Appeal allowed, re-sentence imposed. See [116]-[120].

CRIMINAL LAW - APPEAL - Appeal against sentence - where offender is a young offender - whether sentencing judge erred by failing to apply the principles applicable to the sentencing of young offenders - whether sentencing judge erred by setting unsuspended period of sentence as though it was a nonparole period - re-sentence

Children and Young People Act 2008 (ACT)

Crimes (Sentencing) Act 2005 (ACT) ss 7, 10, 12, 13, 29, 33, 35, 64, 65, 133A, 133B, 133C, 133D, 133DD, 133E, 133G, 133U, 133W, 133ZD, pt8A.2

Crimes (Sentencing Administration) Act 2005 (ACT) ss 6, 7, 110, 149

Human Rights Act 2004 (ACT) s 22

Bugmy v The Queen [2013] HCA 37; 249 CLR 571

DPP v Arvanitidis [2008] VSCA 189; 202 A Crim R 300

IM v McDevitt (No 1) [2015] ACTSC 178

IM v McDevitt (No 2) [2015] ACTSC 179

Kentwell v The Queen [2014] HCA 37; 252 CLR 601.

KT v The Queen [2008] NSWCCA 51; 182 A Crim R 571

Power v The Queen [1974] HCA 26; (1974) 131 CLR 623

R v CA [2014] ACTSC 332

R v Fang (No 4) [2017] NSWSC 323

R v KN [2020] ACTSC 218

R v Martin [2007] VSCA 291; 20 VR 14

R v Mills [1998] 4 VR 235

R v MT [2020] ACTSC 339

R v Pahl (No 2) [2017] ACTSC 155

R v PM [2009] ACTSC 24

R v TL [2017] ACTCA 18

Taylor v The Queen [2014] ACTCA 9

Thorn v Laidlaw [2005] ACTCA 49

Explanatory Statement, Children and Young People Bill 2008 (ACT)

United Nations Standard Minimum Rules for the Administration of Juvenile Justice, GA Res 40/33, UN Doc A/RES/40/33 (29 November 1985)

Citation: [2020] ACTSC 339

1. The appellant appealed against sentences for murder and other serious offences that he had committed on 15 March 2019.

2. At the time of the offences, the appellant was 17 years and 2 months old. He was a Year 11 secondary school student. When sentenced on 16 December 2020, he was 18 years old.

3. The sentencing judge imposed a total sentence of 15 years' imprisonment (from 16 March 2019 to 15 March 2034) and suspended the sentences on 15 September 2027, after the appellant had served eight years and six months' imprisonment or 57 per cent of the total term.

4. For the principal offences, the sentencing judge imposed the following sentences:

(a) Count 1 - Murder: 12 years and six months' imprisonment (reduced from 15 years' imprisonment) from 16 March 2019 to 15 September 2031. The maximum penalty is life imprisonment, although a young offender cannot be sentenced to life imprisonment.

(b) Count 2 - Intentionally inflict grievous bodily harm: four years' imprisonment (reduced from four years and nine months' imprisonment) from 15 March 2029 to 14 March 2033. The maximum penalty is 20 years' imprisonment.

(c) Count 3 - Assault occasioning actual bodily harm: two years' imprisonment (reduced from two years and four months' imprisonment) from 16 March 2032 to 15 March 2034. The maximum penalty is five years' imprisonment.

5. For two transfer offences, the sentencing judge imposed the following sentences:

(d) Count 4 - Possess prohibited substance: six months' imprisonment from 16 March 2019 to 15 September 2019.

6. The appellant submitted that the sentencing judge had specifically erred by:

(a) failing to apply the principles applicable to sentencing young offenders that are contained in chapter 8A of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), including the matters set out in s 133D of the Sentencing Act; and

(b) setting the unsuspended term of the sentence of imprisonment as though his Honour was setting a nonparole period.

7. Further, the appellant claimed that the sentences were manifestly excessive and that, in reaching sentences that were unreasonable and unjust, his Honour had:

(a) failed to properly recognise the requirements of the young offender sentencing regime, including the requirement to impose a suspended sentence rather than a nonparole period;

(b) failed to pay adequate regard to the appellant's subjective features;

(c) failed to properly acknowledge the mitigatory fact that the offences had been committed in a drug induced psychosis;

(d) been diverted by "sentencing ranges" in other jurisdictions; and

(e) applied sentencing discounts that were less than the 20 per cent discount that his Honour had identified as appropriate.

8. As to the last point, the Crown acknowledged that the sentencing judge had failed to allow a full 20 per cent discount for the pleas of guilty.

9. The parties agreed that, as the discount error was not a legal error of the type that vitiated the exercise of the sentencing discretion, if otherwise appropriate the sentences should be adjusted to reflect the error: Kentwell v The Queen [2014] HCA 37; 252 CLR 601.

10. Because we consider that the sentencing judge erred by setting the unsuspended term of the total sentences of imprisonment as though he was setting a nonparole period, we must re-sentence, and it is necessary neither to recalculate the 20 per cent discount nor to address the appellant's other contentions.

11. The appellant had used cannabis frequently and had experimented with other illicit drugs. On about three occasions, he had used Lysergic Acid Diethylamide (LSD). Although each use of LSD had produced a somewhat different effect, he knew that, when he used LSD, "things would be distorted" and he became euphoric.

