R v Corrie LOVERIDGE; R v AB

Judgment Introduction 1In the early hours of 1 December 2010 Alan Ray Gordon, then aged 17 years and 5 months was stabbed to death by Corrie Loveridge and AB. Loveridge was convicted of murder following a trial, whilst AB was convicted of murder following his plea of guilty. Each offender is liable to imprisonment for life. The standard non-parole period of 25 years applies in Loveridge's case, since he was just over the age of 18 years at the time but not to AB, since he was then aged 17 years and 6 months. 2Each offender also pleaded guilty to breaking and entering a dwelling house, intending to steal from it. Serious injury was inflicted on the occupier of the premises, Mrs Elena Parrelli. Loveridge also pleaded guilty to an associated charge of robbing Mrs Parrelli of a wristwatch and a colour television, inflicting grievous bodily harm upon her at the time. Loveridge pleaded guilty to specially aggravated break and enter, the circumstances of special aggravation being the intentional infliction of grievous bodily harm. Loveridge's offences respectively carry maximum terms of imprisonment of 25 years imprisonment the latter having a standard non-parole period of 7 years. On the other hand AB pleaded guilty to aggravated break and enter, the aggravation being the fact that actual bodily harm was intentionally or recklessly inflicted. This carries a maximum term of imprisonment of 20 years. Obviously, the ordinary principles of joint responsibility apply. The agreed facts were that Loveridge alone struck Mrs Parrelli. Since by his plea AB admitted to having committed the break and enter offence "in circumstances of aggravation" and the particulars were "actual bodily harm was inflicted", it follows that he admitted that actual bodily harm was committed in the circumstances specified in para 105A(1)(d) of the Crimes Act 1900, although not by his own act, as distinct from being Loveridge's accomplice, and although recklessness or intention were not expressly mentioned. Mr Stratton SC for AB agreed that this was the sense in which the indictment and AB's plea should be understood. 3Loveridge also pleaded guilty to a charge of recruiting a 15 year old child, in substance, to procure a third person to inflict actual bodily harm to Billy Bray. He believed Bray had informed on him to police. This offence carries a maximum term of imprisonment of 10 years. He also pleaded guilty to an offence of attempting to dissuade two witnesses from giving evidence. This offence carries a maximum term of imprisonment for 7 years. 4AB also pleaded guilty to an offence of intimidating a person with the intention of causing her to fear physical or mental harm, an offence under the Crimes (Domestic and Personal Violence) Act 2007 carrying a maximum penalty of 5 years imprisonment or 50 penalty units or both and requested the Court to take into account an offence of using the postal service to threaten the infliction of serious harm, arising from a letter written by AB between 17 December 2010 and 26 January 2011 which was intercepted by staff at the Kariong Correctional Centre where he was being held. This offence carries a maximum penalty of imprisonment for 7 years. The breaking and entering 5The material facts were subject of an agreed statement, from which the following account is largely taken. 6On the evening of 30 November 2010 and early hours of 1 December 2010, AB and Loveridge were at premises in Tobruk Street, North St Marys with a number of other persons. Over the course of the night Loveridge and AB consumed wine, smoked some marijuana and had used the drug ice. Sometime after 1.00am they decided to break into a nearby residence in Oleander Road. Loveridge was armed with a knife. The offenders jumped over the back fence and opened the rear screen door and rear door of the house, which had been shut but not locked. They started to search the house for items to steal. The house was occupied by a Mrs Parrelli who was 87 years old and lived there alone. She was in her bed asleep but, hearing a noise, got up. She put the light on and, seeing the back door open went to close it. She was using a walking stick. She saw the offenders inside her house. Loveridge grabbed the walking stick from her and hit Mrs Parrelli several times over the head and body, causing her to fall to the ground. Mrs Parrelli activated her Vitalcall, which is a device for transmitting stress calls to a monitoring centre. The call and the ensuing interchange between Mrs Parrelli and the offenders was recorded. The offenders screamed horrific threats of inflicting appalling injuries if Mrs Parrelli did not produce the money they demanded. After perhaps two minutes, the offenders left, taking with them a colour television set and Mrs Parrelli's wristwatch, taken from her wrist. The episode must have been a terrifying, as well as an extremely painful, experience. Loveridge dropped his knife in the garden as they left. Mrs Parrelli remained in hospital as a result of the assaults upon her for some 22 days. 7On 2 December 2010 police discovered Mrs Parrelli's television at the Tobruk Street premises. Loveridge told police after his arrest that he knew the house and knew that Mrs Parrelli lived there. AB knew that the house was occupied by a grandmother of one of Loveridge's friends. AB, in his interview with police, admitted to breaking into the premises through the rear door and seeing Mrs Parrelli but denied assaulting or going near her. In a letter from gaol AB admitted he committed a home invasion and said that he felt "Sorry for the lady". I accept that it was Loveridge who struck Mrs Parrelli but it is obvious from the recording that AB was, in every important sense, his accomplice. So far as the objective seriousness of this offence is concerned, there is no realistic distinction to be made between them. The murder of Alan Gordon 8AB made an agreed statement of facts (referred to as the statement) concerning this offence. This material is not evidence against Loveridge. So far as he is concerned, the facts as to his involvement in the offence are derived from the evidence in the trial. It is accepted that adverse conclusions require satisfaction beyond reasonable doubt. 9After having committed the break and enter at Oleander Road, the offenders returned to Tobruk Street, leaving the premises shortly before 3.00am to go to a nearby service station. In his statement AB says that earlier that night he was agitated and said, "I am going to fucken kill cunts". He stated that he and Loveridge were armed with kitchen knives. So far as Loveridge is concerned, I am satisfied (for reasons explained below) that he also took a knife with him, having collected another from the Tobruk Street premises. About 10 minutes after they left Tobruk Street, the offenders entered the service station. AB used the ATM to withdraw cash and purchase some food items. As they moved around the service station (for about 10 minutes) they were being recorded on CCTV. This does not show them carrying any knives which, accordingly, must have been concealed in their clothing. Neither offender has any apparent difficulty with movement and the attendant did not notice anything out of the ordinary. 