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General information, not legal advice.
Supreme Court of Victoria
2022-06-20
Beale J
Original judgment source is linked above.
SENTENCE - Upper mid-range example of manslaughter by unlawful and dangerous act - 15-year-old offender stabbed 17-year-old victim once in the abdomen - Plea of guilty at first reasonable opportunity - Plea of guilty in a pandemic - Remorse - No prior convictions - Verdins principles 1, 3 and 4 applicable to a modest extent - Whether YJC sentence of detention open - Whether exceptional circumstances made out - Sentence of 4 years' detention in a YJC imposed - Time on remand (approximately 12 months) not declared as time served - Boulton v R [2014] VSCA 34; 46 VR 308 - Brown v R [2020] VSCA 212; 62 VR 491 - DPP v SJK [2002] VSCA 131 - Director of Public Prosecutions v Kilpatrick [2019] VSC 779 - R v Mohamed & Ors - ; - ; - [2021] VSCA 169; 96 MVR 344 - , - , -.
2 You and the victim were known to each other. You were both members of a social media group, which used the Instagram and Snapchat apps to communicate.[3] The group also socialised and played basketball together.
3 One afternoon in the week before your offence, some members of the group met at a McDonald's and engaged in play fights. On this day, you and the victim commenced a play fight against each other. At some point, the fight turned serious. The victim punched you, and you fell to the ground before getting up and stomping off. After the fight, the victim was filmed yelling 'nobody cheap shots... '. You were angry about the fight and wanted to fight the victim again, but he did not want to.[4]
4 On 7 May 2021, both you and the victim attended a basketball Stadium to play basketball. The victim arrived at the stadium about 5pm with two friends, and you and two of your friends arrived about 5:35pm. At 5:47pm you walked into a corridor where the victim and his friends were. You approached the group and began arguing with the victim before kicking him to the head. The victim was seated at the time of the kick.[5] He got up and ran at you with his fist raised. You lunged at the victim, stabbing him once in the abdomen with a knife.[6]
5 You then ran out of the stadium carrying the knife, while the victim was assisted by his friends and other members of the public. You buried the knife in some bushes next to the stadium. Police attended the stadium at 5:56pm. Paramedics arrived shortly after the police and at 6:20pm conveyed him to the Royal Melbourne Hospital. The victim went into cardiac arrest while in the ambulance and was pronounced dead at 7:06pm. The cause of death was a penetrative stab wound to his abdomen which pierced his bowel and heart.[7]
6 At 7:17pm on 7 May 2021 you posted a photograph to your Snapchat group of the bloodied knife you had used to stab the victim with the caption 'Nobody cheap shots....'. A short time later you posted a photograph of a hand with blood on it and a photograph of a dog jumping off a cliff after a bird with the caption 'Choices made in anger cannot be undone'.[8] At the time of posting these photographs, you did not know that the victim had died.[9]
7 After finding out that he had died, you spoke to your friends and said that you had stabbed him unintentionally and out of rage while you were not thinking straight.[10]
8 On the afternoon of 8 May 2021, you handed yourself into the police. On that day you made a 'no comment' recorded interview and were released.
9 On 11 May 2021 you were re-arrested and charged. You have been in custody since that time.
10 Several members of the victim's family provided victim impact statements, including his mother and step-father, his grandmother, his aunts and uncles. A statement was also provided by a uniform member of Victoria Police who was at the Stadium (off duty) when the incident occurred, and who assisted the victim after he was stabbed.
11 The family's victim impact statements describe him as a beloved member of the family - a gentle boy who always played with his younger relatives and spent time with his elders. He was intelligent and planned to go to Adelaide University and become a petroleum engineer. He was also a skilled basketball player as well as participating in swimming, ice-skating and karate. All of the family write of the pain and sadness they are experiencing without him, and say that their family will never be the same.
12 His mother, his aunts and uncles also write of the fear they now experience. His mother is scared to go to public places at all and his aunts and uncles avoid the basketball stadium and fear for their children's safety.
13 The victim impact statement of the off duty police officer who came to the victim's assistance as he lay dying, discloses the profound effects this experience has had on her and her relationships. As she did not want her statement read aloud in court, I will not detail its contents any further, but I have read and considered it.
14 Your counsel submitted that the offence was a mid-range example of manslaughter but at the low end of the mid-range. The prosecution submitted your offence fell at the high end of the mid-range. I accept the prosecution's submission for the following reasons.
15 You began the altercation by kicking the victim to the head as he was seated. When unsurprisingly he came towards you after that provocation, you resorted to the use of a weapon, a knife. All of this took place in the corridor of a busy public basketball stadium, a venue frequented by families.
16 I turn now to your personal history and circumstances.
17 As mentioned, you were 15 years old at the time of your offence; you are currently 16.
18 You were born in Australia to parents of South Sudanese heritage. You have three younger sisters.
19 When you were born, your family lived in Sydney, moving to Perth when you were aged three. When you were eight, your family relocated again to Melbourne.