12. For the first time, the appellant used the "Dark Web" to purchase five LSD tablets for four dollars each. At [10], the sentencing judge found that, despite the inexpensive cost of these tablets:

He did not anticipate that the tablets would be any different, in their effect, than those he had purchased from another person.

13. After school, on Friday 15 March 2019 the appellant and several friends attended McDonalds in Gungahlin. At about 6:20PM, the appellant and other friends each took an LSD tablet. They went to the appellant's home, where they sat outside smoking cannabis.

14. At about 8:00PM, the appellant took a second LSD tablet. Soon after taking the tablet, the appellant told his friends that he was "freaking out". The appellant telephoned another friend and asked him to come to the appellant's home as the appellant was "freaking out".

15. When the friend arrived at the appellant's home, the two went for a walk "to try and bring [the appellant] down". The appellant told his friend "I'm tripping, this is crazy". After they returned to the appellant's home, the appellant vomited. He told his friend that he would shower, and he asked all his friends to leave.

17. After dining out, the deceased, his wife, and their friends QI and WI, drove to the home of the deceased and his wife. WI was driving. QI was in the front passenger seat. The deceased was sitting behind WI. The deceased's wife was sitting behind QI. The deceased, his wife and their friends were elderly.

18. As the car was coming to a stop in the driveway just after 10:18 PM, the appellant wrenched open the front passenger door.

19. The appellant began to punch QI, who was constrained by his seatbelt. The punch dislodged a tooth implant. QI raised his hands defensively. The appellant bit QI on his thumb, breaking the skin (Count 3). The appellant attempted to pull QI's mouth apart, while repeatedly yelling "I'm going to kill you". QI feared that he would die.

20. WI attempted to push the appellant from QI. The appellant turned on WI and began to punch her. He bit her thumb, leaving a large wound. The appellant grabbed WI's head and forcefully yanked it forward, fracturing a spinal facet joint and causing spinal cord trauma such that WI temporarily lost sensation in her legs and has sustained long-term nerve damage (Count 2).

21. The deceased's wife ran to a neighbour's house to seek help.

22. The deceased exited the car to assist QI and WI. There was scant evidence about what happened next. By the time that QI had released his seatbelt and stepped from the car, the deceased was lying in the gutter.

23. The appellant stomped on the deceased's head. This blow and others caused a severe head injury to the deceased, who never regained consciousness.

24. QI picked up a nearby garden spade and struck the appellant on the back of the head. The appellant said, "I'm going to kill you." QI struck the appellant for a second time and the appellant fell to the ground.

25. During the attack, the appellant made "monster, pre-historic sounds" that the witnesses described as reminiscent of "Jurassic Park".

26. At about 10:20PM, police arrived at the scene.

27. The appellant was lying on the ground. His eyes were closed, and he was immobile. However, when a police officer approached him, the appellant stood and lunged at the officer. There was a violent altercation. Police applied oleoresin capsicum spray, but the spray had no apparent effect on the appellant. It took five police officers to control the appellant. After the appellant was handcuffed, he continued to kick at police officers.

28. The police had to wait until 11:57PM for an ambulance to attend.

29. At 12:03AM, ambulance paramedics administered a sedative intramuscularly to the appellant. The sedative agitated the appellant. At 12:13AM, paramedics administered a second dose of the sedative, which further agitated the appellant. At 12:21AM, they administered Ketamine, a strong sedative with dissociative effects, but it had little effect. After they administered a second dose of Ketamine, paramedics were able to calm the appellant sufficiently to allow them to insert an intravenous line into his arm. Between 12:34AM and 1:03AM, four further doses of Ketamine were administered intravenously.

30. At 1:09AM, the ambulance arrived at hospital. Between 1:11AM and 1:30AM, three further doses of Ketamine were administered intravenously to the appellant. The appellant was placed in a medically induced coma (involving intubation and ventilation) to wait for the effects of the LSD to subside.

31. At approximately 1:00PM on 16 March 2019, the appellant was brought out of the medically induced coma. On regaining consciousness, he asked where he was. The last thing that he could remember was being asleep at his home.

32. On 17 March 2019, police executed a search warrant at the appellant's home. In his bedroom, they found drugs, including three LSD tablets (Count 4). In the appellant's backpack, police located 6.9 grams of cannabis (Count 5).

33. The deceased was hospitalised on life support. Ten days after the incident, on 25 March 2019, he was pronounced dead (Count 1). The cause of death was blunt force head injuries.

34. As to the impact on the appellant of sedatives, and the general effects of LSD and cannabis, Professor McGregor, a professor of psychopharmacology, provided the following information:

(a) The Ketamine and the other sedatives administered to the appellant meant that "event amnesia would be guaranteed".

(b) LSD produces a very short-lived schizophrenic state in people with no history of mental illness.

(c) Small doses of LSD produce an altered state of consciousness attended by delusional thinking, cognitive disorganisation, paranoia and vivid sensory changes. Larger doses produce more pronounced and longer lasting psychoactive effects.

(d) LSD may precipitate a "psychedelic crisis" or "bad trip" in a consumer, who may become terrified and engage in dangerous conduct such as jumping from a building, running into traffic, or hurting others whom they mistakenly believe to be a threat to their survival.

