DS v R; DM v R

Solicitors: Purcell Lawyers (DS) Legal Aid NSW (DM) Solicitor for Public Prosecutions (Crown) File Number(s): 2017/106628; 2017/106645 Publication restriction: By the operation of s 15A of the Children (Criminal Proceedings) Act 1987, the names of the applicants must not be published in a way that connects them to these proceedings. Decision under appeal Court or tribunal: Supreme Court Jurisdiction: Criminal Citation: R v DS; R v DM [2020] NSWSC 422 Date of Decision: 01 May 2020 Before: Bellew J File Number(s): 2017/106628; 2017/106645

HEADNOTE [This headnote is not to be read as part of the judgment] Two juveniles, DS and DM sought leave to appeal against lengthy sentences imposed by Bellew J on 1 May 2020 for various offences, including murder. DS pleaded guilty to murder and take and drive motor vehicle without consent of owner while owner present in circumstances of aggravation. An offence of aggravated enter dwelling house with intent to steal was included on a "Form 1" associated with the offence of murder. DM pleaded guilty to the same two offences and an offence of robbery with wounding while armed with an offensive weapon and an offence of wounding with intent to cause grievous bodily harm. Two other offences were included in a Form 1 associated with the offence of murder. At the time the offences were committed, the principal offender, DM, was 16 years and 8 months old, and DS had only just turned 15. Both offenders had dysfunctional upbringings and mental health issues. The sentencing judge found that the moral culpability of each offender was reduced. DS was sentenced to terms of imprisonment totalling 18 years and 4 months, including a sentence of 15 years and 4 months for murder. DM was sentenced to terms of imprisonment totalling 35 years and 6 months, including a sentence of 31 years and 6 months for murder. All the offences were committed during the evening of 6 April 2017 and the early hours of the next morning. At around 8:00pm DM and DS were part of a group of youths that approached a male. DM began verbally abusing him before striking him to the side of the head with his bottle of alcohol, breaking the bottle. At about 10:15pm DM, DS and a third person entered the apartment. DM produced a knife threatening to stab the occupant and later hit him in the face with a wheel brace. At about 11:46pm, DM and DS arrived at a service station in Queanbeyan. After entry DM engaged in a conversation with the attendant before producing a knife and stabbing him to the right side of the back. DM continued to stab the attendant while they struggled at the rear of the store. DS approached the service counter and attempted to remove the cash register tills. As the attendant was bleeding to death on the floor of the service station, DM dipped his finger in his blood and wrote the letters "I" and "S" on the window. DS and DM kicked in the entrance door and exited the store. The attendant died from three significant wounds from the stabs to his chest and abdomen, all of which were administered by DM. At about 6:20am on 7 April 2017 DM and DS waved down the driver of a motor vehicle. DM opened the car door and stabbed the driver with a knife. DM and DS got in the car and drove away. They were apprehended after a police pursuit. Issue common to both Applications for Leave to Appeal One issue common to both applications was whether an assessment of an offender's "moral culpability" was part of the determination of the objective seriousness of their offending? Held per the Court:

1. An assessment of an offender's moral culpability does not form part of the determination of the objective seriousness of their offending. The "objective seriousness" of an offence and the "moral culpability" of the offender are separate but related concepts. The former involves an objective assessment of the seriousness of the crime and some matters causally related to it. The latter is concerned with an offender's moral blameworthiness for an offence. A determination of moral culpability can involve a consideration of a wider set of subjective factors affecting an offender than an assessment of objective seriousness (at [63] to [96]). Paterson v R [2021] NSWCCA 273; Kelley v R [2021] NSWCCA 173; Markarian v The Queen (2006) 228 CLR 357; [2005] HCA 25; Hoare v The Queen (1989) 167 CPR 348; Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25; Zreika v R [2021] NSWCCA 243; Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39; Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37; Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38; R v Engert (1995) 84 A Crim R 67; Western Australia v Munda (2012) 43 WAR 137; Director of Public Prosecutions (Vic) v Dalgliesh (A Pseudonym) (2017) 262 CLR 428; [2017] HCA 41; Minogue v Victoria (2018) 264 CLR 252; [2018] HCA 27; Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29; Tepania v The Queen (2018) 275 A Crim R 233; [2018] NSWCCA 247; McLaren v R [2012] NSWCCA 284; Elturk v R (2014) 239 A Crim R 584; [2014] NSWCCA 61; Fisher v R; R v Fisher [2021] NSWCCA 91; Brown v The Queen (2019) 59 VR 462; [2019] VSCA 286; Khan v R [2022] NSWCCA 47; MDZ v R [2011] NSWCCA 243; Biddle v R [2017] NSWCCA 128; Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194; Moiler v R [2021] NSWCCA 73 considered. Application for Leave to Appeal by DS The issues arising on DS's application for leave to appeal were: (i) Whether his Honour erred in determining the objective seriousness of his offences? (ii) Whether his Honour erred in holding that the significance of the applicant's youth was to be moderated given the extreme violence which was involved in the offending? (iii) Whether his Honour erred in holding that there was no evidence that the immaturity of the applicant was a significant factor in the commission of any of the offences? (iv) Whether the overall sentence imposed on the applicant did not reflect the finding of special circumstances? (v) Whether the sentences were manifestly excessive? The Court held, granting leave to appeal, allowing the appeal, and resentencing the applicant: As to issue (i) per the Court:
2. The assessment of the objective seriousness of DS's offence by reference to DM's offending was erroneous as the proper approach was to sentence DS for the offence that he committed on the accepted basis that he was criminally liable for those offences (at [97] to [103] and [104] to [113]). R v AA [2017] NSWCCA 84; R v Jacobs (2014) 151 A Crim R 452; [2004] NSWCCA 462; applied. As to issues (ii) and (iii), per the Court:
3. The reference to extreme violence in the offending by the sentencing judge was a reference to the extreme violence perpetrated on the deceased and DS was criminally liable for that violence. It was open to his Honour to not be satisfied of the extent of the contribution of DS' immaturity to his offending (at [114] to [119]). Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472; Craft v R [2021] NSWCCA 131 applied. As to issue (iv), per the Court:

Judgment

1. THE COURT: This is an application for leave to appeal against lengthy sentences imposed on two juveniles for various offences including murder that arose out of a night of carnage in Queanbeyan in April 2017 which left one person dead, another stabbed and carjacked, a third person seriously assaulted, and a fourth person the subject of a violent attempt to steal property from their home.
2. At the time the offences were committed, the principal offender, DM, was 16 years and 8 months old and the other offender, DS, had only just turned 15. Each of them had a dysfunctional upbringing and mental health issues. DS was found by the sentencing judge to be remorseful and to have favourable prospects of rehabilitation. DM was found to have schizophrenia. He was assessed as having poor prospects of rehabilitation.
3. Reflecting his much greater role in the offending, the sentencing judge imposed sentences of imprisonment on DM that totalled 35 years and 6 months and imposed sentences of imprisonment on DS that totalled 18 years and 4 months years. For the reasons that follow, and notwithstanding the seriousness of their crimes, the sentences imposed on DM were manifestly excessive and the sentences imposed on DS were affected by error. Both will be resentenced.

The Offences and the Sentences

1. On 18 September 2019, DS pleaded guilty before Bellew J to two offences and requested that the Court take into account another offence on a notice filed by the prosecutor under s 32(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (a "Form 1" and the "CSP" respectively). On 23 September 2019, DM pleaded guilty before Bellew J to four offences and requested that another two offences included on a Form 1 be considered. After a number of days of sentencing hearings, on 1 May 2020 his Honour sentenced both offenders (R v DS; R v DM [2020] NSWSC 422).
2. The following tables set out the offences to which DS and DM pleaded guilty and which they requested be taken into account, the maximum penalty for each offence, the victims of each offence, any applicable standard non-parole which would have applied had DS and DM been adult offenders, the sentencing judge's findings of objective seriousness, and the sentences his Honour imposed.
3. For the offender DS: Offence Victim Maximum Penalty Standard Non-Parole Period* Finding of Objective Seriousness Sentence Murder Zeeshan Akbar Life Imprisonment 20 years' imprisonment Objective seriousness is above the mid-range but "criminality of DS is substantially less than that of DM" Imprisonment for 15 years and 4 months commencing 7 April 2020 and expiring on 6 August 2035 with a non‑parole period of 10 years and 9 months expiring on 6 January 2031 (Crimes Act, s 18(1)) Form 1 offence with murder: Aggravated enter dwelling house with intent to steal Thomas Field 14 years' imprisonment 5 years' imprisonment (Crimes Act, s 111(2)) Take and drive motor vehicle without consent of owner while owner present in vehicle in aggravation, namely in company with DM Sankalpa Mahatara 14 years' imprisonment 5 years' imprisonment Mid-range of objective seriousness (although criminality of DM is higher than DS) Imprisonment for 6 years and 4 months commencing 7 April 2017 - no non‑parole period specified (Crimes Act, s 154C(2))

1. For the offender DM: Offence Victim Maximum Penalty Standard Non-Parole Period* Finding of Objective Seriousness Sentence Murder Zeeshan Akbar Life Imprisonment 20 years' imprisonment Substantially above the mid-range Imprisonment for 31 years and 6 months commencing 7 April 2021 and expiring 6 October 2052 with a non-parole period of 23 years and 6 months commencing 7 April 2021 and expiring 6 October 2032 (Crimes Act, s 18(1)) Form 1 offence with murder: Assault occasioning actual bodily harm Thomas Cameron 5 years' imprisonment (Crimes Act, s 59(1)) Form 1 offence with murder: Aggravated enter dwelling house with intent to steal Thomas Field 14 years' imprisonment 5 years' imprisonment (Crimes Act, s 111(2)) Robbery with wounding while armed with an offensive weapon Zeeshan Akbar 25 years' imprisonment 7 years' imprisonment Imprisonment for 11 years and 8 months commencing 7 April 2017 and expiring 6 December 2018 - declined to set a non-parole period (Crimes Act, s 98) Wounding with intent to cause grievous bodily harm Sankalpa Mahatara 25 years' imprisonment 7 years' imprisonment Mid-range Imprisonment for 12 years and 6 months commencing 7 April 2017 and expiring on 6 October 2029 - declined to set a non-parole period (Crimes Act, s 33(1)(a)) Take and drive motor vehicle without consent of owner while owner present in vehicle in aggravation, namely that he intentionally inflicted actual bodily harm (on the owner) Sankalpa Mahatara 14 years' imprisonment 5 years' imprisonment Mid-range Imprisonment for 9 years commencing 7 April 2017 and expiring 6 April 2026 - no non‑parole period specified (Crimes Act, s 154C(2))

1. As noted, the standard non-parole periods in the above tables were not applicable to DS and DM because they were juveniles (CSP, s 54D(3)). However, as explained below, they have some relevance to an assessment of the contention that the sentences imposed were manifestly excessive.
2. The total effective sentence imposed on DS was imprisonment for 18 years and 4 months commencing 7 April 2017 and expiring 6 August 2035, with an effective non‑parole period of 13 years and 9 months. Subject to any intervention by this Court, DS will be first eligible for release on parole on 7 January 2031. Pursuant to s 19 of the Children (Criminal Proceedings) Act 1987 (NSW), his Honour ordered that DS serve his sentence as a juvenile offender until he is 21 years of age. DS will turn 21 on 8 March 2023.
3. The total effective sentence imposed on DM was imprisonment for 35 years and 6 months commencing 7 April 2017 and expiring 6 October 2052 with an effective non‑parole period of 27 years and 6 months. Subject to any intervention by this Court, he will be first eligible for release on parole on 7 October 2044. Unlike DS, his Honour did not order that DM serve his sentence as a juvenile offender until he was 21 years of age. DM turned 18 years of age on 30 August 2018. Presumably he ceased to be detained in a juvenile detention centre from that time.

Facts of the Offences

1. The facts of the offences were set out in an agreed statement of facts. What follows is a summary of those agreed facts.
2. As at April 2017, DS had resided in Queanbeyan for several years. DM had only recently commenced living there. In the early afternoon of 6 April 2017, DM and DS were in the presence of other youths at DM's mother's place. According to the agreed facts, DM "spoke of committing offences, such as 'break and enters' … to obtain money to buy drugs". DM told the group he had joined "ISIS" and showed photos of an "Arab looking dude" and text messages he had exchanged with "the Arab".
3. At around 5:00pm, the group discussed stealing alcohol from a liquor store. DM suggested they rob a bottle shop in the Australian Capital Territory ("ACT"). The group left. On their journey, one of the group saw a knife tucked into DM's pants. DM said, "[i]f anyone gets in my way, I'll stab them."
4. The group then travelled to the ACT where they robbed a liquor store attendant. The attendant had locked the store. As he was approaching his car to leave, he noticed three young males, being DM, DS and another person, standing on the other side of his vehicle. DM approached him and held one hand behind his back as if he were holding something. DM demanded cash from the attendant. At one point he said, "[g]ive me the cash, I'll shoot you motherfucker. I run for the Rebels." The attendant explained that the takings were inside the store so DM said to him "[g]ive me your wallet and your phone." The attendant refused. DM punched him with a closed fist to the right side of his jaw. The attendant described the impact as "forceful". He removed his mobile phone from his pocket and told DM, "I'll call the cops". DM, DS and the other person then absconded and met up with the rest of the group. This incident was included in the agreed facts, but did not form the basis for any charge, presumably because the relevant events occurred in the ACT.

