Crown v Accused

2 I received a number of exhibits during the plea hearing including the prosecution opening for your plea and I have taken all of the exhibits into account.[2]

3 On 25 December 2019, you kicked and stomped on the head of Mr Clark at Mooroolbark. On 28 December 2019, Mr Clark died in hospital from the injuries you caused in combination with other injuries incurred in the moments before your offending.

4 You were aged 16 at the time of your offending, and you were between jobs at that time. You resided with your family at an address in Mooroolbark. Two other young persons were prosecuted for the events that led to Mr Clark's death. BRP was charged with criminal damage, affray and common law assault and he pleaded guilty to those offences before Judge Hampel in the County Court on 7 October 2021. On 14 October 2021, he was convicted and sentenced to a 30-month Community Correction Order with 300 hours of unpaid community work.[3] HM pleaded not guilty to the offence of manslaughter and was acquitted by a jury of twelve on 7 October 2022 after a trial that lasted several weeks.

5 You entered a plea of guilty to the charge of manslaughter on 4 August 2022, shortly before your trial was listed to commence.

6 I will now describe some of the background features of the offending.

7 On 25 December 2019, being Christmas Day, Mr Clark was at home with his wife, Mrs Clark, his step-daughter Jessica R, her partner James G and their two children at [X] Bulga Street, Mooroolbark. A number of family members had visited during the course of the day, including Emma M, her partner Peter I and their child, as well as Daniel R and his partner, Rebecca.

8 At around 10.34pm, Daniel R decided to let off some fireworks near the intersection of Bulga Street and Esther Crescent in Mooroolbark. This event caused consternation to the Parker[4] family who lived in Esther Crescent, Mooroolbark. A verbal altercation ensued between Jessica R and James G and members of the Parker household, including your friend NP, aged 18 at the time.

9 Whilst there was some pushing and shoving between the parties to the dispute, no one was injured. As James G and NP parted company, NP said to James G, 'You don't know what you've just done.' NP went home and got into his blue Mazda BT-50 utility and drove to your family home in a nearby street. You lived there with your mother, Mrs V, and your older sister CV at the time. CV was going out with 18-year-old ZM, and there was a gathering of young people present having Christmas drinks when NP arrived. The group at your home consisted of yourself, your sister CV, ZM, HM (18), BRP (18), HT (17), LS (18), IK (18), and BM (16).

10 At around 10.42pm, while on his way to your house, NP called DT (19) and warned him that he was needed. DT had a driver's licence and his own vehicle. When NP arrived at your home, he said that his mum had been 'bashed', his dogs had been hit, and that someone had let off fireworks that had gone through a fence and hit a car. He was extremely angry, and demanded help. In response, the group of young people at your house went straight to the Parker residence. ZM gave evidence at the trial of HM that when he followed after NP, he anticipated that there might be some sort of conflict with another group of young people.[5]

11 Around the time that you and the other young people disembarked outside the Parker residence, DT had also driven towards Esther Crescent in his white Toyota Hilux Ute.

12 Meanwhile, the three girls in your group were told to stay behind at the Parker residence and they did so. Some of the young males handed over their phones and wallets to CV to look after. You, along with the rest of the group, set off on foot along Esther Crescent before turning left and following NP up Bulga Street towards the Clark residence at [X] Bulga Street.

13 While out the front of [X] Bulga Street, Mr Clark was told by his daughter Jessica R and her partner, James G, that due to the fireworks there had been an incident with the neighbours near the corner of Esther Crescent. Jessica R told her father that she did not think anything would come of it.

14 At 10.48pm, DT drove north along Bulga Street and parked opposite the driveway to [X] Bulga Street. You, along with the other young males in your group, made your way towards the end of the driveway to [X] Bulga Street. DT's Toyota Hilux Ute was idling near the kerb opposite the driveway of [X] Bulga Street, and DT got out of the driver's seat for a brief time.

15 Much of the activity that occurred in the early phase of the confrontation between your group and the Clark household was captured by CCTV cameras stationed on the exterior of [X] Bulga Street. Just before your group arrived outside his house, Mr Clark came down the driveway and crouched behind Jessica R's Toyota Yaris so he could peer down the street to see what was happening. He then went back towards his house.

16 At 10.49pm, Mrs Clark walked out from the driveway at [X] Bulga Street and headed towards your group. At that stage, Mr Clark re-emerged holding a baseball bat in his right hand. He was followed by Jessica R. Your group began yelling at the members of the Clark household. Mr Clark yelled at your group to leave, threatening to use the baseball bat if your group did not leave.

