Crown v Accused

2 The law provides that the maximum penalty for murder is ordinarily life imprisonment.[1] Murder is a standard sentencing offence.[2]

3 On 17 June 2022, I heard a Crown opening in relation to the matter and submissions by Mr Williams of counsel on your behalf concerning the penalty which should be imposed on you for this very serious offence.

4 You were born on 24 September 2005 so that at the time of this fatal incident, you were 14 years of age. It is both astonishing and depressing that someone so young could be capable of such an act.

5 You lived in a unit at [address redacted] with your mother, sister and sister's partner. The deceased in this matter, Peter Kane, was 40 years of age and lived alone at [address redacted].

6 On 18 September 2020, from around 4:00pm, your movements in the area were recorded on CCTV. Your movements were also captured by various CCTV cameras in the Malvern Road/Essex Street area later that day from about 10:15pm. The attack you launched on Mr Kane was also recorded and makes for chilling viewing.

7 At about 10:52pm, shortly prior to your attack on Mr Kane, you lunged towards a man riding a motorbike on Malvern Road. The rider of the bike slowed, believing that you were attempting to cross the road, but you then deliberately punched him to the head and then, having done that, you fell to the ground. The motorcyclist was able to keep his balance and continue riding down Malvern Road. Also at around 10:52pm, the deceased man, Peter Kane, left his residence at [address redacted] and walked towards Malvern Road.

8 As you and Kane came together, you approached him and commenced a sustained physical attack, which involved you punching, kicking and stabbing him with a knife, although that knife has not been recovered.

9 During the attack Kane attempted to get away from you, but you followed him in what was unquestionably an aggressive manner. Mr Kane was carrying a bag at the time of the attack and used it to attempt to shield himself from you, but you continued to follow him and kick him, as he attempted to keep his distance.

10 Ultimately, Kane lost his balance and fell to the ground on Malvern Road. You then proceeded to kick and stab him multiple times to various parts of his body while he attempted to defend himself. He got up and moved a short distance before falling to the ground again, as you again continued to stab him.

11 As he was on the ground facing you, he started to crawl backwards away from you on his hands and feet. You were standing at his feet continuing the attack. You stabbed Kane to the face, among other parts of his body. He then fell fully to the ground, and you stabbed and kicked him again as you said to him, 'Who's down now?'. No one understands why you said that.

12 At about 10:56pm, you walked away from the scene and Kane was left lying on Malvern Road, bleeding and calling for help. Residents from nearby apartments observed the attack and called Triple-0 for assistance at 10:56pm.

13 About two minutes after that, Kane was found by a witness, who flagged down a police vehicle that happened to be travelling on Malvern Road. Kane was transported to the Alfred Hospital, but went into cardiac arrest while being placed into the ambulance and was pronounced deceased at the hospital, after unsuccessful attempts were made to resuscitate him.

14 After the attack, you went to the [name redacted] residence at [address redacted] in Prahran. When you arrived you seemed to be upset and crying. You were overheard saying, 'I don't know what I have done; I don't know what I have done'.

15 You then showered and were provided with fresh clothes. The clothes you had been wearing were placed in a shopping bag and were later disposed of. Neither the shopping bag, nor whatever it was you used to stab Kane with, have been located by police. Whatever concerns you had at that time, they did not seem to be for Mr Kane. The plan, at least at that stage, was for you to avoid responsibility for what you had done.

16 A post-mortem examination was later carried out on Mr Kane's body. That procedure indicated that Kane's cause of death was 'the consequences of multiple stab injuries'.

17 Seven days after your attack on Kane you were arrested by police at [address redacted]. Asked by police whether you were sorry for what had happened to Peter Kane, you said 'Yes. He had a knife. You would have found a knife there. I was defending myself'. That, of course, was not so.

18 It is appropriate at this stage to note some of the aggravating features of what you did. First, and somewhat alarmingly, it was a fatal and random attack on a person you did not know. Second, it was extremely violent and persistent against a person who did nothing more than try to defend himself. Third, when it was over and you had mortally wounded him, you left him lying in the roadway. Fourth, your first instinct after the event was to protect yourself. Were it not for your age, you would be facing a very heavy sentence.

19 The Court received a victim impact statement from the mother of Peter Kane, being Jennifer Kane. She read her statement to the Court in person. A victim impact statement was also received from Stuart Kane, who is the brother of the deceased, which was read to the Court by the prosecutor.