Assault Occasioning Actual Bodily Harm Upon Thomas Cameron

1. At around 8:00pm on Thursday 6 April 2017, Thomas Cameron was sitting on a bench and drinking near the end of Erin Street, Queanbeyan. He was approached by the group of youths that included DM and DS. One of the group, who was not DM or DS, asked him for a cigarette. There was a disagreement over whether Mr Cameron would roll the cigarette or not. DM then spoke to Mr Cameron. At some point DM began verbally abusing him. DM demanded that Mr Cameron give him the bottle of alcohol he was drinking, but Mr Cameron refused. DM said, "I'll fucking smash ya with it." Mr Cameron replied, "[y]ou can have just a sip." DM then took the bottle from Mr Cameron. While Mr Cameron's attention was focused on the youth demanding the cigarette, DM struck him to the side of the head with the bottle, breaking the bottle. Mr Cameron started to run in the direction of the hospital. DM shouted, "[c]ome back and I will stab you, you're dead, get fucked."
2. Mr Cameron was treated for his injuries at the hospital. He sustained a concussion, bilateral nasal bone fracture and multiple lacerations over the right eyebrow/eyelid and his face.
3. The assault upon Mr Cameron by DM was the offence of assault occasioning actual bodily harm included on the Form 1 associated with the offence of murder. So far as DS is concerned, the agreed facts recorded that "neither DS, nor any other person, could have foreseen the actions of DM in assaulting [Mr] Cameron."
4. The agreed facts record that the group of young people, including DM and DS, ran from the scene in the direction of the town. Two of the group decided to go home. They asked DS to accompany them. DS replied, "[y]eah." However, DM, who was standing nearby, said, "[DS is] not going anywhere, he is staying with me tonight." DM then lifted up his t-shirt revealing a black-handled kitchen knife in the band of his jeans.

Aggravated (in company) Enter Dwelling House with Intent to Steal

1. DM, DS and another youth then went to DM's home. They discussed attending the residence of an acquaintance of DM. When they were about to leave DM's residence, he grabbed a knife. DM asked DS to also grab a knife or weapon. DM retrieved a wheel brace from a shed.
2. At about 10:15pm on Thursday 6 April 2017, Thomas Field was sitting in the living room of his apartment. Mr Field was 41 years of age. He had previously met DM but not DS. He heard a knock at the door and DM calling out. Mr Field opened the door for DM who entered together with DS and a third person.
3. After they spoke for a while, DM asked Mr Field where all his "stuff" was. DM produced a knife that was approximately 30cm in length and told Mr Field he was going to stab him. Mr Field and DM struggled. DM dropped the knife behind the couch. DM and Mr Field then began to punch each other. While Mr Field was fighting with DM, he was hit in the face with a cross-shaped wheel brace. The agreed facts recorded that the "Crown is unable to prove, beyond reasonable doubt, the circumstances in which that occurred, including who was responsible." DM and Mr Field continued to fight. At some point DM, DS and the third youth ran from the apartment.
4. Mr Field telephoned triple-0 and reported the incident. The police attended and established a crime scene. Mr Field sustained cuts and bruises to his mouth area, swelling to the right forearm and a laceration to the right lower leg.
5. This incident comprised the offence of aggravated entry into a dwelling house with intent to steal that was included on the Form 1 for each of DM and DS and associated with the offence of murder. The circumstance of aggravation was that the offence was committed in company.

Murder and Robbery While Armed with Offensive Weapon with Wounding

1. DM, DS and the third person left Mr Field's residence. The agreed facts record that "[t]here was discussion about attending the service station" but the third person told "DM and DS he was not going with them and returned to DM's residence".
2. At about 11:46pm, DM and DS arrived at a Service Station in Queanbeyan. The service station attendant, Mr Zeeshan Akbar ("Akbar"), was standing outside the store. He was 29 years of age.
3. The agreed facts record that the following events were captured on several CCTV cameras located within the store: "1. Akbar used his card to allow DM and DS access to the store; 2. DM entered the store first, followed by DS; 3. DM was wearing a dark coloured jacket with a zipper down the front with a dark coloured cap; 4. DS was wearing a dark coloured hoody (with the hoody over his head); 5. DM walked down the second aisle and appeared to look at products on the shelves; 6. DS walked down the third aisle and then turned left and took up a position directly next to DM on his right; 7. Akbar stood on the mat directly in front of the sliding doors entrance. He appeared to be looking at a clip-board containing documents; 8. DS then walked away and approached the service counter and looked in the direction of the service desk; 9. DM appeared to engage the deceased in conversation. The deceased appeared to speak to DM. Akbar pointed with his pen in the direction of the service counter and motioned for DM to follow him. Akbar commenced walking in the direction of the service counter, followed closely by DM; 10. DS then walked back in the direction from where he came, turned left into the second aisle, walked along the aisle and exited behind DM; 11. As Akbar turned left in front of the service counter, DM removed a knife from the right side of his pants, moved quickly towards Akbar, and stabbed him to the right side of the back. DM placed his right arm around the neck of Akbar. DS was standing on the other side of the ice-cream freezer looking in the direction of DM and Akbar; 12. Akbar commenced to struggle with DM and moved backwards in an attempt to get away from him. DM continued to stab Akbar; 13. Akbar turned and ran towards the rear of the store; 14. DS moved through the second aisle and approached the service counter. He removed a wheel brace and a saw from his pants. He opened a small swinging door and walked behind the service counter; 15. DM continued to stab Akbar while they struggled at the rear of the store; 16. DS removed the hoody from his head and attempted to remove the cash register till closest to the door. He was unsuccessful as it remained connected to a computer by a cord. He placed the cash register till on the floor, together with the wheel brace and the saw. He then moved to the second cash register till which he also attempted to remove, but encountered the same difficulty; 17. DM ran towards the service counter and leapt up onto the service desk, and then down behind the counter. He was still holding the knife; 18. DM assisted DS to remove the cash register till from the computer; 19. DS then picked up the wheel brace and saw from the floor; 20. DM turned around and opened the cigarette cabinet. He then placed a number of packets of cigarettes into a bag; 21. DS and DM then walked around from behind the service counter and approached the entrance door. DS was carrying a cash register till; 22. DM approached Akbar who was lying on the floor. DM dipped his finger in Akbar's blood, walked to the glass window, and wrote the letter 'I' on it. He then returned to Akbar, once again dipped his finger in his blood, walked to the glass window, and wrote the letter 'S'; 23. DS and DM commenced to kick the entrance door in an attempt to exit the store. DS threw the wheel brace at the door resulting in it wedging in the door. DM removed the wheel brace and commenced to hit the door with it. DS commenced to walk in the direction of the service counter. DM once again kicked the door and then used his shoulder to push it ajar. DS returned to the area of the door and they both manoeuvred their bodies to fit through the gap created in the door."
4. DM and DS made their way back to DM's residence. In the meantime, Mr Akbar's flatmate arrived at the service station to start the next shift. Confronted by a shocking scene, he could not open the locked doors to the service station and contacted the police.
5. A post‑mortem examination of Mr Akbar revealed that he had suffered three significant wounds. The first wound was to the left anterior of the chest perforating the heart. This wound was 60mm to the left of the midline and was approximately 145mm deep. The second wound was to the lower abdominal wall to the left with a partial transection of the left external iliac artery. It caused heavy blood loss. The third wound was to the upper lumbar area of the back on the right affecting soft tissue only. Other injuries were observed such as defensive wounds to Mr Akbar's hands. The direct cause of death was found to be the stab wounds to the chest and abdomen.
6. DM was the principal offender in the murder of Mr Akbar. The basis upon which DS was culpable for his murder is addressed below.

Wound with Intent to Cause Grievous Bodily Harm and Aggravated Take and Drive Motor Vehicle with Occupant in Vehicle

1. At about 6:20am on the morning of Friday, 7 April 2017, Sankalpa Mahatara was driving his motor vehicle in Queanbeyan when he was waved down by DM and DS.
2. DM told Mr Mahatara that they had killed someone and had held up a service station. According to the agreed facts "DM also said he had 'bottled' a homeless guy". DM was standing near the driver's side window. DS was standing near the front of the car. DM produced a knife and showed it to Mr Mahatara. DS held a wheel brace and used it to tap on the window of the car.
3. DM opened the car door and stabbed Mr Mahatara with the knife to the right side of his chest under his armpit. DM said to Mr Mahatara, "[k]eys bro. Give me the keys. Give me your phone too. I don't want you fuckin' calling the cops and stuff. Give me the phone."
4. The agreed facts record that Mr Mahatara was having difficulty breathing. He alighted from the car and left the keys and his phone in the vehicle. He ran to try and get help before collapsing on the ground. He waved down a passing motorist who contacted the police.
5. Mr Mahatara received a right-sided chest wall wound consistent with an entry wound caused by a penetrating assault with a sharp object. A 'CT' scan of his chest and abdomen revealed a small haemo-pneumothorax and a small right bronchial artery pseudoaneurysm. The agreed facts record that, although he sustained minimal internal injuries, this mechanism of trauma had the potential to cause death via an injury to a major lung or heart blood vessel, as well as the heart itself.
6. After stabbing Mr Mahatara, both DM and DS got in the car and drove away. Police located the vehicle travelling on the Monaro Highway. A police pursuit ensued and they were ultimately stopped in the ACT.
7. Whilst being placed under arrest, DM called out "Allah Akbar. Allah Akbar. I'm going to cut your heads off. There is only one God." DM continued making comments to police suggesting that "Sydney" was going to be blown up and that he was going to behead every police officer.
8. On 8 April 2017, the ACT Children's Court authorised the extradition of DM and DS to New South Wales. After DM was taken into custody in New South Wales, he stated, inter alia, "I'm not a murderer. I felt sorry for DS. He shouldn't get as long as me aye? I never thought I would do something like this, end up here. It's the last time I get DS to drive. Fucken idiot."
9. Both DM and DS declined to be interviewed. Whilst in the police cells DM was heard to call out, "I'm going to do 50 years. I'm a fucking murderer." He also drew the letters "IS" in tomato sauce on the wall of the cell.
10. The stabbing of Mr Mahatara by DM was the offence of wounding with intent to inflict grievous bodily harm, to which he pleaded guilty. The taking of his motor vehicle was the offence of take and drive motor vehicle without consent of owner while the owner was present in vehicle in circumstances of aggravation, contrary to s 154C(2) of the Crimes Act 1900 (NSW). In DM's case, the circumstance of aggravation was the intentional infliction of actual bodily harm (Crimes Act 1900 (NSW), s 154C(3)(c)). In DS's case the circumstance of aggravation was the commission of the offence in company (Crimes Act 1900 (NSW), s 154C(3)(a)).

The Sentencing Judgment

1. The sentencing judgment was comprehensive. After setting out the offences to which DM and DS pleaded guilty, Bellew J rejected an application made on behalf of DS to impose a provisional sentence pursuant to s 60B of the CSP. His Honour then set out the facts of the offences before addressing the objective seriousness of the offending. His Honour described the entirety of the conduct of the offenders on the evening of 6 April 2017 into the early morning of the following day as a "violent and uncontrolled criminal rampage" (at [44]).
2. In relation to the murder of Mr Akbar, his Honour found that DM's offending was "substantially above the mid-range of objective seriousness" (although his Honour later referred to it as "above the mid-range"). In relation to DS, his Honour found that "whilst the objective seriousness of the deceased's murder is, as I have found, above the mid-range, the criminality of DS is substantially less than that of DM" (at [55]). So far as the offences concerning Mr Mahatara are concerned, his Honour found that they were "at the mid-range of objective seriousness, although for the reasons set out the criminality of DM is again higher than that of DS" (at [59]). These findings are the subject of challenge by both applicants.

Findings in Relation to DS

1. His Honour then addressed the circumstances of each offender. In relation to DS, the following seven points should be noted.
2. First, his Honour noted that by the time of sentencing DS was 18 years of age. He is of Indigenous heritage. His father was incarcerated when DS was eight and passed away in 2014. DS discovered his body and his Honour accepted that it had a "marked effect" on him as he was close to his father. His Honour noted that it was around this time that the offender "first came into trouble with the law" (at [61]). His Honour noted various inconsistent histories of drug abuse given to different psychologists but accepted that "he has had difficulties in that respect since entering his teenage years" (at [62]).
3. Second, as noted, his Honour rejected the application for a provisional sentence. His Honour did so because his Honour found the (psychiatric and psychological) evidence did "permit a satisfactory assessment [that] the offender has a … serious cognitive impairment" (CSP, s 60B(1)(d)). In particular his Honour found that he had "borderline intellectual functioning … to the point where he was placed equal to, or above, only 4% of his same-aged peers" (at [26]). His Honour found that, as he was in the borderline range, that is a "factor which reduces his moral culpability for the offending" (at [63]). His Honour also noted the conclusion of one psychologist that DS "suffered from a depressed and submissive personality style" (at [20]).
4. Third, his Honour allowed a discount of 10% on account of DS's pleas of guilty that were entered just prior to the commencement of the trial (at [64]).
5. Fourth, his Honour noted that DS had a substantial criminal history since he first came before the New South Wales Children's Court in 2016. He was given the benefit of a control order in respect of an offence of aggravated break and enter and commit a serious indictable offence in company. His Honour found that DS's criminal record disentitled him to leniency (at [65]).
6. Fifth, his Honour was satisfied that DS's expressions of remorse were genuine (at [67]).
7. Sixth, his Honour reviewed the evidence concerning DS's prospects of rehabilitation and likelihood of reoffending closely. Ultimately, his Honour found that his prospects "appear favourable" (at [73]). His Honour also concluded: "I am satisfied on the whole of the evidence that, particularly given his youth, the offender would benefit from a longer period on parole to assist in his rehabilitation and his reintegration into the community. Accordingly, I propose to make a finding of special circumstances and will adjust the ratio between the head sentence in the non-parole period accordingly."
8. This finding was reflected in the ratio of the non-parole period imposed for the murder of Mr Akbar to the overall sentence, namely 70%. However, it was not reflected in the ratio of the total minimum period that DS must serve in custody to the total effective sentence which was 75%. This aspect of the sentencing judgment is the subject of ground 5 of DS's notice of appeal.
9. Seventh, his Honour specifically addressed the significance of DS's youth to the sentence imposed. Ultimately, his Honour stated that it had been taken into account but added that its consideration was "moderated given the extreme violence which was involved in the offending" (at [81]). This aspect of the sentencing judgment is the subject of grounds 3 and 4 of DS's notice of appeal.