10On their way back from the service station, the offenders came across Alan Gordon, David Gordon and Christopher McDonald, who were unknown to them, walking along Maple Road, St Marys. AB and Loveridge began shouting out to them and started to follow the three youths. As they came up behind them, one or both asked for the time. Christopher McDonald told them that he did not know it. Immediately, one or other of the offenders swung a knife towards his throat. Had Christopher not instinctively recoiled, it is virtually certain that he would have suffered an extremely serious, possibly fatal injury, since he felt the blade (which he thought, probably mistakenly, was serrated) brush the lower part of his neck. 11In his statement AB says he assaulted Christopher in this way. However, I am satisfied that, in fact, it was Loveridge. Whilst identifying which of the two struck the first blow is not itself of great significance, since I have no doubt that both had decided that, if they met a potential victim, they would attack him (or for that matter, her) and that it was for this reason that each had a knife, the fact that Loveridge struck the first blow, and did so with the obvious intention of causing an extremely serious injury, demonstrates - if it were so - that his involvement was far greater than that of a merely passive accomplice who was guilty of murder by virtue only of his encouraging presence. In respect of this issue, the important evidence comes from Christopher McDonald who said that he saw the offenders for the first time walking down a nearby street and he heard one, or possibly both, ask for the time. He turned around and said, "Sorry boys, I haven't got the time" when they were about 15 metres away. They were coming towards him and his brothers, he said, "In a fast movement, like a power walk". I interpolate that this was therefore not, so far as the offenders were concerned, an accidental meeting during a casual stroll but a premeditated attack. Christopher said that he went to continue on walking but "one of them got in my face". He felt "a jagged edge" touch his lower neck below his collar and he jumped back. (Although he thought it felt like a pair of barbeque tongs, it is clear, that this was in fact a knife.) Although Loveridge is significantly taller than AB, Christopher was unable to recall any difference in their heights. However, David Gordon was able to do so. He said that, after hearing one of the offenders call, "What's the time" he looked over his left shoulder and noticed one of them was running up towards him and his brothers. A step or two later the two offenders were together. He said that one of them "went for an upper cut to hit [Christopher] in the chin... [holding] a ... metal object, could have been a ruler, could have been a spoon, could have been a blade or a screwdriver". He did not know if the blow actually connected. The object was about 23 centimetres long. He said that the offender was "probably a little bit taller than me", by about six to eight centimetres. On the other hand, the other attacker who was also holding a shiny object of about the same size, was "smaller, a bit shorter than me, probably came to my nose or eyes, just". Furthermore, David's description of the clothes worn by each offender, distinguishing them by height, is consistent with the clothes they are shown as wearing in the CCTV taken at the service station. David Gordon, of course, gave evidence before the jury and was cross-examined. I thought he was a careful and truthful witness. As to it being the taller offender (and, hence, Loveridge) who attacked Christopher, I am satisfied beyond reasonable doubt his evidence is also reliable. Accordingly, Loveridge had brought a knife from the Tobruk Street premises and was the first to attack, necessarily intending, at least, to cause a very serious injury. 12When Christopher McDonald dodged Loveridge's stroke, he yelled to the other two to run. He and David managed to get away. Tragically, however, one of the offenders knocked Alan Gordon to the ground. He was slightly built and no match for his much larger assailants, who commenced a cowardly, sadistic, pitiless, deadly attack, stabbing and cutting him repeatedly. This was briefly interrupted when a nearby resident moved his car onto the street, most likely because the offenders thought they had been seen. Perhaps 30 or 40 seconds later however, they returned and the neighbour heard one shout "Lets finish the dog off". The attack on the deceased, who was plainly unable to move, recommenced. Shortly after this the offenders walked back towards the Tobruk Street premises. Eyewitnesses saw what they took to be repeated kicks and punches. It was dark and the attack could not be clearly seen. Given the lack of bruising, I doubt that, if there were punches or kicks, that they were forceful. The more likely explanation for this evidence is that, as the witnesses saw no knives, although they were certainly extensively and repeatedly used, the actions they saw were the stabs. 13The injuries to the deceased were horrific. There were 12 wounds including nine stab wounds to his back, of which six were potentially fatal; nine wounds to his right arm or hand, including two stab wounds; an incised wound to the left forearm; four stab wounds to the left upper leg near the groin area, including the scrotum; two wounds to the left upper leg posterior aspect; four wounds to the right leg including deep incised wounds severing the Achilles tendon, involving more than one stroke, being more like "a sawing action"; and two wounds to the anterior chest wall including one through the heart which was fatal and one puncture wound possibly from medical intervention. There were four wounds to the head, including one stab wound which, although it was superficial because it was stopped by the skull, had been applied with substantial force resulting in a fracture. At the site of one incised wound a zigzag pattern was seen, such as might have come from the sole of a shoe. There were other small abrasions and scratches. The deceased suffered six wounds to the neck, of which one was a stab wound and two parallel horizontal superficial incised wounds with the appearance of having been inflicted in an attempt to cut the throat, made in quick succession while the head and neck were stationary. 14The large number of peripheral wounds to each side of the body demonstrates, to my mind, that both of the offenders were, more or less, equally involved. One of the most troubling inferences that must be drawn from the large number of peripheral wounds is that, whilst it was their intention to kill the deceased, they wished also to torture him by the infliction of a maximum degree of pain. It is for this reason that I described the attack as sadistic. It was not a frenzied attack: the cutting of the Achilles tendon, the attempts to cut the throat and the position of the wounds, demonstrate this. It must have caused excruciating pain. 15In the meantime, Christopher had run to the service station and asked the store attendant to contact triple 0, whilst David was attempting, unsuccessfully, to wave down passing vehicles. They returned to Maple Road and ran back to their brother. Alan was lying on the roadway, bleeding profusely and unconscious. The offenders had gone. They and a number of other witnesses attempted to render first aid. At about 3.30am police and ambulance arrived at the scene. Alan was taken to Nepean Hospital, dying en-route due to his injuries. 