20 Your father left your mother when you were 11 years old. He did so because he wanted to take a second wife, which your mother, to her credit, would not tolerate. You did not see your father again until the day you handed yourself into the police over the stabbing. You have felt a lot of anger about your father not being around and life being hard for your mother as a result.[11]
21 The pre-sentence report (PSR) from Youth Justice says this:
Peter reported he felt he changed following his dad leaving. He believes he became angrier and felt emotions relating to anger and sadness of dad leaving. Youth Justice note Peter had no other familial male role models around him following his father leaving.
22 After your father left, your mother mostly worked night shift to make ends meet.
23 Before entering custody, you lived with your mother, three younger sisters and your maternal uncle (who is about one year older than you). Other members of your extended family also lived nearby. You have a close relationship with your mother and uncle.[12]
24 You started playing for a basketball team at age 11 and played most days. You wanted to be a professional basketball player. You were also involved in the church and assisted in bible study classes with younger children.[13]
25 According to the PSR, substance abuse is not a concern:
In discussions with Peter regarding substance use in the community, he reported he used cannabis on one occasion to "try it", however he stated he did not like the effect on him. Peter also reported he has never consumed alcohol. Youth Justice further prompted Peter, who indicated he did not use substances because he was an athlete, and he was concerned about the possible effects substances would have on his body and how it would affect him playing sport.
26 However, anger management is a concern. At secondary school you got into trouble for fighting a lot and, in Year 8, you were eventually 'invited to leave' your high school. At your new high school, which you attended from 2019, your mother thought that eventually you were doing better although you struggled to stay focused during COVID-19 home learning. Your mother says you were easily distracted.[14] But the PSR notes that the assistant principal at your second high school says your time there was not positive. You continued to get into fights. You were undergoing a three-day suspension from school for fighting at the time of the offence.
27 There were four character references tendered on your behalf. They were from: your mother; your cousin; a relative and community leader; and two local lawyers. The references all describe you as an intelligent, helpful young man who loved sport. They state that you are very focused now on your studies and want to complete your VCE in custody. All of the references state that you have expressed regret and remorse for your offence, and for the pain you have caused the victim's family and your family.
28 Your mother writes that you have expressed to her that nobody deserves to die but that you 'deserve to be in prison'.
29 Forensic psychologist Pamela Matthews interviewed you on four occasions and interviewed your mother for the purposes of writing a report which was tendered on the plea.
30 Ms Matthews assessed your IQ as 87, putting your cognitive functioning in the low-average range.[15] In standardised self-reported testing, you reported mild difficulties with emotional control, emotional regulation, cognitive regulation and planning/organising.[16] In another set of testing, your responses indicated 'exposure to a traumatic event (the index offence) and continued distress and recurrent anxiety associated with this event'.[17] She reported that you describe yourself as 'quick to anger, easily provoked, impatient and easily irritated'.[18]
31 Ms Matthews assessed your risk of violent reoffending as currently Moderate-High compared to your offending peers.[19] Of significance, she noted that you have a history of anger problems and fighting at school and were invited to leave your first high school.
32 Ultimately, Ms Matthews made the following diagnoses and observations about the offending behaviour:
The writer's view is that [your] behaviour can be explained by the emotionally heightened atmosphere between the organised fight and the events leading up to the 8th of May 2021, overriding [your] limited (compared to peers) baseline emotional restraint. Potentially the emotionally prompted, adrenalin cascade triggered by seeing [the victim] ... limited [your] capacity to think beyond the moment. This is an aspect of his youth and neuro-physical-emotional development.
...
[You] meet the DSM-5 diagnostic criterion for Attention Deficit Hyperactivity Disorder (ADHD). The writer believes that the limitations of impulse control associated with this disorder would have significantly impacted [your] capacity to restrain [your] behaviour, i.e., limited capacity beyond that associated with youth and youth related neuro-physical development.
...
[You] would also meet the DSM-5 diagnostic criterion for Oppositional Defiant Disorder [ODD]. It is the writer's opinion, [that your] temper and touchy sensitivity to the mutual name-calling with the deceased and the comments on social media following the fight would have contributed to [your ] emotional volatility at the time of his offending.
...