(e) It has been consistently reported that cannabis intensifies the visual hallucinations and overall intensity of an LSD "psychedelic trip".

Background to the sentencing regime applying to young offenders

35. The sentencing regime for young offenders is to be found in Chapter 8A of the Sentencing Act, which comprises ss 133A-133ZD. A young offender is a person who has been found guilty of an offence that was committed when they were under 18 years of age, regardless of their age when sentenced: s 133B.

36. Chapter 8A is best appreciated in the context of the Sentencing Act as a whole, the common law, and the Human Rights Act 2004 (ACT) (HRA), which reflects international best practice in relation to dealing with young offenders.

37. Chapter 8A was inserted into the Sentencing Act by the Children Young People Act 2008 (ACT). In a lengthy outline, the Explanatory Statement emphasised that the goal of rehabilitating young offenders was central to the amendments. The outline stated:

The amendments provide a sentencing methodology consistent with the United Nations Convention on the Rights of the Child (the CRC) and Australian common law that applies to all people under the age of 18, where the primary focus is rehabilitation.

...

The changes will also enable sentencing courts to tailor sentences to the specific rehabilitative needs of young offenders.

38. After referring to s 22(3) of the HRA (which provides that a child has the right to a procedure that takes account of the child's age and the desirability of promoting the child's rehabilitation) and the United Nations Standard Minimum Rules for the Administration of Juvenile Justice, the outline continued:

Rehabilitation of young offenders is a starting point for both the CRC and Australian common law. ... In R v Voss [2003] NSWCCA 182 the NSW Court of Criminal Appeal cited with approval common law principles laid down in previous cases such as Wilcox [1979] (NSW, unreported 15 August 1979), such as:

... In the case of the youthful offender ... considerations of punishment and general deterrence of others may properly be largely discarded in favour of individualised treatment of the offender, directed to his rehabilitation.

39. The Explanatory Statement then referred to R v Mills [1998] 4 VR 235, identifying that case as a leading case that recognised rehabilitation "as the priority principle when sentencing a young offender". The Explanatory Statement continued:

The principle of rehabilitation being the starting point for sentencing children and young people does not mean principles such as community safety or accountability, are never considered. Sentencing courts would consider applying those principles in cases of serious offences or serious recidivism, having firstly considered the principle of rehabilitation.

40. The suggestion that, just because an offence was "serious", the importance of rehabilitation may be moderated, was not explained.

41. We observe that, in KT v The Queen [2008] NSWCCA 51; 182 A Crim R 571, McClellan CJ at CL stated:

22. ... Both considerations of general deterrence and principles of retribution are, in most cases, of less significance than they would be when sentencing an adult for the same offence. In recognition of the capacity for young people to reform and mould their character to conform to society's norms, considerable emphasis is placed on the need to provide an opportunity for rehabilitation...

23. The law recognises the potential for the cognitive, emotional and/or psychological immaturity of a young person to contribute to their breach of the law. Accordingly, allowance will be made for an offender's youth and not just their biological age. The weight to be given to the fact of the offender's youth does not vary depending upon the seriousness of the offence. Where the immaturity of the offender is a significant factor in the commission of the offence, the criminality involved will be less than if the same offence was committed by an adult.

24. Although accepted to be of less significance than when sentencing adults, considerations of general deterrence and retribution cannot be completely ignored when sentencing young offenders. There remains a significant public interest in deterring antisocial conduct...

25. The emphasis given to rehabilitation rather than general deterrence and retribution when sentencing young offenders, may be moderated when the young person has conducted him or herself in the way an adult might conduct him or herself and has committed a crime of violence or considerable gravity. In determining whether a young offender has engaged in "adult behaviour", the court will look to various matters including the use of weapons, planning or pre-meditation, the existence of an extensive criminal history and the nature and circumstances of the offence. Where some or all of these factors are present the need for rehabilitation of the offender may be diminished by the need to protect society.

(citations omitted)

42. The statement that the weight to be given to an offender's youth does not vary with the seriousness of the offence (at [23]), seems to contradict the statement that rehabilitation may be of less significance in the case of "adult behaviour" or "a crime of violence or considerable gravity" (at [25]). Possibly, his Honour was distinguishing between an offender's biological age and their level of maturity, which may be reflected in "adult behaviour".

43. In any event, prior to the introduction of chapter 8A, in this jurisdiction it was well accepted that rehabilitation played a dominant role in sentencing young offenders: see, for example, Thorn v Laidlaw [2005] ACTCA 49 (Thorn) at [26]. The Explanatory Statement referred to Thorn when observing that chapter 8A was designed to reflect the common law discretion to give more weight to the purpose of rehabilitation than to other sentencing purposes (at p 260).

Provisions in the Sentencing Act that apply to most offenders

44. Section 7(1) of the Sentencing Act states that a court may impose a sentence for one or more of the stated purposes, which include adequate punishment, general and personal deterrence, and promotion of the offender's rehabilitation. Section 7(2) clarifies that:

(2) To remove any doubt, nothing about the order in which the purposes appear in subsection (1) implies that any purpose must be given greater weight than any other purpose.

Note However, see s 133C in relation to the sentencing of a young offender.

45. Section 10(2) of the Sentencing Act provides that:

(2) The court may, by order, sentence the offender to imprisonment, for all or part of the term of the sentence, if the court is satisfied, having considered possible alternatives, that no other penalty is appropriate.

