DPP v Ledlin [2022] VSC 826

2 The maximum penalty for the offence of murder is life imprisonment. It is a Category 1 offence, and because this offence occurred after 1 February 2018, it is a standard sentence offence. The standard sentence for murder is 25 years' imprisonment. I will discuss the implications of these aspects below.

3 You and Mr Smith did not know each other when you murdered him. However, there is background to the events that led to his death which I will briefly note.

4 In April 2017 Cameron Smith met Natasha Stroumos and they formed a relationship which continued for about three years, after which they remained close friends. During this relationship Mr Smith and Ms Stroumos attended a New Year's Eve party in 2019 where a dispute took place between Ms Stroumos and a young woman called Scarlett Taylor, over the ownership of a can of drink. In the context of what occurred later, it was a trivial event. Almost a year passed with no contact between the two women, but that changed on 25 November 2020.

5 On the afternoon of that day Mr Smith and Ms Stroumos went together to Seaford, and after parking their car purchased and shared a meal nearby. You were also in Seaford that afternoon, with three others, the young woman named Scarlett Taylor, who I have just mentioned, Finn Leahy, and Liam Casely.

6 Mr Smith and Ms Stroumos did not finish their meal and decided to take the leftovers back to her car. They walked back towards the railway station carpark along Station Street. As they did that shortly before 7 o'clock, you and Scarlett Taylor were sitting on a bench on Station Street. You had a pack of beer bottles with you at that time. Mr Smith and Ms Stroumos walked past you, heading in the direction of the carpark. As they did, you and Taylor yelled abuse and obscenities at them. They ignored you and kept walking. These events were recorded on nearby CCTV, and the vision and sound of the events were shown to the jury during your trial.

7 Shortly after this, your friends Leahy and Casley met up with the two of you and your group of four then walked in the direction of the railway station. Having put their un-eaten pizza into the motorcar, Mr Smith and Ms Stroumos walked back onto Station Street towards the beach. Then as the two groups approached each other, members of your group yelled at Mr Smith and Ms Stroumos, taunting them to have a fight, to 'have a go'. One of the young men in your group then punched Cameron Smith to the face, who defended himself by striking him back. Then, members of your group threw punches at Cameron Smith, and it was three against one, circling him.

8 At that point everything happened quickly, and dynamically. A young man witnessing the events recorded some of the evolving incident on his mobile telephone, and that footage became a significant piece of evidence shown to the jury during the trial. Cameron Smith was outnumbered by the three males in your group, and your group were the initial provokers and attackers, with Cameron Smith defending himself. He was unarmed. The attack on Cameron Smith by the three of you was cowardly, and unprovoked on his part.

9 Unlike your unarmed victim, you had with you a sharp object, most likely a knife, although this was a matter of dispute at the trial. You held it in your right hand. In an instant, you raised your right arm to around shoulder height and forcefully struck Cameron Smith to the chest with the sharp object, causing him a fatal injury.

10 Moments later Mr Smith, who was then bleeding from the injury to his chest, collapsed and lay facing upward on the footpath. A still image taken from the telephone footage shows you at one point standing next to a parked motor vehicle, with what appears to be a sharp object in your right hand, whilst still holding a six-pack under your left arm. Moments later, as Cameron Smith lay on the ground, Liam Casley and Finn Leahy kicked your victim to the head, and the four of you ran away, leaving Cameron Smith helpless, and dying on the ground.

11 When Ms Stroumos realised Cameron Smith had been stabbed, she rang for an ambulance, and others nearby attempted to render first aid. However, he bled profusely and quickly became unresponsive. By shortly after 7 o'clock when paramedics arrived, attempts to revive him were unsuccessful and he died at the scene.

12 The prosecution case was put against you on the basis that when you struck Cameron Smith with the sharp object, you intended to cause him really serious injury. The case was not put against you by the prosecution on the basis that you intended to kill him. The jury's verdict means that it was satisfied beyond reasonable doubt that when you struck with the sharp object, you intended to cause him really serious injury, and this is one of the factors to be considered when assessing the appropriate sentence to be passed upon you for the offence of murder.

13 As above, the four members of your group ran away from the scene. CCTV vision of various points in your movements show you and your friends running away, and aspects of your flight were also played to the jury. At no stage did you attempt to obtain medical assistance for Cameron Smith, and at no stage did you give any indication of taking responsibility for what you had done. You waited until police came to arrest you the following day over what had occurred.

14 You were arrested in Somers on 26 November 2020, and later interviewed by police. Apart from voluntarily providing a forensic sample, you provided a no-comment interview regarding the events that occurred at Seaford.

15 Forensic pathologist Dr Michael Burke conducted a post-mortem examination on Cameron Smith's body.

16 Dr Burke determined that the cause of death was because of a single stab injury to the chest. Furthermore, he established that there were a series of abrasions and bruises to various parts of Mr Smith's body. He determined that there were no fractures to Mr Smith's facial or skull bones, and no injuries to his knuckles. Toxicology results revealed no alcohol or drugs in his system.

17 From the time of your arrest you have remained in custody. On 25 May 2021 the matter was fast tracked to this Court, and a plea of not guilty was indicated to the charge of murder.

18 On arraignment at your trial you pleaded not guilty to the charge of murder but indicated a guilty plea to the alternative charge of manslaughter. The prosecution did not accept that plea in satisfaction of the murder indictment and thereafter the trial was conducted on the basis that the issue for the jury's determination on the charge of murder was whether the prosecution could prove beyond reasonable doubt you had murderous intention, or whether you should be found guilty of the lesser charge of manslaughter.