16The bizarre nature of the attack suggests that the offenders were affected by drugs at the time. AB's statement does not assert that he was significantly affected by drugs or was otherwise intoxicated at the time of the offences. So far as Loveridge is concerned he gave evidence that during the evening he was smoking marijuana with ice, had drunk some beer and white wine with the group at the house. He said that he had started smoking marijuana early in the morning and started drinking around three or four in the afternoon. He told police when asked about this that he was "not stoned" but was feeling the effects, "just to chillax" (meaning "chill out and relax"). He said that another effect of the ice was to keep him awake for the night. He said that, at the time of the murder, "We were pissed". My view of Loveridge's credibility, having seen him in the witness box for an extensive period, is that he cannot be believed in respect of anything he says to lessen his responsibility unless it is independently supported. There is no such support for his claim to police about his intoxication. Moreover, his evidence during the trial was, in substance, that he was not significantly affected either by alcohol or drugs. I have concluded that this was the case and that neither drugs nor alcohol played a significant role in his commission of this offence. Nor did it do so in AB's case. 17When the offenders returned to the Tobruk Street premises shortly after the attack, they changed into other clothes, which were placed in a bag with at least one of the knives. (It is not known what ultimately happened to this bag, although it is probable that it was taken by AB to his sister's home when he left Tobruk Street.) Shortly after, the offenders, together with AB's then girlfriend, left the house and walked back to the scene. It is not clear why they did this but this does not matter. When they approached the scene, they saw police cars there and returned to the premises. 18AB and his girlfriend went to a family member's house, where AB talked about what had happened. After several moves he was ultimately arrested on 16 December 2010. Loveridge remained at Tobruk Street until the next day and was arrested at the Countrylink Travel Office at Parramatta Railway Station, in the process of booking travel to South Australia. AB, when questioned by police, admitted to his involvement in the attack and said that he had no remorse for his actions and would do it again. He declined to say how many times he stabbed the deceased or where he stabbed him or identify his accomplice. On 4 January 2011 AB told a corrections officer, when talking about the murder, that he was angry with his ex-girlfriend and thought of robbing the service station but (instead) took out his anger on the deceased and stabbed him. On 27 February 2011 he told a witness on a gaol visit that he had stabbed the deceased 13 times. During telephone calls made prison AB said on a number of occasions, in effect, he killed Alan Gordon because he was angry with his ex-girlfriend and felt the need to hurt somebody. On one of those occasions he said that he did not regret killing the deceased. In letters, which were intercepted, he accepted that he killed an "innocent person", commenting "I gotta live with it for the rest of my life", and also acknowledged that he has anger problems. 19By contrast, Loveridge, in a number of statements to police, attempted to minimise his involvement in the crime, denying that he had or used a knife, asserting that he had only punched the deceased twice, although he admitted in effect to standing watch whilst AB attacked the deceased with his knife. As is obvious from what I have already said, these accounts were a tissue of lies. Loveridge also claimed, in effect, that he was an unwilling participant being involved only because he was frightened of AB. This also was a lie. I have no doubt that Loveridge was a willing, active and equal participant in this appalling crime. 20It was submitted by Mr Stratton on behalf of AB that I should reject the Crown's contention that the offence involved gratuitous cruelty on the basis that there was no evidence from which it can be inferred that AB inflicted any particular injury, let alone cutting the deceased's Achilles tendon, and his plea of guilty did not involve any acceptance of his knowledge of or assent to that act. Given the nature of the assaults as agreed to in the statement of facts, the mere fact, if it were so, that it was Loveridge and not AB who cut the Achilles tendon does not matter. The nature, placing and number of the wounds are convincing evidence of the character of the attack. It is unnecessary to refer to the particular aggravated feature specified in paragraph 21A(2)(f) of the Crimes (Sentencing Procedure) Act 1999. Use postal/similar service to threaten to cause harm 21Between 17 December 2010 and 26 January 2011, whilst at Kariong Correctional Centre, AB wrote a letter which was lawfully intercepted by corrections officers and passed onto the police. The letter contained threats of serious violence although he also expressed regret for hurting people, "because most of them did not deserve it... [and] if I could take it all back I would as quick as I done it." In a later letter, of 23 March 2011 AB wrote, "I'll do anything to take back what I done". Intimidation 22On 4 January 2011 AB telephoned his ex-girlfriend accusing her of being unfaithful and threatening to kill her. He said that even though he was in custody he could still get to her. Recruiting a person to commit a crime 23Following his arrest for murder, Loveridge recruited a 15 year old youth to have an informant, who had agreed to give evidence for the prosecution in his murder trial, bashed. Subsequently that informant told police he was too frightened to give evidence and, despite being subpoenaed, left the jurisdiction and was unable to be discovered. Intimidating witnesses 24Following his arrest for murder Loveridge wrote letters to two witnesses telling them to "shut their mouths". These witnesses had each given information to police which inculpated Loveridge in the murder and agreed to give evidence for the prosecution in his trial. One of these witnesses did give evidence (with obvious unease) but the other, although he entered the witness box, was plainly too frightened to give evidence against Loveridge and was stood down. Objective seriousness 25The circumstances, as already described, of the murder of Alan Gordon plainly enough place it in the category of most serious cases. However, the sentence must take into account also the relevant subjective features of the offenders, to which I come in due course. The break and enter offence was a very serious example of this kind of offence. The circumstance of special aggravation applying in Loveridge's case was the intentional