The writer's opinion is that [your] youth and features of [your] two co-occurring DSM-5 diagnoses, particularly poor impulse control, a hair-trigger temper, and sensitivity to annoyance or slight, are intimately and directly linked to [your] unplanned and unpredictable attack on [the victim]. [Your] regret for the impact [you have] had upon the deceased's family, the writer believes is genuine and expressed in the language of ... youth.[20]
33 On the question of rehabilitation, Ms Matthews stated that both ADHD and ODD may not fully resolve with time and age but are likely to lessen in intensity. Ms Matthews further recommended that as much of any sentence you may be required to serve be served in a youth justice setting, noting it is vital for your rehabilitation that you have access to education and training that will facilitate your re-engagement into the community, as well as programs assisting with emotional and behavioural regulation.[21]
34 The prosecution conceded that by reason of your mental impairment due to the combination of ADHD and ODD your moral culpability was somewhat reduced (Verdins 1) and that specific deterrence (Verdins 3) and general deterrence (Verdins 4) should be moderated as sentencing considerations but only to a modest extent. Your counsel submitted that principles 1, 3 and 4 of Verdins applied to a moderate (as opposed to a modest) extent. Neither the prosecution nor your counsel were aware of a case where Verdins was enlivened by a diagnosis of ADHD, or ADHD and ODD. Whilst Brown v R[22] makes it clear that mental impairment in the form of a personality disorder can enliven the principles in Verdins, I have reservations about 'moderating' moral culpability, specific deterrence and general deterrence for what seems to me to be not much more than having a 'short fuse' but, in view of Brown and the prosecution's concession, I will moderate your sentence somewhat because of your ADHD and ODD.
35 I commissioned and received a Youth Justice Pre-Sentence Report written by Natasha Rinaldi (acting practice leader Youth Justice) and endorsed by Nigel Priseman (acting general manager, Youth Justice).
36 In that PSR, the account you gave of the lead up to your offence strikes me as self-serving. It appears you made no mention of kicking the victim to the head when he was seated. You also claimed to have only armed yourself with a knife for defensive purposes because you were assaulted earlier that day, whereas you told psychologist Pamela Matthews that you always carried a knife because you had issues with other boys and gangs in the area.[23]
37 As previously mentioned you have been in custody since 11 May 2021. According to the PSR, your first three months were spent at Parkville Youth Justice Centre. Since 25 August 2021, you have been at Malmsbury Youth Justice Centre.
38 COVID-19 has affected your time at both centres. You have had to undergo periods of isolation. Ms Rinaldi writes:
Peter served a period of fourteen-day COVID-19 isolation upon admission and further quarantine upon his internal transfer between precincts.
39 Various programs for detainees have been run online rather than in person. No doubt personal visits by family and friends have also been affected.
40 Your time at Parkville and Malmsbury have not been incident free. According to the PSR, whilst at Parkville, you were involved in five reportable incidents, two of disruptive behaviour and three of dangerous behaviour. Whilst at Malmsbury you have been involved in 17 reportable incidents, one which involved you striking a security tactical team member with your elbow and punching and spitting on another member. That was on 5 May 2022, that is, after your plea hearing and whilst awaiting sentence. There was another incident on or about the 25 May 2022 where apparently you went into an area where you were not supposed to be and ended up with a broken jaw that required surgery. As a consequence, I had to adjourn your sentencing from 26 May 2022 to today.
41 Ms Rinaldi says this about the context of those reportable incidents:
Due to the notoriety of his offence, it has been observed that Peter is viewed poorly by particular groups of young people, resulting in regular taunts and threats towards his safety, which is a concern that is closely monitored by custodial staff. It is noted that Peter appears particularly influenced by peers and is focused on how he is perceived by others. Staff observe that Peter is bullied by other young people and placed under pressure to perpetrate negative behaviours. It is apparent that Peter does not accept this to be the case and is reluctant to identify concerns about other young people, appearing to not want to be viewed as vulnerable. For the most part, Peter can build good relationships with staff however, when he feels that his requests or needs are disregarded, he has been observed to quickly escalate to threatening and verbally aggressive behaviours.
42 After a period of settled behaviour at Malmsbury, you were moved in December 2021 into the low security Topaz Unit. That placement lasted two months and on 24 February 2022, you were transferred back to a secure unit. You are working towards being transferred back to Topaz. You are working with two Behavioural Support Specialists to that end.
Peter has engaged and participated well in education and therapeutic programs on remand. Peter is currently working with mental health supports to manage symptoms of post-traumatic stress disorder and his anxiety about court proceedings. Whilst it has been difficult at times for Peter to build trust and engage with supports, he has demonstrated a willingness to challenge himself to make improvements and take responsibility for his behaviours in custody
...
Whilst on remand, Peter has successfully completed several programs with Ms Victoria Eddington, Psychologist, Caraniche Forensic Youth Services (CFYS). Peter successfully engaged in the 12-hour Alcohol and Other Drugs program, in addition to the five modules of the psychosocial programs designed to target underlying factors focusing on increasing psychosocial education regarding emotional regulation, communication and relationships.
Peter has also commenced the Challenging Antisocial Attitudes Programs (CAAP) with CFYS, which provides 18 hours of offence related intervention relating to addressing cognitive distortions, hypothetical offence chain analysis and managing risky behaviours. Peter has completed two of these sessions. This program was ceased to allow Peter a treatment break prior to sentencing. Should Peter remain in a Youth Justice Centre post sentencing, he will be referred for assessment and offence specific treatment with CFYS.
