DPP v JF [2021] VSC 328

3 At the time of the offending, you were 15, and JK was 17 years old. Neither of you knew Mr Bourke.

4 On the night of Saturday 14 July 2018, you and JK both attended a party thrown by one of your friends, at a house that was a few doors away from Mr Bourke's house. The party started around 7:30pm.

5 You and JK drank alcohol shortly before and throughout the party. The precise amount you had both drunk is unknown, but you admitted to police that you had been drinking, and many witnesses described you as being very drunk that night.

6 A few months earlier, one of your close female friends, H, told you that she had been sexually assaulted by her father, who lived on the same street as Mr Bourke.

7 On the night of the party, some witnesses described you as becoming emotional about unrelated sexual assault allegations made against you by a girl, K, as well as about H's complaint.

8 At some stage, you decided to go and confront H's father. JK agreed to go along with you. Tragically for Mr Bourke, the two of you went to the wrong house.

9 In the early hours of Sunday morning, you and JK left the party, and walked the short distance down the road to Mr Bourke's house. You went to the back door and tried, unsuccessfully, to kick it in. You then went to the front of the house, and kicked in the front door.

10 Mr Bourke came to the front door, using crutches to help him stand up. You and JK began to assault Mr Bourke. Mr Bourke fell to the floor, his body lying within the front entrance. You and JK entered the house, where you continued to assault Mr Bourke. You kicked and punched Mr Bourke, stomping on and kicking his head. JK punched Mr Bourke in the head, and stomped several times on Mr Bourke's legs.

11 At some point JK tried to stop you continuing to assault Mr Bourke, but you kept going, inflicting multiple injuries to Mr Bourke, which left him dead or seriously injured. He died from craniofacial injuries, caused by blunt force trauma to his head and face.

12 In finding you guilty, and JK not guilty, of murder, the jury clearly found that it was your actions alone, not the actions of JK, which caused Mr Bourke's death.[2]

13 After you returned to the party, you and JK spoke with several people. You variously said you had bashed or hurt someone, that you thought the person was dead, and that you had been in a fight with H's father.

14 You spent the night at a friend's house. The next morning, you and JK were picked up and driven down the street where the party had been held. JK was overheard saying to you "We got the wrong house".

15 On the Sunday morning, one of Mr Bourke's neighbours discovered his body, when he went to investigate why the front door was open, and the porch light was still on.

16 On the Sunday evening, you were arrested and taken to the Maryborough Police Station for interview. You admitted walking to your friend's father's house. You admitted you intended to speak with your friend's father about the sexual assault allegations, and possibly to bash him. You remembered kicking a man a couple of times, possibly to the right jaw and cheekbone, a flashback of a man's face with blood on it, and running out the front door to return to the party. You believed you had assaulted your friend's father. You said you thought you had bashed him, but did not know the man was dead.

17 In early 2020, you and JK were both tried for the murder of Mr Bourke. At trial, you pleaded not guilty to murder, but guilty to manslaughter. You said that you were involved in the assault on Mr Bourke, but did not intend to cause him really serious injury. In finding you guilty of murder, the jury must have rejected your claim.

18 I turn to consider the seriousness of your offending.

19 I have no doubt that you were the instigator of the attack on Mr Bourke. You were the one who was in a highly emotional state, after K accused you of sexually assaulting her. You were the one who wanted to punish H's father, for what you understood he had done to her. You enlisted your friend, JK, to come along and help you confront someone whom you believed to be a paedophile.

20 Your own sisters had been sexually abused by your stepfather; you were disgusted by his behaviour and became very protective of girls whom you thought had been abused. Against that background, I accept that being accused by K of sexually assaulting her would have been particularly upsetting for you. Certainly, there is evidence from various witnesses that, after K made those allegations, you were sad, angry, and even potentially suicidal. However, there is also evidence that, at other times in the period of about two hours between K's allegations and the attack on Mr Bourke, you appeared to be happy and dancing. Your emotional state was up and down at the party.

21 There is no doubt that you got extremely drunk that night. Others described you as slurring your words, making no sense, stumbling, and falling over. You began abusing alcohol when you were about 12; by the time of the party you were regularly drinking around a slab of beer every day. Although there is evidence that you would become very emotional when drunk, there is no evidence that you had ever become violent when drunk, until the night in question. It seems likely that the emotional effects of being upset by K's accusations, and by what H's father had done to her, were amplified by alcohol. The amount of alcohol you had drunk helps explain why you went to the wrong house, and attacked a completely innocent and defenceless man.