17 HM hurled a bottle down the driveway of [X] Bulga Street towards members of the Clark household. The bottle smashed on the concrete near the garage door abutting the driveway. At that stage, Mr Clark ran towards your group with the baseball bat and your group began to back away down Bulga Street. Meanwhile, DT drove his car up Bulga Street and continued around the block, before stopping his Ute at the intersection of Esther Crescent and Bulga Street, facing north with his headlights shining towards your group.

18 ZM became involved in a push and shove with Mr Clark, who was threatening him with the baseball bat. By then, Mr Clark's movements were no longer being captured by CCTV. Mr Clark pushed ZM to the throat with the baseball bat and exchanged some brief words with him, before moving towards other members of your group. A verbal and physical altercation erupted between Jessica R and NP after Jessica R hit NP several times with her hands.

19 At 10.50pm, James G emerged from [X] Bulga Street holding a hatchet in his left hand. As Mr Clark walked back towards [X] Bulga Street, he appeared to notice James G walking towards the end of the driveway with the hatchet. Mr Clark grabbed hold of James G and held him back. Meanwhile, Mrs Clark and BRP became involved in a push and shove, after which BRP threw an object towards the [X] Bulga Street residence and proceeded to smash the windscreen of Jessica R's Toyota Yaris. Jessica R ran back out onto the street and threw a bottle at BRP. BRP then retreated down Bulga Street.

20 Mr Clark returned to the street from his front yard and set off down Bulga Street whilst still holding the baseball bat.

21 James G got into the driver's seat of the Toyota Yaris and tried to start the car but was unable to. Mrs Clark gained possession of the bat and began swinging it towards members of your group. She ran towards HT, who jumped forward and collided with Mrs Clark, knocking her to the ground.

22 At that point, HM quickly advanced and picked up the baseball bat from the ground. He moved towards Mr Clark at the same time as Mr Clark was approaching him. HM swung the bat hard, striking Mr Clark to the left side of his skull. Mr Clark immediately collapsed onto the road. BRP then kicked Mr Clark in the ribs. While Mr Clark was lying on the ground, others saw you stomp on his head three or four times, and viciously kick him to the side of his head.[6]

23 Following the assault on Mr Clark, you and every member of your group fled the scene and returned to your family home.

24 Emergency services were then called by concerned neighbours. The first police members on the scene found Mr Clark propped up on his left arm, conscious and breathing, but unable to answer questions coherently. He was transported by ambulance to the Royal Melbourne Hospital presenting with confusion and reduced consciousness. His condition deteriorated. CT scans revealed significant left frontal and temporal contusions with an overlaying fracture extending to the base of his skull. He was subsequently diagnosed with severe traumatic brain injury and increased intracranial pressure. Ultimately, as a result of the severity of his brain injuries, his life support was switched off on 28 December 2019 and he was pronounced dead at the Royal Melbourne Hospital.

25 The prosecution obtained evidence about Mr Clark's injuries and cause of death from forensic pathologists, Dr Michael Burke and Dr David Ranson. Dr Burke conducted the autopsy and found a depressed skull fracture and fragmentation in the area behind the left ear and associated bruising on the left side of the scalp and down the left side of the neck. These injuries led to brain damage. Both Dr Burke and Dr Ranson agreed that the brain damage caused to the deceased was as a result of forces applied to the head and that, while some of those forces may have been more severe than others, they all contributed to death in the sense that they all had the capacity to cause the brain injury that led to death.

26 You were arrested on 28 December 2019 and you were interviewed at Lilydale Police Station. Homicide detectives seized various mobile telephones from you and your associates. Investigators extracted incriminating messages and other material sent from your mobile phone. One such extract was a screenshot of a Snapchat video you sent to NP depicting your white Nike sneaker with what appeared to be bloodstains, which you also referenced in the overlaying text.[7] In other messages sent to your friend LB on 26 December 2019, you referred to having killed someone.[8] Immediately after the incident, you also admitted to members of your group that you had kicked the victim. Your conduct immediately after the incident was brazen and callous.