Findings in Relation to DM

1. Eight aspects of his Honour's findings in relation to DM should be noted.
2. First, as with DS, his Honour summarised the facts surrounding DM's dysfunctional upbringing including his complex history of mental health problems. DM was the eldest of eight children. His Honour noted, and it can be inferred also accepted, a history provided to a psychologist, Dr Eagle, of DM's childhood and adolescence being characterised by physical violence in the family home so much so that he was removed from his mother's care in 2009 and placed in a foster home. In turn, DM displayed violence and aggressive behaviour. He was repeatedly expelled from school for truancy, smoking and fighting. DM provided varying histories of drug and alcohol abuse but it seems that his Honour accepted that, from around the age of 14, "drug use played a prominent role in his life" including the use of methylamphetamine (at [85]).
3. His Honour noted that, at the age of 11, DM was diagnosed with Attention Deficit Hyperactivity Disorder (at [86]). As an adolescent, he was admitted to a forensic hospital and diagnosed with schizophrenia, substance use disorder and conduct disorder. His Honour noted that staff at that forensic facility commented that the offender was "desensitised to aggressive behaviour" and had "a lack of remorse towards people he had hurt" (at [86]). His Honour noted Dr Eagle's conclusion that it was "likely that the offender had a post traumatic condition which she described as a complex post-traumatic stress disorder" and was "similar to a post-traumatic stress disorder, except instead of occurring after life-threatening trauma, it occurs after prolonged and repeated traumatic events such as long-term domestic violence and/or childhood physical or sexual abuse" (at [87]). His Honour then observed (at [88]): "In accordance with the principles set out by the High Court in Bugmy v The Queen [(2013) 249 CLR 571; [2013] HCA 37 at [40] to [44]; "Bugmy"] I have had taken into account the offender's deprived background, particularly in respect of those matters reported by the offender's mother to Dr Eagle."
4. This aspect of the sentencing judgment is the subject of ground 3 of DM's application.
5. Second, his Honour then addressed DM's mental health at the time he committed the subject offences. His Honour noted the opinions of two psychiatrists, Dr Nielssen and Dr McSwiggan, that DM suffered from schizophrenia and had impaired intellectual functioning (at [89] to [90]). To similar effect his Honour noted, and it can be inferred also accepted, Dr Eagle's opinion that DM had a mild intellectual disability and "[m]ore significantly" suffered from schizophrenia (at [94]). His Honour noted Dr Eagle's conclusion that DM's apparent preoccupation with ISIS "was not part of [his] psychotic illness" but that "given his complex mental disorders and low level of intellectual function, he remained highly susceptible to adverse influences, particularly violent extremists" (at [95]). His Honour found (at [99]): "In light of the unchallenged evidence of Dr Eagle, I am satisfied that the offender's schizophrenic condition contributed to the commission of these offences in a material way. That reduces his moral culpability and also reduces the need for general deterrence."
6. Third, as with DS, his Honour allowed a discount of 10% on account of DM's pleas of guilty (at [100]).
7. Fourth, DM had a history of prior convictions commencing when he was 14 years and 7 months old including common assault, aggravated break and enter in company, larceny, and destroying property (at [101]). However, his Honour noted that, other than common assault, his criminal history was limited in terms of violent offending. His Honour concluded that DM's criminal record disentitled him to leniency (at [102]).
8. Fifth, his Honour was not persuaded that DM had expressed any genuine remorse (at [106]).
9. Sixth, his Honour concluded that "at least as things presently stand, [DM] is at a substantial risk of re-offending" (at [113]).
10. Seventh, like DS, his Honour specifically addressed DM's youth and its relevance to his offending. His Honour's reasoning on this topic is set out below as it is the subject of ground 2 of DM's application.
11. Eighth, his Honour addressed whether to make a finding of special circumstances. In comparing the position with DS, his Honour stated (at [118]): "As I have previously indicated, I have made a finding of special circumstances in favour of DS and the statutory ratio has been adjusted accordingly. In the case of DM, no such finding has been made, but an adjustment to the statutory ratio has been brought about by the level of accumulation that I consider appropriate."
12. With respect to his Honour, it does not appear that this finding was given effect to. As noted, with DS there was an adjustment to the statutory ratio for the sentence imposed for murder, but the ratio of the total effective non-parole period to the total effective sentence was 75%. For DM, the ratio of the non-parole period imposed for the offence of murder to the head sentence was 74.6%, but the ratio of the total effective non-parole period to the total effective sentence was 77.5%.