22 Earlier that evening, while standing on the footpath outside Mr Bourke's house, you had told one of your friends, M, that you wanted to attack or kill the person in that house for what he had done to her. That indicates just how drunk and confused you were, as there was no suggestion that anyone had done anything to M.

23 Given the state you were in before the attack, I am not satisfied that you had in fact formed any specific intention at the time you were speaking to M, beyond going to the house of someone whom you believed to be a paedophile and assaulting him.

24 You aggressively and forcefully smashed your way into Mr Bourke's house, in the early hours of the morning. Your intention at that point was to commit an assault in company with JK. However, you did not take or use any weapon.

25 The prosecution case was run on the basis that you intended to cause really serious injury, not that you intended to kill. I accept that your specific intention only developed once the assault had begun.

26 Mr Bourke was born with a severe case of Osteogenesis Imperfecta (commonly referred to as brittle bone disease), which left him prone to broken bones. The disease meant that a bump, a fall or a knock, which an average person would survive unscathed, would cause him fractures. At the time of his death, he only had one operative hip, and needed crutches to help him stand up. Mr Bourke was a particularly vulnerable person due to his condition.

27 Though JK joined you in going to Mr Bourke's house and assaulting Mr Bourke, he withdrew from the attack part way through, and tried to persuade you to stop. Unable to stop you, JK left the house and went back to the party. After JK left, you continued kicking and stomping on Mr Bourke's head, as he lay on the ground, utterly unable to defend himself or get away from you.

28 It must have been obvious to you (even in your drunken state) that you were attacking a slightly-built, disabled man, who was only 133 centimetres tall. It must also have been obvious that he was utterly defenceless against an attack by two physically fit teenagers. You kept going, even as he called out for you to stop the assault. It must have been an absolutely terrifying ordeal for Mr Bourke. The behaviour of both of you was cowardly and disgusting.

29 The police seized your mobile phone from your home, on the evening of Sunday the 15th. When the police analysed your phone, they found a photo of Mr Bourke's bloodied and badly injured head and shoulders lying on the floor. Also visible in the photo was the tip of the toe of a shoe. The photo appears to have been taken from the perspective of someone who was standing over, and looking down on, Mr Bourke. The photo was time-stamped at 2:13am on the Sunday morning.

30 The prosecution invited me to conclude that the shoe in the photo was yours, and that you had gone back to the house and taken the photo as Mr Bourke lay there, dead or dying, as some sort of "trophy" of your actions. They argued that this was an aggravating feature of your offending.

31 The defence argued that I could not be satisfied beyond reasonable doubt that you were the person who had taken the photo, or as to what the photographer's purpose was.

32 The prosecution did not tender the photo at trial. That was a fair and responsible decision for them to have made in the circumstances; because you did not dispute being inside Mr Bourke's house, the prosecution accepted that the photo's probative value was outweighed by its potentially prejudicial effect. However, the consequence is that evidence concerning the photo was not explored or tested at trial.

33 The tip of the shoe in the photo does look like the tip of the '"Under Armour" brand black and white runners you wore on the night, which were seized by police at the same time as the phone. Certainly, the shoe shown in the photo did not match the "Nike" shoes worn by JK on the night. Nor did it match any other item located by police at the scene on 15 July.

34 However, there does not seem to be anything unique about black runners with a white sole. They may well have been your shoes. But there may have been other people at the party who were wearing the same or similar shoes. Because the photo was not tendered at trial, this issue was simply not explored with any witness.

35 It seems likely that the photo was taken about an hour after Mr Bourke was attacked. One of your friends, S, tried, unsuccessfully, to contact you and JK by message and phone call, between 1:15am and 1:20am, when you and JK could not be found at the party. S said you both reappeared after she sent the last message, and told her you had been in a fight and kicked in someone's door.

36 It is certainly possible that you returned to Mr Bourke's house, between the time of the assault and when you left the party around 3pm, and that you took the photo while you were there.