Peter has positively engaged in education programs available to him in custody, which is further detailed in the 'Education and Employment' section of this report. Peter has also engaged with Orygen Youth Health in relation to obtaining mental health support. More information relating to this support is provided in the 'Mental Health' section of this report.
44 Under the heading 'Mental Health', Ms Rinaldi states the following:
On 13 May 2021, following his remand, Peter was referred to Orygen Custodial Forensic Youth Mental Health Service (FYMHS) by Correct Care Australasia (CCA) for an assessment of his mental state and mental health treatment needs following his first admission to custody on alleged high tariff violent offending. Mr Tim McPherson, Psychologist, FYMHS, reported Peter engaged well in the initial assessment on 19 May 2021, whereby he reported no symptoms consistent with an active mental health disorder. Peter denied any mood or anxiety disorder and presented as clearly oriented to person, place, and time with no evidence suggestive of perceptual disturbance or formal thought disorder.
Following an Orygen FYMHS clinical review meeting, the decision was made that Peter would benefit from further monitoring of his adjustment to custody. Custodial FYMHS clinicians provided four check-ins with Peter between 25 May and 16 June 2021. On each occasion, Peter politely indicated that he was adjusting adequately to custody and was not requiring mental health support.
On 21 January 2022, Peter requested a referral to Orygen Youth Health (OYH) following a period of stress due to the uncertainty of court and reported sleep disruption and night disturbances. He was allocated to Ms Natalie Harper, Psychologist, OYH, who undertook assessments and reported Peter appears to meet the criteria for Post-Traumatic Stress Disorder, whereby the symptoms were impacting his sleep and additionally Peter was experiencing mixed anxiety and depressive symptoms. Following this, Peter commenced Clonedine to reduce hyperarousal at night and to reduce flashbacks and intrusive thoughts as part of his treatment plan, in addition to ongoing sessions with Ms Harper.
Following commencement with Peter, Ms Harper's initial focus was on building rapport due to Peter's difficulty in engaging with new supports. However, since this date Peter has demonstrated limited engagement with Ms Harper and has declined the past four appointments. Peter reports this is due to a lack of motivation in wanting to engage, however reports he intends to re-engage.
45 I pause to say that I am impressed by the level of support you are offered at the YJC and generally by your level engagement with those supports, which Ms Rinaldi notes is at its best when the sessions are in person rather than online.
46 You have continued with your schooling whilst in custody. Ms Rinaldi writes that:
Peter engages well with teachers and wellbeing staff in a one-to-one setting and regularly attends other programs including hospitality and music.
47 You started three VCE subjects this year but in Term 2 dropped back to one subject. Ms Rinaldi writes:
Peter reported considering this decision carefully, as he displayed concern on the increased time his VCE would take to complete if he was only doing one subject. However, ultimately, he chose to continue in one subject to increase his chances of doing better and to decrease his stress with upcoming court. Youth Justice notes the impact of the stressors on Peter's emotional wellbeing on his progress in VCE, further impacted by being in a contained environment.
48 You have indicated that you want to complete your VCE - which I encourage you to do - and have expressed interest in a carpentry apprenticeship or working in hospitality.
49 Ms Rinaldi says you have expressed remorse for your offending.
50 I will quote in full the concluding section of the PSR which is headed 'Suitability for youth justice centre'.
In making an assessment of suitability for a Youth Justice Centre Order, Youth Justice must take into account Section 32 of the Sentencing Act 1991. The Act indicates that the critical components for the Court to consider for a young person are:
Reasonable prospects for rehabilitation; or
Is particularly impressionable, immature or likely to be subject to undesirable influences in an adult jail.
Peter appears before the Court for serious matters, however, Youth Justice note Peter has not been subject to a Youth Justice custodial or community-based sentence previously. Peter has demonstrated a level of insight into the impact of his offending, and the effects it has had on the victim, the community, and his family.
In terms of Peter's impressionability and vulnerability, Peter is a sixteen-year-old young man who presents as a child developmentally and would therefore be vulnerable in an adult prison setting. Peter is currently remanded at Malmsbury Youth Justice Precinct and has reportedly demonstrated a capacity for positive change, however, has been involved in several incidents of negative behaviour, which have largely been in the context of social functioning and interpersonal skills. Peter presents with mental health concerns and emotional vulnerabilities which would be likely to be exacerbated in an adult custodial facility. These presenting vulnerabilities, in addition to his developmental age, would further his susceptibility to influence and impressionability in an adult setting. Youth Justice further note that, whilst in the community, there are no reports of Peter associating with older peers, and limited reports of Peter interacting with peers who are involved in the criminal justice system. Therefore, it remains a concern that should Peter be sentenced to an adult custodial facility, it will increase the likelihood of him associating with adults with entrenched offending behaviours, impacting his antisocial attitudes and interpersonal skill development.
