DPP v SA & Ors

1 On 9 February 2024, I found you, SA , DM, QM and SY, guilty of the murder of Declan Cutler.[1] The four of you, as part of a larger group of eight young people, murdered Declan in the early hours of 13 March 2022 in a violent and unprovoked attack.

2 Three of the group, who I will refer to as AM, JA and MM, have already been sentenced by another judge of this Court[2] and the fourth, PM, was found not guilty by reason of doli incapax.[3]

3 During the afternoon and evening of 12 March 2022, the eight of you spent time together hanging around various locations in the western suburbs in a stolen Mazda.

4 That Saturday night, Declan attended a birthday party at a house in Reservoir with his friends, who I will refer to as TH and KH.

5 Also at the party was a girl who I will refer to as HP. HP, along with the eight of you, was associated with a youth group known as 'the 9ers'. There were simmering tensions between the 9ers and another youth group known as 'H-town'.

6 After midnight, arrangements were made for someone to pick HP up from the party and HP made it clear to the other party-goers that '[SA Nickname]' was picking her up. It is uncontroversial that SA's nickname was '[SA Nickname]'. Critically, at 1:53am, HP recorded a conversation in which TH was heard saying, 'fuck the 9ers' and the evidence suggests that HP relayed these comments to QM.[4]

7 By this time, all eight of you were driving towards Reservoir in the Mazda. When the Mazda got close to the party, just before 2:30am, HP and her friend walked over to the car and spoke to the occupants. Shortly afterwards, the car performed a U-turn and drove into the surrounding streets.

8 Declan and his two friends had already left the party by this time and were walking along a nearby street. As they did so, the Mazda pulled up near them. Some of you got out of the car, causing Declan and his friends to separate and run away. Once everyone was back into the car, the Mazda took off in pursuit. The attack that followed was likely prompted by the tensions between the 9ers and H-town groups, perhaps aggravated by HP's recordings. However, Declan was not associated with H-town, and was a total stranger to the eight of you. Tragically, Declan seems to have been the first person encountered by your group.

9 On the corner of Elizabeth street and Horton street, you saw Declan and all eight of you got out of the car and chased him. Declan tried to run but was dragged down onto the nature strip. He was then viciously and brutally attacked in two waves lasting under two minutes. The 'first wave' involved all eight of you. Only SA, QM and two others returned for the 'second wave'. Both waves involved repeated stabbing, kicking and stomping and the use of four knives by five of the group.

10 After the frantic two minutes of incalculable inhumanity, you all returned to the Mazda and drove away, leaving Declan dead or dying on the nature strip. You briefly drove past HP and her friend, and QM yelled, 'He's round there, he's dead. Mum's life, he's dead'. You then returned to the western suburbs in the Mazda.

11 Residents near the location of the attack had been woken by yelling and shouting. One arrived at the scene in time to see a car leaving and found Declan shortly afterwards. Emergency services responded to their triple zero call and paramedics took over CPR at 2:43am. Tragically, after about 15 minutes, Declan was declared dead.

12 A nearby CCTV camera captured the profoundly confronting vision of the deadly group attack. Words fail to describe the shocking brutality and cruelty of the attack on a defenceless child, and the footage will forever haunt anyone who has seen it - particularly Declan's parents. Yet, it is only from the autopsy results that a full picture of the sheer ferocity of the attack emerges. There were 56 sharp force injuries and 30 puncture wounds from the feverish stabbing to Declan's head, body and limbs.[5] Four of these were fatal stab wounds to Declan's chest that involved at least moderate, if not severe, force while Declan was defenceless on the ground.[6] Two stab wounds to the sacrum and lower abdomen caused an incision of the bone that could only have occurred through the application of severe force.[7] Declan suffered a further 66 blunt force injuries caused by the stomps and kicks that were rained down upon him.[8]

13 I will consider each of your individual roles in the attack shortly. However, it is necessary to explain that you are to be sentenced partly for your individual actions, and partly for your participation in what the law refers to as an 'agreement, arrangement or understanding' with the rest of the group.[9] In finding you each guilty of murder, I held that all of you entered into an agreement to kill Declan, or at least cause him really serious injury, at the time you got out of the car and chased him.[10] I note that there is no evidence of any actual discussion or pre-planning among the eight of you to attack anybody that night. However, you knew that others had knives and you were party to an agreement to attack Declan. You each actively participated in that agreement by kicking or stabbing Declan multiple times. This was a random and unprovoked attack, perpetrated by a large group, and each of your offending is objectively very serious.