27 Police conducted a forensic examination of your Nike sneakers and detected blood on them matching the DNA profile of the deceased's blood. You were interviewed by police on two occasions. In your first interview, you told a number of lies and did not admit to the role you played in Mr Clark's death. On 7 January 2020, you were interviewed for a second time; during that interview you minimised your role, although this time you did admit to kicking Mr Clark when he was on the ground, but you did not admit to kicking him in the head. I accept the Crown's submission that you were not particularly cooperative with the police during your interviews.

28 Several victim impact statements were received by this Court and I have taken them into account in considering your sentence.

29 Two of Mr Clark's daughters, Ellen M and Emma M, elected to read their victim impact statements aloud.

30 Ellen M described her father as a proud family man who was kind and loyal to a fault. She highlighted the cruel irony of the circumstances surrounding her father's death, being that he was assaulted on Christmas Day, which was his favourite holiday. She had to inform her father's relatives about his death. She has experienced ongoing trauma and loss as a result of his passing. She is sad that her child has been robbed of a grandfather. Emma M described that she was present for Christmas Day at her father's house and left shortly before the events that had led to his death. She described her childhood and explained that, for herself, and her sisters, her father fulfilled the role of both parents due to issues with their mother. She felt privileged to have Mr Clark as her father and said that words could not describe the pain caused by what happened to her father on Christmas Day.

31 Counsel for the prosecution read aloud the victim impact statements of Jessica R, Anthea D and Mim. Jessica R, the stepdaughter of Mr Clark was out in Bulga Street when you assaulted Mr Clark. She said it was excruciating to see his condition after the assaults and that she has been lost since his death. She feels unable to leave the house and has severe anxiety when she does so. She feels less safe since the incident.

32 Mr Clark's sister, Anthea D, said she is heartbroken at having lost her big brother. He was a person who was always there for her, and now she has tears of pain when she thinks of him.

33 Mr Clark's sister, Mim, described a harsh upbringing that was made less rough by the presence of Mr Clark and she said a big blackness sits on her since his death.

34 Mr Clark's wife, Mrs Clark, said that Mr Clark was her soulmate, and that she has lost the love of her life. At the time of writing her victim impact statement in April 2021, she would have been with Mr Clark for 17 years. She misses the life she once shared with him, and mourns the plans they had made for the future. She still feels anxious every time she leaves the house, and avoids going out. She feels that her entire family has been torn apart, and does not know how she will live the rest of her life without Mr Clark.

35 Ryan R, Mr Clark's stepson, was overseas when he heard the news that Mr Clark had been assaulted and urgently flew home to Melbourne afterwards. Ryan took charge of organising Mr Clark's cremation and funeral. The passing of Mr Clark had an immeasurable impact on him.

36 In addition to the victim impact statements I have mentioned, I acknowledge the damaging effect of violent homicides on the community as a whole.

37 Your assault on Mr Clark when he was helpless on the ground was egregious conduct.

38 It has been nearly three years since the offending. Whilst you were only 16 years old at the time of the offence, you are now 19 years old.[9] Although your second police interview took place in January 2020, you were not charged until 5 November 2020.

39 Some unsuccessful plea negotiations took place throughout 2021 and 2022. Preliminary hearings were conducted in this Court, including cross-examination of forensic pathologist, Dr David Ranson.[10] Since the time you were charged, you have remained on bail.

40 Your plea of guilty was a relatively late plea, coming at the conclusion of the section 198B hearings, and one month before the original trial date.[11] Nevertheless, your plea has significant utilitarian value and shows a willingness to accept responsibility for your actions, rather than putting the Crown to proof of its case.

Personal History and Psychological assessment

41 You had no prior convictions at the time of the offending and you have not committed any offences since the incident with which you are charged. You were assessed by forensic psychologist, Carla Ferrari, and she provided a report for your plea hearing.[12] She assessed you in September 2022 and therefore she was not assessing you at the same stage of your development as when the offending took place.

42 Ms Ferrari's report contains similar information about your personal background to that provided by your counsel on your plea hearing. Some of that information was further confirmed when both your mother and father gave evidence before me, and subsequently when Youth Justice provided a report to the Court.

43 You have one sibling, CV, who is now aged 21. Your parents initially raised you in the Croydon area, but they separated when you were in your late primary school years. You attended [School A] until Year 8 and then transferred to [School B], but you left at the age of 15,[13] having only completed Year 9 education. There was a significant period during which you and your sister had minimal contact with your father, Mr V. However, when difficulties arose for you in your schooling at the commencement of Year 10, your father offered you employment with him in his company, installing security systems.

