Crown v Accused

2 In addition to the abovementioned Summary of Agreed Facts, the Crown tendered the following documents at your plea hearing: an outline of prosecution submissions for sentence indication,[4] a bundle of victim impact statements[5] and a Crown chronology.[6]

3 In respect of you, Corey Smart, the following documents were tendered and relied upon: a written outline of submissions for sentence indication;[7] a table of comparative cases;[8] a letter from psychologist Alicia Bonaddio;[9] a letter from provisional psychologist Kimberly de Geest;[10] a bundle of character references;[11] prison drug screening results;[12] a prisoner education summary report;[13] Supplementary Defence Submissions on Plea;[14] and a letter of apology written by you.[15]

4 On behalf of you, Brayden Smart, the following documents were tendered: a written outline of submissions for sentence indication;[16] a psychological report of Gina Cidoni;[17] a letter from Robert W confirming previous employment at Morwell RSL;[18] a bundle of character references;[19] a prisoner education summary report;[20] prison drug screening results;[21] an updated prisoner education summary;[22] a supplementary psychological assessment by Gina Cidoni;[23] and a letter of apology written by you.[24]

5 Turning to you, Abraham Abas, the following documents were tendered on your behalf: a written outline of submissions for sentence indication;[25] a psychological report of Warren Simmons;[26] a bundle of character references;[27] a course certificate from Kangan Institute,[28] a prisoner education summary report;[29] prison drug screening results;[30] and a letter of apology written by you.[31]

6 The offending in this case concerns the tragic killing of Nicholas Henry who was only 18 years old at the time of his death.[32] At the time of the events that led to his death, Nicholas Henry was living in his white Nissan van. For convenience, I will refer to each of you by your first name. Corey and Brayden, you are brothers, and Abraham, you were a close friend of Brayden Smart. I will also refer to Corey's partner Taylor McGregor by her first name in these sentencing reasons.

7 At the time of the offence, you, Corey, were 23 years of age,[33] which makes you the oldest of the three of offenders before the Court. Brayden, you were 20 years of age,[34] and Abraham, you were 18.[35] You, Corey, resided in Morwell with your partner, Taylor and her family at the time of the offence. Brayden and Abraham, you were both living at an address in Morwell with Justin Smart, who is the father of Corey and Brayden.

8 The offence took place in Buckley Street, Morwell, shortly after midnight on 20 February 2021. Nicholas Henry was killed in the course of a joint assault committed by the three of you and another unidentified co-offender. The unidentified co-offender is yet to be brought to justice.

9 Your offending was motivated by retaliation, because it was believed that the deceased, Nicholas Henry, had broken into Taylor's car while she was at work at the Morwell RSL club on Friday 19 February 2021. Taylor finished work at around 10pm, and when she got to her car, she discovered that the front passenger seat window had been smashed in, ostensibly by someone attempting to break into the car. Taylor returned inside the RSL club, and in the presence of her supervisor, viewed the CCTV footage of the car park from that evening. The CCTV footage showed that at around 9.30pm, a white van drove into the carpark and parked next to Taylor's car. A young man could be seen getting out of the white van and spending time near Taylor's car, as well as trying the doors of other cars nearby.

10 Taylor reported the incident to police at 10.08pm and then called Corey. In response, you, Corey, sent text messages to Taylor, the first of which read: 'Get camera footage Taylor, I'll pay for the fucking damage'. That text message was followed shortly by another text message which read: 'Cunts wanna fuck around that's piss weak and we will replace that easy as hell without you even knowing the damage'.

11 You, Corey, drove to the RSL club and arrived at 10.17pm. You and Taylor inspected the damage to Taylor's car, and then separately drove your vehicles back to your home in Morwell. At 10.56pm, you made contact with your younger brother, Brayden. You and Taylor drove your car to Brayden and Abraham's place, arriving there around 11.06 pm. While at the house, a conversation took place between Corey and Brayden in the presence of Abraham, Taylor, and some other persons who were not known to Taylor.

12 The three of you left the premises in Brayden's black Ford Falcon along with Taylor and the unidentified co-offender. Corey was driving, with Taylor seated in the front passenger seat and Brayden, Abraham and the other person in the rear seat.

13 At 11.58 pm the Ford Falcon was captured on council CCTV footage in George Street Morwell and then a short time later it can be seen driving slowly in various locations around Buckley Street and Princess Drive, including in laneways and around car parks.

14 The Crown case is that you were searching for the white van at that time. At 12.14 am on 20 February 2021, the Ford Falcon drove through the car park at Morwell train station and a gloved hand was captured on CCTV throwing an object out the window. That object was subsequently retrieved by police and found to be a Jim Beam can bearing DNA consistent with Brayden Smart.

15 The three of you, along with the other passengers in the Ford Falcon eventually came across Nicholas Henry's white Nissan van and commenced to give chase. CCTV from Princess Street shows the Ford Falcon rapidly pursuing the white van at about 12.23am. The pursuit continued along Latrobe Street and into Buckley Street. The Ford Falcon caught up with the white van on Buckley Street and Corey corralled the van off the road. The van veered to the left, mounted the gutter and crashed into a fence.

16 Nicholas Henry jumped out of the van and started to run away. Corey, you stopped the Ford Falcon just behind the van and each of you and the fourth male got out and began to pursue Nicholas. Corey was the last to get out of the Ford. Taylor stayed back near the car. The three of you and the unknown offender caught up with Nicholas a short distance from his van, whereupon Nicholas fell to the ground, and was completely defenceless. He was quickly surrounded and the three of you and the co-offender commenced assaulting him. The assault was captured on CCTV, and shows all of you grouped around Nicholas, crouching over or bending down so as to be in a position to strike him. From my own observations of the CCTV footage, striking motions can be seen. It is now known that in the course of the assault, Nicholas was stabbed eight times in the lower back, buttocks and upper back leg. It is not known which of the four assailants performed the stabbing.