19 Cameron Smith was born on 3 January 1977 and was 26 years old at the time of his death. By all accounts he was a well-loved, respected, and talented young man with the prospect of a full and productive life ahead of him.

20 Five Victim Impact Statements were received by the Court, each of which I have carefully read and considered. Some of the authors read their statements to the Court. Without exception, these statements express the devastating impact of your actions in murdering Cameron Smith.

21 Cameron Smith's father, Michael Smith, told the Court of the haunting images which will endure with him for the rest of his life, being witness to his son's lifeless body lying on a coroner's trolley, and seeing him in his coffin. He reflected on the joyful day when he carried his son home following his birth and compared that to carrying his son's ashes home in an urn. He told the Court of his emotional devastation at the death of his son, and how life will never be the same again, and he feels overwhelmed on many days, and constantly mentally fatigued. He told the Court about his son's skill in carpentry, and how he loved working with his hands, that he would never see him become married and have children and that the loss of his wonderful son who had his whole life in front of him taken away has had a huge impact on his own life.

22 Cameron Smith's mother, Michelle Smith, told the Court that there is not a day that goes by that she does not think of her beautiful boy, whom she loved so much. She reflected that before his death, life had been wonderful, but now feels like she got a life sentence. She told the Court of the immediate impact on her when she was told her son had been killed, and that she was shattered. She remembered the devastating impact of having to identify his body, and how it was the worst day of her life. She explained that in her own life, her son had been her "rock", and had been a great support to her with some personal difficulties. She described Cameron as having a heart of gold, how he would help anybody, and how he was very well respected and loved by many people. She described the stress of losing Cameron as devastating and that they had a very special bond between them. As a result of her own trauma at Cameron's death, whereas she had a life, and a job that she enjoyed, she finds herself now unable to work, and relying on welfare as the source of income. Her own life has changed as she suffers from depression and finds it difficult being out of her own home. She wrote how her heart is broken and that her life will never be the same, in many ways including that she has been robbed of a future with her son, and the opportunity to see him prosper and develop his future.

23 Cameron Smith's younger sister, Taylah Smith, explained how on 25 November 2020 her life changed forever. She described her brother as a caring, kind-hearted, loving and generous person, loyal and trustworthy. He had a great sense of humour, was a hard-working carpenter, and a talented athlete. He was ambitious and had many life goals that he wanted to achieve, all of which were taken from him in the blink of an eye. She said that she had no words to adequately express and describe how she is feeling, and how his death has affected her life. She felt, however, that she had to stand up and provide a glimpse of the devastating impact that your acts have had on her, and others. She described the close relationship she had with her brother throughout his 26 years. She said that they were the best of friends growing up, and that they did many things together. She described many of her favourite memories of Cameron as being some of the happiest moments in her life, and how she was very proud of his achievements. She described how her life has changed in so many ways since his loss and there is not a day that goes by where she does not think about what happened to him. The loss of her brother has left a huge hole in her life that will never be filled, and that she struggles to find happiness in things she previously enjoyed, and often becomes totally overwhelmed, emotional and devastated. She is constantly filled with emotion and heartbreak, her heart aches every single day, and she misses him every minute of every day.

24 Chantelle Smith, the eldest sister of Cameron Smith, was close to her brother. She described how her brother Cameron always looked after her when she was growing up, and that some of her proudest memories were with him, as he was always there for her, and their younger sister. She described him as the 'best brother to us'. She described how she missed his smile and the way that he would always make people laugh with his funny jokes and his caring nature. She described what she missed about Cameron, including that he would do anything for his family members. She has been affected in many ways because of his death, and in particular she is heartbroken that Cameron missed the opportunity to meet and care for his new baby niece, and that she will never know her uncle. She expressed that the loss and grief that herself and her family have experienced through the loss of Cameron is very hard to come to terms with and that it is hard to comprehend what the future without him looks like.

25 Natasha Stroumos told the Court about the three and a half years she had as Cameron Smith's girlfriend. She described him as a young man full of beans, full of love, care and possessing smiling energy. He was down-to-earth, kind, outgoing, caring, funny full of life and a beautiful young man. She described his sense of humour, his jokes, and his ability to make everyone around him laugh and smile. She described him as a young man that had everything going for him, that he loved his work, and that he loved to help anyone out any time. She described him as someone who loved helping people and who was genuine, and full of character. She described how the events of that night in Seaford changed her life and turned the world upside down. She has vivid memories of screaming when she realised what had happened, and that she cannot shake the memory of having someone she loved die in her arms. The effects of the events on her include the physical impacts of shock, flashbacks, nightmares, and grief. She described how she lost her job at the time Cameron died, and now is she only starting to get her life back on track, but still finding it immensely difficult. She feels robbed of two years of her life because she cannot maintain a full-time job and is seeking ongoing professional help. She describes it as being like a nightmare, and how her relationships have been severely affected by her grief and struggling with her emotions. She has lost relationships, and described how she has PTSD, depression, anxiety, and mood swings. She described how she missed everything about Cameron Smith, and that now she is left with memories, photos, and videos of him, and cannot understand or get her head around that he has passed away.

26 These statements were powerful examples of the consequences of losing a well-loved person, demonstrating how the impact and violent circumstances of Cameron's death will live on and cause immeasurable pain. You have caused that enduring grief.