46. A sentencing court may order that a sentence of imprisonment be served in a variety of ways, of which full-time imprisonment is only one way.

47. Another way is pursuant to a suspended sentence order (under s 12 of the Sentencing Act) and associated good behaviour order (under s 13 of the Sentencing Act). A sentence comprising a suspended sentence order and an associated good behaviour order is one of the "combination sentences" that may be imposed pursuant to s 29 of the Sentencing Act.

(2) The court may make an order (a suspended sentence order) suspending all or part of the sentence of imprisonment.

(3) If the court makes a suspended sentence order, the court must also make a good behaviour order for the period during which the sentence is suspended or for any longer period that the court considers appropriate.

49. If a court imposes a sentence or sentences of imprisonment of one year or more, it must set a nonparole period, i.e. a period during which the offender is not eligible for release on parole: s 65(1) and (2) of the Sentencing Act. In the case of a partly suspended sentence, for the purposes of s 65 the period of suspension is to be disregarded: s 65(6).

50. A nonparole period is the minimum period that justice requires to be served by way of full-time custody: Power v The Queen [1974] HCA 26; (1974) 131 CLR 623, Taylor v The Queen [2014] ACTCA 9 (Taylor) at [19]. In _Taylo_r at [19] and [20], this Court addressed the proper approach to fixing a nonparole period when sentencing an adult offender. In summary:

(a) A nonparole period must be fixed having regard to all the sentencing purposes of s 7, the objective seriousness of the offence and the offender's subjective circumstances.

(b) An offender's prospects of rehabilitation are important when fixing a nonparole period. Generally, the perceived prospects of rehabilitation will make a significant difference to the nonparole period.

(c) The proportion of the sentence that is to be served by way of nonparole period is a matter for judicial discretion and cannot be reduced to a mathematical formula. However, ordinarily the nonparole period will occupy a substantial part of the total term. In the ACT, nonparole periods generally constitute 50-70 per cent of the total term.

51. In addition to such objective and subjective features as the sentencing court considers to be relevant to a particular sentencing exercise, s 33 of the Sentencing Act provides that the court must consider such of the enumerated matters as are relevant and known to the court. These matters include:

(1) In deciding how an offender should be sentenced (if at all) for an offence, a court must consider whichever of the following matters are relevant and known to the court:

(i) the degree of responsibility of the offender for the commission of the offence;

(m) the cultural background, character, antecedents, age and physical or mental condition of the offender;

(v) the reason or reasons why the offender committed the offence;

52. It is well established that, when sentencing a young adult offender (a person over the age of 18 years), rehabilitation is usually an important sentencing purpose. This Court has accepted that, when taking "age" into account for the purpose of sentencing a relatively young adult offender, the seriousness of the offence makes no difference: R v TL [2017] ACTCA 18 (TL) at [40].

General Sentencing Act regime modified for young offenders

53. In the case of young offenders, the Sentencing Act alters the way in which the s 7 sentencing purposes are to operate (to emphasise rehabilitation), elevates the importance of "individualised justice" (including by requiring that a sentencing court consider additional matters relevant to the particular young offender), tightly restricts a court's capacity to impose a sentence of imprisonment, excludes the parole provisions, and promotes combined sentences as the preferred way in which a young offender should serve any sentence of imprisonment.

54. Despite s 7(2), in the case of young offenders the sentencing purpose of rehabilitation is prioritised; it may be given more weight than other purposes. Further, the sentencing court must pay "particular regard" to "individualised justice". Section 133C provides:

(1) Despite section 7 (2), in sentencing a young offender, a court must consider the purpose of promoting the rehabilitation of the young offender and may give more weight to that purpose than it gives to any of the other purposes stated in section 7 (1).

(2) Also, in sentencing a young offender, a court must have particular regard to the common law principle of individualised justice.

(a) emphasises the sentencing purpose of rehabilitation, but does not exclude other sentencing purposes;

(b) consistent with TL, does not distinguish between the sentencing purposes that may be relevant when sentencing young offenders on the basis of the seriousness of the offence, and does not differentiate between offences that reflect "adult behaviour" and those that do not;

(c) does not distinguish between young offenders based on their age; and

(d) requires the sentencing court to pay "particular regard" to "individualised justice".

56. The principle of individualised justice is central to all sentencing exercises; any sentencing court is required to impose a sentence that is just and appropriate in all the circumstances, including the circumstances personal to the offender. However, s 133C "emphasises" the importance of "individualised justice" when sentencing young offenders (to use the word employed in the Explanatory Statement at page 260).

57. The importance of individualised justice to the sentencing of young offenders is supported by s 133D, which provides:

133D Youth offenders - sentencing - additional relevant considerations

(1) In deciding how a young offender should be sentenced (if at all) for an offence, a court must consider the following matters:

(a) the young offender's culpability for the offence having regard to his or her maturity;

(c) the past and present family circumstances of the young offender.

(2) This section applies in addition to section 33 (Sentencing - relevant considerations).

58. With reference to s 133D(1)(a), which it described as "the individual issue of maturity", the Explanatory Statement said:

A young offender's immaturity would be a factor that emphasises the need for rehabilitation and parsimony in sentencing.