44 You worked for your father for around eight months, even though your relationship with him was strained. You then began to work in other jobs such as [Occupation A] and [Occupation B] before commencing a [X] apprenticeship with [Employer A] in February 2020. You were forced to leave that apprenticeship after 15 months once you advised your employer about the charge against you and your pending court dates.

45 You obtained casual work with [Employer B] and then with [Employer C] where you worked between May and June of this year. Once again, you were compelled to leave the job at [Employer C] because of your pending court hearings.

46 You have been in an intimate relationship with JT for somewhere between 1 and 2 years. JT's parents have been encouraging towards you. Your mother has met and socialised with JT's parents on occasion and she is comfortable with the connection you have formed with JT's family.

47 You told Ms Ferrari about your drug and alcohol abuse that commenced in your teen years. You reported binge drinking with friends at parties, which developed into a more severe drug and alcohol problem in the three months preceding the offending, including daily drinking of large quantities of pre-mixed drinks and use of harder drugs on a regular basis.[14] However, your offending made you seriously consider your future path, and you told Ms Ferrari that you have not used illicit substances since the offending. To date, you have not undertaken alcohol and other drug counselling or specific rehabilitation in respect of substance abuse.

48 You told Ms Ferrari that both your father and sister have had issues with alcohol and other drugs, but they have each addressed them. You said the reason for your substance abuse in the period leading up to the offending was boredom, being between jobs, and the influence of your peers. However, you also told Ms Ferrari that at the time of your offending, you had not used substances for about two to three weeks.

49 Ms Ferrari did not specifically indicate what you told her about your alcohol use on the day of the offence, but your counsel told the Court, on your instructions, that you had had consumed a slab of pre-mixed drinks prior to committing the offence.[15]

50 Ms Ferrari diagnosed you as currently suffering from an adjustment disorder with symptoms of depression and anxiety in response to your current circumstances, but she found that you pose a low risk for future violent recidivism.[16] She referred to your absence of risk management factors in light of your currently stable psycho-social circumstances, future employment available through your partner's father, and your plan to re-commence a panel beating apprenticeship once your sentence is complete. She noted you have the support of your family and JT's family, and that you have indicated a willingness to undergo any treatment recommended for you.

51 Ms Ferrari emphasised the significance of your youth at the time of the offending, referring to studies indicating that youths typically have less well developed neurological and psychological capacity than adults. This leads to a lesser appreciation of consequences, increased impulsivity, disproportionate emotional arousal and deficiencies in decision-making abilities. Furthermore, Ms Ferrari indicated that had you not been intoxicated at the time of the offence, your decision-making would have been less impaired. She opined that imprisonment would have a negative effect on your development and risk exposing you to negative peers at an impressionable stage of your life.[17]

52 Ms Ferrari opined that you are a vulnerable offender due to your age, naivety and lack of experience with anti-social peers, and that you would be at a higher risk of intimidation and exploitation in a prison environment. She considered that employment was imperative to your rehabilitation, but that you would also benefit from counselling about substance abuse to identify relapse prevention strategies.[18]

53 Both your mother and your father gave evidence at your plea hearing. Your mother, Mrs V,[19] adopted a letter she had written for the Court[20] in which she described the changes that she saw in you after the break-up of her marriage with your father. In her view, you were lacking a male mentor during your childhood and early adolescence. She described your lack of focus during school and the fact that you were expelled from [School A].[21] Evidence about your disrupted education was echoed in material gathered in the Youth Justice pre-sentence report, indicating a link to family breakdown and family dysfunction at that time.

54 Your mother considered that after you left school, despite working for your father, you became more distant and focussed on your friends. She believes you have become a different person compared to how you presented at the time of the offending, and that you are filled with sadness about what you did.

55 Your mother described you as an aggravated, depressed and unhappy child throughout 2018 and 2019, but it had not crossed her mind that you were taking drugs. She was not aware of the binge drinking that you were engaging in, but noted that the nature of her employment, including rotating rosters, meant that she was not always there to see what you were doing. She admitted that she had had trouble curbing your behaviour and disciplining you in the past, and that you had not been receptive to professional help when she had tried to obtain it for you.

56 She said that after the incident, you appeared depressed and seemed to be unable to sleep. She also felt that you were isolating yourself. However, she felt that you accepted responsibility for your actions, and she reiterated what she had said in her letter to the Court that in her view you were remorseful.