14 Before I continue, I want to say something about the effect your offending has had on others. I have received victim impact statements from Declan's father, Bryan Beattie, and Declan's mother, Samantha Cutler. Losing Declan has had a profound effect on them, along with Declan's siblings and all those who loved him. Declan was only 16 when he died. Your senseless and vicious crime has deprived him of his most basic right, his right to life.

15 Ms Cutler describes feeling numb since the death of her first-born child. She felt fulfilled with Declan around, but now feels emptiness, anger and frustration. She struggles to sleep and is seeing a counsellor to deal with her grief.

16 Mr Beattie describes Declan as a typically cheeky teenager. Mr Beattie was teaching his son his concreting trade three days a week and has many good memories of them working together. Declan's death has taken an emotional toll on Mr Beattie and has caused division in his family. He feels there is a hole in his heart without his son. He yearns for an end to knife crime so that no other parent must live with the pain of losing their teenager from a night out with friends.

17 I have referred to the victim impact statements to properly acknowledge and appreciate the enormity and enduring impact of the serious crime which you have committed. As his father so powerfully put it, Declan will remain 16 forever.

18 I want to now begin by making some general comments that have application to each of you. First, each of you was a child at the time of the offence,[11] and therefore I am not required to take the standard sentence of 25 years' imprisonment into account,[12] or to fix a minimum non-parole period.[13] Murder is an inherently grave and serious offence, and I consider your offending to be a serious example of that offence. As such, a term of imprisonment with a non-parole period is the only appropriate sentence for each of you.

19 Secondly, the youth of young offenders (and their rehabilitation) is a primary sentencing consideration.[14] For the purpose of determining whether you are considered 'youthful', your age is to be considered at the date of sentencing.[15]

20 At 20 years and two months, you, SY, are the eldest of the eight. QM, at 19 years and 10 months, you are the second eldest of the eight, while you, SA, aged 19 and seven months, are the third eldest. DM, at 17 years and four months, you are the third youngest.

21 It is accepted that each of you is significantly less blameworthy for your conduct than an adult who had behaved in the same way.[16] Your youth is also significant to an assessment of your prospects of rehabilitation. I consider your youth at the time of the offending, and at the time of sentence, a relevant mitigating factor. At the same time, and considering the crime that you committed and the circumstances in which you committed it, the weight to be given to your age must be substantially moderated.

22 It is also relevant in this case that there are gradations in your ages. For example, the case law recognises that the maturity and ability of a 13 year old to understand the consequences of their impulsive actions is likely to be very different to a 17 or 18 year old.[17] I have considered each of your ages at the time of offending, along with the seriousness of the offending, when determining the appropriate sentence.

23 Thirdly, each of you are alleged to have committed further offending whilst on remand. On the materials before me, there is no apparent explanation as to why you became involved in the relevant incidents. I emphasise that in determining your sentence in the present case, I do not take into account, by way of aggravation, your involvement in that further offending. However, those matters are relevant to an assessment of your prospects of rehabilitation.

24 There are other factors that I am required by law to consider when imposing a sentence. It is well established when sentencing for the offence of murder that principles of general deterrence, just punishment and denunciation weigh heavily in the sentencing exercise.[18]

25 General deterrence is an important sentencing consideration in this case. The offending was carried out in a group, late at night, with knives, and because of the tensions and perceived slights between groups of youths. It involved unprovoked and utterly brutal violence against an unarmed teenager who was trying to flee. As Hollingworth J noted when she sentenced three of your group:

Unfortunately, violent knife crimes committed by young offenders have become far too common. The consequences that flow from such attacks can be devastating, for victims, their families and friends, and those who witness such incidents. It is also a real concern for the wider community, who need to be protected and to feel safe. There is a clear need for general deterrence (as well as denunciation and just punishment) in respect of such offending.[19]

26 It is necessary that the sentence I impose upon you adequately expresses the condemnation by this Court, and the community, of your crime, and to vindicate the sanctity of each human life.