59. Of s 133D(1)(b), the Explanatory Statement observed:

State of development may be akin to maturity in many cases, but can also reflect the ability, inability, or limitations, of the young person to engage with the world and the community.

60. The distinction between a young person's "individual maturity" and their "state of development" is opaque. However, the former may refer to a young person's cognitive development (their capacity to understand, make reasoned decisions and reflect before acting, matters which may logically inform culpability) and the latter may refer to their social and moral maturity (their ability to appreciate and comply with social norms and expectations).

61. In relation to s 133D(1)(c), the Explanatory Statement observed:

In some cases offending behaviour by children or young people can be triggered by family circumstances or evolve in a context of dysfunctional family life. This subsection requires the Court to consider that context when sentencing a young offender.

62. In this regard, s 133D(1)(c) anticipated the general sentencing principle that was entrenched by Bugmy v The Queen [2013] HCA 37; 249 CLR 571 (Bugmy), that a dysfunctional upbringing (for which an offender cannot be held responsible) may thwart the offender's capacity to mature, and explain their criminal behaviour. In Bugmy at [43] the Court said:

The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person's capacity to mature and to learn from experience.

63. A sentencing court's capacity to take the s 133D matters fully into account is enhanced by s 133E, which has the effect that, in addition to other relevant matters, a pre-sentence report concerning a young offender must refer to each of the s 133D matters.

64. We infer that, when the 133C requirement to pay "particular regard" to "individualised justice" is read together with the discretion to give more weight to the sentencing purpose of rehabilitation, the result is that, if a young offender has good prospects of rehabilitation, those prospects will weigh heavily in the sentencing exercise.

65. Pursuant to s 10(2) of the Sentencing Act, no offender may be sentenced to imprisonment unless "having considered possible alternatives, the court is satisfied that no other penalty is appropriate". The "implicit corollary" is that no sentence may be longer than is necessary to achieve relevant sentencing purposes: Thorn at [30]. This is sometimes known as the "parsimony principle".

66. Section 133G makes it even more unlikely that a sentence of imprisonment will be imposed on a young offender and makes the "implicit corollary" explicit. It provides:

133G Young offenders - sentences of imprisonment

(1) This section applies if a court is sentencing a young offender to imprisonment under section 10.

Note Section 10 allows a Court to sentence an offender to imprisonment if satisfied that no other penalty is appropriate.

(2) The sentence of imprisonment must be a last resort and for the shortest appropriate term.

(3) The court must consider making a combination sentence consisting of -

(b) a good behaviour order with a supervision condition.

Note There is no provision for the setting of a nonparole period for a sentence of imprisonment imposed on a young offender (see s 64 (2), def excluded sentences of imprisonment)

(4) The court must not sentence the young offender to imprisonment for life.

67. Among other combinations, under s 29 of the Sentencing Act, a "combination sentence" may be a sentence of full-time imprisonment followed by a good behaviour order, or (as noted above) a s 12 suspended sentence order and an associated s 13 good behaviour order.

68. A "combination sentence" of full-time imprisonment followed by a good behaviour order enables the imposition of a very short sentence of full-time imprisonment, followed by a good behaviour order. For example, such a sentence may be appropriate for a young offender who is in full-time detention when they appear for sentence, if the sentencing court considers that they should be released forthwith, subject to a significant period of supervision on a good behaviour order.

69. A "combination sentence" comprising a suspended sentence and a good behaviour order enables the imposition of a partly suspended sentence within which the unsuspended part is of any appropriate length and, following release, the failure of the young offender to comply with the conditions of the associated good behaviour order places them at risk of serving the suspended part of the sentence in full-time detention. Such a sentence simultaneously supports good behaviour while disincentivising antisocial behaviour (the "carrot and stick" approach to behavioural reform).

70. It is relevant to both types of combination sentences that chapter 8A enables a sentencing court to impose good behaviour order conditions that are tailored to promote the rehabilitation of young offenders, including education and training conditions and special supervision conditions: Part 8A.2 (ss 133L-133X).

71. We note that the s 133G(3) requirement to consider a combination sentence sits within a provision that otherwise strictly limits the power of a sentencing court to impose a sentence of imprisonment on a young offender (imprisonment is a "last resort", it is to be for "the shortest appropriate term" and it cannot be imprisonment for life). Its placement within that provision is consistent with a legislative intent that young offenders spend less time incarcerated than would be the case if they were adults.

72. In explaining the s 133G(3) reference to a combination sentence, the Explanatory Statement for the Children Young People Act 2008 stated at pages 261-262:

This provision replaces the existing statutory remission scheme. A statutory remissions scheme administered by the Executive is inconsistent with human rights, primarily because of the distinction between the fair trial requirements for administrative and criminal proceedings.

...

...Given the small number of young offenders, the Government has decided at this stage not to construct a parole system for young offenders but instead to formalise the current practice of the Childrens court.

The effect of combining a sentence of imprisonment and a good behaviour order with a supervision condition meets the rehabilitative goal of supervising a young person's return to the community akin to a parole system. If a young person breaches their good behaviour order, the person is brought before the sentencing court, and the Court's sentencing jurisdiction is re-enlivened.