In relation to prospects for rehabilitation, Youth Justice note Peter has never been involved with Youth Justice prior to his remand and holds attitudes which do not indicate entrenchment. Periods of reduced engagement on remand are demonstrated to be influenced by a somewhat limited and fluctuating motivation to engage with support services rather than anti-authoritarian attitudes, evidenced by Peter handing himself into Victoria Police. Youth Justice consider external factors to be at play regarding Peter's motivation at times, including difficulty in building rapport with new staff particularly over Zoom during COVID-19 restrictions, peer pressure from other peers on the unit, and concerns relating to the thoughts of other young people. Peter has identified future goals, however this appears impacted by the uncertainty of his sentencing outcome. Additionally, Peter's rehabilitation prospects are supported by his commitment towards completing his VCE, the remorse he presents towards his offending and circumstances, and the ongoing support of his family.
The primary focus of the Youth Justice program is to address the risk factors associated with a young person's offending, by providing rehabilitative treatment and targeted Youth Offending Programs. Youth Justice have discussed these programs with Peter, and he has indicated his willingness to engage in offence specific interventions and education and training to address his rehabilitation should he be sentenced to a Youth Justice Centre Order.
In determining a recommendation, Youth Justice have considered the relevant factors on balance, including the severity of charges before the Court and the suitability of Peter under the Children Youth and Families Act 2005 in addition to the above mentioned factors of the Sentencing Act 1991. It is the assessment of Youth Justice that Peter has strong prospects for rehabilitation and is a suitable candidate for a Youth Justice Centre Order. This recommendation was made in consultation with the Youth Justice Custodial Classification and Placement Unit.
51 At the conclusion of her report, Ms Rinaldi states that you are considered suitable for a Youth Justice Centre Order.
52 I note that at the plea hearing on 26 May 2022, your counsel relied on Ms Rinaldi's observations about your vulnerability as another circumstance that grounds a finding that there are exceptional circumstances which justify a sentence of detention in a YJC. Exceptional circumstances are required because of the seriousness of your offence which is a "Category A serious youth offence." Section 32(2C) of the Sentencing Act 1991 provides, relevantly:
(2C) If a young offender is to be sentenced for a category A serious youth offence, a court must not make a youth justice centre order ... in respect of the young offender unless the court is satisfied that exceptional circumstances exist.
53 At this point, let me summarise what I consider to be the mitigating circumstances in your case.
54 First, there is your youth. Even though the weight to be given to your youth is reduced by the seriousness of your offence, your youth is still, in my view, a very significant consideration. Greater emphasis is rightly given to the rehabilitation of youthful offenders. Rehabilitation serves the interests of the community, not just the interests of the offender and his or her family. Imprisonment is likely to have a brutalising effect on you making you more of a problem for the community when released. The adverse effects of adult prison were discussed at some length by the Court of Appeal in Boulton v R:[24]
[108] [I]mprisonment is often seriously detrimental for the prisoner, and hence for the community. The regimented institutional setting induces habits of dependency, which lead over time to institutionalisation and to behaviours which render the prisoner unfit for life in the outside world. Worse still, the forced cohabitation of convicted criminals operates as a catalyst for renewed criminal activity upon release. Self-evidently, such consequences are greatly to the community's disadvantage.
These same points were made with great force 40 years ago by Fox J in R v Dixon.[25] His Honour said:
In general, but by no means always, persons convicted of serious crime are the maladjusted people of the community, and some will have developed serious behavioural problems. ... Unfortunately, gaol may well make their anti-social tendencies worse. This is not always the case; sometimes the experience of gaol effects a real improvement. Nevertheless, I think it is well accepted that it is so in most cases; at least where the sentences are at all long. The reasons are obvious enough: the prisoners are kept in unnatural, isolated conditions, their every activity is so strictly regulated and supervised that they have no opportunity to develop a sense of individual responsibility, they are deprived of any real opportunity to learn to live as members of society, their only companions are other criminals, some of whom are bound to be quite vicious, their sex life must be unnatural, scope for psychiatric treatment is very limited, if not non-existent, and employment is limited and stereotyped. To many this must seem one of the most absurd aspects of the whole matter. They may well ask why the system has to be so anti-social in operation, why it cannot be improved so that people for whom there is a prospect of reformation, and who are not so dangerous that they have to be kept in strict confinement, are given a real opportunity for self-improvement. The irony is that prison authorities are among the strongest advocates of reform.
...
When, therefore, a court has to consider whether to send a young person to gaol for the first time, it has to take into account the likely adverse effects of a gaol sentence. A distinct possibility, particularly if the sentence is a long one, is that the person sent to gaol will come out more vicious, and distinctly more anti-social in thoughts and deed than when he went in. His own personality may well be permanently impaired in a serious degree. If he could be kept in gaol for the rest of his life, it might be possible to ignore the consequences to society, but he will re-enter society and often while still quite young. His new-found propensities then have to be reckoned with. A substantial minority of persons who serve medium or long gaol sentences soon offend again.