57 Your father, Mr V,[22] gave evidence that despite a long break in his parenting relationship with you, when you came to work with him, your attitude was good and you were willing to learn. The nature of the work was not your passion so you left employment with him and obtained work with [Employer A]. Initially, that employment went well, until you were formally charged with the current offence. After that, the attitude of your employer and workplace changed towards you, making it very difficult to continue working there. Your father thought it was a credit to you that you stayed on there for four months after that.

58 Your father noted that you have a good work ethic and feels that your bond with him is strengthening. In his view, you are very remorseful for your offending. He was not aware of your drug use and alcohol abuse prior to the offending, but believes that you have made some positive changes and that your relationship with JT and her family is positive for you. He believes that you will not be short of employment once your court matters are finalised. Nevertheless, he considers that you are still an impressionable person with limited life experience, and that you are rather eager to please others.

59 In addition to the evidence from both of your parents, I have read and had regard to all of the written testimonials put forward on your behalf. They provide a positive indication of the path you are currently on and your attitude towards the offence that you committed.[23]

60 You have managed to work in several different jobs whilst on bail, despite your jobs being interrupted by court appearances. You have the support of your own family as well as JT's family. JT's family were told about the charge early in your relationship, but JT's father remains willing to offer you employment in his panel beating business when you are able to take it up.

61 Mr Sawyer, who represented you on your plea, emphasised the importance of your plea of guilty to the charge of manslaughter, noting the complex issue of causation in your case and the utilitarian benefit of your plea of guilty. He submitted that your plea is accompanied by genuine remorse and an understanding of the seriousness of the offending. He also referred to Worboyes factors as relevant to sentencing in your case.[24] I accept those submissions.

62 Mr Sawyer submitted that limbs 5 and 6 of Verdins were relevant to sentencing,[25] but did not press that submission strongly. I am unable to accept that Verdins factors are relevant to your sentence.

63 Mr Sawyer submitted that the Court should call for a pre-sentence report with a view to a Youth Justice Centre disposition.[26] He conceded that manslaughter is a Category A serious youth offence,[27] which means the Court could not make a Youth Justice Centre order unless satisfied that exceptional circumstances exist.[28] He submitted that the Court could be satisfied of exceptional circumstances based on a combination of circumstances, including your reasonable prospects of rehabilitation,[29] the support you have from your family, your good work ethic and work history, and the fact that you have entered a plea of guilty and that your plea is accompanied by remorse. Whilst acknowledging the serious nature of the offence you committed, Mr Sawyer submitted that you are particularly impressionable, immature and would likely be subjected to undesirable influences in an adult prison.[30] With reference to your age, character and past history, he relied on the references provided by family members, and he emphasised your lack of criminal history and the fact that you have no further matters pending before the Court.[31]

64 Mr Sawyer reiterated the importance of rehabilitation for young people, noting that your offending occurred at a time when you did not have the maturity or self-control of an adult.

65 On behalf of the Crown, Mr Gibson KC submitted that in assessing the objective seriousness of your crime, there are a number of features that are concerning. You inflicted gratuitous violence on a person who was defenceless. Mr Clark was not known to you and your assault on him occurred in the presence of others in a public place. After the incident, you showed no concern for your victim and took no immediate responsibility for your actions.

66 Regarding causation, Mr Gibson KC accepted that it was the blow to Mr Clark's head inflicted by HM with the baseball bat that caused Mr Clark to fall heavily onto the roadway and that this action contributed to the death of Mr Clark. Nevertheless, your actions were inflicted on a person who was already severely injured and you contributed to the cause of death of Mr Clark. Whilst recognising the importance of your youth in sentencing you, the prosecution submitted that the seriousness of your offence ought to lessen the weight I give to this factor. Whilst this may be so, I still consider the fact that you were 16 at the time of the offence to be very significant.

67 Regarding parity considerations, it was submitted by the Crown that there were reasons to treat you differently than BRP. I accept that submission. While BRP also assaulted Mr Clark when he was on the ground after being struck by HM, the offences to which he pleaded guilty were less serious than your offence. BRP's actions did not contribute to death, whereas your actions were a substantial and operating cause of death in the present case, despite not being the only cause.[32] Those distinguishing factors explain why BRP did not receive a custodial sentence.

68 Regarding comparative sentencing, the prosecution referred to the case of The Queen v Peter Chol[33] and the case of The Queen v Mohamed.[34] In Chol, Beale J referred to a number of other comparative cases involving young offenders sentenced for manslaughter. I have found these comparative cases useful.