17 The noise of the joint assault attracted the attention of neighbours, including witness Thomas Chappell who overheard the words 'You dog, you rat, this is what mutt's get'.

18 According to the CCTV footage, the assault lasted for 24 seconds, and then each assailant can be seen to run off, leaving Nicholas lying motionless on the ground. Corey and Brayden, you smashed the windows of the van as you were departing. The other two offenders were back near the Ford at that stage. You, Corey, appear to return alone to the vicinity of where the assault took place and pick something up from the ground.[36] You can then be seen on the CCTV footage standing over Nicholas for a short period of time. Brayden joins you momentarily before you both return to the car. It is not alleged by the prosecution that any assault was performed by either of you - Corey and Brayden - in those final moments when you were both separated from the other assailants.

19 Brayden, you appear to give the van one last hit before getting back into the car. The car was then driven away.

20 Thomas Chappell and Tarwyn Hearn saw the Ford Falcon drive off and Mr Hearn was able to identify the make of the car and some distinctive features of it.

21 Showing considerable courage, Thomas Chappell went to Nicholas's aid, followed by some other neighbours. At that stage, Nicholas was still alive but bleeding heavily from an injury to the buttock. Police attended at 12.32am and paramedics attended shortly afterwards, conveying Nicholas to Latrobe Regional Hospital. Despite the efforts of hospital staff, Nicholas died at 2.30am.

22 Meanwhile, CCTV footage captured the Ford Falcon returning to Brayden and Abraham's address at approximately 12.50am.

23 The police investigation involved close examination of the crime scene and of CCTV footage. The Jim Beam can discarded by Brayden was forensically examined. Police were also able to identify part of the registration of the Ford from CCTV at the train station.

24 At 9.50am on 20 February 2021, police arrested you, Brayden, and your car was forensically examined. There was DNA linking each of you to having contact with Brayden's Ford Falcon at some stage, but more significantly glass fragments were found at the base of the windscreen of the Ford and in the driver's footwell. These fragments were able to be compared to the glass from Nicholas Henry's van.

25 Brayden, you declined to answer questions when you were arrested and you were charged and remanded in custody. Soon afterwards, each of you Corey and Abraham voluntarily attended Morwell Police Station and also declined to answer questions, and were charged and remanded in custody. At 4.00pm on 21 February 2021, Taylor attended Morwell Police Station, and cooperated with police and made a statement.

26 The prosecution case was supported by a compilation of the CCTV footage, which in combination with Taylor's statement, made it possible to track the movements of each of you in Buckley Street.[37]

27 Dr Brian Beer conducted an autopsy on Nicholas Henry's body[38] and found eight stab wounds to the buttocks, lower back and left upper posterior thigh. All of the wounds were non-fatal soft tissue injuries apart from a wound to the right buttock which unfortunately transected the posterior branch of the iliac artery leading to death through loss of blood.[39]

28 Dr Beer also observed tramline bruises to the deceased's left upper arm and left thigh consistent with being struck with an object.[40]

29 Although the Crown cannot establish who it was that wielded the knife in this case, the charge of manslaughter is based on an assertion that all the offenders who were engaged in the joint assault were party to an agreement or understanding with one another to assault the deceased knowing that in the course of the assault, it was probable that one of the group would unlawfully use a knife to injure the deceased.

30 Each of you originally faced a charge of murder, and during mid 2021 each of you consented to the fast-tracking of your matter from the Magistrates' Court to this Court. After some preliminary hearings,[41] the original indictment was filed in June 2022 on the more serious charge. With the consent of the Crown and each of you, the matter was set down for a case conference before me on 2 February 2023. Following the case conference, the parties sought and were granted a sentence indication hearing in respect of a proposed charge of manslaughter, which took place on 26 May 2023. The Court's indication was given on 30 May 2023, and was ultimately accepted by each of you.

31 You were then each arraigned and pleaded guilty to manslaughter, and your plea hearings took place on 14 July 2023. This sequence of events shows the value of cooperation by accused persons in processes aimed at expediting or resolving criminal proceedings. In circumstances where you could have sought to raise arguments about complicity, I regard your cooperation and pleas of guilty to the charge of manslaughter as very valuable. Had you chosen the path of a contested trial, the matter was expected to have taken four weeks or more. Your cooperation in the abovementioned processes was especially valuable as the Court addresses backlogs caused by the pandemic.

32 The Court received victim impact statements from the parents of Nicholas Henry and from his siblings. Nicholas' mother, Karen Henry said that her world was shattered when she received the news that her son had passed away. She has not been the same since and did not have the chance to say goodbye to her much loved son. She feels the world has been a darker place since his passing. She found it hard to express her heartbreak in her victim impact statement and is devastated that her son will not have the future that he could otherwise have had. Ian Pope said that he found it hard to put into words the heartache and pain he felt on learning of his son's death. He feels that his son's future was stolen from him and there is now an empty space in his heart that will never be filled.

33 Taylor Henry was living interstate at the time of her brother's death and knowing how he died broke her heart into a million pieces. She misses him every day and it never gets easier. Melissa said that her brother's death has affected her in many ways leaving her angry, hurt, devastated and fearful. She was Nick's oldest sibling and she feels that her brother had his life ahead of him and that the whole family will miss so many things that could have been a part of her brother's future. Nick's niece, Alithea explained that she had never met her uncle Nick and now will never get the chance to.

34 As mentioned during the plea hearing, it was clear to me that Nicholas Henry was deeply loved by family and friends and I have taken the victim impact statements into account in my consideration of this matter.

35 Each of the parties sought to rely on written and oral submissions put forward at the sentence indication hearing, along with matters encompassed in the formal plea hearing.

36 The Crown submitted that manslaughter is a crime that can be committed in a wide variety of circumstances, but that this case was a serious example of the offence. The Crown highlighted the targeted pursuit of the deceased, the four on one attack on him in retaliation for breaking into Taylor's car, the victim's helplessness in response to the attack and the dangerousness involved in the use of a knife in the course of the assault.