27 Further, it is important that the sentence I impose on each of you is sufficient to ensure that you yourself are personally deterred from further acts of violence.

28 Community protection is also a significant sentencing consideration, having regard to the nature of the offending, and it is tied firmly to rehabilitation. Your rehabilitation will require targeted support, and a willingness by you to engage and apply what you have learned. In each of your cases, I consider community protection can be achieved only if your rehabilitation continues. I will discuss each of your prospects of rehabilitation later in these reasons.

29 I have had regard to current sentencing practices, and particularly the sentences imposed by Hollingworth J on three of your group.[20] AM is the only offender in the group who has been sentenced on a charge of murder for his role in this fatal attack.

30 While the role of each of you in the offending has some similarities to AM, there are obvious differences justifying different sentences. Of particular significance is AM's youth relative to the rest of the group and his positive progress in custody.[21] AM pleaded guilty to murder and therefore received a sentencing discount.[22] The prosecution also reminded me that the s 6AAA declaration made by Hollingworth J in relation to AM is not a sentence and should not, in the words of the Court of Appeal, be 'some kind of benchmark to be adjusted by balancing out aggravating features of the [offender] and his co-offender'.[23] I have therefore treated AM's sentence and her Honour's 6AAA indication as a relevant factor, but not a starting point, for your individual sentences.

31 I have also had regard to s 5(3) of the Sentencing Act 1991 (Vic), which provides that 'a court must not impose a sentence that is more than that which is necessary to achieve the purpose or purposes for which the sentence is imposed'. This reflects the common law principle of parsimony, 'a fundamental principle, sometimes forgotten'.[24] I have not imposed sentences that exceed the general and specific sentencing purposes.

32 I will commence with your involvement in the offending, SY. You were the first person to reach Declan. You grabbed hold of him and pulled him to the ground.

33 While QM and DM commenced stabbing Declan, you stomped and kicked at him. You continued this conduct throughout the first wave of the attack.

34 When the other seven left the scene after the first wave, you remained near Declan and posed as if taking a photo with your foot over him. However, no photo has been found of Declan on your phone and I have not made anything of these actions or the apparent purpose.

35 You were not involved in the second wave. It is also relevant that you did not at any time arm yourself with a knife or stab Declan.

36 I turn to consider your personal circumstances. You were 17 at the time of the offending. You were born in Egypt in 2004 where your family was seeking refuge from the Sudanese civil war. Your family arrived in Australia as part of a refugee program in 2005 and settled in Melbourne. You are one of seven children. Your parents separated in 2015.

37 Your mother describes you as a gregarious and easy-going child, and you made friends easily at school. It appears that you enjoyed school and there were no disciplinary issues. However, like an entire generation of children, your schooling was profoundly impacted by the COVID-19 restrictions. You were in Year 10 when the lockdowns commenced and you found it difficult to remain committed to your schooling. In Year 11, you enrolled in the Victorian Certificate of Applied Learning (VCAL), but your schooling was once more interrupted when your mother suffered a serious car accident. Later that year you lost two friends in another car accident. Together these events resulted in you spending less time at home, staying out late with friends, and ultimately coming into contact with the justice system for car theft.

38 You engaged in normal adolescent activities, like working at McDonalds, sometimes for more than 20 hours a week. Over the summer holidays you delivered pizzas for a local restaurant. You contributed to the finances of your family and you had recently acquired a position at a container warehouse when you were remanded.

39 The Court was assisted by a psychological report of Mr Guy Coffey, a pre-sentence report from Youth Justice prepared for a prior court appearance, and a letter from Mr Jack McCombe, the transitions team leader for Parkville College at Cherry Creek Youth Justice Centre ('Cherry Creek').