69 The charge to which you have pleaded guilty is particularly serious and I agree with Mr Gibson KC that there are some objective features of the offence that are very concerning, including the appalling manner in which you assaulted Mr Clark. I accept the submission made by the Crown that general and specific deterrence,[35] denunciation and just punishment require some recognition in sentencing you. Those objectives will be met by the imposition of a custodial sentence.[36]

70 On 30 November 2022, Youth Justice provided a pre-sentence report[37] which assessed you as suitable for detention within a Youth Justice Centre.[38]

71 Following receipt of that report, Mr Gibson KC made the entirely fair concession that exceptional circumstances could be made out in your case. He referred to the impulsive nature of your offending, your lack of criminal history or pending charges, the peer presence that provided a context to the offending, your young age at the time of the offence, your improved behaviour in the three years since the offence including increased victim empathy, abstinence from drugs and avoidance of negative peer associations, gainful employment, and the support of your family and JT's family, along with your adjustment disorder and history of trauma within your own family.[39] It was accepted by the Crown that both ss 32(1)(a) and (b) of the Sentencing Act were made out in your case.[40]

72 In considering whether exceptional circumstances are established, allowing for the imposition of a youth justice centre order, I have had regard to all of the facts related to the offending and your personal history before and after 25 December 2019. I have taken account of the Youth Justice pre-sentence report, the report of Ms Ferrari, the oral evidence and exhibits tendered on the plea.

73 The following factors support a finding of exceptional circumstances.

74 The first matter is that although your actions contributed to Mr Clark's death and were legally causative, Mr Clark's death was also caused in part by HM striking him with the baseball bat, fracturing his skull and causing him to fall heavily on the roadway.

75 The second matter is that your violent conduct towards Mr Clark was potentially influenced by the misbehaviour of others in your group, including older youths. Your group decided to confront the Clark household as a result of NP's exaggerated complaints.[41] ZM became involved in a push and shove with Mr Clark; HM threw a bottle at members of the Clark household; HT became involved in a physical altercation with Mrs Clark and Jessica R was also knocked down. These unfortunate events provided the backdrop to HM striking Mr Clark with the baseball bat that had been wielded by his wife.[42] Finally, the criminal actions of BRP directly preceded your criminal actions of kicking and stomping on Mr Clark. I pause here to state that although you were one of the youngest males in the group that confronted members of the Clark household, youthfulness is no excuse for serious violence.

76 The third factor is that whilst the conduct of your group was deplorable, the behaviour of members of the Clark household, including Mr Clark,[43] contributed to an escalation of the incident.

77 The fourth factor I consider relevant is that you were an immature and impressionable young person in 2019 when you assaulted Mr Clark. It is likely that your behaviour was partly influenced by alcohol you had consumed with your older friends directly before the incident. In saying this, it should be noted that in your case, your intoxication was neither mitigatory nor aggravating. It is, however, a contextual factor and it is relevant that you were drinking underage, in a group with older peers. Whilst your behaviour directly following the incident involved false bravado and cover up, I accept it was a product of your immaturity at the time. I accept that you are now remorseful.

78 The fifth matter of significance is your lack of proper guidance during your adolescence and the family dysfunction adverted to in the Youth Justice report. Your father was absent from your life during this important stage of your development, and you have only recently begun strengthening your bond with him. It is significant that the offending occurred at a time when you were between jobs and using drugs and alcohol without your parents being aware of that fact. I accept that your parents are now aware of your past drug and alcohol abuse and, more importantly, you yourself have taken steps to distance yourself from drug use and negative peer associations, and you claim to have learned to moderate your alcohol use. You told Youth Justice that you have never received counselling for your mental health and that you find it hard to open up to others. In the time that you have spent awaiting sentence, you have reflected on the need to change, including your substance use, negative peer associations, and use of violence.

79 The sixth matter of significance is that you had no prior convictions at the time of the offence and have not committed any offences since. Over your time on bail, you obtained a drivers licence and you worked in a number of jobs despite the disruption of the court proceedings hanging over your head.

80 The seventh matter is that your appear to have matured somewhat since the commission of the offence, although you still lack life experience and remain impressionable. It seems that your insight about the need for professional help has increased. I accept that if I were to send you to an adult prison, you would be subject to negative influences and may not receive the programmes required for your rehabilitation. Instead, by serving a custodial sentence in a Youth Justice Centre, you would have the opportunity to undertake Year 12 education and enhance your employment prospects in preparation for life after the completion of your sentence. You would also be able to address the issues that impacted your childhood and family life, as discussed in the Youth Justice report.