37 However, there is some evidence in the depositions that another boy, J, might have gone to Mr Bourke's house and taken the photo. One of the police records notes that J's mother told police that J had left the party, and gone to Mr Bourke's house to check if he was dead, and had come back and reported to those at the party that the man was dead. There is also evidence that J did not have his own phone with him, and had borrowed other peoples' phones at various times during the party.

38 At trial, J denied knowing during the party that a man was injured two doors away. In pre-recorded evidence that was not ultimately led at trial, J said he did not take the photo. But because the photo was not going to be tendered, that evidence of J's was never tested. Nor was his mother examined about what she had told police about J having left the party to check on the man. Nor were any of the other partygoers examined about whether J had left the party and gone to check on the neighbour. J also admitted in his evidence that he was very drunk at the party, and could not remember much about the evening.

39 Given the state of the evidence, it is certainly possible that you were the person who took the photo. But, if you did so, there is no evidence that you showed it to anyone, or were bragging about what you had done. On the contrary, the evidence is that you seemed upset after you returned to the party. Some witnesses said you were expressing concern about whether you had hurt or killed someone.

40 It is also possible that J went to Mr Bourke's house, to investigate what you and JK said you had done, and took your phone with him to take a photo as proof.

41 In the circumstances, it is not possible for me to be satisfied beyond reasonable doubt that you took the photo, far less that you took it as some sort of trophy.

42 Before I turn to consider your personal circumstances, I want to say something about the effect your actions have had on others. Very moving victim impact statements were filed by members of Mr Bourke's family, which addressed the effect that these events have had on them. It is clear that John Bourke was a much loved son, brother, uncle and friend, who inspired many with his courage and stoicism.

43 Mr Bourke was 45 years old when he died. Over the course of his lifetime, he had suffered around 400 fractures. During his school years, Mr Bourke spent a total of about four years in hospital. He started using a crutch when he was in his mid-teens, and progressed to using two crutches. Eventually, he could not stand upright without crutches. In 2012, Mr Bourke was involved in a major car accident, and spent about 14 months recovering in hospital. In the last four years of his life, he used an electric mobility scooter to get around outside his house.

44 Even though he endured a life of great pain, Mr Bourke rarely complained, and always looked on the bright side of life. His ready smile and quick wit, and his kind, loving, genuine, humble nature, made him greatly loved by his family and friends.

45 Mr Bourke was passionate about cars, the Richmond football club, and Freemasonry. During the 2000s, he held the position of Master at a number of Freemason lodges, and many senior Masons were among the 300 people at his funeral.

46 Mr Bourke was very close to his family. They are devastated by what happened to him. Family occasions, such as Christmas and birthdays, are particularly difficult for them to face without him. Many of them feel guilty that they were not there to protect him. They are haunted by the image of two fit young men attacking a small, helpless man, who was pleading with them to stop. They are particularly angry and upset because they believe that you went back and took the photo of Mr Bourke's body afterwards.

47 There is nothing this court can say or do that will bring back John Bourke, or heal his family's grief and pain. The sentence I am going to impose is not a reflection of the worth or value of Mr Bourke's life. Rather, the sentence must reflect the large number of factors which judges are required by law to take into account, only one of which is the content of the victim impact statements.

49 You were born in October 2002, to an aboriginal father and a non-aboriginal mother. You are the middle child of seven siblings.

50 Your father suffered from paranoid schizophrenia, and abused illicit substances. He was violent towards you and other family members, when he was in the midst of a psychotic episode. He died when you were 5 years old.

51 A year after your father's death, your mother began a relationship with your stepfather. He used methamphetamine ("ice"), and was physically violent towards your mother and all of the children. As mentioned earlier, he sexually abused your sisters. Your mother moved to three different states, in an attempt to get away from him, but he always managed to find the family. Sometimes the family had to move because your stepfather was avoiding the police. When you were in late primary school, your stepfather was imprisoned twice for his abuse.

52 Around that same time, welfare authorities removed you and your siblings from your mother's care for about a year, because of her failure to protect you from your stepfather. You and your brothers lived with one aunt, and your sisters with another. You found the family separation deeply upsetting and unsettling.

53 After your mother reunited with her children, the family returned to Maryborough. You were still living at home at the time of this offending.

54 The constant moving around meant your schooling was very disrupted. You found it hard to engage with your education at school, and dropped out around year 8. You had also developed various behavioural problems. However, you were a keen and talented junior footballer.