40 Mr Coffey reports that you accept your involvement in the offending, but that you consider your actions make you less culpable than the other members of your group and that you did not expect such a barbaric outcome. You could not explain why you did not desist from the attack. You deny any gang involvement. Mr Coffey suggests that your limited history of violence reduces your risk of re-offending, although you indicated that you see violence as a legitimate response when someone is wronged. Mr Coffey also considers that your history of offending is considerably more extensive than your criminal history would suggest. As a result, Mr Coffey considers that there is a moderate risk that you will violently re-offend, but that this risk can be reduced with well-targeted rehabilitation. Mr Coffey did not otherwise consider that you presented with a mental disorder, although you experience periods of panic and dysphoria.

41 Mr McCombe's letter sets out your progress at Parkville College. He describes you as a diligent and committed person. He reports that you are enrolled in Year 12 and are engaged with an educational program five days per week. You are described as a mature and positive influence on your peers and someone who shows leadership qualities. You are involved in the Umoja African Cultural Education program, a program for African diaspora students. Mr McCombe notes that critically reflecting on your African identity has led you to be proud of your heritage and you hope to encourage other African students to take pride in themselves.

42 You admit your criminal history, which includes sentences for charges of robbery, make threat to kill and theft of a motor vehicle.

43 Unfortunately, your offending has continued in custody. You have been involved in several incidents leading to charges. Your offending has continued up until April this year and you have been placed on behavioural rotations.

44 You appear to do well in a structured environment such as Parkville College. Prior to your incarceration you held down jobs and contributed to your family. This demonstrates that you have the capacity to engage in a responsible and mature lifestyle, and I accept that you have the potential to get back on that track in the future. You have strong family support both in custody and upon release and have displayed a very positive attitude towards your education while in custody. I therefore accept Mr Coffey's assessment that you are at the early phases of your rehabilitation and I consider that your prospects are reasonable.

45 You have begun to demonstrate some insight into the wrongfulness of your offending. You pleaded guilty to manslaughter from an early stage, demonstrating an acceptance of responsibility. It also had some utilitarian value in that the issues in your trial were more confined. You do not blame others for your offending and told Mr Coffey that you made your own decisions. You seem to understand that what you have done is very wrong and feel remorse about the way Declan died and the effect it has had on his family.

46 QM, I now turn to your involvement in the offending.

47 You were the second person to join in the attack. You immediately began to stab Declan - repeatedly and ferociously - as soon as he was on the ground. You continued this vicious assault throughout the duration of the first wave.

48 You returned in the second wave and again repeatedly stabbed Declan in a brutal manner. After the attack was over, you returned to Declan holding your phone with the flashlight or display illuminated. You picked something up from the ground and then crouched down next to his body. After a moment you stood back up, kicked his leg, and looked at him once more before returning to the vehicle.

49 I turn to consider your personal circumstances. You were born in New Zealand in 2004 to a Samoan mother and a South Sudanese father. You were 17 at the time of the offending. Your early upbringing in Auckland was difficult and you were exposed to family violence and substance abuse from a young age. At the age of four, you were observed to be dirty, unfed and severely neglected. The instability continued when your family migrated to Australia and Child Protective Services became involved. You were moved into foster care in Perth at the age of nine or 10, but your time in foster care was equally difficult and included further abuse.[25] After a time, you went to live with your paternal aunt. You completed Year 10 and were in the process of repeating Year 11 at the time of your incarceration.

50 The Court received a psychological report prepared by Ms Alison Mynard. Ms Mynard reports that you have a history of substance abuse, commencing with cannabis from the age of 14 and including the frequent use of Xanax. Ms Mynard considers that, because of your childhood trauma and the recent loss of your friends in a car accident, you suffer from complex post-traumatic stress disorder ('complex PTSD') and complicated bereavement disorder. These conditions caused you to have a reduced understanding of the consequences of your actions and less ability to control your emotions. She considers that you are in the extreme range for anxiety and depression. Ms Mynard suggests that gaol will prove more onerous for you. I accept the submission made on your behalf that limb 5, as articulated in R v Verdins ('Verdins'),[26] is enlivened because of these conditions.

