack upon him. In no way were you acting in defence of your friends at the time. You knew they were in the process of carrying out a robbery. You intervened for no good reason with that knowledge.

88 As for your second crime, it, too, was a most serious one, for many of the reasons I have already mentioned. In callous disregard for what you had already done to Maaka, you saw fit to attack his brother in determined and frightening fashion. You stabbed him not once but twice with that dangerous weapon. You inflicted serious injury upon him, as was you obvious intention. Only good fortune and the intervention of expert medical attention prevented Nathanial from paying the ultimate price for your violent and nasty conduct.

89 As I have already mentioned, you were 18 years old at the time of your crimes, and are still only aged 20.

90 A long line of authority dictates that the youthfulness of an offender may be a primary consideration in sentencing, and that in such a case, rehabilitation is usually far more important than general deterrence.[25] That is not always the case, however, and the law has recognised that there will be cases in which factors such as youth and rehabilitation would take a 'back seat' to other sentencing considerations.[26] In considering the authorities on the topic in Azzopardi v R,[27] Redlich JA (with whose judgment the other members of the Court of Appeal agreed), stated:

The general propositions which flow from these authorities is that where the degree of criminality of the offences requires the sentencing objectives of deterrence, denunciation, just punishment and protection of the community to become more prominent in the sentencing calculus, the weight to be attached to youth is correspondingly reduced. As the level of seriousness of the criminality increases there will be a corresponding reduction in the mitigating effects of the offender's youth. But only in the circumstances of the gravest criminal offending and where there is no realistic prospect of rehabilitation may the mitigatory considerations of youth be viewed as all but extinguished.[28]

91 There was a later confirmation of the principle by the Court of Appeal in Siilata v The Queen,[29] a case concerning an offender sentenced for aggravated carjacking who was 18 years old at the time of the offence and 19 at the time of sentence:

True it is that the applicant was young but, as the cases make plain, the more serious the offending, the more the mitigating effect of youth diminishes. Denunciation, general and specific deterrence must have greater emphasis as the seriousness of the offence increases. That must be so in this case.[30]

92 In this case, your counsel relied upon your young age at the time of your offending and now, your disadvantaged background, and your immaturity as remarked upon by Dr Barth, as matters which should inform an assessment of your moral culpability. Mr Norton accepted that the mitigatory effect of your youthfulness would need to give some ground, as he put it, in light of the seriousness of your offending, but he submitted that the mitigatory effect of youth should not be considered to be extinguished altogether.

93 Ms Lenthall for the prosecution did not submit that your young age should be entirely extinguished as a sentencing consideration, but asserted that it should be substantially moderated by the seriousness of your offending and your extensive criminal history.

94 In the circumstances of this case, I consider that your prospects of rehabilitation cannot, at this time, be realistically viewed as anything other than poor. By the time you reached the age of 18, you had accrued an unenviable criminal history of violent offending showing an apparent disregard for the welfare of others. This may be seen in the light of your long history of illicit drug use and your entrenched personality disorder. You committed the current offences while on a bond for crimes of violence. There was a heartlessness and callousness to the current offending which is disturbing to say the least. Almost two years after the events, having had ample time to reflect upon your conduct, there is still nothing to indicate you are remorseful for it. As for your antisocial personality disorder, it is, thus far, entirely untreated. There is no material before the Court indicating the prospects of it being successfully treated in future. It is not surprising that Dr Barth was, as he put it, 'guarded' about your prognosis. He indicated his view that without comprehensive, integrated and sustained psychological treatment and strict supervision, your prospects of rehabilitation upon your release are poor. Whether you will, in the end, receive or be amenable to the sort of intensive treatment to which he referred, and be able to make the necessary changes to your personality structure, remains to be seen.

95 Having said that, hopefully it is not an entirely forlorn hope that in future, with the right treatment and support, you may be able to turn your life around. I do not consider that this is a case in which the mitigatory considerations of youth should be viewed as being all but extinguished. I take into account in sentencing you the fact that you are still only 20, and that when released after the sentence I impose, you will still be a relatively young person with a good deal of your life yet to be lived.

96 As I earlier noted, Mr Norton relied upon matters relating to your background in combination with your youth as justifying a submission that your moral culpability for your crimes is not high.[31] I have already dealt with the matter of your youth. I now turn to your background, and the question of whether it may warrant a reduction in moral culpability.