Objective Seriousness and Moral Culpability

1. Before addressing the particular grounds of appeal, it is necessary to address a matter of sentencing principle raised on behalf of both applicants but pursued with vigour on behalf of DM. Both applicants contended that the sentencing judge's approach was erroneous because his Honour did not act on the basis that an assessment of each applicant's "moral culpability" was part of the determination of the objective seriousness of their offending. As noted, his Honour found that both offenders had reduced moral culpability by reason of mental impairments. As explained below, there is considerable support for the proposition that a causally related mental impairment may reduce the objective seriousness of an offence. However, the written submissions made on behalf of DM went further and contended that "[m]oral culpability has been held to be an aspect of objective seriousness or gravity of an offence". It is appropriate to address that contention at the outset.
2. In Paterson v R [2021] NSWCCA 273 ("Paterson"), Beech-Jones CJ at CL stated as follows (at [29] to [31]): "…. it is necessary to address how the sentencing judge addressed the submissions of the parties concerning two separate but related concepts of importance to sentencing, namely the "objective seriousness" of an offence and the "moral culpability" of the offender. As its name implies, the former involves an objective assessment of the seriousness of the crime and the matters causally related to it. The latter is concerned with an offender's moral blameworthiness for an offence. A determination of moral culpability can involve a consideration of a wider set of subjective factors affecting an offender than the former (see: Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 [("Muldrock")] at [27] and [54]; Bugmy at [44]; Veen v The Queen (No 2) (1987-1988) 164 CLR 465; [1988] HCA 14 ["Veen (No 2)"]; Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 [("Munda")] at [57]; Zreika v R [2021] NSWCCA 243 [("Zreika")] at [55]). In Tepania v R [(2018) 275 A Crim R 233; [2018] NSWCCA 247 ("Tepania")], Johnson J described the matters that can bear upon an assessment of objective seriousness as follows [at [112]]: 'In sentencing for an offence (whether or not a standard non-parole period offence), a court should make an assessment of the objective gravity of the offence applying general law principles, so that all factors which bear upon the seriousness of the offence should be taken into account (unless excluded by statute). Factors such as motive, provocation or non-exculpatory duress may be taken into account in this way. Regard may be had to factors personal to the offender that are causally connected with or materially contributed to the commission of the offences, including (if it be the case) a mental disorder or mental impairment. It was recognised at common law that motive or emotional stress which accounts for criminal conduct is always material to the consideration of an appropriate sentence: Neal v The Queen (1982) 149 CLR 305; [1982] HCA 55 at 324-325 (Brennan J). Motive for the commission of an offence is an important factor on sentence: Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 at 55-56 [171]-[172] (Callinan J).' An assessment of an offender's moral culpability includes both a consideration of the objective seriousness of their offence but also extends to a consideration of some of their personal circumstances, including circumstances which may affect their capacity to reason, appreciate the full wrongfulness of their actions or control their conduct. Commonly, this includes intellectual impairments and mental illness (Muldrock at [54]) as well as a background of social deprivation (Bugmy at [44]) including being raised in an environment where the abuse of alcohol was common (Munda at [57]; Craft v R [2021] NSWCCA 131 at [42])." (emphasis in original)
3. Both R A Hulme and N Adams JJ agreed with this analysis (at [61] and [62]). The analysis in Paterson was consistent with that of Bell P (as his Honour then was) in Kelley v R [2021] NSWCCA 173.
4. DM's principal contention involves a rejection of this analysis. DM does not merely contend that some matters may affect both an assessment of objective seriousness and moral culpability, a proposition accepted in Paterson and other cases too numerous to cite. Instead, DM contends that an assessment of moral culpability always forms part of the assessment of objective seriousness. If accepted, that contention would complicate what is already a complex sentencing regime. It would introduce multiple stages into the sentencing process in circumstances where that is not required by statute. It is a proposition that appears inconsistent with Markarian v The Queen (2006) 228 CLR 357; [2005] HCA 25 ("Markarian") and would render the adjective "objective" in the concept of "objective seriousness" a misnomer.
5. DM's principal contention was not accompanied by any submission that Paterson was clearly wrong and should not be followed. In the ordinary course that would be determinative. However, DM sought support for the contention by reference to statements in various authorities. On close analysis, those statements either did not address this point, were taken out of context, or have since been superseded by High Court authority. Out of deference to the argument, the relevant High Court authority and the judgments of this Court will be referred to, including those that are relied on. Absent further High Court consideration, we do not regard the point sought to be raised as still being an open question in this Court.
6. In the context of sentencing, references to the objective seriousness of an offence, as well as some individual or personal circumstance that reduces the moral culpability of an offender, can be found in many High Court cases that pre-date Muldrock. Thus, in Hoare v The Queen (1989) 167 CLR 348 ("Hoare") at 354, Mason CJ, Deane, Dawson, Toohey and McHugh JJ observed that "… a basic principle of sentencing law is that a sentence of imprisonment imposed by a court should never exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in the light of its objective circumstances". In support of that statement, their Honours cited various passages from Veen (No 2), all of which contain references to either the "gravity" of the offence (see Veen (No 2) at 472 to 473 per Mason CJ, Brennan, Dawson and Toohey JJ, 485 to 486 per Wilson J and at 490 to 491 per Deane J) or to the offence being "viewed objectively" (at 488 per Wilson J and 496 per Gaudron J). Leaving aside a statutory scheme that adopts the concept of objective seriousness, Veen (No 2) and Hoare identify one important consequence of the assessment of the objective seriousness of an offence, namely that it operates as a limitation on the appropriate sentence that can be imposed; i.e. no matter how poor the offender's subjective case and how much of a danger to the community they represent, absent express statutory authority to the contrary, a court cannot impose a sentence which exceeds that which is appropriate or proportionate to the gravity of their crime. Otherwise, a consideration of the gravity of an offence is part of the instinctive synthesis referred to in Markarian (Zreika at [46]).
7. Veen (No 2) also addressed the concept of moral culpability. Hence, in Veen (No 2) at 477 the plurality referred to a "mental abnormality which makes an offender a danger to society when he is at large but which diminishes his moral culpability for a particular crime" (at 477.1). Their Honours also referred to an "antecedent criminal history" as potentially "illuminat[ing] the moral culpability of the offence in the instant case" (at 477.8). Given that such a history does not bear upon an assessment of the gravity of the offence, that statement is inconsistent with DM's contention noted above.
8. In Muldrock (at [27]), the High Court addressed those provisions of the CSP which specified a standard non-parole period for offences "in the middle of the range of objective seriousness" for particular crimes. Their Honours described the "objective seriousness of an offence" as a matter "to be assessed without reference to matters personal to a particular offender or class of offenders" but instead "wholly by reference to the nature of the offending" (at [27]). Later, in describing the potential significance of an offender's mental illness and the commission of the offence, their Honours observed that "the lack of capacity to reason, as an ordinary person might, as to the wrongfulness of the conduct will, in most cases, substantially lessen the offender's moral culpability for the offence" (at [54]).
9. After Muldrock there was much consideration given to whether some circumstance of the offence that might also be described as "personal to the offender", including those relevant to their mental state, such as the offender's motive, might nevertheless inform the assessment of objective seriousness. The outcome of that consideration is reflected in the above passage (at [64]) from Tepania. For present purposes it suffices to note that Muldrock clearly reflects a distinction between the objective seriousness of an offence and the moral culpability of an offender, although it arose in a particular statutory context.
10. Subsequent High Court cases have confirmed this distinction absent the statutory context considered in Muldrock. Bugmy and Munda best illustrate the relationship between an assessment of objective seriousness and moral culpability. In the oft cited passage from Bugmy at [44], French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ stated: "Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving "full weight" to an offender's deprived background in every sentencing decision. However, this is not to suggest, as the appellant's submissions were apt to do, that an offender's deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult… An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender." (emphasis added)
11. Their Honours then referred to the discussion by Gleeson CJ in R v Engert (1995) 84 A Crim R 67 of the potential significance of an offender's mental condition to the various sentencing factors, before adding (at [46]): "It does not advance the appellant's case to say, as he does, that the Court of Criminal Appeal was wrong to take into account general deterrence in concluding that Judge Lerve erred in his assessment of the objective seriousness of the offence. Consideration of the objective seriousness of the offence must take account of the fact that this was an offence committed by a prisoner against an officer in a prison. An issue for determination on the remitter is whether the appellant's background of profound childhood deprivation allowed the weight that would ordinarily be given to personal and general deterrence to be moderated in favour of other purposes of punishment, including rehabilitation, to the extent that Judge Lerve allowed." (emphasis added)
12. It is notable that the discussion of the objective seriousness of the offence (of inflicting grievous bodily harm with intent) related to the commission of an offence by a prisoner against a prison officer. There is no suggestion in Bugmy that the appellant's deprived background affected an assessment of the objective seriousness of his offence, although it was found to reduce his moral culpability.
13. Like Muldrock, Bugmy was a case from New South Wales and involved an offence that carried a standard non-parole period. However, Munda concerned Western Australia and had none of the statutory equivalents. In Munda, French CJ, Hayne, Crennan, Kiefel, Bell, Gageler and Keane JJ found (at [57]): "This observation by McLure P is particularly poignant in this case, given the very lenient sentence imposed on the appellant in May 2009 and its evident insufficiency to deter the appellant from the repetition of alcohol-fuelled violence against his de facto spouse, or to afford her protection from such violence. The circumstance that the appellant has been affected by an environment in which the abuse of alcohol is common must be taken into account in assessing his personal moral culpability, but that consideration must be balanced with the seriousness of the appellant's offending. It is also important to say that it should not be thought that indulging in drunken bouts of domestic violence is not an example of moral culpability to a very serious degree". (emphasis added)
14. The reference in this passage to the observations of McLure P is to her Honour's statement in the judgment appealed from that "addictions ordinarily increase the weight to be given to personal deterrence (and/or community protection) because of the associated increase in the risk of reoffending" (Western Australia v Munda (2012) 43 WAR 137 at [65]).
15. Again, this passage from Munda reinforces that an assessment of the seriousness of the offending and the moral culpability of the offender are separate but related steps. Their Honours held that a reduction in the offender's moral culpability from being affected by an environment in which the abuse of alcohol was common, was to be "balanced with" (or against) the "seriousness of the … offending". If DM's contention were to be accepted, then the effect of being raised in that environment on the offender's moral culpability would correspondingly reduce the seriousness of the offending rather than be "balanced" with the seriousness of the offending.
16. Other High Court authorities since Bugmy and Munda that relate to Victoria, and which did not involve the application of statutory provisions similar to those considered in Muldrock, confirm the above analysis of the relationship between the two concepts. Hence, in Director of Public Prosecutions (Vic) v Dalgliesh (A Pseudonym) (2017) 262 CLR 428; [2017] HCA 41 at [53], Kiefel CJ, Bell and Keane JJ found that the Victorian Court of Appeal was correct in concluding that the current sentencing practices in that State for incest "did not reflect the objective gravity of the offending", but that its conclusion that the range had to apply in the case the subject of appeal was "not warranted by the need for reasonable consistency in the administration of criminal justice … because the range was seen to reflect a disregard of the gravity of the offending as indicated by the maximum sentence prescribed for the offence, and the moral culpability of the offender". Again, this statement is inconsistent with the proposition that assessment of moral culpability is a component of the assessment of objective seriousness.
17. Similarly in Minogue v Victoria (2018) 264 CLR 252; [2018] HCA 27 at [39], Kiefel CJ, Bell, Keane, Nettle and Edelman JJ observed, in relation to an applicant for parole who had been convicted of murdering a policeman: "Whether the deceased officer was a police officer who at the time of the murder was performing duties or exercising powers of a police officer or whose murder was connected with his or her role are all matters critical to the assessment of the nature and gravity of the crime and at least in some cases also the prisoner's moral culpability. Thus they should be readily apparent from the sentencing remarks." (emphasis added)
18. This statement is also inconsistent with the proposition that the assessment of moral culpability is a component of the assessment of objective seriousness.
19. The submissions made on behalf of DM in support of this point do not address the above authorities but instead contend that support for his contention can be found in Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 ("Filippou") at [70]; Tepania at [112] to [123]; McLaren v R [2012] NSWCCA 284 ("McLaren") at [28] to [29]; and Elturk v R (2014) 239 A Crim R 584; [2014] NSWCCA 61 ("Elturk") at [31] to [34]).
20. Nothing in Tepania provides any support for DM's proposition. In Tepania, the sentencing judge found that the offender's impaired intellectual functioning "lessen[ed] his moral culpability" (at [69]). It was contended that his Honour erred in not considering his "reduced moral culpability due to his background of profound disadvantage and his intellectual impairment" in assessing the objective seriousness of his offending (at [72]). This Court rejected that contention, emphasising that his Honour considered those matters in addressing his moral culpability (at [122]). This Court found that it was not demonstrated that the sentencing judge "failed to have regard to the [offender's] profound deprivation and intellectual impairment" (at [123]).
21. With Filippou, the statement relied on is at [70], where it is stated that "[c]ertainly, a sentencing judge must do his or her best to find the facts which determine the nature and gravity of the offending, including the facts which inform the offender's moral culpability." This statement was enunciated as part of the Court's analysis of the approach to be adopted by sentencing judges to making findings of fact on sentence. Filippou was not addressing the sentencing issues raised by such decisions as Muldrock or Bugmy. Given the repeated statements on the subject of the gravity of the offence and the moral culpability of the offender in the various High Court cases noted above, which pre-date and post-date Filippou, their Honours observation in Filippou at [70] is to be taken as a reiteration of the obligation of sentencing judges to make findings of fact on all matters relating to sentencing so as to enable them to undertake the instinctive synthesis that is fundamental to the sentencing process (Markarian at [52]). We do not accept, however, that it provides support for the proposition that an assessment of an offender's moral culpability is a component of the assessment of the objective gravity of an offence.
22. The statements that DM relies on from Elturk and McLaren were made in the immediate period after the decision in Muldrock amidst the debate over whether any matter "personal to the offender" informed an assessment of the objective seriousness of an offence and, if so, what matters. In Elturk at [34], Beazley P adopted the relevant passage from the judgment of McCallum J (as her Honour then was) in McLaren. The relevant passage from McLaren is the following (at [29]): "The decision in Muldrock does not, however, derogate from the requirement on a sentencing judge to form an assessment as to the moral culpability of the offending in question, which remains an important task in the sentencing process. That this assessment is also sometimes referred to as the "objective seriousness" of the offence perhaps contributes to the misconception. I do not understand the High Court to have suggested in Muldrock that a sentencing judge cannot have regard to an offender's mental state when undertaking that task (as an aspect of his or her instinctive synthesis of all of the factors relevant to sentencing)." (emphasis added)
23. To the extent that this passage concluded that Muldrock did not preclude a consideration of (some aspects of) an offender's mental state informing an assessment of the objective seriousness of an offence then it is consistent with subsequent authority as exemplified by Tepania. However, to the extent that this passage refers to the "moral culpability of the offending" as something that is synonymous with the objective seriousness of the offence, then it is, with respect, a misstatement. All the discussions of moral culpability including Veen (No 2), Muldrock and the other High Court decisions noted above which post-date these decisions refer to the moral culpability of the offender, not the offending (Veen (No 2) at 477; Muldrock at [54]).
24. DM also relied on the following observation of Fullerton J in Fisher v R; R v Fisher [2021] NSWCCA 91 at [70] ("Fisher"): "In the sentencing court's assessment of an offender's moral culpability for the offending conduct - a feature of the objective seriousness of the conduct which is fundamental to the sentencing process - the statutory prohibition in s 21A(5AA) on the offender's self-induced intoxication being taken into account in mitigation is engaged." (emphasis added)
25. Although considered alone this statement might be seen as providing some support for the contention that an assessment of an offender's moral culpability necessarily informs an assessment of the objective seriousness of the offence, that contention falls away when it is considered with her Honour's further statement in Fisher at [77]: "I agree with Adamson J that a material sentencing error has been demonstrated, the effect of which allows this Court to review the sentencing judge's factual findings, including his assessment of objective seriousness and the related assessment of the respondent's moral culpability, before considering whether, in the Court's residual discretion, it should intervene." (emphasis added)
26. The emphasised portion of this passage is consistent with the above analysis of the relationship between moral culpability and objective seriousness.
27. DM's submissions also referred to the endorsement of McLaren and Elturk by the Victorian Court of Appeal in Brown v The Queen (2019) 59 VR 462; [2019] VSCA 286 ("Brown"). Brown concerned the interpretation of the Victorian equivalent of the standard non-parole period provisions of the CSP. At [51], their Honours cited the judgment of McCallum J in McLaren as support for the proposition that what is not to be undertaken under the relevant legislation is an "assessment which adopted the scale of seriousness specified by the legislation for determining the hypothetical offence of mid-range seriousness" (at [51]). That is a different point to that which is now contended for by DM.
28. Three further points should be noted about the relationship between "objective seriousness" and "moral culpability".
29. First, as an illustration of the connection between these two concepts, it is relevant to note that the High Court authorities discussed above refer to various factors that operate to "diminish" (Veen (No 2) at 477.1), "lessen" (Muldrock at [54]) or "reduce" (Bugmy at [44]) the offender's moral culpability. This raises the question: from what has the offender's moral culpability been reduced? The short answer is from a moral culpability that corresponds or substantially corresponds with the objective seriousness (or gravity) of the offence. In many, perhaps most, cases there will be nothing about the circumstances of the offender that could warrant any diminution from their moral culpability that ordinarily follows from the commission of the offence in question. For that reason, it may not be necessary for a sentencing judge to always refer to it.
30. The second is to observe that discussions about these concepts is not an end in itself. With the exception of what follows from the standard non-parole provisions of the CSP, "objective seriousness" and "moral culpability" are not statutory phrases. The discussion of these concepts is not meant to burden sentencing judges but to assist them by inviting, and to an extent requiring, them to determine the seriousness of the offence and how much moral blame the offender bears, but only as part of a consideration of the weight to be attached to the various sentencing factors and for the purpose of undertaking the instinctive synthesis described in Markarian.
31. So far as moral culpability is concerned, each of the discussions of this concept in Veen (No 2) (at 476 to 477), Muldrock (at [54]), Bugmy (at [44]) and Munda (at [54]) considered how the offender's reduced moral culpability, and the reason for that reduction, bore upon the weight to be attached to the various sentencing factors such as general and specific deterrence, protection of the community, retribution, and promotion of rehabilitation, etc. In some cases, where there is a factor that clearly operated to reduce an offender's moral culpability, it may suffice if the sentencing judge made it clear how that factor affected the sentencing considerations without necessarily using the phrase "moral culpability" (Khan v R [2022] NSWCCA 47 at [1] to [12]). Further, in some cases, it will be clear how an express determination that an offender's moral culpability was reduced bore on the sentencing exercise. In other cases, that may need to be expressly stated.
32. Third, DS's written submissions refer to a number of passages from judgments of this Court to the effect that an offender's mental condition "may" affect an assessment of the objective seriousness of an offence (including MDZ v R [2011] NSWCCA 243 at [67]; Biddle v R [2017] NSWCCA 128 at [68]). This proposition is embraced by the statement of Johnson J in Tepania noted above, namely that, in assessing the objective seriousness of an offence, regard "may be had to factors personal to the offender that are causally connected with or materially contributed to the commission of the offences, including (if it be the case) a mental disorder or mental impairment".
33. In relation to moral culpability, it has long been accepted that "[w]here the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced" (Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177]) with potential consequential effects upon the weight to be afforded to the various sentencing factors, including denunciation and general deterrence. This form of connection between the offence and its commission might be described as "a" causal connection, but it need not be the direct or precipitating cause (see Moiler v R [2021] NSWCCA 73 at [59] per Button J with whom Basten JA and Davies J agreed) (emphasis added).
34. It follows that an offender's mental impairment is a matter that can affect both an assessment of moral culpability and objective seriousness. However, while a mental impairment "may" affect an assessment of the objective seriousness of an offence it will not necessarily do so, even if it is said that there is "a" causal connection between the impairment and the offence. The critical factors are the nature of the impairment, the nature and circumstances of the offence, and the degree of connection between the former and the latter. The most obvious such circumstance is where the mental impairment is effectively a constituent element of the crime, such as manslaughter involving a substantial impairment within the meaning of s 23A of the Crimes Act. Another example may be where an offender damaged property during a period of psychosis or while suffering delusions but in circumstance that fall short of that which might establish a mental illness defence. In such a case, it could be said that the objective seriousness of the offending was reduced perhaps substantially. Such an offence would not be premediated or planned, and the offender would not have sought or derived any advantage from their offending or possessed any malice in doing do. On the other hand, where an offender suffered from depression that impaired their decision making, it is very difficult to accept that the objective seriousness of a sexual assault they committed is somehow reduced even though it might be said that their depression materially contributed to their inability to overcome their own impulse to commit the offence. Such circumstances might warrant a reduction in their moral culpability which would in turn warrant further consideration be given to the weight attached to various sentencing factors, although it would not necessarily result in a reduction in their sentence.