27 You were born on 19 January 2001 and were aged 19 at the time of your offending. You are now 21 years old.

28 You have had a deprived and dysfunctional childhood. Department of Human Services records show that reports to the Child Protection Agency first occurred when you were two years old, with the reports noting your mother's ongoing substance abuse, environmental neglect, and violence towards you from your grandfather. There have been up to eight reports relating to child protection and you. Not only were you subjected to emotional and physical violence as a child, your parents were both alcohol and drug abusers. You have had unstable accommodation and education throughout your childhood.

29 Your parents are separated, and you have several siblings. You were educated in Victoria and Queensland and have attended multiple schools. You left school in year 7 and have experienced periods of homelessness since then. Your life has been affected by behavioural disorder, psychosis, and mental health issues which have their genesis from your childhood. Furthermore, despite being only 21 years of age, you have been an abuser of alcohol and drugs for more than half your life, and you have ongoing mental health issues.

30 During the plea made on your behalf, two letters dated 27 October 2022, and 28 October 2022, authored by your older sisters Jessica Comfort and Emmaline Ledlin, were provided to the Court. I have read these letters and have considered their contents. In large part they confirm the fact of your chaotic, often violent, and dysfunctional childhood. Your sister Emmaline remarked on the damage to you because of witnessing extreme domestic violence and being exposed to other kinds of violence and brutality, including to yourself, from a very young age.

31 By 2017 you had been asked to leave home by your mother and you began couch surfing. Nevertheless, you maintain regular contact with your mother and older sister, and they are supportive of you. You have limited contact with your father, who has a criminal history himself.

32 One of your main relationships was with Scarlett Taylor, who was involved in the events in Seaford, however that relationship is now ended. You are single and not currently receiving visits from any partner.

33 You have a prior history of offending beginning with a court outcome in October 2016. You were then 15 years old and appeared before the Children's Court on charges of robbery and causing injury, as well as other matters. Over the course of the next four years your history reveals multiple instances of charges and court outcomes, involving occasions of committing intentional and reckless injury on victims, and the carrying and use of controlled weapons. Your history of violence is very troubling. I note that the very first of your court appearances resulted in an order to attend drug and alcohol counselling, as well as an anger management course as directed by Youth Justice. Successive court outcomes have involved multiple instances of orders for drug and alcohol counselling, and supervision by Youth Justice, which of course, presented many opportunities for you to address these issues.

34 In June 2017 you were remanded to the Parkville Youth Justice Centre and that year you presented to a medical centre with impulsive anger, poor sleep, and nightmares consistent with a history of developmental trauma and PTSD. In 2018 due to alcohol and drug ingestion you were apprehended under provisions of the Mental Health Act and found to be experiencing suicidal ideation.

35 By January 2020 you had spent three months on remand during which you had been prescribed therapeutic drugs for depression and anxiety. On 24 January 2020, you appeared before the Dandenong Magistrate's Court again on multiple charges, including for recklessly causing injury and possession of a prohibited weapon, and received a Community Correction Order ['CCO'] for 18 months. On 20 July 2020 the CCO was cancelled by the Dandenong Court, on your conviction for several charges, including recklessly causing injury and possession of a prohibited weapon. You were sentenced to eight months' detention in a Youth Training Centre.

36 Around this time, you had reported auditory hallucinations for a lengthy period before this. In June 2020 you had been remanded at the Metropolitan Remand Centre for matters relating to the eight month youth training centre order made in July 2020, to which I have just referred. By then you reported having developed a heroin addiction from your time in custody. In August 2020 an Alfred Health Headspace Discharge Summary described you as having delusional mood for the past 12 months, and self-described suspiciousness and paranoid ideas. By December 2020, when reviewed at Port Phillip Prison when on remand for your present offending, you spoke of increasing auditory hallucinations for a period of three months, and you were hypervigilant, paranoid and believed people were plotting against you.

37 For a younger person, you have a considerable criminal history from an early age involving violence, and the carrying and use of weapons. Whilst these matters do not aggravate the offending presently before the Court, they are relevant to the issue of specific deterrence, protection of the community, and your prospects of rehabilitation, which I will discuss later.

38 The Court was provided with a detailed and comprehensive psychological assessment dated 20 October 2022 authored by Dr Matthew Barth. Dr Barth confirmed the chronic instability of your upbringing by your volatile parents, involving emotional and physical abuse towards you. He referenced the chronic instability of your family's lifestyle, your experiences of feeling sad, resentful, and irritable throughout childhood years and along with periods of homelessness and being the victim of serious assaults as a teenager, reinforcing your negative view of the world. You reported to Dr Barth that as your drug abuse escalated you began hearing voices increasing in frequency and intensity, and that those thought processes became very disordered and dysfunctional.

39 Dr Barth assessed the most salient features of your mental status as involving persecutory thoughts and auditory hallucinations. Dr Barth concluded that you meet the criteria for substance induced psychotic disorder, which impacted your ability to exercise appropriate judgement. He expressed the opinion that your propensity for persecutory ideation and auditory hallucinations are likely to have contributed to disinhibited behaviour which culminated in your offending against Cameron Smith. However, Dr Barth acknowledged that it is difficult to disentangle the effects of your psychotic symptoms from the effects of intoxication, and the impact of antisocial personality disorder.