97 On the basis of what was described in submissions as your unstable and difficult childhood and disrupted education, Mr Norton relied upon the principles set out in Bugmy v The Queen.[32] Those principles were the subject of recent consideration by the Court of Appeal in Bergman v The Queen.[33]That case, like Bugmy, concerned an Aboriginal offender who had come from a very deprived background. That is not to say that the principles are limited in application to those of Aboriginal heritage. The Court in Bergman, having expressed regret that the sentencing judge had not had his attention drawn to Bugmy, or had the benefit of submissions directed to the question of how the applicant's deprived childhood bore on his moral culpability for the offence, stated:

Some months after the sentencing in the present case, this Court in Director of Public Prosecutions v Drake[34] applied the Bugmy principles in the following terms:

In particular, the profound dysfunction, disadvantage and abuse experienced by the respondent during his formative years were relevant to an appropriate evaluation of his moral culpability. As recognised by the High Court in Bugmy, those experiences, none of which were of his making, all played a significant role in shaping the respondent's personality and his responses. As a consequence, his subjective culpability, for the offending in which he engaged, could not be equated with that of a person who committed the same offence but had had the advantage of a normal, stable and regular home environment during his or her childhood years. In that way, those factors constituted an important mitigating circumstance in the determination of the respondent's sentence.[35]

For similar reasons, in our view, the applicant's moral culpability for the offending could not be equated with that of a person who committed the same offences, but who had had the advantage of a normal stable home environment in which he had been guided by appropriate parenting. It is most important not to underestimate the destructive effect on a small child of growing up 'in a household where unemployment, drug use and contact with the criminal justice system were the norm'. Such a setting was antithetical to the applicant developing a proper sense of the social norms of appropriate behaviour, or an appreciation of the need to comply with the law.[36]

98 While your background was not an ideal one, it was of nothing approaching the level of deprivation and dysfunction contemplated by the High Court in Bugmy and considered in other cases to which the principles have been held to apply. Of particular note is the fact that your mother has always remained supportive of you, and there is nothing to suggest she has not been a good and appropriate parent for you. Of course I take into account your somewhat difficult background. It may be considered to have some impact on your moral culpability. In my view, however, no substantial reduction in your moral culpability is warranted by this factor alone.

99 Furthermore, in my view your young age did not deprive you of a full understanding of the heinous nature of the crimes you saw fit to carry out and of full responsibility for them.

100 In all of the circumstances, and notwithstanding your young age and the sad aspects of your background, I believe that your moral culpability for your crimes is high.

101 I have had regard to current sentencing practices in arriving at the appropriate sentence. In seeking to understand those practices, I have had regard, amongst other things, to the relevant Sentencing Snapshots for manslaughter[37] and ICSI,[38] the statistics maintained by the Sentencing Advisory Council, the digests of appellate decisions concerning both crimes in the Victorian Sentencing Manual and other comparable cases including those drawn to my attention by Mr Norton and Ms Lenthall. In so stating, I note what has been routinely said by the Court of Appeal in recent years as to the quite limited assistance that is provided by mere statistics, and the fact that no comparable case is truly comparable, or can in any way be some sort of precedent for the sentence I should pass.

102 I have had regard to the fact that for much of the time you have spent on remand, the Victorian community has been in the grip of the COVID-19 pandemic. As a result, you have felt the effects of the restrictions enforced in the prison system in order to try to prevent the introduction of the virus into that system. The provisions, it must be said, have been extraordinarily successful, but they have taken a toll on prisoners such as yourself. Contact visits were not permitted for many months, denying you the prospect of visits from your mother, who has herself been going through serious health issues which also would have interfered with that prospect. Educational and other programs were suspended. You have been faced with the ongoing uncertainty brought about by the advent of the pandemic. Although in recent months, things have eased substantially, the recent increase Australia-wide in case numbers highlights the ongoing uncertainty you face as to what imprisonment will look like.

103 Another aspect of your incarceration up to the time of the jury verdict is that you had a charge of murder hanging over your head for most of that time. This would have involved a great deal of stress which I take into account.

The issues of concurrency, cumulation, and totality

104 It is necessary in this case to impose individual sentences on each of the two offences of which you have been found guilty. In the absence of any order for cumulation, by operation of law[39] such sentences would be served concurrently.

105 In his submissions to me, Mr Norton conceded that some cumulation between the sentences on the respective offences would be necessary, but conceded that a substantial degree of concurrency should be directed. This, he submitted, would be consistent with the totality principle. He urged caution in the application of that principle.

106 Mr Norton submitted that in arriving at the appropriate degree of cumulation and concurrency, I should view the stabbings of both your victims as being part of a single event which occurred within a matter of seconds in the same area. A global view should be taken of the criminal conduct for which you fall to be sentenced. He urged me to stand back from the sentences imposed on both charges and the degree of cumulation and take one last look at the overall result in order to determine that it is an appropriate response to your criminality.