51 The Court also received a letter from Mr McCombe. During your time in custody, you have engaged in music lessons, literacy and numeracy classes, and the gym. You are considering doing a building and construction course. Alongside your classes, you participate in the Umoja program and the Leo Taha program, a Māori and Pacific Islander cultural program. You have expressed feeling privileged by the opportunity to learn about your cultures and identity. Mr McCombe notes that you have reflected on your behaviour and want young people from your community to have bright futures and learn from your mistakes. Mr McCombe spoke of your adoration for your siblings and your sense of responsibility for your younger brother, which echoes comments you made to Ms Mynard.

52 You admit that you have a relevant criminal history. You have previously received sentences for unlawful assault, recklessly causing injury, robbery, possessing a controlled weapon without excuse, affray and various property and dishonesty offences. At the time of the offending, you were on bail with conditions and you were subject to a deferral of sentence on pending matters.

53 It is of concern that you have been involved in several further incidents in custody, which have led to charges. However, you have been incident-free since November 2023, which seems to coincide with your transfer to Cherry Creek in the months prior.

54 There are several mitigating factors that must be considered in the determination of your sentence. Your counsel submitted that a general application of the Bugmy v The Queen ('Bugmy')[27] principles is relevant to you. As recognised by the High Court, serious childhood deprivation is likely to reduce an offender's moral culpability. The extent of that reduction will depend upon the nature and circumstances of the offence, the nature and severity of the disadvantage suffered, and whether the effects of the disadvantage are in any way explanatory of the offending.[28] In your case, the difficult circumstances of your childhood and early adolescence, none of which were of your making, all played a relevant role in shaping your personality and your responses. As a result, I consider that a general application of the Bugmy principles is relevant to you, and your culpability for your offending cannot be equated with that of a person who had the advantage of a safe, stable home environment and upbringing.

55 Your prospects of rehabilitation have been described by Ms Mynard as moderate provided you engage in relevant treatment and programs. It is clear from your previous criminal convictions, your subsequent offending, and Ms Mynard's report, that your prospects of rehabilitation must be assessed as problematic at this stage.

56 As far as remorse is concerned, you were not immediately concerned by your actions towards Declan. However, I accept that you have since begun to develop some remorse for what you did to Declan and for the pain that you have caused his family. In discussing your offending with Ms Mynard, you indicated that you take responsibility for your part in Declan's death and expressed regret about your conduct, and sympathy for his family.

57 DM, you were the third to join the first wave. You were clearly holding a large knife when you got to Declan seconds after he was pulled to the ground by SY. You immediately, and without hesitation, viciously stabbed Declan. While your stabbing motions are not as pronounced and visibly vicious as some of those inflicted by others, you drove a large knife into Declan four times in what appear to be relatively forceful acts.

58 After inflicting the fourth stab, you were pushed out of the fray. At this point, SA takes the knife from your hand. You then jog away from the attack but return moments later to watch the savage assault and to try to re-enter the fray, before returning to the Mazda at the end of the first wave. You were not involved in the second wave.

59 I now turn to your personal circumstances. You were born in New South Wales in 2007 and you had just turned 15 at the time of the offending. You are the second youngest of six siblings. Your parents migrated to Australia from South Sudan prior to your birth, but separated when you were young. Your father now spends half of the year in Sudan for work and his absence is acutely felt by you. You were living with your mother prior to your incarceration.

60 Your family moved to Melbourne around 2015 and you had reached Year 10 prior to this offending. You reportedly struggled with school and were a hyperactive child who lacked concentration. You have completed Year 11 while on remand. The Court received a letter from Mr McCombe which highlights the exceptional engagement you have shown with your schooling while on remand. You are reportedly a positive and respectful participant in your classes and a founding member of the college book club. You have also become a keen member of the Umoja Program. Mr McCombe indicates that you have hopes of completing Year 12 and attending higher education, goals he considers highly achievable for you. Mr McCombe's letter suggests that you have matured significantly since you have been in custody. It therefore appears that you have taken several encouraging and positive steps towards your rehabilitation whilst on remand.

61 I have also had regard to a letter from your sister. She reports that you were a positive and active member of your community and engaged with integrity, honesty and kindness. However, your demeanour reportedly changed in the three months leading up to the offending when you became close friends with two members of the group.