55 Apart from a brief period of part-time work at a café-bakery, you have no work experience.

56 When you were about 12, you started to regularly use alcohol and cannabis. Within a year or so, you began using MDMA and ice. It seems that you used these substances as a way of self-medicating the pain of your upbringing.

57 Your background is relevant to your offending in the following way. First, it seems that your upbringing was such that you did not learn how to regulate your impulses or emotions without resorting to violence. You have not had the opportunity or resources to learn to deal with emotional pain, other than through the violent behaviour that your father and stepfather demonstrated. Secondly, the sexual abuse of your sisters has made you particularly vulnerable to overreaction and emotional volatility in relation to sexual offending. That helps explain why you became so angry and upset by the allegations made against you by K at the party, and why you continued to feel so strongly about what H had told you her father had done to her. Those matters arising out of your difficult upbringing lead to some reduction in your moral culpability.

58 However, those matters need to be addressed by you through appropriate counselling in custody and on parole, to ensure that you learn different strategies for dealing with your emotions.

59 Your mental health is also relevant in sentencing you. In your early teens, you began experiencing some feelings of paranoia, and hearing voices, which you described to your mother as "strange thoughts". Although she made several appointments with mental health practitioners, you were embarrassed and unwilling to discuss your symptoms with them.

60 Since you have been in custody, you have reported to staff auditory hallucinations, paranoia, hypervigilance, and other symptoms consistent with PTSD. You have suffered from depression. You have also experienced nightmares and flashbacks of the offence. You have been placed on numerous antidepressant and antipsychotic drugs, with limited success.

61 Shortly after the verdict, you were first diagnosed with "first episode psychosis". Between 30 May and 8 June 2020, you were hospitalised under a secure treatment order.[3] Suicidal ideation and auditory hallucinations were noted at the time.

62 Dr Prashant Pandurangi, a psychiatrist at Forensicare, prepared a report in July 2020, after interviewing you in June 2020. His opinion at the time was that it was possible that you were beginning to develop a severe mental illness, given the family history of such disorders,[4] as well as various neurodevelopmental and environmental factors. However, because of your young age, he was not able to provide any definitive opinion about your condition at that time.

63 Unfortunately, Dr Pandurangi's first report was received after the COVID-19 pandemic had begun, and Melbourne was experiencing a long period of lockdown. Your lawyers did not want the plea to take place until an in-person hearing was possible, so that you could be supported by your mother and other family members, whom you had been unable to see in person during the lockdown periods. The prosecution also wanted the plea to take place at a time when Mr Bourke's family could attend court in person.

64 The plea hearing began on 5 February 2021. In his oral evidence that day, Dr Pandurangi said that the mental health conditions you experienced - PTSD, depressive disorder, and polysubstance use disorder - were a result of your early life experiences, including the mental, physical and sexual abuse that occurred within your family. He was still unable to give a definitive diagnosis of your current condition, as your young age made it difficult to determine whether an enduring mental illness would in fact develop.

65 At that time, he reported that you continued to experience psychotic symptoms, including paranoia, referential ideas and auditory hallucinations, despite taking several different antipsychotic medications. It was proposed that you be referred to a secure psychiatric unit, for thorough assessment and evaluation. Accordingly, the plea hearing was adjourned part-heard, to enable that to occur.

66 On 10 March 2021, a further secure treatment order was made, and you were transferred to the Orygen Youth Mental Health Centre.

67 On 10 May 2021, Dr Pandurangi provided a further report, updating the court on your condition since your admission to Orygen. By that time, Dr Pandurangi had formed the opinion that you do suffer from a paranoid psychotic illness, namely schizophrenia. You are currently on Clozapine, a powerful antipsychotic medication used for treatment -resistant psychotic symptoms.

68 Dr Pandurangi believes that ongoing incarceration will be more onerous for you than for someone who does not suffer from a mental illness. He also believes that imprisonment itself may increase your risk of future episodes of stress-induced psychotic illness, as well as your risk of self-harm and suicide. The prosecution accepts that this evidence places you within categories (5) and (6) of the Verdins principles, which should be reflected in a reduction to your sentence.