infliction of grievous bodily harm. Additional aggravating factors as specified by s 21A(2) of the Crimes (Sentencing Procedure) Act, not forming one or more of the elements or inherent characteristics of the offence, are that it was committed in company (para 21A(2)(e)) and that the victim was a vulnerable person (para 21A(2)(l)). It is obvious that any offence of breaking and entering into a house for the purpose of stealing, and intentionally inflicting grievous bodily harm on an occupant is a grave crime, involving a high degree of criminal culpability. Where, in addition, the victim is old and vulnerable and represented no physical threat, so that the infliction of serious injury was merely an exercise in brutality, the objective seriousness is considerable. In this case, fortunately, Mrs Parrelli's physical injuries ultimately healed although the terror of that night will remain with her for as long as she lives. It must necessarily affect the confidence that she should be able to enjoy independently living in her own home. Loveridge is alone charged with robbing Mrs Parrelli of a wristwatch and a colour television. Given the circumstances of this offence, which include the infliction of grievous bodily harm in the home of a vulnerable victim, it is clear that the major culpability for this offence is absorbed in the breaking and entering offence. It is to avoid this doubling up that the sentence for this offence must be substantially reduced from what it would have been had it stood alone. So far as AB is concerned, he was not convicted of intentionally inflicting grievous bodily harm but with committing the primary offence, in effect, whilst being an accessory to Loveridge's intentional infliction of actual bodily harm. The lesser maximum of 20 years indicates this offence is less grave than that which Loveridge faces. He must be sentenced on the basis that he did not himself inflict grievous bodily harm and did intend to do so. 26So far as the offence under s 351A(2) of the Crimes Act is concerned, recruiting a child to assist in carrying out criminal activity is itself a circumstance of aggravation and accordingly no extra punishment should be imposed for this reason. The fact that the maximum penalty is 10 years, as distinct from 7 years if the person recruited were an adult, demonstrates that it is more serious on that account. The nature of the offence, which was to procure an assault in order to punish a witness for assisting the authorities and, it is clear, to frighten the witness out of giving any evidence in the trial, is serious. This involved what would otherwise have been, for example, offences under s 315, s 315A or s 323 of the Act, which also carry a maximum term of imprisonment of 7 years. However, that does not mean that the purpose for which the offence charged was committed cannot be taken into account. 27Loveridge also pleaded guilty to a further offence under s 323(a), as already mentioned, for influencing two persons who had given relevant information to the police and were to be called as witnesses. The threats were effective, so far as one of those witnesses was concerned. This, again, is a serious criminal offence. Criminal record 28AB's record commences with an offence of robbery in company committed when he was 13 years of age. About three weeks later he was convicted of common assault, destroying or damaging property, and breaking and entering. In 2007 his convictions commence in May with offences of breaking and entering, malicious damage and assault. He was convicted of affray and assaulting a law officer in December 2007, then in September 2008 he was convicted of aggravated breaking and entering and stealing, stealing a motor vehicle and possessing housebreaking instruments. In May 2010 he was convicted of cultivating a prohibited plant and having goods in personal custody suspected of being stolen, for which he was placed on probation for 12 months and, in 2011 common assault. Although these offences are not trivial, they pale into insignificance when compared to the offences for which he presently stands to be sentenced. The probation order meant that he was on conditional liberty at the time of the current offences. 29AB's inmate profile records 11 incidents involving fights, assaults and intimidation between December 2010 and December 2012. He was given a letter of caution on 1 January 2013 for acts of violence, group assault with the use of weapon, making threats of continued violence and indicating he would kill another person in custody. A segregation report dated 10 January 2013 refers to an extensive history of violence both in the community and in custody, spanning both juvenile and adult institutions. At Kariong Correctional Centre he was identified as a major protagonist who orchestrated significant acts of violence and disobedience, leading to his transfer to adult prison. 30So far as Loveridge is concerned, he was convicted in October 2009 for possessing implements to drive a conveyance, larceny, stealing a motor vehicle and common assault. In November 2009 he was convicted of the offence of malicious damage to property. The present offences were committed whilst he was on conditional liberty, having been placed on a 6 month good behaviour bond on 2 November 2010 of common assault. Remorse 31Loveridge was arrested on 2 December 2010 and participated in an interview with police which was recorded in the usual way. Loveridge gave lying accounts of what happened on the previous night, for which it is not necessary for present purposes to relate, except to note that he had no apparent difficulty in answering any questions. His lies about events were, although audacious, coherent and detailed. He referred to AB as "my mate" without naming him. The interview commenced at 8.30pm and concluded at 10.13pm. Loveridge did not at any time display any difficulties with maintaining his calm or answering questions. He was interviewed again on 22 December 2010, mainly about the break and enter. He minimised his involvement and told a number of lies. So far as the murder is concerned, the police put to him statements by various witnesses both as to the events and what AB and he told others after the offence. Loveridge said, amongst other things - "Yeah, I come back to him, like I hit him, went off, came back and it looked still like he was on the ground, it could look like I was still assaulting him, like he was on the ground, I checked if the cunt was breathin'". This was said in the context of a story, in effect, of having been there and punched the deceased once but not having stabbed him at all. He also said - "... when the coppers arrested me I was drunk and stoned, I wasn't like that stoned, I was comin' off it but I was still gassin' off me head, had more gas, then they interviewed me while I was still drunk and that and yeah." The DVD recording shows no signs whatever of any degree of intoxication. This account cannot be accepted. 