40 Dr Barth concludes that your mental state was also characterised by significant depressive and anxiety related symptoms, in which you report a sad and subdued mood, feeling of hopelessness regarding your future life prospects, and feelings of inadequacy and failure due to your offending behaviour. Dr Barth formed the opinion that you have low self-esteem, you feel a deep sense of inadequacy, and view yourself as being unable to function successfully in society. Accordingly, Dr Barth diagnoses you with an adjustment disorder, with mixed disturbance of emotions and conduct. He opines that you are at risk of developing more intense symptoms in the period following the sentencing should you not receive ongoing psychological treatment.

41 Dr Barth assesses you as a man of below average intelligence, but you are not intellectually disabled. In relation to your personality, Dr Barth assesses that your personality and behavioural adjustment is markedly disturbed, and that your turbulent upbringing significantly impacted your psycho-social development. From an early age you have felt resentful about your life, and you developed a debased view of the world where a person must be strong and violent to survive. In his opinion this led to a limited ability to manage conflict effectively and that you continue to place a premium on dealing with conflict both rapidly escalating to overtly aggressive and violent behaviour. Further, he opines that you lack adequate life skills and behavioural controls to function effectively in mainstream society. He is of the opinion that you have maladaptive personality traits which are intensely problematic and meet the diagnostic criteria for an antisocial personality disorder. His opinion is that this personality disorder is the primary mental disorder present in your psychological profile and should be the primary focus of future treatment.

42 You have an extensive substance abuse history, having commenced using cannabis and drinking alcohol when you were 10 years old, and then graduating to using amphetamines, LSD, MDMA, and heroin. Your substance abuse continued and became heavy until you were placed on remand for your current offence. Dr Barth concluded that your drug and alcohol abuse has had a severe impact on your life, leading to drug induced psychosis including auditory hallucinations and persecutory thoughts. Further, Dr Barth is of the opinion that you warrant a diagnosis of stimulant use disorder, cannabis use disorder, alcohol use disorder and opioid use disorder which would be specified at a severe level. He opines that you require intensive specialist substance abuse treatment, and that your drug and alcohol abuse represent a critical criminogenic factor which needs to be contained to reduce your risk of further offending.

43 Through your Counsel, the Court was provided with a copy of a Pre-Sentence Report dated 4 September 2017, authored by Bayside Peninsula, and relating to multiple allegations of misconduct then before the Melbourne Children's Court relating to events of 2016 through to 2017. I do not propose to discuss the detail of that report other than to remark that it confirms a number of matters that have been advanced on your behalf, particularly relating to the dysfunctional circumstances of your upbringing including the violence perpetrated on you as a child growing up, that you were ejected from home on a number of occasions, and that there were occasions of homelessness, and living a transient lifestyle, having anger management issues, and negative peer associations.

44 As you committed the murder of Cameron Smith after February 2018, the standard sentence of 25 years' imprisonment applies.[1] This does not mean that you must be sentenced to that term of imprisonment. Rather, I am required to have regard to the standard sentence in sentencing you.[2] Further, I must only have regard to sentences previously imposed for murder as a standard sentence offence,[3] which I will discuss shortly.

45 These requirements are not intended to affect the instinctive synthesis approach to sentencing.[4] Rather, the standard sentence operates as a legislative guidepost in the sentencing process. It is but one factor which is required to be considered in the instinctive synthesis.[5]

46 I am required to assess the nature and gravity of the offending you committed, and the standard sentence provisions do not have any bearing on my obligation to assess the seriousness of the subject offence.

47 In Brown v The Queen,[6] the Court of Appeal stated:

... the standard sentence provisions do not have any bearing on the judge's obligation to assess the seriousness of the subject offence. That assessment remains a necessary part of the process of instinctive synthesis and is not constrained by the legislative definition of 'objective factors'. Those constraints are referable only to the assessment which gives content to the hypothetical offence as an offence 'in the middle of the range of seriousness'.

48 The prosecution submits that you and your co-offenders instigated the fight with Cameron Smith. The three of you outnumbered him three to one, and he was un-armed. It was submitted that whilst Casley turned the event into a physical confrontation, you were nevertheless present and surrounding Cameron Smith in the initial stages although not physically assaulting him. It was submitted that by your presence you effectively encouraged Casley to continue doing what he did, and you did nothing to intervene and to stop the events. In other words, you were complicit in the initial events. I accept that submission in that you were clearly one of the group of three men that confronted Cameron Smith.

49 The prosecutor conceded that these were not a protracted set of events, and took place in something less than a minute, perhaps 30 seconds from start to finish. It was pointed out that you took steps to arm yourself with the murder weapon, moved in quickly and purposefully with the clear intention of stabbing your victim. It was argued, and evident, that your actions occurred when Cameron Smith's attention was on Liam Casley who was by then on the ground, and was unsuspecting of what was about to occur, with no reason to suspect that an attack with a sharp weapon was imminent.

50 The prosecutor pointed out that the case was put on the basis you deliberately stabbed Cameron Smith to the chest area, and that you swung the weapon from behind in a round arm motion that can be seen in the footage, thus demonstrating a clear intention to generate a substantial degree of force. The prosecutor submitted that the weight of the evidence is that the murder weapon was a single bladed object, most likely a knife, and that this is supported by the evidence of Dr Burke. Acknowledging that the defence case was put on the basis that you used a pair of scissors, the prosecutor submitted that whichever it was, it was still a bladed object, and made little difference to the way in which your offending should be viewed. Dr Burke gave evidence at the trial in relation to whether the murder weapon you used was a knife or possibly a pair of scissors. This was an issue of some significance at trial. It is to be noted that the murder weapon was never located, and there was evidence before the jury of an empty scissors packet located in the car in which you had travelled to the Seaford area.