81 The eighth matter I rely on is your positive prospects for rehabilitation. You continue to have the support of pro-social influences including family, and friends and past employers. Ultimately, the Crown did not dispute that you have reasonable prospects for rehabilitation. I consider that in addition to your own family's support, your relationship with your partner, JT, is a positive one, and the support offered by her family will also assist your rehabilitation. I consider on the evidence before me that you have very good prospects for rehabilitation.

82 The ninth matter is your increased awareness of the gravity of your offending. The Youth Justice report notes that you were 'able to articulate genuine remorse and victim empathy for the family of the deceased' and you have, over the past three years, reflected on what it would be like to lose a family member. I have given weight to the importance of rehabilitation given your young age at the time of the offending, and the fact that you are still young at only 19 years of age. Finally, I rely on the helpful concession made by the Crown in your case. It is very fortunate that you appear to have reformed your ways over the three years that you have been on bail since the commission of the offence.

83 Having regard to all of the matters I have discussed in these sentencing remarks, and giving weight to the pre-sentence report received in this case, I am satisfied that there is a combination of factors that meet the requirement of exceptional circumstances for the purposes of s 32(2C) of the Sentencing Act 1991.

84 Furthermore, I am satisfied that the requirements of s 32(1) of the Sentencing Act are met,[44] as I consider that your prospects for rehabilitation are favourable, and also that you are a young offender who is particularly impressionable, immature and likely to be subject to undesirable influences in an adult prison. Whilst the nature of the offence to which you have pleaded guilty is a very serious offence, your age at the time of the offending, your otherwise good character, and your lack of other offending make it appropriate to impose a Youth Justice Centre order rather than a term of imprisonment.[45]

85 I have had regard to the principle of parsimony in s 5(3) of the Sentencing Act 1991.

86 Taking into account all of the composite considerations to which I have referred, I am satisfied that the purposes of sentencing and the interests of the community will be served by the imposition of a Youth Justice Centre order in your case.

88 For the manslaughter of Mr Clark, I sentence you to detention in a Youth Justice Centre for a period of 2 years.[46]

89 I declare that, pursuant to s 6AAA of the Sentencing Act 1991, had you not pleaded guilty to the offence, I would have sentenced you to a Youth Justice Centre order for a period of 3 years and 6 months.

90 I will make the disposal order sought by the prosecution in relation to the shoes worn at the time of the offence.

[1] Level 3 imprisonment at the time of the offence pursuant to section 5 of the Crimes Act 1958 (Vic). The maximum penalty was increased to 25 years from 1 July 2020 by the Crimes Amendment (Manslaughter and Related Offences) Act 2020 (Vic) ss 3 and 9.

[2] Exhibits P1 (Summary of prosecution plea opening); P2 (Prosecution submissions on sentencing); P3 (7 Victim Impact Statements); P4 (Screenshot of video extracted from Snapchat account of KV showing a single white Nike runner with red staining); P5 (Extract of messages exchanged between KV and LB on 26 December 2019); D1 (Summary of plea defence submissions dated 15 October 2022); D2 (Psychological report of Carla Ferrari dated 5 October 2022); D3 (Bundle of 9 character references); D4 (Youth Justice Pre-Sentence Report - Suitability for Youth Justice Centre Order dated 29 November 2022, prepared by Amelia Catchlove).

[5] When asked what he thought might happen when he went with NP, ZM said: 'Oh, a lot of things were running through my head at the time. I had no idea where I was walking into. From - well, how he asked me I imagined a group of mid-20 year old males all just drinking and getting rowdy and have a bit of a, um, conflict between the families or something' (Transcript from the trial of HM, Thursday 15 September 2022, p 190).

[6] Described by witnesses as in the manner of kicking a football.

[10] Dr Ranson stood in for at a preliminary hearing for Dr Burke, who performed the autopsy. The s 198B hearings took place in conjunction with HM's matters on 29 July 2001.

[11] Trial date fixed for 5 September 2022.

[12] D2 - Psychological Report by Carla Ferrari dated 5 October 2022.

[14] KV told Ms Ferrari that he had been using cocaine at the extent of one gram per week and MDMA: 0.5-1.0 grams per day and methamphetamine: 0.2-0.3 grams.