32Loveridge's attitude to the deceased and the extent of his remorse is illustrated by such statements as "I smacked the cunt twice and chased him up the road a little bit" and his having "chased the cunts". Towards the end of the interview Loveridge said that he found out that the deceased was Aboriginal the next morning and commented, "It made me feel real bad... its Koori, killing one of your kind, its pretty bad, you know, didn't like it, it gave me the shits." In fairness I should mention that, at the end of the interview, when asked whether there was anything else he wanted to say, he said, "[I] feel sorry for the kid that died, you know...". Again, Loveridge showed no difficulty whatever with understanding any of the questions of police officers and in giving coherent, if fabricated, answers. 33I am satisfied that Loveridge is not in any significant degree remorseful for any of the crimes for which he is to be sentenced, more particularly, either for the breaking and entering of Mrs Parrelli's home and causing her grievous bodily harm or the murder of Alan Gordon. 34In AB's case, his plea of guilty is, perhaps, some evidence of remorse but, on the other hand, the case against him, in light especially of the various accounts he gave to a number of persons after the event, was overwhelming. In his interview with an officer of the Probation and Parole Service for the purpose of preparing a pre-sentence report he denied committing the aggravated break and enter offence although he admitted that he was present and, although he admitted the offence of murder, he disputed the police facts and gave an alternative version of the event, in which the victim was the instigator, stating that he did not care about the death of the victim, in substance claiming that it was me or him. When asked whether he felt remorseful, he stated "remorse isn't going to bring the guy back". The officer commented - "[AB] did not display any signs of remorse nor did he appear to have any insight into his behaviour. He was very matter of fact when discussing the offence, i.e. what happened cannot be changed and his actions were a matter of survival and it was better that the victim was dead rather than him. To date numerous attempts have been made to assist the offender in addressing his offending behaviour and he has displayed resistance and an unwillingness to engage with services. His unwillingness to engage with the writer concerns this Service as it appears to indicate ongoing resistance." 35Despite the hints of regret in the correspondence and the conversations to which I have already referred, it is clear that AB does not feel remorse in respect of any of the offences for which he is to be sentenced. Subjective factors - Loveridge 36Loveridge was born on 11 November 1992 and, accordingly, is almost 21 years of age. The offences were committed just after his 18th birthday. Tendered in the sentence proceedings was a selection from a very large amount of material from the Department of Community Services about him. His father was 17 years of age and his mother 15 years of age when he was born. They had six children of which Loveridge was the eldest. The first report is dated 29 February 2000, indicating, amongst other things that the parents often did not live together, and that the children were seriously neglected, living in a house which was "disgusting" and the mother used drugs as well as abused prescription drugs. The children were left at home by themselves at night and had no regular time for meals and Loveridge, then six years old, shopped for the family. A report shortly after describes Loveridge's behaviour as violent and threatening but, on the other hand, he was attempting to take care of his siblings. During that month there were a further five reports vividly describing the gross neglect of the children. The children were then placed in temporary care of maternal family members and, two months later, with foster carers, Loveridge going to the home of his maternal uncle. At seven years old in June 2000 he is noted as depressed and suicidal with associated problematical behaviour. One way or another these problems continued through ensuing years with the contact visit reports indicating serious problems of one kind or another. He struggled with school and, although he did not have a learning disability, his test results were borderline normal. He was associating with "friends stealing, fighting and doing drugs". In April 2009 he was admitted to Mount Druitt hospital because of an overdose and was diagnosed with mood disorder, but no mental illness, rather "anger management" problems. He told the doctor that he was "in gangs, threatening to kill someone and is not afraid of dying". The hospital notes record the following formulation - "16 year old male, [history] of impulsive overdoses and poly-substance abuse, [history] of poor impulse control and anti-social personality traits. Presents with suicidal thoughts with no specific plan - unable to guarantee his safety. [He] has been living on the streets, with some friends - sometimes at "Nan's house" in Wentworthville" The file notes that on a previous admission he assaulted staff. These characteristics were noted in May 2009 at Penrith Youth Refuge. In November 2009 it was reported - "Corrie is without an authorised placement having been evicted from the Nepean Youth Refuge on 12 November 2009. Corrie has a history of high risk drug and alcohol abuse and living in unauthorised and inappropriate placements. He has a history of and remains a high risk of engaging in and/or being the victim of anti-social and petty criminal activities. Corrie is at high risk of inappropriate relationships and organised crime, including bikie gangs. Corrie's IQ has been assessed as below average with a low capacity of a situation or judgment and impulse control." The report then lists a number of matters, including being in breach of bail and bond conditions. Reference is also made to low range intellectual functioning. All in all the report gives a bleak picture with nothing that can be considered at all positive. He was then 17 years of age. Ongoing material in 2010 showed no improvement. The last report before the offences noted - "Corrie basically said he's not interested in anything, has no motivation or feelings towards life and will stay [at Tobruk Street] until he gets a place through DOH... Corrie said that he doesn't care if he ends up in "big boys jail" and in fact he seemed to pretty much expect that this is inevitable regardless of our discussions about choice, support and people who love him, future plans etc..." 37A statement was tendered from Mrs Mara, who gave a history of the family and Loveridge in particular which reflects the matters to which I have already referred. He was placed with Mr and Mrs Mara as long term foster carers in 2000. His two youngest siblings went with him because he had been, in effect, their principal carer. Schooling was always problematical for him and he left high school in year 10. Mrs Mara recounts unsuccessful attempts made by Loveridge to reconnect with his parents. When he was just under 16 ½ years of age he moved in with his girlfriend and her mother but this also proved to be unfortunate, with Loveridge becoming violent towards his girlfriend. Mrs Mara describes Loveridge as seeming "to be spiralling out of control", overdosing on drugs, requiring admission to hospital. He threatened self-harm in attempts to be hospitalised. In August 2010 his only close friend was shot and killed. This had a bad effect on Loveridge who began living transiently wherever he could, eventually going to live in the house at Tobruk Street. 