55 Second, it is agreed that you pleaded guilty at the earliest reasonable opportunity.
56 Third, your plea of guilty was entered during a pandemic which has seriously exacerbated delays in the criminal justice system. In Worboyes v R,[26] the Court of Appeal indicated that a plea in such circumstances is of greater utility and should attract an additional discount. At [35] of Worboyes, the Court said this:
[O]ne of the pernicious effects of the current pandemic is that the lists of the criminal courts in this State have become severely congested. Unacceptable delay in the disposition of criminal cases is endemic. Indeed, it is not an overstatement to say that the system of criminal justice in this State is in crisis, requiring a response from the courts. We therefore consider that, whilst the courts of this State continue to labour under the adverse effects of the pandemic, a sentencing court should view a plea of guilty as carrying with it a greater utilitarian benefit than at other times and in other circumstances, and, concomitantly, as attracting an augmented mitigatory effect on sentence, simply because the plea will benefit the beleaguered administration of justice. Given the unhappy state of the courts' lists, the courts must, in an endeavour to alleviate the strain on the system, encourage those accused who are guilty to so plead. Such encouragement must come from an actual and palpable amelioration of sentence.
57 Fourth, I accept that you are truly remorseful. Evidence of remorse is to be found in your plea of guilty, your letter of apology, in the opinions of your character referees, and the reports of psychologist Pamela Mathews and Youth Justice acting Team leader Natasha Rinaldi.
59 Sixth, principles 1, 3 and 4 of Verdins are in play, albeit to a modest extent.
60 Seventh, I consider that, notwithstanding your anger management problems, you have reasonable prospects of rehabilitation due to your youth, lack of criminal antecedents, remorse and familial supports.
61 Eighth, your time in custody has been harder because of COVID-19 prevention measures.
64 In DPP v Kilpatrick,[27] Coghlan JA sentenced SW, a 16-year-old offender (18 at the time of sentence), to four years detention in a YJC for manslaughter. SW and Kilpatrick, an older co-offender, planned to rob the victim. Together, they assaulted him on a roadway and left him there, unable to get up. He was hit and killed by a passing car. SW was convicted after a trial. Coghlan JA viewed the manslaughter as a lower-range example of that offence. He found that the following circumstances amounted to exceptional circumstances justifying a YJC sentence: SW's youth; his intellectual disability; his extremely deprived upbringing; his progress in a YJC whilst on remand; the undesirability of placing SW in adult prison; the offending not being upper range offending. Coghlan JA effectively imposed a sentence of four years and 10 months in a YJC by only making a declaration of four months PSD, even though SW had been on remand for 14 months, saying:
[80] I ... need to have regard to whether or not the maximum of four years that I may impose, would be a suitable sentence. I would not regard it as have being sufficient, as was urged on me on the plea, I can though have regard to the fact that you have pre-sentence detention of about 14 months and if I do not give you the credit for the whole of that pre-sentence detention, I can arrive at a sentence which I would regard as being sufficient for your conduct. That is, a sentence within the range for offending of this kind.
65 It is particularly noteworthy that SW ran his trial. He was not entitled to a discount for a plea of guilty, let alone a discount for a plea of guilty in a time of pandemic. SW also had Children's Court priors. There was no appeal against the sentence by the DPP.
66 On the other hand, unlike your offence, SW's offence was considered a low-range example of manslaughter and SW had an intellectual disability and an extremely deprived upbringing.
67 In R v Mohamed & Ors,[28] two offenders, Aidid and MA, aged 19 at the time of the offence, were found guilty by a jury of manslaughter by unlawful and dangerous act. With Mohamed (who was found guilty of common assault), they assaulted the victim on Bell Street, Preston. When a truck approached, Mohamed moved away to the footpath on the other side of the road. Aidid and MA moved off the road to the nearest footpath and behaved as if they intended to continue the fight. The victim ran across the road and was hit and killed by a speeding BMW. Neither Aidid nor MA had priors. They both had strong prospects of rehabilitation. They had been provoked by the victim. Nettle JA treated the manslaughter as a low-end example of that offence and sentenced them both to three years in a YJC.
... In face of the evidence before me, I consider that you are truly remorseful and that you do have strong prospects of rehabilitation, or at least that you would do so if you were kept out of the adult prison system and afforded the educational and other opportunities which are available in a Youth Justice Centre.
69 I note that in R v Mohamed, the two offenders pleaded not guilty and were approximately four years older than you at the time of their offending.
70 On the other hand, their offending was viewed as low range and they had strong prospects of rehabilitation.
71 I turn then to some manslaughter cases involving young offenders where sentences of imprisonment were imposed instead of YJC or YTC.