51 Insofar as it is important to do so, I indicate that I am not satisfied the prosecution has established to the required standard that you used a knife to stab Cameron Smith. I am however quite satisfied beyond reasonable doubt that you used a sharp, bladed weapon to inflict the fatal injury. In my opinion it makes little difference whether the weapon was a knife or pair of scissors. Whichever it was that you were armed with at the time, it was an object capable of being used as a weapon and was used to kill. As I have noted, you have been found armed with weapons on several occasions in the past, and received penalties from courts.

52 Furthermore, it was argued that your offending took place in a public area in the presence of multiple members of the community acting peacefully, some of whom were school-aged children. In my opinion these circumstances aggravate your offending. With respect to the actions of Liam Casley and Finn Leahy where they kicked Cameron Smith to the head after he had been stabbed by you, it was acknowledged that you were not directly responsible for those actions but pointed out that in circumstances where he had collapsed, you made no effort to assist Cameron Smith, or stop your co-offenders from engaging in that conduct.

53 It is submitted on your behalf that your offending should be regarded below the mid-range for the offence of murder. Your counsel points to the following factors as being relevant to the assessment of the objective seriousness of your offending:

(a) that you did not have the intention to kill Cameron Smith;

(b) that the offence was not premeditated;

(c) there had been no prior interaction with your victim until a few minutes before the offending;

(d) that you did not instigate the attack and then only became physically involved in the incident when Liam Casley went to the ground; and

(e) that the attack by you was not sustained, and your only involvement was a single act of stabbing your victim to the chest, and that you did not engage in the assault after you had stabbed him.

54 Your counsel emphasises that whilst every murder is serious, your offending was not planned but was spontaneous, and you did not mistreat Cameron Smith following the incident. There were others responsible for that cowardly attack.

55 For these reasons, it is submitted that the objective seriousness of your offending should be considered low range for the offence of murder, involving a single spontaneous act without the intention to kill.

Conclusion as to nature and gravity of offending

56 In my opinion, your offending should not be evaluated on the basis that it was a sustained, planned attack, but rather was spontaneously committed against an unarmed and unsuspecting victim who was at that moment engaged in defending himself from others than you, when you stabbed him. Moreover, your attack occurred in a public setting in the presence of many members of the public. Objectively, your act in using a weapon in these circumstances in a public place was a very serious assault on an innocent victim, whom you did not know. In my opinion the nature and seriousness of your offending should not be regarded as being in the low range of offending of this type, but more towards the mid-range.

57 The prosecutor submitted that having regard to all the factors discussed above, notwithstanding that the offence involved a single act of stabbing, taking place in a matter of seconds, your moral culpability should nevertheless be assessed as being high. It was submitted this was an entirely senseless, unprovoked act of violence with a weapon that was clearly capable of inflicting really serious injury. Furthermore, your victim was outnumbered, unarmed, with his attention towards another person that had attacked him, when you struck him with a high degree of force to the chest.

58 Your counsel submitted that your youth at the time of your offending was a significant factor to be considered in assessing the level of your culpability. In this regard reference was made to DPP v Pan,[7] which recently considered sentencing principles relating to young offenders. The court restated that, 'in assessing the culpability of a young offender it is important to recognise that "the young and immature are more prone to ill-considered rash decisions"; "may lack the degree of insight, judgment and self-control that is possessed by an adult"; and may not fully appreciate the nature seriousness and consequences of their criminal conduct'.[8] Whilst recognising these factors may have to be tempered by factors such as the seriousness of the offence, protection of the community, and general deterrence, the court observed that age was a powerful factor leading the judge to give greater weight to this in the passing of sentence, which could result in a significantly more lenient sentence than would otherwise be the case for an older offender.

59 Your Counsel also emphasized your dysfunctional upbringing from a very early age and referenced the earlier pre-sentence report of 2017 which noted and confirms your chaotic and unhappy upbringing, neglect of your parents, and level of child protection that was deployed across your youthful years, as well as violence perpetrated on you across those extended years.

60 In my opinion your youth and dysfunctional upbringing are relevant factors in the sentencing calculus. It was submitted on your behalf that the principles expressed in the cases of Mills and Azzopardi[9] apply to you. I agree that this is the case. At the same time, as submitted by the prosecution, and acknowledged on your behalf, as the level of seriousness of the offending increases, there will be a corresponding reduction in the weight given to the mitigating effect of youth. The prosecution submitted that given the seriousness of the crime committed, the weight to be given to your young age must be substantially moderated.

61 Further, in your case, you have an established history of violence, and the carrying of weapons. Whilst I accept that the attack on Cameron Smith was not planned, and occurred on the spur of the moment, in my opinion the level of your moral culpability should be assessed as being in the mid-range of seriousness for offences of this type. I agree with the submission of the prosecutor that despite the short timeframe in which you formed the intent to strike, overall, the circumstances of your offending included a forceful strike towards an unarmed and outnumbered man, who was defenceless against the use of your bladed weapon. I am quite satisfied that the jury accepted that when you struck Cameron Smith in the chest, you intended to cause him really serious injury.