38Also tendered on the sentence proceedings were reports from Dr Richard Furst a consultant forensic psychiatrist. Dr Furst had available to him the DOCS material to which I have already referred, Corrective Services records and Justice Health medical records. He also took a history from Loveridge, amongst other things as to his family background and mental state from time to time, including reports of hallucinations and psychotic symptoms in the form of "voices telling him to kill himself, paranoid thinking, mood instability and self-harming behaviour." When interviewed on 28 August 2013 Dr Furst noted - "Mr Loveridge... [had] a simple manner, and [was] anxious, but was logical throughout the assessment period and had no objective signs of psychosis. He was not suicidal or threatening in his manner. Mr Loveridge had an upcoming sentencing hearing. His cognition was not formally examined, however there were no obvious indications of cognitive disorder. He probably has only borderline intellectual functioning based on his use of language throughout the interview. He was aware that he would need further counselling for his emotional problems and substance abuse issues." The doctor's review of the documentary material produced the following summary - "He had an early onset of mood instability, emotional problems, severe behavioural disturbance, drug use, gang affiliations, anti-social attitudes, anger, impulsivity and conduct disorder including past criminal offending. Those features are indicative of an antisocial personality disorder as his primary mental health diagnosis." Dr Furst considered also that, given his reported drug use, Loveridge meets the criteria for a substance use disorder. In summary, Dr Furst considered - "In my view, Mr Loveridge probably does suffer from a psychotic illness, meeting criteria for the diagnosis for a drug induced psychosis and possibly an emerging schizophrenic illness. At this stage, his mental state features were not indicative of a major mental illness, as he was logical in his thinking and has preservation of his range of effective expression. I thought that his reported auditory hallucinations and paranoid thinking were most likely the manifestations of drug induced psychosis, precipitated by his recent drug use." He noted, however, that in "nearly every case, the symptoms of methamphetamine-induced psychosis will stop within 7-10 days of discontinuing the drug" although a small percentage of heavy users continue to experience intermittent psychotic episodes within the first year of abstinence. 39Dr Furst noted that psychometric testing revealed that Loveridge has "low intelligence (borderline range) but does not meet criteria for an intellectual disability". 40Dr Furst referred to Loveridge's account of the extent of his abuse of alcohol and other drugs shortly before the offences. Although he thought that Loveridge "may well have experienced intermittent feelings of paranoia and auditory hallucinations at the time of the offending conduct in question as a product of his intoxication" he noted that no symptoms of paranoia or auditory hallucinations were reported to police at the time of his two interviews, although he said he was intoxicated. Dr Furst added - "[Loveridge's] Justice Health file in the days and weeks following arrest indicated previous anger problems but no history of serious mental illness, possible auditory hallucinations and previous paranoid thoughts were noted in relation to drug use, but were reported as historical and were not present at the time of the mental health assessment in December 2010. Subsequent entries in 2011, 2012, and 2013 raise the possibility of Mr Loveridge developing a more serious mental illness in custody with stronger evidence for drug induced psychosis and the possibility of emerging schizophrenic illness." 41These conclusions must be read in light Dr Furst's earlier report of 19 February 2013 which followed an assessment of Loveridge on 6 February 2013 when Dr Furst had available to him, inter alia, the Justice Health medical records but not the DOCS material. Dr Furst noted that a number of Loveridge's statements, including those as to his understanding about his legal predicament, were not convincing. Dr Furst thought also that the Justice Health reports showed that Loveridge had exaggerated somewhat in his account of his experiences whilst in custody. Dr Furst noted in this respect that he thought Loveridge "may well be exaggerating his symptoms, especially given the lack of objective signs of distress or other affective features and the nursing observations at Parklea revealing that he was reasonably stable." 42I have mentioned my view of Loveridge's credibility. It is also worth noting that the most consistent feature of his evidence as well as his interviews with police was his ability to fabricate quite detailed accounts of his conduct over the relevant periods, all of which tended to reduce his culpability for any wrongdoing. I informed Mr Austin of counsel for Loveridge of my view about his client's veracity and that I would not accept the truthfulness of any history he gave to Dr Furst unless his client gave evidence of those matters. He did not do so. However, without accepting as completely reliable his accounts of his mental condition made to DOCS officers, which strike me as somewhat manipulative, I accept the reliability of the DOCS material in relation to Loveridge's family situation, upbringing, schooling, drug abuse and the other contextual matters which I have mentioned above. 43Taking all this material together, it is, I think, appropriate to deal with Loveridge on the basis that, as a result of circumstances beyond his control, his insight into the true moral character of his actions and his ability to exercise judgment about them was significantly less than that of a young person of his age who had grown up in a healthy and supportive familial situation. To these problems must be added the immaturity which is the natural concomitant of his age. Though on one level he was well capable of glib, indeed cunning denials and creative lies, yet they were exposed with relative ease. Nevertheless, I have no doubt that Loveridge well, if incompletely, appreciated the moral and criminal culpability of his actions although I rather think that his callousness was significantly contributed to, if not entirely caused by, the warped moral world that shaped his upbringing. Subjective factors - AB 44The material in this respect tendered in the sentence proceedings was a Juvenile Justice background report of 9 September 2013, a Probation and Parole Service pre-sentence report dated 22 February 2013 and a collection of extracts from AB's DOCS file. AB, who is now 20 years and 6 months old, is one of two siblings born to his parents, who separated when he was an infant. When he was 18 months of age he was removed from his mother's care and placed in foster care. His mother was 12 years of age when AB's older sister was born and 15 when she gave birth to him. AB was removed from his mother's care in November 1994 due to reports of neglect, physical abuse, exposure to parental heroin abuse and domestic violence. He had about 12 different placements whilst in foster care with extended family members and foster carers, his most consistent placement during his childhood being with his maternal grandmother, whose standard of care was, to say the least, uneven. 