37 Whilst the case against each of you was put on the basis of complicity,[42] and it was not alleged that any of you personally inflicted the fatal wound, your awareness of the use of a knife in the joint assault was alleged to contribute to a high level of moral culpability.

38 Regarding the objective gravity of offending, the Defence responded as follows. On behalf of Corey it was noted that there is no allegation that the agreement to commit an assault involving one offender using a knife was formed prior to the offenders getting out of the car and chasing the deceased. It was further submitted that the assault lasted less than half a minute and occurred in a somewhat chaotic manner. It was therefore much less protracted offending than in many other manslaughter cases. Also, the single fatal stab wound was inflicted on a part of the body not commonly regarded as being a vital area. Brayden, your counsel adopted submissions made on behalf of your brother Corey regarding the circumstances of the offence to the extent that they are relevant to you. It was put on your behalf that your conduct as part of a group chasing the victim and assaulting him was reprehensible, but it did not cross your mind that those acts would result in the victim's death. Abraham, your counsel also adopted the submissions put forward on behalf of Corey to the extent they were also relevant to you.

39 In assessing the objective gravity of the offending, I accept the Crown's submissions as to the serious features of the offence. Nevertheless, having viewed the CCTV footage, I accept that following the pursuit of Nicholas, the assault itself was of short duration and appeared somewhat haphazard and chaotic. I am also conscious that the fatal wound was inflicted to the buttock of the deceased. I must sentence on the basis that it is not alleged that any of the three of you personally inflicted the fatal knife wound or had possession of the knife. Each of you have pleaded guilty on the basis of complicity with the person who did. That person could have been the unidentified fourth offender.

40 Whilst manslaughter is an offence that can give rise to a wide range of factual circumstances, the grievous loss of a young man's life by an unlawful and dangerous stabbing is a terrible thing, not just for his family and friends, but for the community as a whole. I regard this as a serious example of the offence of manslaughter, despite the factors I have mentioned that reduce the objective gravity to some degree.

41 Corey, you are now 26 years of age, and although not as young as Brayden and Abraham, you were still relatively youthful when you committed the offence.

42 In describing your family background, Mr McMahon SC noted that you grew up in a dysfunctional family setting along with your younger brother, Brayden. Brayden is your only sibling from your parents' union, although you have other half siblings from your parents' later relationships.

43 You were exposed to significant family violence during your early years perpetrated by your father against your mother, although your mother was also violent at times. You recall your mother being struck in the face by an ashtray wielded by your father and that you were thrown around when you tried to intervene. Both of your parents were heavy drinkers and heavy drug users during your childhood and used drugs in front of you and Brayden. Your mother is said to have been a user of ice and cannabis, and your father used drugs as well as being a heavy user of alcohol.

44 When you were around the age of four, your mother left your father and moved in with your aunt and her family. Your aunt was also a drug user, although she had a less chaotic lifestyle than your mother. After a while, your mother obtained a house in Morwell and moved there with you and Brayden. During your primary school years your father moved back in with your mother and family life improved for a while. Your father began helping at your primary school, coaching and refereeing soccer. You and Brayden became keen soccer players.

45 Eventually the family situation deteriorated again and your parents fell back into heavy substance abuse. Your parents separated but remained living under the one roof and your father began running up utility bills and damaging property. When you were around 9 years of age your mother began a new relationship with a next door neighbour who was also a heavy drug user. Your father's violence escalated and you confronted your father on several occasions, in an effort to protect your mother. Your father moved out of the house following a public confrontation at one of your soccer games.

46 Over the years that followed, you and your brother split your time between your two parents' homes and that of your aunt. Your aunt was more of a mother figure to you than your own mother. Your mother's drug use escalated and her home life was tumultuous. Your mother's new partner was violent towards you and your mother. You returned to live with your mother on occasions, only to leave after physical altercations with her partner. During that period, your father provided a more stable household as he reduced his use of harder drugs and maintained involvement with your school and with soccer.

47 You began to get into trouble in your adolescence. At the age of 14, you were involved in a serious car accident leading to broken bones and swelling on the brain. You returned to your mother's home for a short period after the accident, but left at age 15, having been expelled from school for fighting. You were homeless for a period, alternating between couch surfing or staying with your aunt. You stopped playing sport and your father cut off contact with you. You also did not speak to your mother for approximately two years.

48 At age 17, you learned that your mother had been badly beaten by her partner. By that stage, she had a daughter with him. You confronted your mother's partner and he then left the home. Following this episode, you returned to live with your mother and younger sister for a while, and helped your mother care for your younger sister.

49 You and Taylor have been in a relationship since you were aged 16. You moved in with Taylor's family for a short while in your late teens, before establishing a household with Taylor, your mother and your younger sister. Your mother became more stable and found employment.

50 During your teenage years, you had been mixing with negative peers and using alcohol, cannabis and ice. This escalated into an addiction, and at times you also abused prescription medication. When you were 18, Taylor gave you an ultimatum to stop using all drugs or else she would end the relationship. You subsequently stopped using ice, although you still smoked cannabis and continued to do so up until your remand.

51 Regarding your educational history, you attended the local primary school and excelled in sports. You were made school captain in grade 6. You enrolled at Trafalgar High School but were expelled for fighting. You were accepted into Kurnai College in Morwell on the condition that you complete a six month program for troubled children. The program focused on anger management. You completed the program and returned to mainstream schooling but were expelled half way through Year 9 for fighting. You were referred to adult education at Berry Street House where you attended three days a week while doing TAFE two days per week. You successfully completed Year 10 in that program and obtained a Certificate II in metal induction.