Grounds 1 and 2: Objective Seriousness

1. Ground 1 of DS's application for leave to appeal contends that his Honour erred "in determining the objective seriousness of the murder offence." Ground 2 contends that his Honour erred in determining the objective seriousness of the aggravated take and drive motor vehicle offence under s 154C(2) of the Crimes Act.
2. DS's written submissions in support of ground 1 contend that there were two erroneous aspects to the determination of the objective seriousness of the murder committed by DS. The first was that the assessment of the objective seriousness as "above the mid-range" was either erroneous or "alternatively, [his Honour] erred in failing to make transparent the level of objective seriousness". Second, it was submitted that the sentencing judge erred in determining the objective seriousness of his offence "without taking into account [his] 'borderline' cognitive abilities".
3. To address this, it is necessary to describe that part of the sentencing judgment in which his Honour addressed the objective criminality of DM's offence and DS's offence. His Honour commenced by noting (at [44]): "Viewed in an overall sense, the conduct of the offenders on the afternoon and evening of 6 April 2017, and on the morning of 7 April 2017, is best described as amounting to a violent and uncontrolled criminal rampage. That said, it is obviously necessary to assess the objective seriousness of each individual instance of offending. In doing so, I turn firstly to the offence of murder."
4. His Honour then summarised the agreed facts and noted that he had viewed the CCTV footage of the robbery and killing of Mr Akbar which was tendered before him. His Honour found that it was apparent from the footage that, as a subterfuge, DM inquired of Mr Akbar "about the location of a particular item or items within the service station" and concluded that, at least by the time of that conversation, DM had formed the intention to kill him (at [46]). His Honour noted that DM attacked Mr Akbar from behind, that the attack was cowardly (at [47]) and that Mr Akbar was "overpowered by DM, who, in an uncontrolled and ferocious display of gratuitous violence, inflicted two further blows with the knife". His Honour characterised DM's dipping his fingers in the deceased's blood and drawing the letter "IS" with that blood on the window as "macabre and callous" (at [49]). However, his Honour did not accept that DM's actions were motivated by an adherence to "some form of extremist ideology" (at [50]), but noted that "DM's offending … was aggravated by the complete vulnerability of the deceased" (at [51]). His Honour concluded that (at [52]): "Any further observations about the objective seriousness of DM's offending in murdering the deceased would be superfluous. The offending finds itself substantially above the mid-range of objective seriousness."
5. His Honour then addressed DS's offending as follows (at [53] to [55]): "53 As far as DS is concerned, it must be acknowledged that his plea of guilty was entered on the basis of constructive murder. That does not automatically lead to the conclusion that DS should receive a lesser sentence than would be the case if his plea had been entered on some other basis. The approach to be applied in sentencing in a case of constructive murder was set out by Wood CJ at CL in [R v Jacobs (2004) 151 A Crim R 452; [2004] NSWCCA 462; "Jacobs"]: Constructive murder is not to be regarded as less serious, and thereby attracting a lighter total sentence or non-parole period than that which is appropriate for other categories of murder. Just as is the case for the other categories, there are degrees of seriousness of constructive murder, and the determination of the appropriate sentence for any individual offence depends upon the nature of the offender's conduct and the part which he or she played in the events giving rise to the death. 54 The relevant intention of DS was to participate in the robbery. That robbery was obviously planned. DS watched the attack on the deceased unfold. As he did so, he approached the service station counter and proceeded to carry out the planned robbery. 55 Having observed DM attacking the deceased, who as I have pointed out was in a position of complete vulnerability, DS did not attempt, at any time, to withdraw from the planned robbery. On the contrary, he took immediate steps to carry it out. However, there is no evidence that he was aware in advance of any intention which had been formed by DM to kill the deceased, be it with the use of a knife or otherwise. It is also clear that he did not actually participate, in any way, in DM's attack on the deceased. In all of these circumstances, and whilst the objective seriousness of the deceased's murder is, as I have found, above the mid-range, the criminality of DS is substantially less than that of DM." (italicised and bold emphasis added)
6. His Honour then addressed the "offences involving Mr Mahatara". His Honour noted that "in a further act of intimidation, [DS] tapped the wheel brace that he was holding the on the window of Mr Mahatara's vehicle" (at [56]). After describing the circumstances of his stabbing and carjacking, his Honour concluded (at [58] to [59]): "58 I am satisfied in all of the circumstances that DM played a significantly greater role than DS in the commission of the offences involving Mr Mahatara. It was DM who primarily engaged with Mr Mahatara, it was DM who produced the knife, and it was DM who carried out the stabbing. DS did, however, engage in an act of intimidation in DM's company, although I acknowledge that he did not enter the vehicle until after DM. 59 The offending in the case of each offender is aggravated by the fact that, alone in his vehicle in the early hours of the morning, Mr Mahatara was vulnerable. I regard the offending surrounding Mr Mahatara as being at the mid-range of objective seriousness, although for the reasons set out the criminality of DM is again higher than that of DS." (emphasis added)
7. DS contended that there was an ambiguity in his Honour's use of the phrase "criminality" in [55] of the sentencing judgment. It was contended that this was a reference to DS's "moral culpability" so that his Honour was stating that the objective seriousness of DS's offence was "above the mid-range" but his moral culpability was reduced. DS contends that, if that is the proper construction, it was clearly erroneous as his conduct contributed minimally to the murder of Mr Akbar such that his offence could not be characterised as above the mid-range. Alternatively, DS contended that if "criminality" was a reference to "objective seriousness" then his Honour erred because his Honour found that the objective seriousness of DS's offence was below that of DM without specifying what it was. As we understand it, the Crown submitted that the latter was the proper construction and implicitly contended that there was no obligation on his Honour to specify where the offence fell in some hypothetical range.
8. In relation to ground 2, it was contended on behalf of DS that a similar error was occasioned in relation to the findings concerning the offences committed against Mr Mahatara in that his Honour referred to the "criminality" of DS. It was contended that the error was even more pronounced with this offence than with the offence of murder because his Honour referred to the "offences" and the "offending" in relation to DS generally, but DS was only convicted of one offence concerning Mr Mahatara and that was not the same offence as either of the offences committed against him by DM.
9. While in some contexts the phrase "criminality" can refer to moral culpability (R v AA [2017] NSWCCA 84 at [55]; "AA"), in this context, his Honour's reference to the "criminality" of DS's offending was not a reference to his moral culpability but instead to his conduct in the commission of the relevant crime. His Honour used the phrase "moral culpability" elsewhere in the sentencing judgment. The matters considered in this part of the judgment concerned DS's conduct in the commission of the crimes against Mr Akbar and Mr Mahatara. Hence, the approach taken by his Honour to each of DS's crimes was to assess the objective seriousness of the offence committed by the principal offender, DM, and then assess the "criminality", that is the objective seriousness of DS's crime.
10. Further, we do not accept that it was erroneous per se not to make a finding as to where the objective seriousness of DS's offending lay in the range of offending. Such a finding is not required for offences that carry standard non-parole periods (CSP, s 54B(6)). Even so, the end result is that, for the murder of Mr Akbar, the gravity of DS's offending was found to be "substantially less" than DM's offence, which itself was "substantially above" the mid-range of objective seriousness. Hence, the finding in relation to DM approximates to a finding that the gravity of the offence was around the middle of the range of objective seriousness.
11. Even so, the assessment of the objective seriousness of DS's offence of murder was erroneous. As noted by his Honour, DS was culpable for "constructive murder", also known as felony murder, i.e., Mr Akbar was killed "in an attempt to commit … during or immediately after the commission, by … some accomplice [i.e., DM] ... a crime punishable by imprisonment for life or for 25 years" (Crimes Act, s 18(1)(a)). However, the sentencing judge was not apprised of the basis for DS's liability for that foundational crime, i.e., the crime "punishable by imprisonment for life or for 25 years". During the hearing of this application, Senior Counsel for DS, Mr Odgers, identified that crime as the same offence for which DM was convicted under s 98 of the Crimes Act, namely robbing Mr Akbar while armed with an offensive weapon and at the time of the robbery wounding him, being the first non-fatal stabbing. An offence under s 98 is punishable by 25 years imprisonment, which satisfies s 18(1)(a) of the Crimes Act. However, DS was not armed and did not wound (or touch) Mr Akbar. Mr Odgers contended (or conceded) that DS's criminal liability for the offence under s 98 was, or could only have been, by way of an extended joint criminal enterprise in that he agreed to commit an armed robbery with DM and in doing so was aware of the possibility that a weapon would be used to wound during that robbery. In this Court, the Crown accepted that analysis.
12. Hence DS was culpable for murder by reason of the combined effect of two forms of extended criminal liability, being felony murder and an extension of a joint criminal enterprise to commit an armed robbery to include the non-fatal wounding of Mr Akbar. The relevant "intention" he had was to commit the armed robbery. In terms of either intending or contemplating violence, the only state of mind encompassed by his plea was an advertence to the possibility of the infliction of a non‑fatal wound.
13. The sentencing judge observed that just because DS pleaded guilty on the basis of constructive murder that "does not automatically lead to the conclusion that DS should receive a lesser sentence than would be the case if his plea had been entered on some other basis". His Honour observed (correctly) that what has to be considered is "the nature of the offender's conduct and the part which he or she played in the events giving rise to the death" (Jacobs at [332]). However, where an offender is rendered culpable for murder by reason of two forms of extended criminal liability, that warrants close scrutiny of an assessment of the objective seriousness of their crime. In this case, DS neither planned nor intended to harm Mr Akbar. He was neither the principal nor the motivating force in the robbery, much less in any killing. As his Honour found, DS did not "actually participate" in any attack on Mr Akbar. This was DM's robbery and DM's killing. DS was present and assisted in a robbery and did not withdraw or intervene when DM killed Mr Akbar. While the sentencing judge canvassed these aspects of DS's conduct, it was not open to characterise DS's offence of murder as around the mid-range of objective seriousness for such offences. Put another way, his Honour appears to have sentenced DS for his role in DM's murder of Mr Akbar, whereas the proper approach was to sentence DS for the offence of murder that he committed on the basis that he pleaded guilty to it.
14. With respect, the same error affects the finding the subject of ground 2. DS was only to be sentenced for one offence in relation to the carjacking of Mr Mahatara, namely the offence of taking and driving a motor vehicle without the consent of the owner while the owner was present in the vehicle in circumstances of aggravation, namely being in company with DM. By contrast, DM faced two charges, one being wounding with intent to commit grievous bodily harm and the other of taking and driving a motor vehicle without the consent of the owner while the owner was present in the vehicle in circumstances of aggravation, namely that he intentionally inflicted actual bodily harm. DS was not to be sentenced on the basis that he bore any culpability for any violence inflicted on Mr Mahatara. However, his Honour made findings in relation to the objective seriousness of the "offences" and the "offending" concerning Mr Mahatara. His Honour appears to have grouped the offences together, assessed all of them as being in the mid-range but described the "criminality" (i.e., in this case the gravity) of DM as "again higher" than that of DS. Thus, his Honour again appears to have sentenced DS for his role in the "offences" and "offending" committed by DM against Mr Mahatara generally, whereas the proper approach was to sentence DS for the single offence he committed on the basis that he was criminally liable for it. Given the differences in the offences that each of DS and DM committed, it was erroneous to analyse the offences in the way his Honour did.
15. As noted, DS also submitted that the sentencing judge erred in failing to consider that the objective seriousness of his offending was reduced by reason of his borderline intelligence. This contention was partly premised on an acceptance of the argument addressed at [62] to [92] above and rejected. Otherwise, it was not submitted to the sentencing judge that DS's mental impairment affected the objective seriousness of his offending. In the absence of an express submission being put to his Honour to that effect, which in turn would have warranted scrutiny of the considerable body of evidence from psychiatrists, we do not accept that his Honour so erred.
16. For the sake of completeness, we note that the only relevant connection between DS's borderline intelligence and his commission of the offences suggested by the psychiatrist's report was his vulnerability to negative peer influences. That form of connection to this type of offending does not bear upon an assessment of the objective seriousness of the offences committed by DS. However, we agree with the sentencing judge that it bears upon DS's moral culpability and had to be taken into account in the consideration of the weight to be attached to the various sentencing factors. It was also a factor that was addressed by and, to an extent, accepted by his Honour in considering the significance of DS's youth (see below).
17. Nevertheless, it follows that grounds 1 and 2 of DS's notice of appeal are upheld.