73. The parties were unable to ascertain the practice of the Childrens Court in 2008.

74. However, the case of R v PM [2009] ACTSC 24 (PM) is of some assistance. In that case, Refshauge J sentenced a 17-year-old offender for very serious sexual offences, on what his Honour believed to be the first occasion that the Court had sentenced a young offender under the new chapter 8A regime: at [43]. His Honour observed that, under the previous regime, the Executive had been empowered to award remissions of up to one third to young detainees: see s 127 of the Children and Young People Act 1999 (ACT). Under the new scheme, this possibility was lost, because it was regarded as a breach of human rights: at [67]-[68] and [80].

75. In PM, Refshauge J found that the young offender was "entirely culpable" for the offences and that the insobriety associated with the offending conduct did not significantly mitigate the offender's culpability: at [90]. His Honour imposed a total sentence of seven years' imprisonment, to be suspended after three years (43 per cent of the total sentence) on a s 13 good behaviour order. In setting what he described as a "low" unsuspended part of the sentence, his Honour observed that the offender was a young offender at the time of the offences, needed rehabilitation and had responded well to rehabilitation: at [97].

76. Pursuant to s 64(2)(g) of the Sentencing Act, the s 65 requirement to set a nonparole period does not apply to a sentence of imprisonment that is imposed on a young offender. Otherwise, the only sentences of imprisonment that are excluded from the operation of s 65 are community-based sentences, fine default sentences, sentences of life imprisonment and sentences imposed for offences committed while in lawful custody.

77. Why did the legislature exclude young offenders from the operation of the nonparole provisions while promoting the use of a combined a sentence comprising a sentence of imprisonment and a good behaviour order with supervision?

78. There are three important differences between a relevant "combination sentence" (a sentence of full-time imprisonment followed by a good behaviour order or a partly suspended sentence and an associated good behaviour order) and a sentence of imprisonment in relation to which a nonparole period applies.

79. First, a combination sentence removes young offenders from the vagaries of Executive decision-making. The young offender must be released on the date set by the sentencing court; they are not merely "eligible" for release if the parole authority deems them to be suitable. This requirement is consistent with the fact that, when released on a good behaviour order, a young offender is subject to judicial supervision; the sentencing court both determines the release date and thereafter supervises the young offender.

80. Second, any breach of a good behaviour order is considered by the sentencing court, rather than by an administrative body. If the good behaviour order is associated with a suspended sentence order, the court must cancel the good behaviour order and may either impose a suspended sentence or re-sentence the offender, applying the provisions of the Sentencing Act: s 110 Crimes (Sentence Administration) Act 2005 (Sentence Administration Act). As in the case of the original sentence, on any re-sentence, the court must focus on the considerations of individualised justice and rehabilitation and may impose a good behaviour order that includes conditions that support and promote rehabilitation.

81. On the other hand, parolees are supervised under the Sentence Administration Act, which emphasises compliance and enforcement. The administrative body that supervises parolees has limited discretion. For example, if a parolee is found guilty of an offence against a Territory law that is punishable by imprisonment, their parole order is automatically cancelled: s 149 Crimes (Sentence Administration) Act 2005 (ACT) (Sentence Administration Act). Although sentenced offenders are to be accorded their human rights and, as far as practicable their rehabilitation is to be promoted (s 7), s 6 of the Sentencing Act provides:

The main object of this Act is to ensure, as far as practicable, that sentences are given effect in accordance with this Act and the Corrections Management Act 2007.

82. Third, a combination sentence is an inherently more flexible sentencing option. Consequently, it is more likely to facilitate "individualised justice" than is a sentence of imprisonment to which a nonparole period is attached. A good behaviour order may contain any condition that is appropriate to the offender and the offence.

83. Ordinarily, a nonparole period will comprise a substantial part of the total sentence: Taylor at [19]. In this jurisdiction, nonparole periods usually fall within the range of 50-70 per cent of the total term: Taylor at [20]. An adult offender's prospects of rehabilitation are very important to the fixing of a nonparole period and, if good, will often result in a nonparole period at the lower end of the usual range of 50-70 per cent of the total term. However, relevant sentencing purposes are always to be balanced, and at no stage of the sentencing exercise does rehabilitation dominate or provide a "starting point". This may explain why courts rarely fix a nonparole period that is less than 50 per cent of the total term.

84. On the other hand, when sentencing young offenders, the sentencing purpose of rehabilitation is infused into all aspects of the sentencing exercise and may legitimately take precedence over sentencing purposes that speak to the community's needs (such as general deterrence and denunciation) rather than to the circumstances of the individual offender (such as rehabilitation and personal deterrence).

85. As to the principles that apply when fixing the unsuspended period of a partly suspended sentence, there is appellate authority neither in relation to adult offenders nor in relation to young offenders. There is no established practice regarding the relative lengths of the unsuspended and the suspended parts of suspended sentence orders, and it is very often the case that the unsuspended part occupies considerably less than 50 per cent of the total term: see, for example, PM, R v CA [2014] ACTSC 332, IM v Mc Devitt [No 1] [2015] ACTSC 178 at [45], and IM v McDevitt [No 2] [2015] ACTSC 179 at [7] and R v KN [2020] ACTSC 218.

86. When fixing the unsuspended part of a partly suspended sentence, there is no reason to do so by reference to the usual nonparole range of 50-70 per cent of the total term.