62 You have no prior criminal history. On the other hand, it is a matter of concern that during your time on remand, you have been involved in numerous incidents which have resulted in criminal charges, the most recent of which was in April of this year.

63 There is no evidence before the Court in relation to any remorse you may have for what you did to Declan, and for the pain that you have caused his family.

64 While the offending is serious, you are not so entrenched in criminality that you do not have real prospects of rehabilitation. Based on your lack of any prior criminal history, your very young age, your productive use of time whilst in custody, and your strong family support, I accept that you have reasonable prospects of rehabilitation.

65 SA, I now turn to your involvement in the offending.

66 You were the last of the group to reach Declan in the first wave. The attack had already been occurring for over five seconds when you arrived and you immediately started kicking and stomping Declan. You then took a knife from DM and instantly started repeatedly stabbing Declan in a ferocious manner. This continued until the end of the first wave.

67 You returned as part of the second wave and watched others as they stabbed Declan to the lower half of his body.

68 You have asked that your personal circumstances not be read in open court. I have had regard to your difficult upbringing and will provide only a brief snapshot of your circumstances. You were 17 at the time of this offending. Your parents are of a Somalian background and immigrated to Australia prior to your birth. Your father left your family when you were 10 years old, and you were removed from your mother's care when your father took you and two of your sisters to Kenya. Your time in Kenya as a very young child can only be described as extraordinarily difficult and traumatic. Emotional and physical harm was inflicted on you at a time when you were vulnerable and should have been able to trust the adults in your life. At the age of 14, you returned to Australia and commenced Year 8. You found it difficult to establish friendships and reportedly skipped school. Nevertheless, you had reached Year 11 by the time of the offending.

69 In considering your background, I have had regard to a psychological report of Ms Courtney Steffens, a psychiatric report of Dr Prashant Pandurangi, and a neuropsychological assessment report of Dr Sarah Sherwell through Orygen and Justice Health.

70 Ms Steffens and Dr Pandurangi's reports explore your upbringing in depth, and outline long standing difficulties with behavioural dysregulation from an early age. Whilst on remand, you have been diagnosed with a mild intellectual disability, along with severely disordered receptive and expressive language skills. You display a series of concerning symptoms, including prodromal psychotic symptoms, complex PTSD, anxiety and depression, substance use disorder, and significant difficulties with emotion and regulation. Although Dr Pandurangi does not consider that you are suffering from an enduring psychotic illness, he considers that the stress of a lengthy period of incarceration could lead you to 'break down into a frank psychotic illness'. This may mean that gaol is more onerous for you, and this enlivens limbs 5 and 6 of Verdins.

71 You have no formal mental health history and have had no treatment prior to entering custody. Despite the identification of many mental health concerns while in custody, you have been inconsistent in your engagement with supports, and have disengaged from treatment, including medication. As a result, your severe mental health symptoms remain virtually untreated.

72 Ms Steffens concludes that you pose a high risk of future physical violence if your serious conditions remain untreated. Dr Pandurangi suggests that you present with several 'historical or static risk factors that are not amenable to change' and that your potential rehabilitation is dependent on your engagement with treatment, which may be further hampered by your intellectual disability.

73 You have no prior criminal history, although you were on bail at the time of the offending. It is of some concern that you have been involved in numerous incidents which have led to criminal charges while on remand. However, you appear to have stabilised since your move to Cherry Creek and you have not engaged in any further offending since November last year.

74 There is no evidence that you have developed any genuine remorse for what you did to Declan and for the pain you have caused his family.

75 You do not appear to have used your time in custody productively. You have been described by the experts as having complex mental health issues, and difficulties with insight and treatment engagement. Your counsel submitted that with appropriate treatment and support, your prospects of rehabilitation are reasonable. It is difficult to make a proper assessment of your rehabilitation prospects, however at this stage I consider them problematic.