Grounds 3 and 4: Significance of Youth Moderated Given Extreme Violence Involved and Relevance of DS's Immaturity

1. Ground 3 of DS's appeal contends that the sentencing judge erred in "holding that the significance of the applicant's youth was to be moderated 'given the extreme violence which was involved in the offending'." Ground 4 of DS's appeal contends that his Honour erred in holding that "that there was 'no evidence' that the immaturity of the applicant was a significant factor in the commission of any of the offences".
2. Both of these grounds refer to the following passage in the sentencing judgment where his Honour discussed the relevance of DS's youth (at [80] to [81]): "I have already set out the principles which apply to the sentencing of young offenders. … Bearing in mind those principles, the following observations may be made as to their application in the case of this offender. Firstly, whilst accepting that considerations of general deterrence and principles of retribution are generally of less significance in sentencing a young offender, those considerations cannot be completely ignored in a case such as the present, given the seriousness of the offending. Secondly there is no evidence in the present case that the immaturity of this offender was a significant factor in the commission of any of the offences. Thirdly, the emphasis which is given to the rehabilitation of a young offender may be moderated when the offender has conducted himself or herself in a way that an adult might. In this regard, and as I have already observed, the robbery of the service station was clearly planned and the offender has a criminal history. In the circumstances, whilst there is an obvious need for rehabilitation, that need is tempered by the need to protect society. The offender's youth is relevant and I have taken it into account. However, it is moderated given the extreme violence which was involved in the offending." (emphasis added)
3. Both grounds can be dealt with briefly.
4. DS's submissions in support of ground 3 contend that his Honour's reference to the "extreme violence which was involved in the offending" was a reference to the violence inflicted on all of Mr Akbar, Mr Mahatara, Mr Field and Mr Cameron, whereas DS was only criminally responsible for the death of Mr Akbar and he did not personally inflict violence on him. That contention is not accepted. The reference to extreme violence in the offending was a reference to the extreme violence perpetrated on Mr Akbar, and DS was criminally liable for that violence. It was open to his Honour to conclude that some moderation of the leniency afforded on account of DS's youth was warranted given the extreme violence involved in the murder of Mr Akbar for which DS was criminally responsible for.
5. DS's submissions in support of ground 4 noted that his Honour accepted that DS was "immature" and then referred to passages from various reports that referred to his susceptibility to being "influenced by anti-social peers". The submissions contended that "[i]t should be concluded that there was some evidence that the applicant's immaturity was a significant factor in the commission of the offences". This submission wrongly construes his Honour's finding as being a reference to "no evidence" in the technical sense, whereas it should be taken as a reference to a lack of persuasive probative material to support the contention (see Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472 at 479 per Gummow J). This is reinforced by the fact that his Honour's finding was expressed in terms that DS's immaturity was not a "significant" factor as opposed to it simply being a factor. Further, given that his Honour also accepted that DS had a cognitive impairment that affected his moral culpability, this finding should be taken as a reference to his immaturity over and above what followed from his impairment. In the end result, this ground reduces to a challenge to his Honour's failure to be satisfied of the extent of the contribution of DS's immaturity to his offending without seeking to confront the standard of review that pertains to a complaint that a sentencing judge failed to find some fact (see Craft v R [2021] NSWCCA 131 at [47] per N Adams J).
6. Grounds 3 and 4 of DS's appeal are rejected.

Ground 5: Special Circumstances

1. Ground 5 of DS's appeal contends that "the overall sentence imposed on the applicant did not reflect the finding of 'special circumstances'".
2. This ground reflects the matter noted at [61] above. DS's submissions contended that the effective overall sentence failed to reflect his Honour's conclusion that "the offender would benefit from a longer period on parole to assist in his rehabilitation". The Crown contended that the sentence for murder reflected a finding of special circumstances and the effective non‑parole period of 4 years and 7 months "allows the applicant ample time for his rehabilitation". This may be so, but it does not reflect his Honour's reasons. The alteration of the ratio between DS's non‑parole period and the total sentence for the offence of murder only had the effect of ensuring that the accumulation of that sentence onto the sentence for the offence under s 154C(2) of the Crimes Act did not result in DS serving a total effective non-parole period that was more than three quarters of his total effective sentence. However, that was the stated objective for DM's sentence and not DS's sentence. As noted, his Honour made findings about DS's prospects of rehabilitation and the desirability of his being supervised for a "longer period". Those findings only make sense if the ratio of his total effective non‑parole period to his total effective period in custody was less than three quarters.
3. The failure in this case to give effect to the findings in relation to special circumstances, constituted an error that gives rise to an obligation to re‑sentence (Christian v R [2021] NSWCCA 300 at [25] to [37], [47] and [51]).
4. Ground 5 of DS's appeal is upheld.

Remaining Grounds: Manifest Excess

1. Ground 6 of DS's appeal contends that the sentence imposed on DS for murder was manifestly excessive. Ground 7 contends that the sentence imposed on DS for the aggravated take and drive motor vehicle offence was manifestly excessive.
2. In light of the findings in respect of grounds 1, 2 and 5, it is not strictly necessary to address these grounds. However, it suffices to state that the strength of ground 7 is apparent from the table set out in [5]. The undiscounted sentence imposed on DS for the take and drive conveyance offence was around 84 months which, absent any finding of special circumstances, would result in a non-parole period of 5 years and 3 months. Such a non-parole period exceeds the standard non‑parole period for that offence, even though that is only applicable to adult offenders. DS was not an adult offender but a juvenile. In addition, DS's case on sentence had a number of relatively strong subjective factors including a reduced moral culpability on account of his cognitive impairment, a finding that he was remorseful, a relatively positive finding as to his prospects of rehabilitation, and consideration for his youth. Even assuming that the objective seriousness of DS's offence under s 154C(2) was at or in the mid-range, the sentence imposed on him for that offence was manifestly excessive.
3. If it had been necessary to decide, ground 7 would have been upheld. As noted, it is not necessary to consider ground 6.

Ground 1: Objective Seriousness of the Offence of Murder

1. Ground 1 of DM's application contended that the sentencing judged "erred in finding that the objective seriousness of the offence of murder [by DM] was substantially above the mid-range".
2. The principal contention made in support of this ground was that the sentencing judge erred in failing to "take into account [DM's] moral culpability in assessing the objective seriousness of this offence". For the reasons addressed above, the proposition that an assessment of moral culpability informs or is part of the assessment of the objective seriousness of the offence is rejected.
3. This part of the submissions also referred to DM's schizophrenia, age, and immaturity as matters that informed an assessment of the objective seriousness of the murder of Mr Akbar. No submission was made to the sentencing judge that those matters bore on the objective seriousness of the murder of Mr Akbar. It follows from what has been explained previously that, in some circumstances, the age of an offender may be part of the assessment of its objective seriousness. For example, the age difference between a sexual offender and their perpetrator can affect an assessment of the objective seriousness of a sexual offence (AA at [55]). However, in this case DM's age and lack of maturity do not bear upon the assessment of the objective seriousness of the stabbing execution of Mr Akbar during the course of a robbery at a service station and DM's stabbing of a driver during a carjacking.
4. So far as his schizophrenia and cognitive impairments were concerned, Dr Eagle's report did not accept that DM's actions and impairments in thinking arose solely or primarily as a result of psychotic phenomena such as auditory hallucinations or delusions. Instead, Dr Eagle concluded that his "behaviour appeared to be part of an ongoing preoccupation with violence and ... he was capable of understanding or reasoning as to the wrongfulness of his actions". This material supports the sentencing judge's conclusion that his mental illness and intellectual impairment reduced DM's moral culpability. They do not suggest that the objective seriousness of his offending was reduced.
5. DM's submissions in support of this ground also sought to challenge what was contended to be various factual findings made by the sentencing judge in determining the objective seriousness of Mr Akbar's murder. They seek to avoid any potential dispute over the standard of review in this Court by contending that each of the alleged findings were not legitimate inferences drawn by the sentencing judge, but only speculation (citing Lane v R [2013] NSWCCA 317 at [108] to [110]). The approach favoured in this Court in relation to a challenge to factual findings of sentencing judges is whether the finding was open on the material before the court at first instance (see Azzopardi v R [2019] NSWCCA 306 at [36] to [39] and cases cited). It follows that, where there is a challenge to an inference drawn by a sentencing judge, the relevant question is whether there was some basis for the inference, that is the inference must have been reasonably open (Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33 at 356 per Mason CJ).
6. The first finding that is challenged is his Honour's finding, based on the CCTV footage, that, as a "subterfuge", DM inquired of Mr Akbar "about the location of a particular item or items within the service station" and his Honour found that, at least by the time of that conversation, DM had formed the intention to kill Mr Akbar (at [46]). The submissions contend that an intention to kill may have only been formed after the first initial stab wound, which the sentencing judge noted was "comparatively superficial in nature". This contention is untenable. DM was engaged in considerable violence throughout that evening. DM chose to take a knife to the service station. The CCTV footage reveals that, during the brief conversation that preceded the attack, Mr Akbar was standing adjacent to the door so that, if DM attacked him, Mr Akbar might have absconded and raised an alarm. It was only when Mr Akbar moved away from the door towards the cash registers that DM followed him, stabbed him in the back while holding his neck and then immediately stabbed him twice further before pursuing him to a point near the toilet of the service station where Mr Akbar collapsed on the floor. The period of time between the stabbings was miniscule. Most importantly, DM did not display a skerrick of hesitation at any point. His actions were deliberate and considered. The challenged finding of the sentencing judge was more than reasonably open on the material before his Honour.
7. The second "finding" that is challenged is his Honour's description of DM's actions in inflicting the two stab wounds that followed the first as "an uncontrolled and ferocious display of gratuitous violence" (at [48]). The basis for the challenge to this "finding" is that the word "gratuitous" in this context "should be understood as that which is additional to, or unnecessary in order to commit the substantive offence" of murder and these stabbings were the fatal blows. This contention is also untenable. The violence was gratuitous in the sense that it was unnecessary to commit the robbery. All that DM and DS had to do to complete the robbery was ensure Mr Akbar did not interfere. No reasonable person could disagree with this aspect of the sentencing judge's description. The challenged finding of the sentencing judge was more than reasonably open on the material before his Honour.
8. The third "finding" of the sentencing judge the subject of challenge is the reference to "cold blooded" in his Honour's statement that "[a]long with DS, he then forced his way out of the service station, leaving the deceased to die in the aftermath of what was, in a very real sense, a cold blooded murder" (at [49]). DM's submissions noted that the phrase "cold-blooded" has no established legal meaning, a point no doubt well understood by the sentencing judge who did not suggest otherwise. DM's submissions then noted that the Macquarie Dictionary defines that phrase as meaning "without feeling; unsympathetic; cruel". That collection of phrases accurately describes DM's conduct. The CCTV footage reveals that, after stabbing Mr Akbar and chasing him to the rear of the service station where he collapsed on the floor, DM assisted DS to remove the cash register before they both bashed the door to escape. At this point, Mr Akbar was bleeding to death on the floor. The only apparent regard that DM had for him was to make sure he used his blood to put the letters "IS" on the window. The only stress that DM appeared to be in was when he was straining to bash the door to escape. His disdain for the dying Mr Akbar was chilling. The challenged finding of the sentencing judge was more than reasonably open on the material before his Honour.
9. The fourth matter the subject of challenge in relation to this ground was his Honour's description of DM's conduct in using Mr Akbar's blood to draw the letters "IS" on the glass window of the service station as "both macabre and callous in the extreme" (at [49]). It was contended that "the post-offence conduct which was accepted to not be motivated by extremism was a product of mental illness, such that the conduct was not capable of elevating the objective assessment of the offence when viewed in that light". It is correct that his Honour found that this aspect of DM's conduct was not motivated by extremism. However, his Honour did not find that this conduct was a product of DM's mental illness. Dr Eagle, whose opinions his Honour placed great weight upon, did not suggest that this conduct was the product of mental illness. Even if it were, it would not mean that that was not an aspect of the objective seriousness of the offence. The challenged finding of the sentencing judge was more than reasonably open on the material before his Honour.
10. Lastly under this ground, DM contended that his Honour's finding concerning the objective seriousness of the offence was not otherwise open. DM's submissions pointed to the observation of Smart AJ in Nguyen v R [2007] NSWCCA 363 at [143] that an "intention to kill and premeditation are usual elements in a murder of mid-range objective seriousness". The submissions also relied on the statement by Harrison J in Park v R [2019] NSWCCA 105 at [36] that "[w]ithout attempting to be prescriptive, factors that could be present in cases described as significantly above mid-range might include gratuitous cruelty, contract killings, causing death in a way likely to cause excruciating pain or agony or, particularly, doing so in order that the process of dying occurs over an extended period or where the victim might have had undue time to contemplate the terror of what was coming."
11. As Harrison J observed, these statements do not purport to be prescriptive. This offence involved a vulnerable victim, gratuitous violence and a contemptuous treatment of Mr Akbar as he lay bleeding to death. It was open to his Honour to characterise the objective seriousness of the offence as significantly above the middle of the range of objective seriousness.
12. Ground 1 of DM's notice of appeal is rejected.