20 Both of these statements set out the long-lasting effect of your actions on the people who made them. Inevitably, the loss of a family member in violent circumstances leaves significant hurt and distress for those relatives who have to cope with it and try to move on afterwards. The effects are broad. They affect them emotionally, their personality and even financially. These effects, which are described in their statements, will remain with these two people for the rest of their lives.

21 There is little the Court can do to alleviate the suffering of these victims other than to acknowledge them and take their circumstances into account when deciding the sentence that should be imposed on you.

22 As I said earlier, on 10 March 2022, I gave a sentence indication pursuant Pt 5.6 of the Criminal Procedure Act 2009 (Vic), and in particular under s 208 of that Act. Pursuant to s 207(1)(b) of that Act, I was asked to indicate what the maximum total effective sentence would be in the event that you pleaded guilty. I said:

Having considered the material, I can indicate that the specified maximum total effective sentence I would impose would be a period of 15 years' imprisonment.

23 The result of the sentence indication process is that the maximum penalty that can be imposed upon you by me is a head sentence of 15 years' imprisonment.

24 You are now 16 years of age and at the time of this offence being committed you were 14. As I have already said, you were living in public housing in the inner south of Melbourne.

25 You were born into a family where your mother was living in a flat in St Kilda with two daughters from a previous marriage. Your father, who is a United Kingdom national, returned to England during your mother's pregnancy. You have had some contact with him since, but only infrequently.

26 Life for you has been extremely difficult. Your mother suffered from depression and was medicated for it, and when you were two years of age, her sister was murdered. Not long after that, another sister lost her life in an accident involving a tram.

27 Your early primary education was at a school in St Kilda and for a time, your development was normal.

28 It would seem that a turning point in your life occurred in 2014 when you were aged nine and your family moved into public housing in Prahran. The public housing environment was very poor and very violent. You apparently escaped some level of victimisation by joining the perpetrators of the law breaking, but the effect of that was that about six months after your family had moved to the area your attitude to school and authority changed. You began resisting teachers, being disruptive in class and getting into fights.

29 Within a year of living in Prahran you began to commit offences, and it would seem many of those were offences for which you were not apprehended or charged. They involved theft of a minor level and you appeared to begin to think that committing criminal offences was an extension of playing.

30 In 2018, when you were 12, you commenced school at [redacted], but your attendance was erratic. By 2019, you rarely attended school, and by 2020 you did not attend school at all.

31 Your circumstances have been examined and reported on by several professionals. In a detailed report prepared for the purpose of this sentencing proceeding, clinical psychologist Guy Coffey reached a number of conclusions in relation to your background, your offending, your psychological and emotional state and your prospects for rehabilitation.

32 First, and significantly, Mr Coffey concluded that you were not suffering from a mental illness. By way of trying to understand why you did what you did, he noted that in the lead up to committing this offence you had consumed a large amount of alcohol and cannabis, which resulted in you acting more impulsively than you otherwise would have.

33 You appeared not to have made an effort to explain what happened and appeared to have some lack of concern for the consequences of what you did.

(a) You were not suffering from a mental illness and your judgement at the time was compromised by alcohol and drugs;

(b) You were unable to explain why you did what you did;

(c) Your history made you more open to the attraction of antisocial activities;

(d) You are reasonably intelligent, ambitious and able to reason in an ethical way;

(e) There are obstacles to your rehabilitation, and you show a lack of empathy or concern for your victims;

(f) You are a moderate to high risk of re-offending in the absence of significant rehabilitation programs while in custody, which should have the following features:

(i) Counselling and psychotherapy;

(ii) Clarification of values and goals;

(iii) If your personality functioning becomes consistent with Borderline Personality Disorder, specialised interventions for that mental disorder;

(iv) Education and counselling in relation to substance use;

(v) Offence specific interventions;

(vi) An education program that exploits your ambition to become better educated and possibly learn a trade;

(vii) Support to maintain family relationships while in custody;

(viii) Encouraging the maintenance and development of friendships outside criminally-inclined friends or acquaintances.

35 I am pessimistic about such resources being available to you in custody, but the authorities should clearly understand that unless they put some significant effort into your rehabilitation now, you will be lost in the system and your life will become a disaster. It would be desirable if sentencing judges had the authority to give some form of direction as to how young offenders like you are to be treated in custody, with a view to improving their chances of rehabilitation. However, I have no such authority.

36 Dr Aaron Cunningham, who is also a psychologist, assessed you on 19 June 2019 and wrote a report on 21 June 2019. His conclusion was that you do not suffer from a mental illness, though you display trauma symptoms consistent with the experiences you have had in the public housing flats that you lived in.