76 Having said that, there are a number of mitigating matters which factor into your sentence. I have had regard to your youth and your childhood and adolescence experiences which were, as your counsel said, one of real and debilitating trauma and hardship. I have viewed your offending and the sentence to be imposed in that context. Your extreme hardship and disadvantage were not of your making and were of the extreme kind, and your culpability should not be equated with someone from a more advantaged upbringing. I consider that a general application of the Bugmy principles are relevant to you and, as such, your moral culpability for the offending in which you engaged is not the same as that of a person who had the advantage of a safe, stable home environment and upbringing.

77 Before I sentence each of you, I wish to make the following comments.

78 As I have already said, a term of imprisonment with a non-parole period is the only appropriate sentence for each of you.

79 In respect of the non-parole period that I will set for each of you, it is important for you to understand that, at the completion of that period, you will not automatically be released on parole. Rather, at the end of that period, you will become eligible to apply for parole, and will only be granted parole if it is considered appropriate by the Adult Parole Board. I would expect that, in deciding whether to grant you parole, the Adult Parole Board will consider your progress and behaviour during your term of imprisonment.

80 Further, each of your counsel have asked me to make a recommendation to the Adult Parole Board that you be transferred to the youth justice system until you are 21 years old.[29] I am satisfied that it is appropriate for me to make such a recommendation in respect of each of you. Particularly for you, DM and SY, I consider that a further period in Youth Justice would help to consolidate your treatment and education and path to rehabilitation. Ultimately, it will be a matter for the Adult Parole Board, not this Court, to determine whether such a transfer should occur.

83 For the offence of murder, I sentence you to 18 years' imprisonment with a non-parole period of 12 years.

84 Further, I declare that the period to be reckoned as already served under this sentence is 824 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.

86 For the offence of murder, I sentence you to 19 years and six months' imprisonment with a non-parole period of 14 years and 6 months.

87 Further, I declare that the period to be reckoned as already served under this sentence is 648 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.

89 For the offence of murder, I sentence you to 17 years and six months' imprisonment with a non-parole period of 12 years.

90 Further, I declare that the period to be reckoned as already served under this sentence is 854 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.

92 For the offence of murder, I sentence you to 19 years' imprisonment with a non-parole period of 14 years.

93 Further, I declare that the period to be reckoned as already served under this sentence is 840 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.

94 Given the seriousness of each of your offending, it is appropriate to make the forensic sample orders sought by the prosecution. I note none of you oppose the order.

95 I will also make the forfeiture and disposal orders sought.

[1] See DPP v SA & Ors [2024] VSC 28 ('Judgment'). Where necessary or appropriate pseudonyms have been used throughout this ruling in accordance with Children, Youth and Families Act 2005 (Vic) s 534 ('CYFA').

[2] See DPP v JA & Ors [2023] VSC 531 ('DPP v JA & Ors').

[3] See DPP v PM [2023] VSC 560.

[9] Crimes Act 1958 (Vic) s 323(1)(c). For brevity, I will use the term 'agreement' as shorthand for 'agreement, arrangement or understanding'.

[11] Each of the four offenders is a 'child' under s 3 of the CYFA and a 'young offender' under s 3 of the Sentencing Act 1991 (Vic) ('Sentencing Act').

[12] Crimes Act 1958 (Vic) ss 3(2)(b) and 3(1).

[13] Sentencing Act ss 11A(3) and 5B(1)(a). The prosecution correctly pointed out that I am still required to set a non-parole period for SA, SY and QM pursuant to s 5(2J) of the Sentencing Act.

[14] R v Mills [1998] 4 VR 235, 241 (Batt JA).

[16] See CNK v The Queen [2011] VSCA 228; (2011) 32 VR 641, 661 [71].

[17] AP (a pseudonym) v The Queen [2019] VSCA 278, [33].

[18] R v Dupas [2004] VSC 281, [3] (Kaye J).

[20] DPP v JA & Ors, [114]-[139].

[22] DPP v JA & Ors, [57], [119].

[23] The Queen v Waugh [2013] VSCA 36; [2013] 38 VR 66, 73 [23].

[24] R v Casley [2021] VSC 503, [117].

[26] [2007] VSCA 95; (2007) 16 VR 240.

[27] Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571.

[28] Sabbatucci v The Queen [2021] VSCA 340; (2021) 98 MVR 256, 263 [26] (Maxwell P and Emerton JA).