107 The prosecutor acknowledged the relevance and importance of the totality principle, and that some concurrency would be appropriate given the timeframe of your crimes. However, Ms Lenthall submitted that the overall sentence must reflect the fact that the offending involved two separate victims, that each offence cause separate and significant impact for the victims and their family, and that although the stabbings occurred in close succession, these were separate, deliberate actions by you.

108 Whilst it is true that your stabbings of the two victims occurred as part of the one course of conduct and were very close in time, it cannot be forgotten that you carried out attacks upon not one but two distinct victims, each attack necessitating a decision by you to deliberately stab the particular individual, and then the performance of deliberate actions by you in order to put your decision into effect. Furthermore, each act was, in its own right, a serious criminal offence with exceedingly serious consequences.

109 In determining the appropriate period of cumulation between the respective sentences, I have had regard to the applicable principles as I understand them. I have paid particularly careful attention to the Court of Appeal's judgment in Vu. That was a case with some parallels with this case because it involved a man stabbing, in quick succession, two separate victims, leading to the death of one, for which he was found guilty of manslaughter, and the infliction of serious injury to the other, for which he was found guilty of RCSI. In that case, the sentences I imposed were 12 years' and 6 years' imprisonment respectively, with an order for cumulation of three years. The order for cumulation was held on appeal to be manifestly excessive resulting in a head sentence that was also manifestly excessive. The order for cumulation was reduced to one year and six months.

110 In spite of the superficial similarities between that case and this case, a closer look would reveal the multitude of differences. For example, whilst you are a young offender and Mr Vu was not, he did not have any prior convictions for violence, no victim impact statements were filed, the secondary victim provided a reference in support of him at the plea, his prospects of rehabilitation were viewed by me as being quite good, and specific deterrence and protection of the community were not considered to be important sentencing considerations. Furthermore, the offence of RCSI of which he was convicted was not as serious and did not have as serious an outcome as the charge of ICSI of which you were found guilty. All of this goes to illustrate the obvious fact that even seemingly comparable cases cannot serve as precedents for the sentence to be passed by a court in another case.

111 Having determined what I consider to be the appropriate terms of imprisonment to be imposed on each charge in light of all of the circumstances, I have then decided the appropriate degree of cumulation. Paying regard to the totality principle, I have reviewed the total effective sentence at which I have arrived to determine whether it is just and appropriate in the overall circumstances. I have done my best to ensure that it is so.

112 I have considered the submission of Mr Norton to the effect that in order to fulfil the sentencing purposes of protecting the community and facilitating your rehabilitation, I should set a non-parole period that is, as he termed it, 'disparate'. I took this to mean a non-parole period which may represent a lower proportion of the head sentence than might often be the case.[40]

113 I acknowledge the merit in there being a significant period of time upon the expiry of your non-parole period to enable your potential rehabilitation in the community under the supervision of parole. The non-parole period I will impose will ensure at least the prospect of such a period.

114 I do make the point, however, that the law is clear that both the head sentence and non-parole period imposed must be such as to pay adequate regard to the purposes for which sentence must be imposed. I turn to those purposes now.

115 Sadly, the extraordinary and unforgivable acts of violence you carried out which led to the loss of a young and treasured life, the infliction of serious injury upon another innocent young person, and cast a tragic and permanent pall over their extended families and friends, were of a kind not unknown to this Court. The comments of Redlich JA and Kaye AJA[41] in Zhu v The Queen[42] (albeit in the context of a conviction for murder) are worth noting:

This was a crime of wanton and unprovoked viciousness by a youthful offender who resorted to the use of a knife to inflict lethal injuries. The victim was an innocent bystander. Violence of this nature by youthful offenders in public places is so prevalent that general deterrence and denunciation of the conduct must be emphasised. The sentencing judge was obliged to impose a sentence which gave due recognition to not only the sanctity of human life, but which also served to demonstrate that such violence was intolerable in a civilised society and gave emphasis to these sentencing principles. [43]

116 Section 5(1) of the Act sets out the only purposes for which sentence may be imposed. All of them have application in your case, although in my view, rehabilitation, notwithstanding your young age, must have less impact on the sentence imposed than would so often be the case for a person of your age. The fact is, the heinous nature of your crimes, your personal background, your serious criminal history, and the high risk you pose of future violent offending, dictate that other sentencing purposes come to the fore.