37 He noted that you were exposed to significant violence and trauma in the public housing flats and adapted to that environment by becoming antisocial and aggressive. You had no concept of the long-term effects of your behaviour at the time that you attacked Mr Kane, and do not really understand the consequences for your victim.

38 Whilst you were remanded at the Malmsbury Youth Justice Centre, you were also observed by Amanda Pennaccia, who is the team leader from Youth Justice. Her report provides information about the care team which was available to you and also provides some information about your school attendance. You were identified as meeting the criteria for the High Risk, High Harm program currently developed by Alfred Health, under the guidance of Dr Adam Deacon. You attended some initial sessions.

39 In a letter of 9 March 2022, Tom White, who is a basketball coach, describes the relationship that he has with you in the context of that sport. You were apparently very enthusiastic about the game and assisted Mr White as a basketball coach. This sport seems to be the one thing in your life that gives you pleasure and some hope. For your leadership and commitment to the game, you were hand-picked to represent Helping Hoops at the Ben Simmons' basketball camp in 2017.

40 I have also been provided with a letter from your mother, who describes your history and seems to confirm that you avoided being attacked by becoming an offender. What is significant about your mother's letter is that it makes it clear that upon your release at some time in the future you will be well supported, by which time your mother will not be living in a housing estate, and there remains the option for you to move to the United Kingdom with your father.

41 In a letter of 1 June 2022, Dr Martine Jovev, who is a senior clinical psychologist at the Custodial Forensic Youth Mental Health Service, also provides information about your time under their supervision. Dr Jovev notes that having seen autopsy photographs of your victim, you did appear to have experienced an acute stress reaction on the background of complex Post Traumatic Stress Disorder with prominent anxiety features and compensatory substance abuse in the community. Dr Jovev also reported that you had engaged weekly with a clinician between May 2021 and August 2021 and that you do not have acute anxiety, depression, psychosis or acute safety concerns.

42 On your behalf, Mr Williams of counsel acknowledged the gravity of your offending but noted that your plea of guilty was on the basis of an intention to cause really serious injury rather than an intention to kill. I accept that as the factual basis for the sentence to be imposed, though in this case I am not sure it makes a substantial difference.

43 Mr Williams also acknowledged that your attack on the deceased man was unprovoked and that the offending occurred in a public place. He also pointed out that your offending was spontaneous and not premeditated, which does not seem to be the subject of argument. It is also common ground that you were affected at least by alcohol at the time.

44 Mr Williams submitted that in view of your lack of substance abuse or mental health issues, your rehabilitation would not be hindered by such things. He also made the valid point that given your youth, your personality is still forming. True as that is, the balance of the time it will take for that to be completed will be spent in a custodial setting and, as Mr Coffey noted, you have 'a long row to hoe' in that regard. Mr Williams also pointed out also that you have the support of your family, in particular your sister and mother. I agree that is important and should not be undervalued.

45 In the course of being in custody, you have made some progress in some areas such as cooking, music and first aid, and these are to your credit.

46 In Mr Williams' submission you are at a risk of institutionalisation, having been in custody from the age of 14 when you were arrested for this matter. In Mr Williams' submission, it was submitted that institutionalisation can be avoided by a significantly lower than usual non-parole period.

47 You pleaded guilty in March of this year. Prior to that this matter was being treated as a trial. Your plea was not an early plea by any means, but in your case that may not be as significant as in others.

48 It was argued on your behalf, and I accept, that your plea of guilty is evidence of a willingness to facilitate the course of justice and your acknowledgement of your responsibility at least to some extent. It was, as Mr Williams argued, a plea in circumstances where the Crown had difficulties with some witnesses, and it is a case of a very young person pleading guilty to the most serious charge known to law. That said, there is, however, still a question as to whether you are remorseful for what you have done. I do not regard remorse as a significant part of the reason for your plea.

49 The utilitarian benefit of your plea, that is the extent to which your plea helps the Court in getting through its work in the present circumstances of the coronavirus pandemic, is significant. You have avoided the need for the family of the deceased man to be involved in a trial and potentially have to give evidence and feel the pressures and stress that a trial always involves.

50 In his concluding submissions on your behalf, your counsel Mr Williams relied on a number of matters. Having conceded the factors which are relevant to the nature and gravity of what you did, he did make the point that what you did was not premeditated - that is, you did not think about it much before you actually did it. He submitted that you were affected by alcohol at the time which, as he acknowledged, is not an excuse. You did not commit this offence with other people.