[15] Ms Ferrari diagnosed KV as meeting the criteria for alcohol intoxication at the time of the offending, despite not having recorded in her report KV's level of intoxication at that time. She also described him as being afflicted by an alcohol use disorder and stimulant use disorder at the time of the offending, but stated that these were in sustained remission at the time of her assessment.

[16] Based on using the Historical Clinical Risk Management - Third edition (HCR-20:V3).

[17] She referred to Australian and International research demonstrating the potentially criminogenic effects of imprisonment on susceptible young offenders.

[18] She also recommended mental health support.

[19] She gave her occupation as a theatre technician.

[21] In her letter to the Court, see exhibit D3, Mrs V (dated 6 October 2022).

[22] Mr V provided a testimonial dated 9 October 2022 which became part of Exhibit D3.

[23] Bundle of references: Exhibit D3, Mrs V (dated 6 October 2022), Mr V (dated 9 October 2022), JT (undated), LW (dated 9 October 2022), [Manager at Electrical Wholesaler] (undated), CD (dated 5 October 2022), MZ (dated 26 September 2022), JS (undated) and [JT's father] (dated 26 September 2022).

[24] Mr Sawyer cited Worboyes v The Queen [2021] VSCA 169; and Chenhall v The Queen [2021] VSCA 175; It was submitted that although the COVID-19 pandemic is diminishing, custodial conditions are still not back to normal with potential ongoing impacts for those who are kept in custody.

[25] The Queen v Verdins & Ors [2007] VSCA 102.

[26] Ultimately, the Crown did not dispute that a pre-sentence report should be ordered from Youth Justice.

[27] Sentencing Act 1991 (Vic) s 3(1) (Definition of 'Category A serious youth offence').

[28] Mr Gibson correctly pointed out that pursuant to s 32(2C) of the Sentencing Act 1991, since you are a young offender (defined as an offender who at the time of being sentenced is under the age of 21 under s 3(1) of the Sentencing Act), it is incumbent upon you to establish exceptional circumstances in order to avoid adult imprisonment.

[29] Sentencing Act 1991 (Vic) s 32(1)(a).

[30] Sentencing Act 1991 (Vic) s 32(1)(b).

[31] Sentencing Act 1991 (Vic) ss 32(2)(a) and (b).

[32] HM's actions were also a substantial and operating cause of death, but he was acquitted by a jury having relied on a claim of self-defence.

[33] [2022] VSC 341.

[34] [2008] VSC 299; 1; the Defence referred to the authorities of JPR v The Queen [2012] VSCA 50, The Queen v Woodburn [2002] VSC 72 and The Queen v EGC [2008] VSC 474.

[35] The Crown submitted that specific deterrence was invoked because Mr V's conduct immediately following the offending in which he did not show immediate remorse and was not particularly cooperative during your records of interview with police

[36] The Crown noted that the maximum sentence that may be imposed by the Supreme Court for detention of a young offender in a youth justice centre is four years, see s 32(3)(b) of the Sentencing Act 1991.

[37] Exhibit D4, Youth Justice Pre-Sentence Report - Suitability for Youth Justice Centre Order dated 29 November 2022, prepared by Amelia Catchlove.

[38] The following material was provided to Youth Justice by email on 21 October 2022 to assist in preparation of the report: Plea indictment; Summary of plea opening; Psychological report of Ms Carla Ferrari; Plea submissions in mitigation; Crown plea submissions; Bundle of character references in support of Mr V; and Transcript of plea hearing on 21 October 2022.

[41] NP grossly exaggerated what was done to his family by members of the Clark household.

[42] HM successfully relied on a claim of self-defence.

[43] For example, arming himself with a baseball bat and threatening others with it.

[44] Sections 32(1)(a) and (b) of the Sentencing Act 1991 (Vic) states that 'if a sentence involving confinement is justified in respect of a young offender a court may make a youth justice centre ... if it has received a pre-sentence report' and 'it believes that there are reasonable prospects for the rehabilitation of the young offender' or 'it believes that the young offender is particularly impressionable, immature or likely to be subjected to undesirable influences in an adult prison'.

[45] Section 32(2) of the Sentencing Act 1991 (Vic) states that in determining whether to make a youth justice centre order a court must have regard to the nature of the offence and the age, character and past history of the young offender.

[46] There is no pre-sentence detention: see s 35(1) of the Sentencing Act 1991 (Vic).