52 You have a positive employment history despite your troubled upbringing. You obtained your first job at 14 doing casual landscaping maintenance for a real estate agent. You continued that work until shortly after leaving school. At the age of 16, you obtained an apprenticeship with Gippsland Land Services doing landscaping work for Federation University in Churchill. You commenced, but did not complete a Certificate III in agriculture and horticulture. You worked in landscaping until the age of 18 but were fired for returning a positive drug screen.[43]

53 At 18, you commenced work as an apprentice baker and worked from 9.00pm until 5.00am five days a week. You held that job for two years and then took up work as a welder with Eziquip in Morwell, at the age of 20. You worked full-time and earned a good income, often receiving bonuses for your work. However, you were made redundant after two years.

54 Over the years, you have also performed casual concreting work with Taylor's father, Mr McGregor. Prior to being arrested for the current offending, you and Mr McGregor had been considering starting a concreting business together, and there may still be the option to pursue that opportunity when you are ultimately released.

55 Your partner, Taylor, is a university graduate and works full-time in hospitality. She has no adult criminal history and remains supportive of you. You have daily phone contact with her and exchange letters. She is your main support in the community. In 2020, you and Taylor bought a low cost cabin in a caravan park and began renovating the cabin together.

56 Your criminal history includes youth and adult entries. As an adult, in November 2017 you were convicted of various driving-related offences.[44] In February 2019, you were convicted of one charge of recklessly cause injury. That charge arose out of an altercation with your neighbours, who were drunkenly 'mouthing off' at your mother out the front of your house. I understand through your counsel that you became involved out of a sense of loyalty to your mother. I was told that the firearms convictions on your record were related to the fact that you and Taylor liked to engage in recreational hunting. You received fines for those offences.

57 On 28 March 2019, you were convicted of a threat to inflict injury and placed on a Community Correction Order. This related to a verbal altercation outside McDonalds where some football players were abusing your younger brother. You were subsequently convicted for breaching that Community Correction Order and during that court attendance,[45] a number of offences were dealt with together, including intentionally damage property, committing an offence while on bail, firearms offences and possession of cannabis. Mr McMahon said that the incidence of intentionally damaging property arose when a person was doing burn outs in your street, having been repeatedly told not to, and that out of frustration you damaged the windscreen of his car. When police attended they found ammunition and the other items in your garage.

58 I do not consider it relevant to refer to your Children's Court offending.

59 In summary, it was put on your behalf that you have a relevant but not lengthy prior criminal history. You have a strong employment history and you have the ongoing support of Taylor and her family, as well as from your mother.

60 You have progressed well on remand despite the fact that your time in custody has been more onerous due to the COVID-19 lockdowns and periods spent in quarantine. You self-referred to Caraniche for drug and alcohol counselling and undertook 35 sessions of counselling from Caraniche. You have produced a large number of clean urine samples and according to Mr McMahon have been completely drug free for the first time since your adolescence. You have also been working in prison industries since 21 April 2023, making cattle crushers and you have been elevated to the position of essential worker, training other prisoners in the work.

61 Furthermore, you contributed to an improvement in conditions for working prisoners by writing to prison management about disadvantages for working prisoners in terms of access to other daily privileges. This resulted in changes within the prison. It was put on your behalf that you have promising opportunities for future employment when you are released.

62 I accept that the letters from Caraniche indicate a determination to reform yourself. This is also evidenced by your drug free status and the information about your work in prison industries. Furthermore, the testimonials put forward on your behalf suggest that you will have strong support and ample opportunities for employment when you complete your sentence. You have written a letter of apology which appears genuine.[46]

63 I regard specific deterrence as somewhat relevant to you, but I accept your counsel's submission that your term of imprisonment for this offence might represent a fork in the road for your future path in life.

64 Submissions on behalf of you, Brayden, echoed those of Corey reflecting that your childhood involved exposure to drugs, alcohol and violence causing you psychological distress. You recall occasions from your early childhood when your parents' violence overwhelmed the household and Corey would take you to another room and turn the television up to block it out. You came to rely on your older brother for support and guidance instead of relying on your parents.

65 You escaped the dysfunction of your home-life through school and through becoming involved in sport, and through the bond that you had with Corey. You were very good at sport and gained a leadership position in Grade 6.[47] You attended Kurnai Morwell Campus for secondary school, continuing to play sport and avoiding going home after school.

66 You did a paper-round in secondary school and at the age of 15 you began working at a KFC premises, progressing by the age of 16 to a responsible role training others. You were offered a United States college scholarship to play soccer but decided to leave school and commence an apprenticeship at the end of Year 10. However, your brother Corey encouraged you to go back to school and complete Year 12, which you ultimately did. You are only the second person in your family to complete Year 12.

67 Prior to your arrest you were working at the RSL Club in Morwell,[48] as well as working for the Joshua Tree Home Support organisation caring for elderly and disabled people.[49] You were working approximately 70 hours a week most weeks. The employment letters that were tendered on your behalf speak very well of your behaviour prior to your arrest.

68 You have one Children's Court entry on your criminal history. I do not place weight on that matter. Despite that court appearance you maintained responsible employment up until your arrest for the serious offence before the Court.[50]

69 You were assessed by psychologist, Gina Cidoni, who described you as youthful, friendly and cooperative in her interview with you.[51] Ms Cidoni described your childhood exposure to your parents' intravenous drug use and your father's mood swings. You told Ms Cidoni that your father was assisted by the Salvation Army who provided furniture and food. Eventually your father reduced his use of heavier substances and became involved in community soccer. During your mother's relationship with a neighbour the nature of her lifestyle led to you spending more time in your father's household.