45When in other placements he left of his own accord and returned to reside with his grandmother. It was whilst living with her that, at the age of 12, he found her comatose, having suffered a stroke which proved fatal. For a period he lived with an uncle whose attempts to place appropriate boundaries was unsuccessful. In August 2008 his uncle returned to Queensland for medical reasons and AB lived for a short time with his mother, then moving into the home of a girlfriend in January 2009, residing there with her parents and two younger siblings. He moved between various homes of friends and relatives, relocating many times. He had only limited contact with his mother, who has spent time in custody, and no contact with his father for about nine years. AB informed the Probation and Parole officer that his mother, father, older sister and younger half-brother all have criminal histories, as do other extended family members and most of his friends. As at February 2013 his mother was under supervision of the Probation and Parole Service, having been released from custody on 4 December 2012. AB has had a number of intimate personal relationships over the years and has two children and perhaps three more with whom he has no contact, all with unhappy outcomes. He was in a relationship with Ms Salas-Collard at the time of his arrest but since then the relationship has ended. Service records indicated that his most frequent visitor whilst he has been in custody was his mother but, since September 2009, he has had no visitors although his mother has expressed a desire to visit him. AB claims to identify strongly with his Aboriginal heritage though it is clear that his understanding of what it entails is very limited. 46As to education, AB attended several different schools depending where he was living and, towards the end of his primary education he was referred to two separate special schools catering for students with challenging behaviours. His attendance was low with multiple periods of truancy, conflict with other students and limited interest in being at school. In July 2006 he was enrolled in a high school to attend a specialist class. However, he continued to truant frequently regardless of additional supports put in place, including teacher aides and assistance from Aboriginal liaison officers at the school. He left the school in 2007 without completing year eight. He spent approximately nine months of 2008 in custody. Upon his release he was referred to several alternative educational and employment support programs, with initial motivation and interest but without following through or effective participation. His limited schooling has resulted in his literacy and numeracy skills being below that of his general age group. I should mention, however, in narrating this bleak account, that he entered and successfully completed one vocational program in August 2009, which ran for eight weeks, designed to expose participants to the opportunities, structure and requirements of TAFE. AB showed an interest in pursuing a trade but, when a course became available he declined to undertake it. AB reported to Juvenile Justice that he had several short periods of employment. There are no mental health diagnoses; when community services attempted any health care follow up, he declined to participate and absconded from his placements to avoid appointments. In late 2008 during a period in a Juvenile Justice Centre he was prescribed an anxiety (and behaviour modification) medication but, upon release he ceased medication and declined to follow up, it appears because he felt no benefit from the medication. When he was arrested for the present offences he was prescribed Avanza but, when he was transferred to the MRRC at Silverwater, he ceased this medication. 47AB has reported (and I accept) a history of substance abuse from an early age, including alcohol, cannabis and amphetamines. He participated in various alcohol and drug programs but, except for one conducted in October 2007, has not completed any. AB informed the Juvenile Justice Officer that he believed that he was under the influence of alcohol and drugs at the time of the breaking and entering and murder offences. 48The following summary is taken from the Probation and Parole pre-sentence report (not materially different from the position taken in the Juvenile Justice background report) - "[AB] has been significantly influenced by negative anti-social behaviour throughout his life and his lifestyle has been characterized by socializing with both negative peers and family members who have engaged in regular use of illicit drugs and alcohol, engaged in violence and offending. He appears to consider this to be a normal part of life and to date has not experienced a life separated from those influences. [AB] is a young man who has developed the belief that violence is a normal part of life and it has been necessary for him to engage in violence to survive. He expressed to this Service that he believes he has always been violent and does not believe he will change, reporting that is just the way he is and he needs to remain violent in custody to survive. [AB] did not display any signs of remorse nor did he appear to have any insight into his behaviour. He was very matter of fact when discussing the offence, i.e. what happened cannot be changed and his actions were a matter of survival and it was better that the victim was dead rather than him. To date numerous attempts have been made to assist the offender in addressing his offending behaviour and he has displayed resistance and an unwillingness to engage with services. His unwillingness to engage with the writer concerns this Service as it appears to indicate ongoing resistance." 