117 In my view, the important sentencing purposes to be served by the sentence I pass on you are just punishment, denunciation, general deterrence, specific deterrence and protection of the community. It is only right that you be appropriately punished for your crimes, which I am satisfied you carried out with a full appreciation of their seriousness. The sentence must also manifest the denunciation by the Court of the shockingly violent conduct which you carried out against innocent young people for no good reason at all. Furthermore, the sentence I pass on you must be such as to bring it home clearly to others in the community who may be minded to act with the sort of wanton violence you exhibited that such behaviour will be met with strong punishment. Specific deterrence also looms large in your case. You have a proven history of violent conduct, and of being unwilling to accept the chances you have been given by courts to reform yourself. You must understand that your actions will have consequences.

118 I turn now to the matter of protection of the community. As noted already, you have a proven track record for unprovoked violence. In keeping with that history, you acted against Maaka and Nathanial with a disturbingly callous disregard for their wellbeing. You carried out vicious and cowardly attacks upon them in a public street, acted afterwards with a continuing lack of concern for them, and even now, almost two years after the events, I am satisfied that you are not remorseful. Your dangerous and violent conduct and want of normal human concern for your victims and their plight may well be products of the serious personality disorder from which you suffer. There is nothing, however, to suggest that you were not fully responsible for your actions. It is to be hoped that in future, you may receive some effective treatment for the disorder from which you suffer. Sentencing you now, however, I must do so in the knowledge that your disorder is untreated, and that you currently pose a high risk of violent recidivism. The extravagantly violent nature of the crimes for which I must sentence you is an indication of the risk you may pose to society in future. In my view, protection of the community has an important part to play in the sentence I impose upon you.

119 Joshua Horton, for the manslaughter of Maaka Hakiwai, you are sentenced to be imprisoned for a period of 11 years.

120 For intentionally causing serious injury to Nathanial Hakiwai, you are sentenced to be imprisoned for a period of 7 years.

121 The sentence on the charge of manslaughter is the base sentence.

122 I direct that 2 ½ years of the sentence imposed on the charge of intentionally causing serious injury be served cumulatively upon the base sentence.

123 The total effective sentence is therefore imprisonment for a period of 13 ½ years.

124 I fix a period of 9 ½ years during which you will not be eligible to be released on parole.

125 I declare a period of 633 days up to and including yesterday, 1 July 2021, as being a period already served under this sentence. I direct that the fact of the making of that declaration and its details be noted in the records of the Court.

126 I indicate pursuant to s 6AAA of the Sentencing Act 1991 that, but for your plea of guilty to the charge of manslaughter, I would have sentenced you to be imprisoned for a total effective sentence of 15 ½ years with a non-parole period of 11 ½ years.

[1] Name initialised to protect the identity of AM who was a child at the time of the events.

[2] Name initialised to protect the identity of NW.

[3] Nathanial was uncertain in his evidence whether the cap was removed after the first or second stab to the thigh. He believed it took place after the second stab.

[6] Phillips v The Queen 37 VR 594 [36] (Redlich JA and Curtain AJA).

[7] Thurlow v The Queen [2021] VSCA 71 [37] (Priest and Kaye JJA).

[8] [2021] VSCA 169.

[11] Phillips v The Queen [2012] VSCA 140; (2012) 37 VR 594 [64].

[16] [2007] VSCA 102; (2007) 16 VR 269.

[21] Name initialised to protect the identity of JD, one of the female occupants of the vehicle.

[22] Addressing the jury in closing, Mr Norton disputed that your fatal act was done in the course of a robbery. He suggested that the jury would not be able to exclude the prospect that your purpose in carrying out the act was to go to the defence of your friends.

[23] [2020] VSCA 59 ('Vu').

[25] R v Mills [1998] 4 VR 235.

[26] R v Wright [1998] VSCA 84 [6]; Director of Public Prosecutions v Lawrence [2004] VSCA 154; (2004) 10 VR 125 [60].

[27] [2011] VSCA 372; (2011) 35 VR 43.

[29] [2019] VSCA 277.

[33] [2021] VSCA 148 (Maxwell P, Kaye and McLeish JJA) ('Bergman')

[34] [2019] VSCA 293.

[35] Ibid [32] (Maxwell P, Priest, Kaye, T Forrest and Emerton JJA) (citation omitted). See also DPP v Heyfron [2019] VSCA 130, [57]-[58] (Priest, Kaye and T Forrest JJA).

[37] Manslaughter Sentencing Snapshot No. 249, March 2021.

[38] ICSI Sentencing Snapshot No 238, April 2020.

[39] Sentencing Act 1991, s 16(1).

[40] I am conscious of the frequent entreaty of the Court of Appeal not to use the concept of a 'longer than usual' period on parole, or a 'shorter than usual' non-parole period.

[42] [2013] VSCA 102.