62 The above observed, I accept that you have experienced profound dysfunction and disadvantage during your formative years, and this is relevant to the evaluation of your moral culpability. Accordingly, I accept that your subjective culpability for the offending in which you engaged 'could not be equated with that of a person who committed the same offence and had the advantage of a normal, stable, and regular home environment during their childhood years'.[10] These circumstances constitute important mitigating circumstances that tend to moderate your moral culpability for your offending and do have a mitigating impact on the sentence to be imposed upon you.

63 Taking into account all the factors that relate to assessing your level of moral culpability, in my opinion your culpability for this offending should be regarded as being in the mid-range. This conclusion also considers the impact of the Verdins, and Bugmy principles, which I will note later.

64 A number of other factors were argued to be in mitigation of your offending. These matters included your youth, being that you were 19 years old when your offending was committed. These matters have also clearly included emphasis given to your significantly deprived upbringing which was marred by violence, substance abuse, and mistreatment, being matters that have been previously noted.

65 It was also submitted that the trial was conducted on a very narrow basis, which significantly reduced the duration of the trial, and reduced the number of witnesses required to give evidence. Importantly, the utilitarian benefit to the way in which the trial was conducted included recognition that you had deliberately stabbed Cameron Smith, and took responsibility for that action, which must have at least to some extent reduced the trauma experienced by your victim's loved ones.

66 Your counsel submitted that the principles enunciated in Bugmy v R[11] apply to you in that the effect of your profound childhood deprivation does not diminish with the passage of time. It was argued that your childhood exposure to deprived circumstances was relevant to explaining your recourse to violence and that your inability to control these impulses is likely to be substantially reduced.

67 It was submitted that your early introduction to illicit substances and violence had an ongoing effect on you, exacerbated by a lack of support, coupled with extended periods of homelessness. It was submitted that the effects of such profound deprivation should be given full weight in the determination of the appropriate sentence to be imposed.

68 Whilst conceding the impact of your dysfunctional social background, the prosecution on the other hand point to observations made by the Court of Appeal in Sabbatucci v The Queen,[12] that the circumstances of disadvantage will be a question of degree in every case, and the evaluation of these circumstances must involve an assessment of the nature and circumstances of the offence, the nature and severity of disadvantage, and whether it can be seen to be in any way explanatory of the offending conduct.

69 As noted above, a letter authored by your older sister was provided to the Court. I accept that it confirms your dysfunctional and chaotic upbringing.

70 The prosecution submitted that your history of social disadvantage is of limited weight in explaining your offending conduct in circumstances where you and your group instigated the initial violence against Cameron Smith, a person who had never met you previously and who had done nothing to provoke or antagonise you. While I have taken that submission into account, in my opinion, as explained by Dr Barth, your dysfunctional background does have a significant connection to your mental health issues and personality deficits, such that I am satisfied that the Bugmy principles should be given weight in the assessment of the appropriate sentence to be passed. There is little doubt in my mind that your upbringing has been profoundly deprived and chaotic in the way that has been described. In reaching this conclusion I have considered the seriousness of the crime you committed.

71 It was submitted on your behalf that consistently with Dr Barth's opinion, you have a severely dysfunctional personality which is unequivocally disordered and has resulted in considerable disturbances in every area of your life. It was pointed out that Dr Barth expressed the opinion that your persecutory thoughts and auditory hallucinations impacted on your ability to exercise appropriate judgment and are likely to have contributed to the disinhibited behaviour culminating in the offending against Mr Smith. Accordingly, it was submitted that the principles in Verdins are enlivened and have application to your case, whilst acknowledging that your illicit substance use, combined with your antisocial personality disorder, is difficult to disentangle from your offending behaviour, such that reduction in moral culpability becomes a question of degree.

72 Ultimately, your counsel conceded that this aspect did have limited or moderated application to your circumstances, albeit submitting that your psychotic symptoms were likely to have been intense at the time of your offending, it would be reasonable to conclude that they impacted on your ability to exercise appropriate judgement, and likely added to your judgement being disinhibited.

73 I accept that the conditions you suffered from, including your antisocial personality disorder, and level of intoxication, impacted on your ability to exercise appropriate judgement at the time you stabbed Cameron Smith, and that there should be some moderation in the level of your moral culpability as a result.

74 Furthermore, it was submitted that in line with the opinion expressed by Dr Barth, limbs 5 and 6 of Verdins have application in your case in that your experience of custody is likely to be more onerous than a person with an otherwise healthy mental disposition, and there is a risk that your mental health will deteriorate over time.

75 In the circumstances as discussed above, I accept that you are likely to find your experience of custody to be more onerous due to your compromised mental health and personality disorders, and that the principles set out in limbs 5 and 6 of Verdins do have application in your case, but more emphasis should be given to the application of the fifth limb. I accept that there is an appreciable risk that you will find serving a sentence of imprisonment of some length more onerous than if you do not suffer from compromised mental health. I also accept that there is a risk that unless you receive appropriate treatment, your mental health will deteriorate.

76 I am prepared to accept that these issues, including your drug-induced psychosis, and antisocial personality disorder, combined with application of the Bugmy principles, provide a relevant contextual setting in which the offending occurred. I am prepared to accept that these issues also provide a context in which your time in imprisonment will be served, and that hyper-vigilance and hyper-arousal will to some extent make the serving of your time in prison more onerous than it otherwise might have been.