69 However, there is no evidence, and it is not suggested, that any of the other Verdins principles apply in this case.

70 Your age is another very relevant sentencing consideration. Because you were 15 at the time of this offending, you are to be sentenced as a child offender.

71 Very different sentencing principles apply to children, and very different sentences are imposed on children, in recognition of the fact that they are less mature, less able to form moral judgments or control their impulses, and less aware of the consequences of their actions.

72 The law says that the youth of an offender should be a primary consideration for a sentencing court, where the matter properly arises. In the case of such an offender, rehabilitation is usually more important than general deterrence; rehabilitation benefits the community as well as the offender.

73 However, those principles are not absolute; due regard must be had in each case to other relevant matters, including the seriousness of the offending, and whether there has been any prior offending. Generally speaking, the more serious the offending, the less the weight to be attached to youth. But the mitigatory effect of youth will be extinguished only in circumstances of the gravest criminal offending, and where there is no realistic prospect of rehabilitation.

74 The standard sentence scheme, which applies to adult offenders, does not apply to child offenders.[5]

75 All of these considerations can and do lead to children receiving sentences which would be regarded as entirely inappropriate in the case of older individuals.

76 I turn to consider your prospects of rehabilitation.

77 As far as remorse is concerned, you were not immediately concerned about Mr Bourke. Although you were upset and crying back at the party, you did nothing to assist Mr Bourke. Your actions the next day, in going to check which house you had gone to, also seem to have been motivated more by concern for yourself and whether you had got the right person, rather than concern for Mr Bourke.

78 However, the prosecution does not dispute, and I accept, that you have since developed genuine remorse for what you did to Mr Bourke, and for the pain that you have caused his family. You were upset and concerned that you might have attacked the wrong person, when you were interviewed by police. You offered to plead guilty to manslaughter before the committal hearing, acknowledging that you had caused Mr Bourke's death.

79 This is your first time in custody. It seems that you have started to grow up, and have used your time in custody productively. Many of your teachers, and those working with you in youth justice, have written glowing reports about your improved attitude towards education, and your behaviour towards others. They describe you as diligent, respectful and polite, as someone who engages well with others. You are working towards completing your Victorian Certificate of Applied Learning, and are exploring your indigenous heritage through the Aboriginal Education Program. You have also started participating in programs designed to address substance abuse and emotional regulation issues.

80 Your mother and extended family are very close to you and supportive of you. You have found the lack of personal family visits during lockdown particularly difficult.

81 Notwithstanding the seriousness of your offending, I believe that you have reasonable prospects for rehabilitation if you continue showing your current positive attitude towards your education and relationships, as well as continuing to engage with mental health practitioners to address your mental health and behavioural problems.

82 A sentence of imprisonment is the only appropriate sentence in this case. As murder is a Category A serious youth offence, and there are no exceptional circumstances, a youth justice centre order is not available.

83 Nevertheless, I agree with the parties that this is an appropriate case in which to request the Adult Parole Board to consider transferring you to the youth justice system until you are 21.[6] There are a number of reasons for that. The evidence as to the likely burden of imprisonment on your mental health has already been discussed; it may reasonably be assumed that adult prison would be more onerous than youth justice in that regard. Access to suitable mental health care is generally more limited in adult prison than in the youth justice system. Your recovery will be assisted by the continuation of the positive treating relationships that have developed with mental health practitioners in the youth justice system. It is also desirable that you continue on the path of completing your schooling, something you have engaged well with in youth custody. These are all matters which are important to your rehabilitation, for the benefit of the community as well as yourself.

84 Having regard to the matters I have just discussed, for the offence of murder, I sentence you to 14 years' imprisonment. I fix the period of 9 years before you will become eligible for parole.

85 Further, I declare that the period to be reckoned as already served under this sentence is 1066 days, not including today's date. I direct that there be noted in the records of the court the fact that such declaration was made and its details.

[1] Initials have been used in these sentencing remarks to avoid the identification of children in contravention of s 534 of the Children, Youth and Families Act 2005 ("CYF Act").

[2] JK subsequently pleaded guilty to home invasion and recklessly causing serious injury. He was sentenced on 9 November 2020: DPP v JK [2020] VSC 510.

[3] Under s 276 of the Mental Health Act 2014.

[4] Apart from your father, one of your older brothers has been diagnosed with schizophrenia, and your mother suffers from depression.