Ground 2: DM's Youth

1. Ground 2 of the application contends that the sentencing judge "erred in the application of the sentencing principles relevant to the applicant's youth on all counts".
2. As his Honour did with DS, the sentencing judge specifically addressed the relevance of DM's youth. His Honour did so after having already accepted that DM's deprived background was to be taken into account in accordance with Bugmy (at [88]) and that his schizophrenic condition warranted a reduction in his moral culpability (at [99]). So far as DM's age at the time of the offending was concerned, his Honour noted a submission that his "immaturity, and the fact that his capacity to control impulses was not fully developed, were significant contributing factors to his offending conduct" (at [114]).
3. His Honour addressed this submission as follows (at [115] to [116]): "As I have noted, DM was 16 years and 8 months old at the time of the offending. Whilst he had not attained his majority, he is not properly regarded as a 'child offender'. There is no evidence which supports the conclusion that his immaturity was a significant factor in the commission of any of the offences. Moreover, his use of a weapon, and the planning to which I have referred, support a conclusion that he engaged in what could be described as adult behaviour...In those circumstances, the emphasis given to rehabilitation rather than general deterrence and retribution is moderated, particularly in light of the views that I have reached regarding his prospects of rehabilitation. Further, the seriousness of the offending is necessarily relevant to the emphasis which can be given to an offender's youth. As Callaway JA observed in Tran there may be cases where just punishment and other sentencing objectives carry importance equal to that of the rehabilitation of the youthful offender… Whilst I do not suggest that the offender's youth is completely extinguished in the present case, the fact of the matter is that his offending was grave, and his behaviour adult-like. In all of these circumstances, the mitigatory effect of his youth is necessarily reduced." (emphasis added; citations omitted)
4. Before addressing the individual complaints made about each and every statement in this passage, it is necessary to note what this passage represents. Earlier in the judgment, his Honour referred to his own detailed discussion in R v Khalid [2017] NSWSC 1365 at [109] to [113] of the principles applicable to sentencing young offenders, especially in the context of serious crimes. In turn that discussion referred to the judgment of McClellan CJ at CL in KT v R [2008] NSWCCA 51 ("KT") at [22] to [26] on the same topic. In the above passage, his Honour applied those principles and did not reject the application of any of them. Instead, his Honour described the weight that his Honour attributed to them in light of the circumstances of this offender and these offences. Those were matters for his Honour to assess.
5. DM's first criticism of this aspect of the sentencing judgment is that his Honour made no express reference to the principles in s 6 of the Children (Criminal Proceedings) Act relating to the exercise of functions under that Act, but which are also applicable to the sentencing of child offenders at law (s 4). The two relevant principles distilled from s 6 and identified in DM's submissions were that "children who commit offences bear responsibility for their actions but, because of their state of dependency and immaturity, require guidance and assistance" and that it "is desirable that children who commit offences be assisted with their reintegration into the community" (ss 6(b) and (f)). As noted, the sentencing judge had isolated the principles stated in KT, which in turn had set out the principles taken from a previous version of s 6 which were not relatively different. Moreover, the above passage gives effect to the principles in s 6 but determined that, in this case, the weight to be attributed to them was diminished. No error of the kind identified in House v R (1936) 55 CLR 499 ("House") at 404 to 405 has been established in this respect.
6. DM's second criticism of this aspect of the sentencing judgment relates to his Honour's finding that "[w]hilst he had not attained his majority, he is not properly regarded as a 'child offender'". The submissions noted that his Honour cited KT at [26] in which McClellan CJ at CL stated that "[t]he weight to be given to considerations relevant to a person's youth diminishes the closer the offender approaches the age of maturity". DM contended that this was not authority for the proposition that a child under the age of 18 years is not properly regarded as a child offender. The submissions also contended that the statement in KT was qualified by Hodgson JA and Rothman J in BP v R [2010] NSWCCA 159 at [5] so that the critical factor is not whether the offender is less than 18 years of age but their "immaturity and impulse control".
7. This submission takes his Honour's observation out of context. If his Honour had literally meant that DM was not to be regarded as a child offender, then the balance of the reasoning in the above paragraph would have been otiose. If his Honour had acted on the basis that DM was not to be treated as a young offender at all then, instead of accepting that DM's youth was not "completely extinguished" and that the importance given to rehabilitation was to be moderated, his Honour would have ignored those considerations altogether. No House error has been established in this respect.
8. Third, DM contends that his Honour erred in finding that "there is no evidence which supports the conclusion that his immaturity was a significant factor in the commission of any of the offences". DM contends that this was erroneous because it "apparently required the applicant to provide an evidentiary foundation for a causal link to be drawn between his immaturity and the offending conduct" and otherwise contended that there was evidence demonstrating such a link. His Honour did not place any evidentiary onus on DM but merely stated that, in light of the crime DM committed and the evidence that was presented, he was not persuaded that DM's immaturity was a significant factor in the commission of any of his offences. Otherwise, the reasoning set out above in relation to the same finding made concerning DS is equally applicable to this ground. In particular, as his Honour also accepted that DM's moral culpability was reduced on account of his schizophrenia, this finding should be taken as a reference to his immaturity as a youth over and above what followed from his mental impairment.
9. DM's submissions referred to a report of a psychiatrist who described DM as "immature" as well as "distractible, fidgety and impulsive" and another who described him as having "impulsive and poorly controlled behaviours". DM contends that the evidence demonstrates that he was immature even by the standards of a 16 year old "and was additionally impulsive with gross impairment in judgment and self-regulation". Nothing in the description of the offences and the CCTV footage recording the murder of Mr Akbar suggests they had anything to do with DM being "fidgety", "impulsive" or "immature". The offences, especially the murder, displayed a deliberateness. To the extent that his offending was the product of impaired decision making, his Honour accepted that DM had a mental impairment and found that his moral culpability was reduced. No House error has been established in this respect.
10. Fourth, DM contended that it was not open to the sentencing judge to conclude that his behaviour was "adult like" but instead submitted that his conduct demonstrated that he "acted with impulsivity". His Honour referred to DM's "use of a weapon, and the planning to which I have referred" as supporting a conclusion that he engaged in what could be described as "adult behaviour." The reference to "planning" is a reference to the robbery of the service station that his Honour described as "planned" (at [49] and [54]). DM told two Juvenile Justice Caseworkers that "there was planning and premeditation in regards to robberies and property theft". DM's submission contended that the use of a weapon did not support the conclusion that the offences were adult like. However, at least so far as the murder of Mr Akbar and the stabbing of Mr Mahatara are concerned, the fact that DM chose to carry a knife is indicative of his having planned to use violence, or at least intimidation. Otherwise, as noted the CCTV footage displays a deliberateness. It was well open to the sentencing judge to conclude that this conduct was "adult like". No House error has been established in this respect.
11. Fifth, DM contended that the sentencing judge erred in finding that "the seriousness of the offending is necessarily relevant to the emphasis which can be given to an offender's youth". As authority for that statement, the sentencing judge referred to JM v The Queen [2012] NSWCCA 83 ("JM") at [108] where Simpson J stated that the "weight of authority is that the seriousness of an offence is relevant to the emphasis that can be given to the youth of an offender". DM's submissions queried whether that was correct but ultimately submitted that, assuming it was correct, "the nature of the offence is one factor" amongst others in determining whether the offence was "adult like", and to refer to the seriousness of the conduct "elides the real question which is whether the actual offending discloses indicia of maturity or immaturity."
12. No error is established by the sentencing judge applying JM. His Honour did not treat the seriousness of the offence as determinative of any issue. Instead, all his Honour stated was that it was relevant to the emphasis that could be given to the offender's youth. Otherwise, his Honour did address DM's immaturity and its connection with the offence. Just because DM is disgruntled with how his Honour addressed that factor does not mean his Honour erred in principle. No House error has been established in this respect.
13. Ground 2 of DM's appeal is rejected.

Ground 3: Failure to Indicate How Bugmy Applied

1. Ground 3 of DM's notice of appeal contends that the sentencing judge erred in failing to identify how the principles in Bugmy and R v Fernando (1992) 76 A Crim R 58 were taken into account in sentencing him.
2. To address this ground it is necessary to briefly restate the structure of the sentencing judgment. After addressing the objective seriousness of the offences, his Honour addressed the "case for DS" and then the "case for DM". The first matter that his Honour addressed in the case for DM was DM's background. A considerable part of that background included a discussion of his history of adverse mental health diagnoses including schizophrenia. As noted above (at [53]), his Honour accepted that Bugmy principles were engaged in respect of DM's "deprived background particularly in respect of those matters reported by the offender's mother to Dr Eagle". The footnote to the findings referred to Bugmy at [40] to [44]. His Honour then addressed DM's "mental state" and concluded that "in light of the unchallenged evidence of Dr Eagle" his schizophrenic condition "contributed to the commission of the offences in a material way" which "reduce[d] his moral culpability and also reduce[d] the need for general deterrence" (at [99]).
3. On behalf of DM, it was contended that his Honour erred in failing to make "findings as to the way the principles [in Bugmy] were applied in [DM's] case". It was submitted that DM's background "operated to reduce his moral culpability for the offending and decreased weight ought to be given to general and specific deterrence". DM's submissions referred to Sypher v R [2020] NSWCCA 336 at [61] where Davies J observed that "[w]here significant matters are raised both by the evidence and in the submissions, a lack of any analysis of those matters or any conclusion about how they impact on the applicant's moral culpability leads to the view that the judge has overlooked the matter."
4. The difficulty with this submission is that it attempts to divide the dysfunctional aspects of DM's condition, namely his disadvantaged background and his schizophrenia, and then assumes their impact on his moral culpability and the various sentencing factors are somehow to be separately tabulated. In Johnston v R [2021] NSWCCA 86 ("Johnston"), there was a finding that the Bugmy principles were engaged and the applicant's moral culpability and the weight to be given to general deterrence was reduced (at [47]). It was contended that the sentencing judge who accepted the offender had significant "mental health issues", had erred in not addressing the offender's contentions as to how those "significant mental health issues bore upon the sentencing process" (at [81]). This was rejected by Ward JA (as her Honour then was) and Wilson J as follows (at [82]): "The difficulty with the applicant's submission is that his Honour did in fact have regard to the applicant's significant mental health conditions and did make the finding sought to the effect that there was a reduction in moral culpability and that the principles of general deterrence had less application. Whether those findings were made in addressing the application of the Bugmy principles (as, in the applicant's submission, is the context in which they were addressed) or otherwise (it being the applicant's submission that this could not simply be "rolled into one" by referring to moral culpability and general deterrence), it is clear that his Honour did give specific consideration to the applicant's mental condition."
5. This case is the reverse of the position in Johnston in that his Honour accepted that DM had a dysfunctional background and schizophrenia and then only expressly stated that his schizophrenic condition reduced his moral culpability and the need for general deterrence. However, the position is ultimately no different to Johnston. The specific passage from Bugmy that his Honour referenced included the passages addressing the reduction in moral culpability and the weight to be given to general deterrence (Bugmy at [44]). Both that part of the sentencing judgment dealing with DM's background of dysfunction, and that part dealing with his schizophrenia, referenced Dr Eagle's report. That report recited DM's personal background, including his past diagnoses and then confirmed the diagnosis of schizophrenia. Hence, the structure of the sentencing judge's reasons suggest that his Honour acknowledged the significance of a background of dysfunction but ultimately treated it together with DM's mental illness in concluding that the weight to be given to general deterrence was reduced. It would have been artificial to separate them. There was no error in his Honour's approach.
6. Ground 3 is rejected.

Ground 4: Parity

1. Ground 4 of DM's notice contends that DM has a justifiable sense of grievance when comparing the sentences imposed on DM with the sentences imposed on DS.
2. The reference to a justifiable sense of grievance is to the parity principle which holds that there should not be a "marked disparity" between the sentences imposed on co-offenders such as to give rise to "a justifiable sense of grievance" in one of them (Lowe v The Queen (1984) 154 CLR 606 at 610 per Gibbs CJ, with whom Wilson J agreed at 616 and at 612 to 613 per Mason J and at 623 per Dawson J; [1984] HCA 46).
3. As this Court accepts that the sentences imposed on DM were manifestly excessive and DS should also be resentenced, it is neither necessary nor possible to address parity between the sentences imposed on DM and DS at first instance. However, the parity principle applies to this Court in the exercise of its re‑sentencing function (Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [37] to [45] per French CJ, Crennan and Kiefel JJ). To that end, we note that DM's submissions conceded that the differing roles and ages of the two offenders warranted some level of disparity, although not the level of differentiation reflected in the sentences imposed on DM and DS at first instance.

Ground 5: Manifest Excess

1. Grounds 5A to 5D of DM's appeal contended that each of the four sentences imposed on DM, as set out in the Table in [7], were manifestly excessive. Ground 5E contends that the overall sentence was manifestly excessive.
2. The relevant principle governing a complaint that a sentence is manifestly excessive was stated in Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 ("Hili") at [59] (per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ): "As was said in Dinsdale v The Queen [(2000) 202 CLR 321; [2000] HCA 54 at [6]], '[m]anifest inadequacy of sentence, like manifest excess, is a conclusion'. And, as the plurality pointed out … in Wong v The Queen [(2001) 207 CLR 584; [2001] HCA 64; at [58]; ["Wong"], appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate 'is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases'. Rather, as the plurality went on to say … in Wong [at [58]], '[i]ntervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons'. But, by its very nature, that is a conclusion that does not admit of lengthy exposition."

Ground 5A: The Sentence for Murder

1. While acknowledging the limitations on the use of comparable cases (Hili at [53] to [54]), the submissions of DM in relation to this ground extensively canvassed the sentences imposed on youth offenders for murder in other cases.
2. Two main points emerge from its analysis. First, counsel's efforts were able to identify three cases where sentences were imposed on young offenders for murder of comparable length to the pre‑discounted sentence of 35 years imposed on DM (R v Robinson [2002] NSWCCA 359 (45 years with a non-parole period of 27 years); Milat v R [2014] NSWCCA 29 (43 years with a non-parole period of 30 years) and AB v R [2014] NSWCCA 339 (45 years with a non-parole period of 30 years)). Each of the offenders were 17 years old at the time of offending with aspects of their subjective case warranting some leniency. However, as was contended for on behalf of DM, the level of violence and cruelty involved in all of those killings vastly exceeded what was involved in this case.
3. Second, DM's written submissions contained a summary of available sentences imposed on youth offenders for murders involving stabbings apparently as far back as 1993. Those submissions identified the highest sentences imposed as 20 years imprisonment in cases where a standard non-parole was applicable for murder by young offenders, namely R v Whitfield [2001] NSWSC 876 ("Whitfield") (on appeal: [2002] NSWCCA 501 ("Whitfield (No 2)"). Whitfield is of some relevance to this matter, as the killing of the deceased by the offender took place during the robbery of a drug dealer's home by a gang of which the offender was a member (at [2]). The Crown case was put to the jury on the basis that the offender was either the principal offender, a participant in joint criminal enterprise to rob the deceased, or he or another offender had committed felony murder (Whitfield (No 2) at [30]).
4. The next highest sentence imposed in this category of offences was 18 years with a non-parole period of 5 years (R v SSA [2007] NSWSC 1202; "SSA"). SSA was also affected by the standard non-parole period. The offender and his co-offender were at an amusement park carrying knives when they misinterpreted the acts of the deceased as signs of aggression which led to a fist fight between the co-offender and the deceased before the offender intervened and stabbed him.
5. Generally, the cases referred to by DM in this category provide some support for DM's contention. However, with the exception of Whitfield, most of these cases involved spontaneous killings that arose out of confrontations. DM's conduct was a deliberate and cruel killing committed in the course of a robbery of a service station.
6. Nevertheless, even accepting the sentencing judge's characterisation of DM's murder of Mr Akbar as being substantially above the middle of the range of objective seriousness, and the role of the Form 1 offences, we are satisfied that the pre-discounted sentence of 35 years' imprisonment exceeded what was proportionate to the murder he committed. As noted, there was no standard non-parole period applicable to the offence. A consideration of the combined effect of DM's dysfunctional background and schizophrenia along with such weight as could be given to his age, and even allowing for his poor prospects of rehabilitation, warrant the conclusion that the sentence was manifestly excessive.
7. Ground 5A is upheld.