77 As noted, this offence falls within the standard sentence scheme, and I must only have regard to sentences previously imposed for murder as a standard sentence offence.[13]

78 Your counsel pointed out that since the standard sentencing provisions have applied, there have been very few murder sentences for offenders of similar age to you. Acknowledging that no two cases are the same, reference was made to a series of previous sentencing decisions delivered in this Court including reference to DPP v AK,[14] as being a useful comparative sentencing decision, noting that AK was 17 years old at the time the offence occurred. I note that having pleaded not guilty to murder, AK was found guilty of murder by a jury, but similarly to you, he had pleaded guilty on his arraignment to the alternative charge of manslaughter. I also note that the sentence on AK was imposed before the application of the standard sentencing provisions to that case, and that in accordance with the legislation, I have restricted my consideration of this case to matters concerning the applications of sentencing principles.

79 The Court was referred to other cases as examples of current sentencing practices for standard sentence cases of murder, to which I have had regard.[15] I have also had regard to the standard sentence of 25 years' imprisonment, and the applicable maximum penalty. I note that in the other cases to which I was referred the offenders had pleaded guilty to murder. I indicate that in my assessment of these cases I have considered the principles applied in these cases, as well as the sentences imposed.

80 Pursuant to s 5(1) of the Sentencing Act 1991, I must sentence you for the following specified purposes.

General deterrence, denunciation and just punishment

81 There is no doubt that considerations of general deterrence, denunciation and just punishment are primary sentencing purposes in a case of murder. These are particularly important in the present case, given the nature of your conduct against an unsuspecting man in a public setting, in company with others who had attacked Cameron Smith in the way that they did.

82 It is important that the sentence I will impose firmly denounces your actions and sends a clear message to the community that such behaviour is not to be tolerated. You stabbed an unsuspecting victim during a group attack against that person in a public street, in front of many witnesses. Furthermore, you did not know the person you attacked. The sentence that must be imposed must give effect to the community's denunciation of this type of conduct which involved the carrying, and use, of a weapon in a public setting, and a wanton attack on an innocent member of the public going about the enjoyment of his life. Cameron Smith's life was violently cut short by your actions, leaving a trail of devastation, and unremitting sadness and grief.

Specific deterrence, protection of the community, and rehabilitation

83 In his psychological assessment, Dr Barth referenced that a violence risk assessment involves detailed analysis types of variables to assess the probability of a particular individual committing further acts of violence in the community. As a result of conducting several HCR assessments, he concluded that in your case there are historical factors which have a "high risk" relevance. He refers to your antisocial personality disorder, your significant substance abuse issues, your long-standing involvement with antisocial peers, your history of engaging in violence, and a diversity of antisocial behaviours. He further references your failure to comply with previous supervision attempts and your history indicating a propensity for justifying violent attitudes. Some clinical factors which have high relevance for you are your continued lack of insight, your ongoing psychotic symptoms associated with your propensity for erratic behaviour and volatile mood swings, and your difficulties in achieving progress with mental health clinicians. As a result, Dr Barth assessed you on the HCR - 20 V 3 assessment tool as being likely to pose a high risk of reoffending. He is of the opinion that your ability to engage in offence specific treatment for violent offenders will be crucial in determining your long-term rehabilitative prospects in the community. He did acknowledge that you are in the very early stages of addressing significant drug dependence, but your insight into your behaviour is poor, and you presently lack any realistic plans to achieve abstinence. He expresses the opinion that specialist substance abuse treatment is urgently warranted if you are to have any realistic prospect of achieving a healthy life.

84 Finally, he expresses the opinion that without comprehensive, integrated and sustained psychological treatment and strict supervision, your rehabilitative prospects are poor. It appears you face an extensive period of intense rehabilitation if there is to be any realistic prospect of these issues being addressed effectively.

85 With respect to your rehabilitative prospects, based on the evidence presented to this court, those prospects must be regarded as quite guarded. However, I am not prepared to conclude that these prospects are extinguished. Nevertheless, because of the combination of circumstances that have been outlined and discussed above, the sentence that will be imposed upon you must place some increased emphasis on specific deterrence, and protection of the community. At the same time, it must be recognised that you will face a significant period of imprisonment, and the person you are now, may well be a different person on your eventual release from custody when you will re-enter the community, hopefully having the time to considerably mature. Your Counsel submitted that an extensive period of parole would be appropriate in your case. I agree with that submission.

86 Despite your preparedness to plead guilty to manslaughter, thereby demonstrating some willingness to take responsibility, and some expressions of regret made to Dr Barth, the prosecution submitted these matters do not demonstrate genuine remorse having been demonstrated by you. It was submitted that this is not a situation where there are strong expressions of profound remorse, despite your plea of guilty to manslaughter, and such expressions as have been made are of limited value.

87 In assessing your prospects of rehabilitation, I have taken into account that you have expressed regret in having taken the life of Cameron Smith. It is to be acknowledged that the trial was run on the confined basis of a single issue, and you indicated a plea of guilty to manslaughter on your arraignment on the charge of murder. That indication demonstrated your acceptance that you had stabbed Cameron Smith, and that you had thereby committed a very serious and unlawful act in doing so. Furthermore, that acceptance carried with it some utilitarian benefit, and is a mitigating factor.

88 In all the circumstances I accept that you have expressed some remorse for your offending in that you indicated to Dr Barth that you are sorry for what happened, that you did not mean for him to die, and that he did not deserve to die. You have expressed similar remorse for the damage you caused to your sister Emmaline Ledlin, as reported in her letter of support for you.

89 Whilst profound deprivation does mitigate, it needs also to be acknowledged that the inability to control your violent responses increases the importance of protecting the community from you. However, I am also mindful that in the circumstances a long sentence of imprisonment, you may well be a different person than you are now, when you are released from custody.