87. In the case of an adult offender, before imposing a suspended sentence order, the sentencing court will have considered the differences between a suspended sentence order and a sentence of full-time imprisonment with a nonparole period and decided that the former is more appropriate to the circumstances of the case. In the case of a young offender, the legislature has promoted a suspended sentence order with a good behaviour order and precluded a sentence of full-time imprisonment with a nonparole period presumably because, in all cases, the former is deemed to be more appropriate.

88. For both adult offenders and young offenders, the sentencing court must determine the unsuspended portion of the suspended sentence order by reference to relevant sentencing purposes, the objective seriousness of the offence and the offender's subjective circumstances. However, as between adult offenders and young offenders, it is very likely that relevant sentencing purposes will be weighted differently. In the case of young offenders, there will be a greater emphasis on rehabilitation of the individual and less emphasis on community-focussed sentencing purposes such as general deterrence and denunciation. Further, in paying "particular regard" to "individualised justice", it is likely that a court that is sentencing a young offender will attach greater weight to the offender's subjective circumstances, particularly the circumstances that must be considered under s 133D.

89. These considerations illuminate why, in relation to young offenders, the legislature has excluded the parole provisions while promoting combination sentences that involve some full-time imprisonment. A relevant combination sentence gives the sentencing court significantly greater flexibility and capacity to deliver individualised justice, prioritising the sentencing purpose of rehabilitation. It enables the sentencing court to oversee the young person after they are sentenced and, if necessary, to re-sentence the young person, again focusing on individualised justice and prioritising the sentencing purpose of rehabilitation.

90. The difference between a relevant combined sentence and a sentence of full-time imprisonment with an associated non-parole period is not superficial.

Error in approach to unsuspended part of suspended sentence

91. The sentencing judge appreciated that the parole provisions of the Sentencing Act do not apply to young offenders and decided that a suspended sentence order was the appropriate way in which to imprison the appellant: at [50].

92. His Honour observed that a suspended sentence order would mean that the appellant had the benefit of a certain release date. His Honour considered and then rejected the proposition that the benefit of a certain release date should be neutralised by a longer unsuspended period of imprisonment, stating:

It cannot have been the intention of the legislature to keep young persons in prison for a longer period than might have been the case if they were subject to a nonparole period.

...I will approach the length of time before suspension in the same way as I would have calculated a nonparole period. In this case the nonparole period would have been dictated by the positive prospects of rehabilitation.

94. Accordingly, his Honour imposed a partly suspended sentence within which the unsuspended part comprised 57 per cent of the total term, i.e. sat well within the usual nonparole period range of 50-70 per cent of the total term.

95. Unfortunately, the sentencing judge was encouraged to take this approach by defence counsel, who urged his Honour to create:

an association between the pre-suspension period term and the head sentence that gives greater priority to rehabilitation ... [a]s if it was a nonparole period.

96. As explained above, the exercise of setting the unsuspended part of a suspended sentence order does not parallel the exercise of setting a nonparole period.

97. As the appellant has established specific error, we must re-sentence him.

98. All offences of murder are profoundly serious. The offence that caused the death of the deceased involved a nightmarish attack on an elderly man in the presence of his wife and their elderly friends. On the other hand, the offence was not premeditated, and it did not involve a weapon. The appellant did not deliberately seek out the deceased or the other victims but encountered them as he roamed the streets in a psychotic state, apparently attempting to "walk off" a disturbing LSD "trip". The incident was brief.

99. In relation to the attack on WI, no weapon was used, and the offence was not premeditated. However, WI suffered very significant harm. In a victim impact statement, she said that she was hospitalised for a week, wore a neck brace for six weeks and then underwent spinal surgery. She still experiences pain and restricted movement in her neck and loss of strength in her right hand. In addition, the incident had a psychological impact.

100. The assault on QI did not result in significant physical injury but it must have caused significant psychological injury. During the attack, the appellant repeatedly threatened to kill QI and QI feared that he would die.

101. Undoubtedly, the incident and its aftermath will haunt the deceased's wife and family, and WI and QI for the rest of their lives. The deceased was a much-loved husband, father, grandfather, and friend. In a victim's impact statement, the deceased's wife described her feelings of overwhelming loss after almost 60 years of happy marriage, as well as understandable concern for her personal safety. The deceased's death was a devastating blow for the deceased's sons and grandchildren, to whom the deceased was very close. All continue to suffer deeply. All are concerned not only for their own loss but also for the well-being of the deceased's wife.

102. The offences occurred while the appellant was experiencing a powerful drug induced psychosis. During three previous uses of LSD, the appellant had felt euphoric, and his perceptions had been "distorted"; he had not experienced an adverse psychotic reaction from taking LSD. Usually, cannabis made him relaxed. He did not have a history of behaving violently, either under the influence of LSD or otherwise.

103. It may be that an adult user of LSD who has some foreknowledge of the mind-altering qualities of that substance (but fails to appreciate the possible degree of impact) cannot rely upon their limited foreknowledge to establish reduced culpability: see, for example, DPP v Arvanitidis [2008] VSCA 189; 202 A Crim R 300 at [34], R v Fang (No 4) [2017] NSWSC 323 at [78]. However, young people cannot be held to the same standards of reflection and reasoning.