72 In R v PP,[29] a 15-year-old offender (17 at the time of sentence) ran his murder trial but was convicted of unlawful and dangerous manslaughter. He had earlier offered to plead to manslaughter, but the prosecution had not accepted that offer. As regards the circumstances of the offending, a group of youths lay in wait for PP to finish work, intending to assault him, believing mistakenly that he had wronged one of their friends. The group first assaulted PP's friend and brother with poles. PP witnessed this from his workplace, took a filleting knife from the knife rack at his workplace (which his employer told him to put down), went outside and, after the melee had died down, but not long after he had seen his brother struck to the head with a metal pole, chased after one of the original aggressors and stabbed him twice in the back, killing him. PP, who was found to be deeply remorseful, had no antecedents and had an exemplary record at home, at school and in the community. His prospects of rehabilitation were 'outstanding'. A pre-sentence report described him as suitable for a sentence of detention in a YTC. Nonetheless, the trial judge described the offence as a 'serious' case of manslaughter and gave the offender six years' imprisonment with a minimum of four years, declaring 33 days of pre-sentence detention. On an appeal against the severity of the sentence, the Court of Appeal described the offence as a 'bad' example of manslaughter. The Court of Appeal rejected a sentence of detention as an appropriate sentence but upheld the appeal, substituting a sentence of five years' imprisonment with a minimum term of two years and six months' imprisonment, Callaway JA commenting at [17] that there was 'the ever-present need to facilitate his early release from the adult prison system if that could properly be achieved.'
73 In rejecting a sentence of detention in a YTC, Callaway JA, with whom Winneke P and Buchanan JA agreed, stated:
[13] The difficulty was that all the relevant purposes of sentencing could not be achieved by three years' detention in a youth training centre. Notwithstanding the applicant's age, this was a bad example of manslaughter by unlawful and dangerous act. The melee was dying down and it was the applicant's associates who re-ignited it. The applicant then pursued the victim across the car park, armed with a knife (which involved a significant escalation from the pole that had been used to beat his brother) and stabbed him twice in the back. Just punishment, tempered by reference to the applicant's immaturity, was required and general deterrence was not irrelevant. There is a public interest in deterring violent fights and the use of lethal weapons, albeit a knife that lay ready to hand and had not been acquired for a criminal purpose. A maximum of three years' loss of liberty was not enough.
74 The offence in PP was considered an upper-range example of manslaughter. The offender chased after the victim and stabbed him twice. The maximum YTC sentence that could be imposed then was only three years' YTC. The head sentence imposed by the Court of Appeal was five years' imprisonment. I could effectively impose five years in a YJC if I did not declare time spent on remand as time served under the sentence.
75 On the other hand, PP had outstanding prospects of rehabilitation and the maximum sentence for manslaughter at that time was 20 years' imprisonment. It was increased to 25 years' imprisonment from 1 July 2020.[30] You fall to be sentenced when there is a higher maximum penalty to take into account.
76 In DPP v SJK & GAS,[31] the Court of Appeal was dealing with a very grave example of the offence of manslaughter. A frail 73-year-old woman was attacked, sexually assaulted and strangled in her bedroom at night. The two offenders, one aged 15 and the other 16 at the time of the offence, knew the victim and knew of her frailty. Each pleaded guilty to manslaughter. Both were assessed as suitable for a YTC. The trial judge sentenced each to six years' imprisonment with a minimum of four years which, on a Crown appeal, the Court of Appeal increased to nine years' imprisonment with a minimum of six years.
[64] ... There have, however, been few equally serious, and probably no more serious, examples of this offence before the courts of this State for many years. It was incumbent upon the sentencing judge to reflect that level of seriousness and to express the denunciation of the community of the conduct of the respondents in the sentences handed down.
...
[66] In this case, given the seriousness of the offence and of the offending and the lack of any real remorse shown by the respondents in relation to their crimes and given that there is little evidence to show that they have reasonable prospects of rehabilitation in the near future, the principles of general and specific deterrence and the need for the court to express denunciation of the crime assume considerable significance for sentencing purposes so that there is correspondingly less scope for leniency on account of the respondents' youth. See R. v. Sherpa.[32]
78 The offence in DPP v SKJ & GAS was a much worse example of manslaughter than yours. The offenders there lacked remorse and they were not found to have reasonable prospects of rehabilitation, as I consider to be the case with you. There was no moderation of specific and general deterrence by reason of principles 1, 3 and 4 of _Verdin_s.
79 In the light of my analysis of the above cases, I consider that I would not be falling into error if I were to impose a sentence of detention in a YJC rather than imprisonment in an adult gaol. I think a YJC order is 'open' to me as sentencing option. I have found that yours was a mid-range example of the offence of manslaughter, not an upper-range example, as was the case in PP and SKJ & GAS. I have found that you are remorseful and have reasonable prospects of rehabilitation. I am obliged to make the discount for pleading guilty more pronounced because of what the Court of Appeal said in Worboyes. The potentially adverse effects of adult prison, for you and ultimately for the community, are a weighty consideration.