90 As noted, your offending occurred on 25 November 2020, with you being arrested and remaining in custody since the day following. You have served 750 days of presentence detention. When you entered custody, you were required to quarantine due to the impact of the COVID-19 pandemic. It is to be accepted that the impact of the pandemic was felt in the prison system, resulting in episodes of quarantine, limited visits, and limitations on the range of educational programs. I also note that you are currently prescribed anti-psychotic medication.

91 I have considered and taken into account the impact of these matters in the assessment of the appropriate sentence to be passed upon you. It is not disputed by the prosecution that the effects of the pandemic have made conditions in custody more onerous, and that some weight must be given to that in mitigation of sentence.

92 The impact of your offending not only led to the death of a 26-year-old young man with a full and likely fruitful life ahead of him, but as can be clearly gathered from the victim impact statements, the needless death of this well-loved, respected and talented innocent young man, and the violent circumstances in which his death occurred, has led to continuing devastation on the part of his family and loved ones.

93 Nothing this Court can do or say is likely to lessen the enduring trauma suffered by those that loved him. On behalf of our community this Court must once again, as it has to do on too many occasions, clearly denounce your actions and remark that needless and tragic street violence of the type that has occurred here is occurring in our community too frequently. It must be understood that not only are the people close to victims such as Cameron Smith affected by crime of this kind, but the whole community is affected.

94 After considering all relevant factors and purposes, the sentence I impose on you is imprisonment for 22 years.

95 Section 11A of the Sentencing Act 1991 requires me to fix a non-parole period of at least 70% of the head sentence imposed upon you unless it is in the interests of justice not to do so. It was submitted on your behalf that despite your criminal history would be in the interests of justice to fix a non-parole period of less than 70% of the head sentence to be imposed. It was pointed out that you were only aged 19 at the time of your offending, your offending was not planned, and your intention was not to kill Cameron Smith. Thus, it was submitted that the community would benefit from you being on parole for an extended period to supervise your rehabilitation on re-entry into the community. In this regard, your Counsel referred to DPP v Pan,[16] noting that in that case the sentencing judge whilst commenting on the offender's guarded prospects for rehabilitation and remarking that he would not be a young when released, the judge fixed a lower non-parole period, referring particularly to the offender's youth, his plea of guilty, and the length of the head sentence to be served. Notably, the judge referred to the need for appropriate violent offence specific treatment, substance abuse treatment and vocational training, as being important factors. In that case, the offender who was 19 years old at the time of the offence had been sentenced to 24 years' imprisonment with period of 16 years non-parole. The sentencing judge had concluded that the gravity of the offending was extremely high. The motivation for the killing was in retribution for co-operation of the deceased with law enforcement agencies. I note also that this case was a DPP appeal against the leniency of the sentence imposed, with the Court dismissing the Director's appeal.

96 The prosecution on the other hand submit that you present as a high risk of violent reoffending, and there is a need to give weight to community protection in considering whether a lower non-parole period than the standard sentence provisions require.

97 In your case, having assessed the evidence, your background, and the submissions advanced by both parties, I am not persuaded that it is in the interests of justice the non-parole period to be ordered should be lower than 70% of the figure of 22 years. In all the circumstances, the period you will serve before being eligible for parole will be 16 years' imprisonment.

Section 5B(5) statement

98 Section 5B(5) of the Sentencing Act 1991 provides that I must refer to the standard sentence for the offence, and explain how the sentence imposed by it relates to that standard sentence.

99 The task required does not suggest the need to attribute 'particular mathematical value' to matters significant to the formation of a sentence.[17] It does, however, require that I identify the facts, matters and circumstances which bear upon my judgement as to the appropriate sentence. I have done this in some detail above.

100 The sentence I have imposed is lower than the standard sentence for the offence of murder. Having identified and considered what I regard to be the relevant factors in assessing the appropriate sentence, particularly my assessment as to the serious nature of the offending and your degree of culpability, I have formed the conclusion that this figure is appropriate.

101 As you were arrested on 26 November 2020 and have remained in custody since that day, I declare that you have served 750 days of pre-sentence detention, not including this day.

[1] Crimes Act 1958 (Vic) s 3(2)(b).

[2] Sentencing Act 1991 (Vic) s 5B(2)(a).

[3] Sentencing Act 1991 (Vic) s 5B(2)(b).

[4] Sentencing Act 1991 (Vic) s 5B(3)(b).

[5] Brown v The Queen [2019] VSCA 286.

[6] [2019] VSCA 286.

[7] [2022] VSCA 98.

[8] Ibid at [49], citing Azzopardi v The Queen [2011] VSCA 372.

[9] R v Mills [1998] VSC 241; Azzopardi v The Queen [2011] VSCA 372.

[10] Director of Public Prosecutions v Drake [2019] VSCA 293 at [32].

[11] Bugmy v The Queen [2013] HCA 37.

[12] [2021] VSCA 340.

[13] Sentencing Act 1991 (Vic) s 5B(2)(b).

[14] DPP v AK [2019] VSC 852.

[15] R v Coghlan [2019] VSC 543; DPP v Treasure [2020] VSC 402.

[16] [2022] VSCA 98.

[17] Muldrock v R (20110 [2011] HCA 39; 244 CLR 120, 132 [29]; see also R v Brown [2018] VSC 742 [69]-[73].