104. Having regard to the appellant's age and limited prior experience with LSD, we infer that he did not appreciate that the ingestion of LSD could cause a severe psychotic reaction in which he may present a danger to himself and others. This lack of foreknowledge mitigates his culpability: R v Martin [2007] VSCA 291; 20 VR 14 at [21]-[22], R v Pahl (No 2) [2017] ACTSC 155 at [18]-[19].

105. As stated above, at the time of the offences the appellant was 17 years and two months of age. He had no prior criminal record.

106. The pre-sentence report that was prepared for the sentencing hearing addressed the appellant's past and present family circumstances, as required by s 133E of the Sentencing Act.

107. The appellant is the second of four children. When the appellant was 10 years old, he and his two younger siblings were removed from parental care under an emergency action because of concern that the appellant's mother was physically abusing the appellant. The appellant's mother suffered from a mental health condition. The appellant remained in foster care for about four months and was then returned to parental care under departmental supervision and the appellant's mother received psychological treatment. Subsequently, child concern reports were received on five occasions. Two reports alleged violence between the appellant's parents. The appellant's parents separated several years ago but have since reunited.

108. The appellant has always had a close relationship with his father, with whom he shares a strong interest in horticulture. The appellant's father operates a landscaping business in which the appellant will work when he is released from custody.

109. In relation to the reporting consideration in s 133E(1)(b) the author of the pre-sentence report stated that, although the appellant perceived that matters of parental mental health and physical abuse were merely historical:

his exposure to physical abuse and a parent with poor mental health may have had an adverse impact on his own mental health and development.

110. The pre-sentence report stated that, while in custody, the appellant's behaviour had improved over time. He had shown maturity and leadership during the August 2019 Bimberi riots. That trajectory has continued. On the appeal, the appellant furnished additional evidence that showed an impressive commitment to furthering his education. He hopes to complete his Year 12 Certificate this year and is achieving good academic results. In addition, he is studying for a Certificate II in Horticulture, a field in which he displays talent. He voluntarily engages in hospitality classes and a barista program. He contributes to the Bimberi community by planting and maintaining vegetable gardens, preparing coffees for staff and students, and providing leadership to other students.

111. The appellant has no memory of the events surrounding the offences, probably because of the high doses of Ketamine that were administered by the first responders. When the appellant learned of his offending conduct, he was "shattered". The author of the pre-sentence report observed that the appellant remained very emotional and, at times, inconsolable, when the offences were discussed. He was desperate to convey his regret to the victims and their families. He was assessed as eligible to participate in restorative justice. The appellant's genuine remorse is also apparent from a letter that the appellant read in the sentencing proceeding.

112. The author of the pre-sentence report considered that the appellant had extensive insight into his offending conduct, was still "processing" the offences but was showing increasing maturity. Material that was tendered on the appeal demonstrated continuing progress. The appellant now takes a mature approach to interpersonal interactions and displays good self-regulation strategies.

113. We endorse the observations of the sentencing judge at [46]:

Reaching the right balance of sentencing in this case is difficult. On the one hand there is an horrific series of events which include the murder of a good man much loved by family and friends as well as serious acts of assault on two of his friends. On the other hand there is a young man, with no criminal record, who did not intend to do what he did. I think he has shown remorse, is susceptible to rehabilitation and is entitled to the opportunity to eventually return to the community and to embark upon on a law-abiding path through life.

114. It must be deeply hurtful to the victims and their families that the horrific incident which caused their shocking losses has afforded the appellant opportunities for educational and personal development that will enable him to lead a more productive adult life when released. However, the criminal justice system is not a vehicle for retribution. Especially in the case of young offenders, it should, where possible, be a vehicle for rehabilitation, an outcome that benefits both the individual offender and the broader community. The present case demonstrates the capacity of young offenders to rehabilitate.

115. Both in the sentencing proceeding and on appeal, the parties agreed that, under s 35 of the Sentencing Act, the appropriate discount for the pleas of guilty was 20 per cent.

(a) Count 1 - Murder: 10 years' imprisonment (reduced from 12 years and six months' imprisonment) from 16 December 2020 to 15 December 2030.

(b) Count 2 - Intentionally inflict grievous bodily harm: three years and two months' imprisonment (reduced from four years' imprisonment) from 16 December 2019 to 15 February 2023.

(c) Count 3 - Assault occasioning actual bodily harm: 18 months' imprisonment (reduced from 23 months' imprisonment) from 16 March 2019 to 15 September 2020.

(d) Count 4 - Possess prohibited substance: six months' imprisonment from 16 March 2019 to 15 September 2019.

118. The total sentence is 11 years and nine months' (141 months') imprisonment.

119. Pursuant to s 12 of the Sentencing Act, we make a suspended sentence order suspending the sentence on 15 September 2023, after the appellant has served four years and six months' imprisonment (approximately 38 per cent of the total sentence).

120. Pursuant to s 13 of the Sentencing Act, we make a good behaviour order for the period during which the sentence is suspended (16 September 2023 to 15 December 2030). As part of the good behaviour order, we impose a supervision condition whereby the appellant must comply with all reasonable requirements of the Director-General for a period of three years (16 September 2023 to 15 September 2026), see ss 133U and 133W of the Sentencing Act.

I certify that the preceding one hundred and twenty [120] numbered paragraphs are a true copy of the Reasons for Judgment of their Honours Chief Justice Murrell, Justice Mossop and Justice Thawley.