51 He relied on the fact that at the time of the offence you were only 14 years of age and are now 16.

52 Mr Williams also relied on legal authorities, making clear that the fact that you are young should be a primary consideration for me in sentencing you, and that your rehabilitation can usually be more important than deterring other people from committing similar offences. This, however, is a case where the seriousness of your offending runs into direct conflict with the considerations which would normally apply to someone so young.

53 Nonetheless, I must consider a sentence for you which will make some provision for your rehabilitation and the chance that you may be able to lead a law-abiding life upon your release from custody. It is true that there is no evidence of planning in relation to this offence, but it is an example of unrestrained violence, and, in many respects, its random aspect makes a very serious offence that much worse.

54 It is important to note that you have a significant criminal history dating back to 2020. This includes, on 20 March 2020, findings of guilt for:

Those matters were heard in the Melbourne Children's Court and you were dealt with on the basis of youth supervision orders and other non-custodial penalties. That history demonstrates that you have, consistent with what I have already described as to your background, a propensity towards violence and an inclination towards antisocial behaviour, due to your circumstances.

55 Mr Williams also noted and relied on the fact that your early childhood was characterised by poverty, homelessness and exposure to alcoholism, drug abuse and violence. The various reports from Dr Cunningham and from Mr Coffey acknowledge and describe the effect of those circumstances on your upbringing.

56 In her submissions, the prosecutor Ms Churchill made the appropriate observations about the seriousness of your offending and I have paid attention to those. They are not in contention. In the written submissions Ms Churchill said:

With tailored interventions and the maturation that naturally occurs with time, the accused may well have reasonable prospects for rehabilitation given his acceptance of responsibility, family support and efforts whilst in detention.

57 The courts have expressed the importance in sentencing of circumstances such as yours where you have begun to grow up in the disadvantaged environment you did. The law acknowledges that such background and social deprivation may leave its mark on you throughout your life and to a degree explain your conduct and this offending, in particular. It is a relevant factor to be taken into account in sentencing you and I will, as the law requires,[3] give full weight to your prior background in determining the sentence that I should impose on you.

58 So far as your prospects of rehabilitation are concerned, you have the advantage of not having either substance abuse or mental health issues which would otherwise interfere with your rehabilitation. As well, you do have the support of your sister and your mother, and you have learned some new skills in your time on remand.

59 You expressed the desire to live a normal life and appear to have some desire to be productive.

60 However, your prospect of rehabilitation is something to be cautious about, primarily because you do not appear to fully understand and have insight into the magnitude of what you have done. Nor do you have significant remorse for what has happened.

61 On the other hand, in one so young that is perhaps not surprising. As I made clear during the course of hearing your plea, your future is going to be determined by the assistance you get from this point on. You are going to need a coordinated effort in your time in custody in order for you to be diverted from further offences of serious violence, which will completely destroy your life if you give into the temptation to participate in such things.

62 I do moderate the emphasis on general deterrence, given your age, because as was argued on your behalf, you are not by any means the ideal example for conveying a general deterrence message. You will need to be deterred yourself from committing any further offences like this. As Mr Williams put on your behalf, you will be a fully grown adult by the time you are released, and presumably by that stage you will have a better insight into the consequences of your actions.

63 The violent and random nature of your fatal attack is extremely concerning and would alarm the public consciousness as it did those who observed it, including those who have viewed the CCTV. Your youth and the need to prioritise your rehabilitation if at all possible are significant sentencing factors, but general and specific deterrence and, importantly, denunciation are likewise significant. Because of the high and sustained level of violence you used on the deceased man in a public place, there is a real tension between all those factors. However, the reality with someone as young as you are is that the public will be protected by advancing your rehabilitation.

64 In my opinion, the appropriate sentence for me to impose on you is a sentence of 14 years. I fix a period of nine years to be served before you become eligible for release on parole.

65 I declare that the period of 637 days that you have undergone as pre-sentence detention be reckoned as time already served under the sentence that I have just imposed.

66 Pursuant to s 6AAA of the Sentencing Act 1991 (Vic) I declare that had you not pleaded guilty to this offence, I would have sentenced you to 18 years' imprisonment and fixed a minimum before you would have been eligible for release on parole of 14 years.

67 Pursuant to s 471 of the Children, Youth and Families Act 2005 (Vic), you may be an appropriate candidate for transfer to a youth justice centre until you reach the age of 21 years. As I understand it, that is a matter for the Adult Parole Board to determine, but I would strongly recommend that that occur.

[1] Crimes Act 1958, s 3(1)(a).

[2] Ibid s 3(2)(b).

[3] Bugmy v The Queen [2013] HCA 37; (2013) 302 ALR 192.