70 Up until the time of the offending, you were living at your father's house where you had lived since the age of 14. Your mother is now single and works at a café and both of your parents remain important to you despite your dysfunctional upbringing. Prior to your arrest you occasionally used cannabis and would drink on weekends, but since going into custody you have had no difficulty remaining free of substances. This fact is supported by screening results produced by you.[52]

71 Ms Cidoni stated that you found your time in Port Phillip Prison frightening and were assaulted there whilst eating your dinner. Nevertheless, you have attempted to make the most of your time in custody by completing a number of educational certificates and courses. I note the educational certificates tendered on your behalf.[53]

72 Whist on remand, you have also been working as a billet doing welding in prison industries.[54]

Despite his challenging upbringing Mr Smart has demonstrated resilience and a positive adjustment in adulthood. He has been actively contributing to society by working two jobs, saving his money and he excelled in soccer which reflects stability and responsibility. Additionally, he voluntarily decided to give up substance abuse which are mitigating factors.

74 Ms Cidoni considered that the experiences of your early life may have led to difficulties coping with stress and a heightened sensitivity to adverse circumstances and that the dynamics of your relationship with your older brother, along with your immature development were all contributing factors to your involvement in the offending. She also referred to the impact of a group dynamic leading to actions being taken that may not have been taken alone.[55] I accept that these factors help explain your offending, although of course, they do not excuse it.

75 Ms Cidoni referred to the risks to your ongoing development from a lengthy jail sentence. In her supplementary report, she emphasised your remorse and your desire to continue to participate in education and counselling, including for anger management.

76 In your favour, you have been offered employment in the hospitality sector in Morwell upon your release from prison.[56]

77 I accept that your letter of apology is genuine and sincere.[57] You refer to experiencing constant reminders of your involvement in the offence, and that your crime eats deep into your conscience.

78 I accept that specific deterrence has less relevance for you than for your older brother Corey because of your very limited criminal history.

79 Turning now to you, Abraham; you were only 18 at the time of the offence. I was told you were born in 2002, after your family fled Sudan. Your father and uncle were in the army in Sudan and your mother was a midwife at the local hospital. Rebels came through your house and killed your father and grandmother. Your mother fled with your siblings whilst pregnant with you. She sought refuge in Ethiopia and then in Kenya. You were born in a refugee camp in Kenya and spent the first four years of your life there, where you were exposed to people who had suffered severe trauma. Your family migrated to Australia in 2006 and lived with a sponsor in Dandenong for a while before moving to Springvale, and then to Morwell in 2007.

80 You attended Morwell Park Primary School and your family began to prosper as part of the local community. However, in 2010 when you were 8 years old the family home caught fire and was destroyed, along with many personal belongings that were inside. Your family had to rebuild from scratch, which was difficult because your mother relied on Centrelink benefits. Eventually, you were able to resume school.

81 At the age of 14 you were injured in a dirt-bike accident and you were airlifted to the Royal Children's Hospital. You sustained a number of fractured bones and bleeding on the brain. There was a shift in your behaviour following your release from hospital. You began using alcohol and cannabis and staying away from home. You were suspended from your Catholic secondary school and transferred to Kurnai College secondary school. After Year 8 you were again suspended and moved to an alternative school where you studied VCAL.

82 You have no adult prior convictions, however you appeared in the Children's Court for some offences between 2017 and 2019.[58] None of those matters involved violent offending and I do not place weight on them. What is of greater concern is that you have admitted to a degree of recreational drug use through your late teens. It will be important for you to avoid drug use when you are released from prison.

83 You dropped out of school in Year 10 and started, but did not complete, a carpentry course. You then began working at a pizza shop as well as labouring, restumping houses. You moved in with Brayden Smart, whom you knew through playing soccer. You were still working as a pizza delivery driver at the time of your arrest, and you had been continuing to play soccer in the reserves and seniors for a local Morwell soccer club.

84 Most of your siblings have university degrees and have done very well in life. Your mother works as a deacon at a local church. Your family have provided ongoing support to you and have remained in contact with you while you have been in prison.

85 You have been in a relationship with Sally for four years and are engaged to be married to her. Sally provided a letter to the Court in which she describes your remorse for the offending.[59] Alison, Sally's mother, also gave a letter of reference. She is a registered nurse and has known you for five and a half years, firstly as Sally's friend and then as Sally's partner. She describes you as a person who comes from a home where family values are important. She says that since you have been in prison you have been extremely remorseful for your actions and that you have embraced religious faith. She says you will have the full support of your family when you are released and she supports your relationship with her daughter, notwithstanding your offending.[60] Rev. Peter Deng describes you as a person who has always been a caring son to your mother.[61] Rev. Mark Tuffin has visited you in custody and encouraged your religious faith. He states that you seem genuinely repentant for your actions.[62] Similar sentiments were expressed in a letter provided by your older sister.[63]

86 You have found your time on remand in an adult prison very confronting, especially during the lockdowns caused by the pandemic when you had little contact with your family. You have been prescribed antidepressant medication in custody. Despite these challenges, you have used your time on remand productively and remained drug free.[64] You have been working in the timber industries section of the prison. You have also undertaken several short educational courses.[65]

87 You have reflected on the choices you have made in the past and wish to reform yourself. You hope to marry your fiancé when you are released. You have written a letter of apology indicating your deep remorse and regret for your actions and your desire to make amends. I accept that your letter is sincere.

88 A psychological report was received from Warren Simmons who described you as a person who showed no evidence of any significant anti-social personality traits, but as a person who has looked towards male peers to find a male role model that you did not otherwise have. It was also noted that you have experienced symptoms of post-traumatic stress disorder in the past, though not presently meeting the threshold for formal diagnosis.

89 The positive value of your relationship with your fiancé was emphasised by Mr Simmons and you were described as a bright and articulate young man with good prospects. Mr Simmons considered that your past offences seemed to be related to peer group behaviour and the absence of a male role model. I accept the opinions expressed in Mr Simmons' report.

90 Despite your immediate family being based in Victoria, you face the risk of deportation at the end of your sentence due to the circumstances of your birth in a refugee camp in Kenya and because you are not an Australian citizen. I accept that the risk of deportation and separation from your family weighs heavily on your mind and increases the hardship of your custodial circumstances. I take this into account in sentencing you.[66]

91 As mentioned earlier, in respect of each of you, your pleas of guilty to the charge of manslaughter avoided the necessity for a trial. Nicholas Henry's family have been spared the ordeal of waiting for a contested hearing to be finalised.[67] Court resources have been saved. Each of you are entitled to a utilitarian discount for your guilty pleas. Your pleas of guilty also show acceptance of responsibility for the offence.