Grounds 5B to 5D: Other Offences

1. The claim of manifest excess in relation to the other offences committed by DM must also be upheld. The manifestly excessive nature of the sentences imposed for wounding with intent to cause grievous bodily harm of Mr Mahatara, and the offence under s 154C(2) committed against him, is established by the Table set out at [7]. In each case, his Honour found that the objective seriousness of the offence was at the mid-range. For each offence, his Honour imposed a sentence which, absent any finding of special circumstances, would ordinarily yield a non-parole period that substantially exceeded the standard non-parole period for that offence applicable to adult offenders. Hence for the wounding offence, the sentence of 12 years and 6 months would, after the unwinding of the discount for the plea of guilty, ordinarily yield a non-parole period of 10 years and 5 months compared to the standard non-parole period of 7 years. For the offence under s 154C(2), the sentence imposed of 9 years imprisonment would, after the unwinding of the discount for the plea of guilty, ordinarily yield a non-parole period of 7 years and 6 months compared to a standard non-parole period of 5 years' imprisonment.
2. The standard non-parole periods were not applicable to DM as a juvenile offender. However, the absence of that yardstick could not possibly justify higher sentences for youthful offenders compared to an adult offender whose circumstances were not materially different. None of this analysis involves any consideration being given to DM's subjective case. Instead, it suffices to note that the above analysis leads to the conclusion that the sentences imposed well exceeded what was proportionate to the offences, and that conclusion cannot be affected by a consideration of DM's subjective case (Veen (No 2) supra).
3. The position is not relevantly different to the sentence imposed for the foundational offence of robbery while wounding while armed with an offensive weapon committed against Mr Akbar. This embraces DM's actions in robbing the service station up to and including the infliction of the first non-fatal wound. The sentencing judge did not attribute any level of objective seriousness to that offence. However, if one were to engage in that task, it is difficult to see how it could have been any higher than mid-range given the large range of (serious) circumstances that are embraced by that form of robbery. Again, the sentence imposed for this offence, namely 11 years and 8 months, would, after the unwinding of the discount for the plea of guilty, ordinarily yield a non-parole period of 9 years and 8 months which can be compared to a standard non-parole period of 7 years.
4. Grounds 5B, 5C and 5D are upheld.

Ground 5E: Total Sentence

1. Ground 5E contends that the total sentence imposed was manifestly excessive. In light of the conclusions in respect of grounds 5A to 5D, it is not necessary to address this ground.

Re-sentencing of DS

1. The basis on which DS was criminally liable for the murder of Mr Akbar and the facts and circumstances of his death have already been described. DS participated in a robbery by DM and through the commission of that offence committed felony murder when DM brutally killed Mr Akbar. DS did not take any active step to assist in the killing of Mr Akbar and was not found to have any advance knowledge that he would or might be killed or seriously injured. DS's crime was undoubtedly serious. Nevertheless, and while it is not necessary to specify the objective seriousness of DS's offence of murder on some hypothetical scale, its objective seriousness can be categorised as below the middle of the range for the offence of murder.
2. In relation to the offence under s 154C(2) of the Crimes Act, DS participated in the waving down and theft of Mr Mahatara's vehicle early in the morning. DS helped effect the carjacking by intimidating Mr Mahatara by tapping the wheel brace on Mr Mahatara's car window. As noted by the sentencing judge, the offence was "aggravated by the fact that, alone in his vehicle in the early hours of the morning, Mr Mahatara was vulnerable". The range of offending encompassed by an offence under s 154C(2) includes cases where the offender was armed with an offensive weapon or instrument or the offender inflicted actual bodily harm. Again, while it is not necessary to specify the objective seriousness of this offence by reference to a hypothetical range of offences it is appropriate to do so in that case. DS's offence was slightly below the middle of the range of objective seriousness.
3. Otherwise, the sentencing judge's findings set out above are adopted. The combination of DS's cognitive impairment, youth, and what is known about his personal background, reduces his moral culpability and are matters that otherwise reduces the weight to be attached to general deterrence and denunciation. The sentencing judge's findings on remorse, the description of DS's criminal history and his prospects of reoffending including the finding of special circumstances are also adopted.
4. An aggregate sentence will be imposed on DS. For the offence of murder and allowing for the Form 1 offence, a sentence of 15 years' imprisonment prior to any discount for his plea of guilty, and 13 years 6 months after allowance for his plea is indicated. For the offence of take and drive a motor vehicle without the consent of the owner while the owner was present in the vehicle, in circumstance of aggravation, a sentence of 3 years' imprisonment after allowance for his plea is indicated. As neither offence carries a standard non-parole period it is not necessary to specify a non-parole period for an indicative sentence for these offences. Allowing for totality and a finding of special circumstances an aggregate sentence of 14 years and 6 months to date from 7 April 2017 with a non-parole period of 10 years' imprisonment will be imposed. DS will be first eligible for release on 6 April 2027 and the total sentence will expire on 6 October 2031.

Resentencing of DM

1. The Crown contended that, in the event the Court resentenced DM, no lesser sentence is warranted in law. It follows from the findings in relation to grounds 5A to 5D that contention must be rejected.

Additional Evidence

1. At the hearing of the application for leave to appeal, the Crown sought to tender material concerning DM's conduct while in custody on the "usual basis" (Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 at [4]). The tender was objected to. The Court indicated that it would rule on its admission in its judgment. The material sought to be tendered reveals that on 25 June 2020 DM was sentenced to a fixed term of imprisonment for 3 months for assaulting a "law enforcement officer", who was not a police officer, and inflicting actual bodily harm. On 9 July 2020, DM was sentenced to a fixed term of imprisonment for 1 month for assaulting a "law officer" who was not a police officer. In both cases the victims were correctional officers.
2. The material sought to be tendered also indicated that, as at February 2022, DM had incurred 15 custodial infringements. The Crown also sought to tender material indicating that, as at 1 March 2022, DM had outstanding charges on serious crimes of violence.
3. As noted, the tender of this material was objected to. In its written submissions the Crown contended that "the risk of future dangerousness and likelihood of reoffending for DM [was] high". However, it became apparent during argument on the appeal that there was no dispute over the level of risk posed by DM. Hence, the Crown conceded that it did not seek a different finding to that made by the sentencing judge, namely that DM was at a "substantial risk of reoffending". Senior Counsel for DM clarified that her client did not press for any finding different to that made by his Honour either. In those circumstances, this material did not bear upon the resolution of any fact in issue on the application for leave to appeal. Accordingly, its tender is rejected (Evidence Act 1995, s 55(1)).

Aggregate Sentence

1. Like DS, an aggregate sentence will be imposed. In terms of totality, any sentence indicated for the robbery with wounding should be (mostly) notionally concurrent with the sentence indicated for murder and there should be some notional accumulation upon and between the offences committed against Mr Mahatara. In relation to the murder offence and the offence under s 154C(2) of the Crimes Act, parity between DM and DS must be considered. For both offences the sentences must reflect the greater culpability of DM compared to DS in that DM was the clear instigator of both offences and he was also the cause of DS being present for both offences. It was DM who brutally attacked Mr Akbar. In addition, in relation to the s 154C(2) offence, DM's circumstance of aggravation was the infliction of actual bodily harm, whereas with DS it was only acting in company.
2. Although the sentencing judge did not err in characterising the objective seriousness of DM's murder of Mr Akbar as substantially above the mid-range, on re-sentence this Court is not bound by that assessment. Although it is not necessary to adopt the terminology of where an offence falls within a range, in the interests of transparency in this case it is appropriate to do so. The facts and circumstances of the offence have already been canvassed. Ultimately, we agree with (one of) the sentencing judge's formulations, namely, that DM's murder of Mr Akbar is above the middle of the range of objective seriousness (see [101]), especially given its gratuitous and cold-blooded nature. The other offences are mid-range. The combination of DM's dysfunctional background, schizophrenia and youth reduces his moral culpability and warrants lesser weight being attributed to general deterrence. We adopt the sentencing judge's findings in relation to the appropriate discount on his plea and his prospects of rehabilitation. In relation to the latter, one factor to be considered in DM's sentencing is the necessity to protect the community from him (CSP, s 3A(c); Bugmy at [44]). A finding of special circumstances is not warranted. The potential length of any parole period under the aggregate sentence that is to be imposed will be more than sufficient to supervise DM.
3. For the offence of murder, and taking into account the offences on the Form 1, a sentence of 23 years' imprisonment prior to any discount for DM's plea of guilty is indicated. After discount and rounding, the indicative sentence is 20 years and 8 months' imprisonment. For the offence of robbery with wounding while armed with an offensive weapon a sentence, prior to any discount, of 8 years' imprisonment is indicated. After discount and rounding, a sentence of 7 years and 2 months' imprisonment is indicated. For the offence of wounding Mr Mahatara, a sentence, prior to any discount, of 8 years' imprisonment and, after discount and rounding, imprisonment for 7 years and 2 months is indicated. For the offence under s 154C(2) of the Crimes Act, a sentence, prior to any discount, of 4 years and 6 months' imprisonment and, after discount and rounding, imprisonment for 4 years is indicated.
4. DM will be sentenced to an aggregate term of 27 years' imprisonment commencing on 7 April 2017 with a non-parole period of 20 years and 7 months. DM will be first eligible for release on 7 November 2037 and the sentence will expire on 6 April 2044.

Orders

1. In relation to the application for leave to appeal by DS, the Court makes the following orders: (1) The applicant be granted leave to appeal; (2) The appeal be allowed; (3) The sentence imposed on the appellant in this Court on 1 May 2020 be set aside and, in lieu thereof: (a) Sentence the appellant to an aggregate term of imprisonment of 14 years and 6 months commencing on 7 April 2017 and expiring on 6 October 2031; (b) Pursuant to s 44(2A) of the Crimes (Sentencing Procedure) Act 1999, set a non-parole of 10 years' imprisonment expiring on 6 April 2027; (c) Specify that the earliest date the appellant will be eligible to be released on parole is 7 April 2027; (d) Pursuant to s 53A(2)(c) of the Crimes (Sentencing Procedure) Act 1999, the Court indicates to the appellant that an aggregate sentence is being imposed and the sentences that would have been imposed for each offence are: (i) 13 years and 6 months' imprisonment for the offence of murder; (ii) 3 years' imprisonment for the offence of take and drive motor vehicle without consent of owner while owner present in vehicle in circumstances of aggravation contrary to s 154C(2) of the Crimes Act 1900; (4) Pursuant to s 19 of the Children (Criminal Proceedings) Act 1987, the appellant is to serve his sentence as a juvenile offender until he attains 21 years of age; and (5) Pursuant to s 25C of the Crimes (High Risk Offenders) Act 2006, the appellant is advised of the existence of that Act and of its application to the offences he has committed.
2. In relation to the application for leave to appeal by DM, the Court makes the following orders: (1) The applicant be granted leave to appeal; (2) The appeal be allowed; (3) The sentence imposed on the appellant in this Court on 1 May 2020 be set aside and, in lieu thereof: (a) Sentence the appellant to an aggregate term of imprisonment of 27 years commencing on 7 April 2017 and expiring on 6 April 2044; (b) Pursuant to s 44(2A) of the Crimes (Sentencing Procedure) Act 1999, set a non-parole of 20 years and 7 months' imprisonment expiring on 6 November 2037; (c) Specify that the earliest date the appellant will be eligible to be released on parole is 7 November 2037; (d) Pursuant to s 53A(2)(c) of the Crimes (Sentencing Procedure) Act 1999, the Court indicates to the appellant that an aggregate sentence is being imposed and the sentences that would have been imposed for each offence are: (i) 20 years and 8 months' imprisonment for the offence of murder; (ii) 7 years and 2 months' imprisonment for the offence of robbery while wounding while armed with an offensive weapon; (iii) 7 years and 2 months' imprisonment for the offence of wounding with intent to cause grievous bodily harm; (iv) 4 years' imprisonment for the offence of take and drive motor vehicle without consent of owner while owner present in vehicle in circumstances of aggravation contrary to s 154C(2) of the Crimes Act 1900; and (4) Pursuant to s 25C of the Crimes (High Risk Offenders) Act 2006, the appellant is advised of the existence of that Act and of its application to the offences he has committed.

Amendments 14 July 2022 - Coversheet - appearances amended DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 August 2022