80 Nothing I have said is to downgrade the seriousness of the fact that you took a life. I am mindful too of what the Court of Appeal said in PP about the 'public interest in deterring violent fights and the use of lethal weapons'.
81 Before proceeding to pass sentence, I note that at the plea hearing on 26 May 2022, it was agreed by your counsel and the prosecution that if I were to impose a sentence of detention in a YJC, I could, pursuant to s 35 of the Sentencing Act 1991, not declare the period of time you have spent on remand as time served under your sentence. That would mean I could effectively sentence you to five years detention in a YJC. It was also agreed at your plea hearing on 26 May 2022 that the power of the executive to transfer you from an adult prison to YJC is irrelevant to whether I should impose a sentence of imprisonment or of detention.
82 In accordance with s 32(1) of the Sentencing Act 1991, I am satisfied that if you are sentenced to detention in a YJC you have reasonable prospects of rehabilitation whereas if you are sentenced to imprisonment you are likely to be subjected to "undesirable influences", to say the least. I also find, based on the reports of Ms Matthews and Ms Rinaldi that you are particularly impressionable and immature.
83 In accordance with s 32(2C) of the Sentencing Act 1991, I declare that I am also satisfied, that, notwithstanding the seriousness of your offence, exceptional circumstances exist which justify the imposition of a sentence of detention in a YJC. The combination of circumstances which in my view amount to exceptional circumstances comprise the mitigating circumstances referred to above, your vulnerability as described in the PSR and the potentially adverse effects of adult imprisonment, which would not be in your interests or the community's. As Nettle JA said in R v Mohamed & Ors at [40], "It appears to me that there would be very little to gain and in all probability a great deal to lose by imprisoning you within an adult gaol".
84 Accordingly, I sentence you to four years' detention in a YJC.
85 For the avoidance of doubt, I declare that the time you have spent on remand is not to be counted as time served under your sentence save for 24 days from 26 May 2022 when I was originally intending to sentence you. This means that in effect you are sentenced to five years' detention in a YJC, but I consider that to be appropriate given the seriousness of your offence.
86 But for your plea of guilty, I would have sentenced you to seven years' imprisonment with a minimum term of four years.
87 I make the disposal order sought by the prosecution and consented to by you.
[1] A pseudonym has been used since the offender is a child.
[3] Summary of Prosecution Opening on Plea [8].
[4] Summary of Prosecution Opening on Plea [9]-[13].
[5] Transcript of Proceedings, DPP v Peter Chol (Supreme Court of Victoria, Beale J, 22 March 2022), 57-58.
[6] Summary of Prosecution Opening on Plea [19].
[7] Summary of Prosecution Opening on Plea [22].
[8] Summary of Prosecution Opening on Plea [29].
[9] Outline of Defence Submissions on Plea, 2.
[10] Summary of Prosecution Opening on Plea [31].
[11] Report of Pamela Matthews dated 16 March 2022, 3-5.
[12] Report of Pamela Matthews dated 16 March 2022, 3-5.
[13] Character reference dated 15 March 2022.
[14] Character reference dated 15 March 2022.
[15] Psychological Report of Pamela Matthews dated 16 March 2022, 5.
[16] Psychological Report of Pamela Matthews dated 16 March 2022, 6.
[17] Psychological Report of Pamela Matthews dated 16 March 2022, 6-7.
[18] Psychological Report of Pamela Matthews dated 16 March 2022, 7.
[19] Psychological Report of Pamela Matthews dated 16 March 2022, 8.
[20] Psychological Report of Pamela Matthews dated 16 March 2022, 8-9.
[21] Psychological Report of Pamela Matthews dated 16 March 2022, 10.
[22] Brown v R [2020] VSCA 212; 62 VR 491.
[23] Report of Pamela Matthews dated 16 March 2022, 3-5.
[24] Boulton v R [2014] VSCA 342; 46 VR 308.
[25] (1975) ACTR 13, 19-20.
[26] Worboyes v The Queen [2021] VSCA 169; 96 MVR 344 [35]-[39].
[30] Prior to 1 September 1997 the maximum penalty for this offence was a term of 15 years; this was increased by the Sentencing and Other Acts (Amendment) Act 1997 (Vic) s 60, sch 1, cl 3. Between 1 September 1997 and 30 June 2020, the maximum penalty for this offence was a term of 20 years but was again increased by the Crimes Amendment (Manslaughter and Related Offences) Act 2020 (Vic) ss 3, 9.
[32] [2001] VSCA 145 at [11] per Callaway JA, with whom Ormiston JA and O'Bryan AJA agreed.
R
Chol [2022] VSC 341
(2007) 16 VR 269