92 You are each entitled to the benefit of a discounted sentence on the basis of Worboyes factors,[68] both because of the saving of precious court resources due to your pleas of guilty and because Worboyes principles recognise that during the COVID-19 pandemic prisoners were subjected to greater deprivation and hardship than usual.

93 Youthfulness and the importance of rehabilitation of young persons are important sentencing considerations,[69] although in this case the importance of youth must be weighed against the serious nature of the crime.[70]

94 I consider that the weight to be attached to youthfulness is greater for you, Abraham and Brayden, than for Corey. Abraham was only 18 at the time of the offending,[71] and Brayden was only 20. Corey, you were 23 years of age at the time of the offending, so youthfulness is of lesser importance in your case, although I accept that you were still a relatively young man. It cannot be ignored that each of you has spent over two years in an adult prison, and that this experience will have left its mark on each of you.

95 I accept that Bugmy principles apply to each of you to a moderate degree to reduce your moral culpability.[72]

96 Corey, you were older than your brother Brayden when the more extreme conflict and poor behaviour happened between your parents. You felt the need to protect Brayden from that exposure and due to your mother's circumstances you became embroiled in seeking to protect your mother from a violent partner. Brayden, your dysfunctional upbringing led to an abnormal degree of dependency on your older brother Corey for support and protection.

97 Abraham, your early childhood involved significant adversity. Your early life in a refugee camp, and the deprivation caused by growing up without a father are matters that have had an impact on your development. While your mother and your older siblings have been a good influence on you, I accept that you have faced many challenges and needed to make frequent adjustments due to changing circumstances faced by you and your family.

98 Each of you has referred to the availability of family support when you are released from custody although it seems that Corey relies more on support from Taylor's family, particularly her father. Brayden you have relied heavily on Corey for guidance as you grew up but you were living in the same household as your father at the time of the offending. Abraham was also living there. Abraham, you have a loving and supportive family, but have grown up without a father and grandmother due to conflict in the country where you were born. You also receive support from your fiancé's family.

99 Regarding prospects of rehabilitation, I accept that each of you have been very well-behaved prisoners according to records produced to the court and that this is a favourable matter in assessing rehabilitation. Brayden and Abraham, I accept that each of you have very good prospects for rehabilitation, due to your limited criminal histories, your good employment records, your youth, and your obvious remorse for the offending. Corey, although you are older and have been in more trouble in the past, I still regard your prospects of rehabilitation as good based on subjective matters such as the resilience you have shown in overcoming the adversity of your childhood, gaining employment and gaining the support of your partner and her family.

100 I consider that specific deterrence and community protection are not of great relevance to you Brayden or Abraham because it is clear that your involvement in the offending and your time in prison has caused you to reflect very carefully on the path your life is taking. Corey, principles of specific deterrence and community protection are somewhat more relevant to you due to the fact that you have been in trouble with the law in the past and some of your previous offending involved violence.

General deterrence, denunciation, just punishment

101 General deterrence, denunciation and just punishment are relevant in sentencing each of you.

102 As required by s 5(3) of the Sentencing Act 1991 ('Sentencing Act') I apply the principle of parsimony to the sentencing of each of you.

103 Regarding disparity of your roles, I regard Corey as having played a more significant role in the offending than Brayden or Abraham. Firstly, because it was Corey who engendered the sense of grievance about what had been done to his girlfriend's car; secondly, because it was Corey who gathered the group together and drove them away in Brayden's car; thirdly, because it was Corey who corralled the white van off the road before the four assailants pursued Nicholas Henry on foot.

104 I accept that Brayden's reasons for embarking on this episode were influenced by the regard he held for his older brother. Abraham was a friend of Brayden, and his connection and motive for participating appear to have been more remote and more difficult to understand.

105 I regard the objective gravity of Brayden and Abraham's roles in the offending as largely equivalent and note that your counsel did not dispute this characterisation at the sentence indication hearing.

106 In considering matters personal to each of you I note that Corey is older than Brayden and Abraham and his criminal history is worse. Brayden and Abraham's personal characteristics and circumstances are comparable in terms of the weight to be given to various mitigating factors. All of these matters in combination lead to the conclusion that Corey should receive a higher sentence than Brayden or Abraham, and that Brayden and Abraham should receive a sentence of the same length as one another.

107 I considered comparative cases when providing sentence indications in this matter and have done so again. My review of comparative cases fortifies my view that the indications I gave prior to your arraignment were appropriate.

108 The cases that appear most useful for comparative purposes are DPP v Manuel,[73] The Queen v Oakley,[74] The Queen v Deng[75]and DPP v Yassin.[76] Counsel for Corey Smart also referred to DPP v Cugarno-Pfabe[77] on the basis that it shared some similar features with the current case. I accept that in considering comparative cases it is important to recall that none of you are being sentenced as the person who actually wielded the knife at the time of the fatal stabbing.

109 In sentencing each of you, I observe that the family of Nicholas Henry have lost a dearly loved family member and that nothing can compensate them for their profound grief and loss.

110 Each of you should keep Nicholas Henry in the forefront of your minds as you embark on your future lives. You will need to do your utmost in the years to come to regain the respect of your families, future employers and the communities from which you come. In fixing a non-parole period for each of you I have taken account of your prospects for rehabilitation.

111 Having already provided sentence indications to the parties, I would only make a modest adjustment to the non-parole period indicated for Corey by reducing it by six months on the basis that I consider his prospects for rehabilitation slightly better than appeared at the time of the sentencing indication.

112 I turn now to the sentences, beginning with Corey.

(a) Corey Smart, I sentence you to 8 years and 6 months' imprisonment. I fix a non-parole period of 5 years.

(b) I declare that, pursuant to s 6AAA of the Sentencing Act, had you not pleaded guilty, I would have imposed a sentence of 10 years and 6 months with a minimum non-parole period of 8 years.

(c) Pursuant to s 18 of the Sentencing Act, I declare that you have already served 906 days by way of pre-sentence detention, not including today's date, and I direct that this be reckoned as time already served under the current sentence.

(a) Brayden Smart, you are sentenced to 7 years and 6 months' imprisonment. I fix a non-parole period of 4 years and 6 months.

(b) Had you not pleaded guilty, I would have imposed a sentence of 8 years and 6 months' imprisonment with a minimum non-parole period of 6 years and 6 months.

(c) I declare that you have already served 908 days by way of pre-sentence detention, not including today's date, and I direct that this be reckoned as time already served under the current sentence.

(a) Abraham Abas, I sentence you to 7 years and 6 months' imprisonment. I fix a non-parole period of 4 years and 6 months.

(b) Had you not pleaded guilty, I would have imposed a sentence of 8 years and six months' imprisonment with a minimum non-parole period of 6 years and 6 months.

(c) I declare that you have already served 906 days by way of pre-sentence detention, not including today's date, and I direct that this be reckoned as time already served under the current sentence.

116 I will make the disposal orders sought in respect of each co-offender, as well as the forfeiture order.

[1] The maximum sentence was increased to 25 years for offences committed after 1 July 2020; manslaughter is a category 2 offence which means that the provisions for s 5(2H) of the Sentencing Act 1991 apply.

[2] On 30 May 2023, I indicated that in respect of each of the accused that if they were to plead guilty to manslaughter at the earliest opportunity, I would impose the following sentences: for Corey Smart, a term of imprisonment of no more than 8 years and 6 months with a non-parole period of no more than 5 years and 6 months; for Brayden Smart, a term of imprisonment of no more than 7 years and 6 months with a non-parole period of no more than 4 years and 6 months; and for Abraham Abas, a term of imprisonment of no more than 7 years and 6 months with a non-parole period of no more than 4 years and 6 months: DPP v Smart & Ors (Supreme Court of Victoria, Jane Dixon J, 30 May 2023) ('Sentence Indication Ruling').

[3] The Crown requested that the Court treat the Summary of Agreed Facts previously tendered at the Sentence Indication hearing as the Summary of Prosecution Opening at the plea hearing and the Defence in each case did not object to this course: Transcript of Proceedings, DPP v Smart & Ors (Supreme Court of Victoria, S ECR 2021 0192/0194/0200, Jane Dixon J, 14 July 2023) 3 ('Plea Transcript').

[9] Exhibit C3: This letter, dated 1 March 2023, confirms Corey Smart's attendance at drug and alcohol counselling offered by Caraniche.

[10] Exhibit C4: This letter, dated 5 May 2023, confirms Corey Smart's self-referral to Caraniche.

[11] Exhibit C5: Character references provided by Scott McGregor dated 15 May 2023, Taylor McGregor dated 15 May 2023, Justin Smart dated 15 May 2023 and Natasha Swallow dated 15 May 2023.

[12] Exhibit C6: Urine toxicology results dated 17 September 2021, 18 September 2021, 17 November 2021, 3 May 2022 and 14 December 2022.

[14] Exhibit C8: submissions dated 12 July 2023.

[15] Exhibit C9: the letter is undated.

[16] Exhibit B1: tendered on 14 July 2023.

[17] Exhibit B2: report dated 18 May 2023.

[18] Exhibit B3: letter dated 16 May 2023.

[19] Exhibit B4: Character references provided by Justin Smart and Natasha Swallow on 15 May 2023 and Lisa F on 30 June 2023.

[20] Exhibit B5: last entry dated 24 May 2021.

[21] Exhibit B6: results include 19 March 2021, 4 May 2021, 17 July 2021, 31 August 2021, 4 September 2021 and 7 June 2022. A further screening result was tendered as Exhibit B10, having been provided on 13 May 2023.

[22] Exhibit B9: last entry dated 16 May 2023.

[23] Exhibit B7: report dated 2 July 2023.

[24] Exhibit B8: the letter is undated.

[26] Exhibit A2: report dated 13 May 2023.

[27] Exhibit A3: references provided by Sally on 17 May 2023, Martha Abas on 12 May 2023, Rev. Mark Tuffin on 11 May 2023, Alradi Ali on behalf of the Sudanese community in Gippsland (undated), Rev. Peter Reath Deng dated 24 May 2023, and Alison (Sally's mother) dated 7 July 2023.

[28] Exhibit A4: the certificate confirms completion of Certificate II in Cleaning dated 31 March 2021.

[31] Exhibit A7: the letter is undated.

[36] Mr McMahon suggested this may have been the car keys.

[37] Compilation CCTV prepared by DLSC Cashman.

[39] The wounds have the appearance of being inflicted with a single edge knife. It was not possible to say if they were all inflicted with the same knife.

[40] Kinds of objects that could have caused this bruising were something such as a pipe or a wooden implement. There were other bruises and abrasions consistent with the deceased being scraped along the ground.

[41] An initial directions hearing took place on 3 August 2021 in this Court. Section 198B examinations took place on 3 and 5 November 2021.

[42] Pursuant to s 323(1)(d) of the Crimes Act 1958.

[43] In circumstances where the job involved mandatory drug screening.

[44] Those offences included fraudulent use of a registration label, use of vehicle displaying registration labels other than the one issued, use of unregistered motor vehicle, and driving without "P" plates displayed.

[46] This letter was provided after the sentence indication hearing.

[47] Brayden's father's letter (Exhibit B4) referred to Brayden having been school captain and on the junior school council whereas Brayden's mother letter (Exhibit B4) referred to Brayden having been vice captain. Defence written submissions referred to Brayden being school captain in Grade 6 (Exhibit B1).

[48] The letter from Robert W of Morwell RSL indicated that Brayden worked there as a bar and gaming attendant from October 2018 to February 2021 (Exhibit B3).

[49] The letter from Lisa F of Joshua Tree Home Support (JTHS) states that Brayden commenced working there on 3 December 2020. Lisa F states that in his role, Brayden was always professional, honest and very well-liked by participants and colleagues, and maintained the confidentiality and dignity of all his participants at all times. The letter notes that Brayden had enrolled in a Dual Certificate within JTHS to commence April 2021 (Exhibit B4).

[50] In 2018, you appeared in the Latrobe Valley Children's Court on charges of assault in company and offensive behaviour and received a fine without conviction. An aggregate fine of $500.00 was imposed. Ms Cidoni reported that Brayden said he was with friends and had consumed alcohol. Words were exchanged with another group leading to a scuffle.

[53] Certificate I in General Education for Adults, Certificate I in Skills Vocational Pathways, Certificate II in Cleaning, Certificate II in Engineering, Certificate II in Information Digital Media and Technology, Certificate II in Kitchen Operations, Education Services, Providing First Aid and Test and Tagging. See Exhibit B5 and B9.

[54] Defence written submissions describe that Brayden received the status of an essential working prisoner training and mentoring others: Exhibit B1[15].

[55] Ms Cidoni's discussion of the contributing factors influencing Brayden's offending behavior is to be found at [75] -[80] of her report: B1.

[56] Exhibit B3: Letter from Robert W of Morwell RSL.

[58] In August 2019, you were sentenced in Dandenong Childrens Court to a good behaviour bond without conviction for entering a private place without authority. In May 2019, you were sentenced in Latrobe Valley Children's Court to a good behaviour bond for unlicensed driving, using an unregistered vehicle, using an unroadworthy vehicle, rider fail to wear motorbike helmet, theft from shop and failing to answer bail. In September 2017, you were sentenced in Latrobe Valley Childrens Court to a good behaviour bond for theft of a motor vehicle, theft from shop, and committing an indictable offence whilst on bail.

[59] Exhibit A3: Letter dated 17 May 2023.

[60] Exhibit A3: Letter of Alison (Sally's mother) dated 7 July 2023.

[61] Exhibit A3: Letter of Rev. Peter Deng dated 24 May 2023.

[62] Exhibit A3: Letter of Rev. Mark Tuffin dated 11 May 2023.

[63] Exhibit A3: Letter of Martha Abas dated 12 May 2023.

[65] See Exhibits A4 and A5:Certificate from Kangan Institute and Education Summary Report; noting completion of units in Certificate I 'Access to Vocational Pathways', Certificate II in 'Cleaning', Certificate II in 'Furniture Making', Certificate II in 'Kitchen Operations', and 'Language, Literacy and Numeracy'.

[66] As noted by the Court of Appeal in Guden v The Queen [2010] VSCA 196, '[T]he fact that an offender will serve his/her term of imprisonment in expectation of being deported following release may well mean that the burden of imprisonment will be greater for that person than for someone who faces no such risk.'

[68] Worboyes v The Queen [2021] VSCA 169.

[69] R v Mills (1998) 4 VR 235.

[70] Azzopardi v The Queen [2011] VSCA 372; (2011) 35 VR 43, 57 [44] 'as the level of seriousness of the criminality increases, there will be a corresponding reduction in the mitigating effects of the offender's youth'.

[71] Information as to Abraham's true age was provided by counsel Mr Cronin by reference to a birth certificate and material from his mother even though his formal age is recorded on some records as older.

[72] Bugmy v The Queen [2013] HCA 37; 249 CLR 571: Childhood deprivation and disadvantage may impact on a person's moral culpability for the offence, depending on the extent of such disadvantage which may vary in degree and severity. The effects of such disadvantage are enduring. However, in considering the way in which a person's behaviour is impacted by Bugmy factors, it is also relevant to consider whether, conversely, the need for community protection is increased.

[73] [2021] VSC 568; Manuel was relied on by Counsel for Corey Smart as being a relevant comparator. In Manuel, the offender, aged 27, inflicted a fatal stab wound to the victim's head during an altercation which the offender had instigated. After stabbing the victim, the offender stole the victim's car. The offender was born in New Zealand and will likely be deported upon the completion of his sentence. For the offence of manslaughter, the offender was sentenced to 7 years and 6 months' imprisonment, and received a total effective sentence of 7 years and 9 months' imprisonment with a non-parole period of 5 years.

[74] [2021] VSC 430; In Oakley, the offender inflicted five stab wounds to the victim, who was unarmed. There was a history of hostile, threatening and goading interactions between the two men, including two prior incidents involving violence or threats of violence. The offender was sentenced to 9 years and 6 months' imprisonment with a NPP 6 years and 6 months.

[75] [2023] VSC 257; In Deng, the offender confronted the victim in a public place and stabbed the victim to the abdomen. It was accepted that the offender was the primary physical aggressor, however aspects of the factual circumstances of the offending were disputed. At the time of the offending, the offender was aged 23, and was on bail and in breach of his bail conditions. The offender was sentenced to 7 years and six months' imprisonment, with a NPP of 5 years.

[76] [2021] VSC 780; In Yassin, the offender fatally stabbed the victim in the chest following a brief struggle in which both the offender and victim were armed. The offender was aged 24 at the time of the offending. The offender was sentenced to 7 years' imprisonment with a NPP of 4 years.

[77] [2021] VSC 749 ; It was pointed out that the two offenders Cugarno and Nagy, were both fairly young. The victim was attacked in the process of being robbed for drugs, leaving the victim with fatal knife wounds before the offenders fled the scene. The sentences imposed were Cugarno-Pfabe; 7 years 6 months NPP 4 years and 5 months and for Nagy and 8 years NPP 5 years.