49The extracts from the DOCS file confirm AB's exposure to abusive behaviour, including significant violence, at the instance of his mother, even whilst he was living with his grandmother and despite his grandmother's attempts to protect him and his sister. Also demonstrated are his schooling problems, his consistent violent behaviour towards caregivers and peers. The documentary material ends with a report of September 2007 by the Juvenile Justice Officer following offences committed in December 2006 and subsequent breaches of bail. 50There is no reason to suppose that, aside from his obvious problems with aggression, AB suffers from any mental illness or personality disorder. As with Loveridge, however, AB's upbringing was not such as to instil respect or understanding for moral standards, let alone the law. As with Loveridge, this may explain, in part, his indifference to the crimes for which he is now to be sentenced and which he persists in lying about. I would add also the immaturity of his youth. Prospects for rehabilitation 51Rehabilitation is an important consideration when dealing with young offenders. Although, given the character of the offences and the lack of remorse, it is difficult to see any real likelihood of rehabilitation, each of the offenders is young with a great deal of growing up to do. In R v Crump (unreported NSWCCA 30 May 1994), Allen J said - "It is the common experience of judges who have had to consider s13A applications to note the remarkable affect which imprisonment for a decade or more so often has upon young offenders - notwithstanding how brutally and callously they acted when they committed the crime or crimes. Time and again one wonders: "How could this apparently well-adjusted applicant be the person who committed such a crime?" Gone is the brashness. Gone is the bravado. Spent is the passion. Young offenders can change so much during a very long time in gaol as to present almost as an entirely different sort of person." 52An additional factor is that the offenders will (though many years hence) have available to them intensive educational and other therapeutic programs designed to encourage rehabilitation. Indeed, if these programs are not successfully undertaken, not only may release on parole be refused, but they may be subjected to further incarceration even after their sentences have been served. However, this may be, the most significant feature of the potential for rehabilitation is likely to be getting older. Accordingly, despite the matters that would suggest the contrary, I approach the sentencing of the offenders on the basis that there is some potential for rehabilitation and that this is an important consideration. Significance of the pleas of guilty 53I have already mentioned that AB's pleas of guilty do not to my mind exhibit any remorse. Given the overwhelming strength of the Crown case, they merely acknowledged the inevitable. In almost every case, an early plea will, for utilitarian reasons of public policy make it appropriate to reduce the sentence which would otherwise be imposed by about 25 per cent and, in some rare cases, perhaps more. However, the protection of the public may require this discount to be withheld. In my view, this is such a case in respect of the crime of murder. In respect of the other offences, I have applied a utilitarian discount of 25 per cent. 54In Loveridge's case, he pleaded guilty to the additional offences on the first day of the trial. Given the nature of the evidence that must have been called if these trials had proceeded and the fact that, almost certainly, those trials would have been separated from that for murder, it seems to me a discount of 15 per cent is appropriate in respect of each of those offences. Aboriginality 55I accept that both offenders identified as Aboriginal and were part of an Aboriginal community through one or other of their parents or relatives. However, they were undoubtedly urbanised and had not grown up or been touched by an Aboriginal community. Both came from seriously deprived backgrounds characterised not only by the abuse of alcohol but also other illicit drugs and violence fuelled, no doubt, by these substances. I have accepted that these circumstances played a role in their commission of the offences and must be given full weight. However, as the plurality said in Bugmy v The Queen [2013] HCA 37; (2013) 87 ALJR 1022 - "[44] ... 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." Here, of course, the offenders' violence was in no sense a response to frustration, but was planned and instigated by them. Protection of the public 56The only reasonable inference from the nature of the attack is that each offender obtained some unimaginable satisfaction or pleasure from the pain they deliberately inflicted on a young man who had done nothing whatever to provoke them. This makes them very dangerous individuals, so that the protection of the public is of particular point in the consideration of their sentences. However, that consideration cannot justify a sentence that is greater than the criminal culpability of the offences would justify: preventive detention is no part of the sentencing function. The evidence does not permit the conclusion beyond a reasonable doubt that the offenders will always constitute a danger to the community, yet the crime itself demonstrates to my mind that there is a real likelihood that there will be a continuing substantial risk of violent re-offending. Conclusion 57The maximum term of imprisonment for the crime of murder is life imprisonment without the possibility of parole. It obviously must be reserved to the worst class of case after both the objective and subjective factors are taken into account. Since AB was under 18 years of age at the date of the murder, s 61(6) of the Crimes (Sentencing Procedure) Act precludes the imposition of a life sentence on him. In Loveridge's case (who was only just over 18 years of age at the time), his age, immaturity, intellectual and psychological characteristics, render a life sentence without parole as inappropriate although the circumstances of the crime would have done so. 58I have mentioned that, so far as Loveridge is concerned, the standard non-parole period of 25 years is to be taken into account in respect of the offence of murder, together with a maximum sentence of life imprisonment, in assessing the appropriate sentence. The offence of robbery and causing grievous bodily harm carries a standard non-parole period of 7 years. 59Loveridge's youth, the potential for rehabilitation and the length of the head sentence which I intend to impose together amount to special circumstances justifying a variation of the ratio prescribed by s 44(2) of the Crimes (Sentencing Procedure) Act. 60So far as AB is concerned the standard non-parole periods do not, as I have said, apply to him. However, the same considerations as to the objective circumstances of the offence apply to him as to Loveridge. As with Loveridge I would accept that his deprived upbringing and relative youth mitigate to some degree the seriousness of his offences. The same considerations as with Loveridge apply to the issue of special circumstances. 61In respect of the murder of Alan Gordon, when all is said and done, it is the extreme criminality of what the offenders did and why they did it that marks the grave seriousness of the crime and demands concomitant sentences. Sentences 62I propose to pass on each offender an aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act. AB's sentence will commence on 16 December 2010, Loveridge's on 2 December 2010. For reasons of simplicity, the adjustment for special circumstances (calculated in terms of years rather than as a percentage of the overall sentence) has been made only in respect of the offence of murder. In AB's case, I consider that the crime of murder is so serious and warrants such a severe sentence that it is not appropriate to apply a discount for his plea. The indicative sentences are as follows - 63Corrie Loveridge: (1)For the offence of breaking and entering in circumstances of special aggravation, namely the intentional infliction of grievous bodily harm on Elena Parrelli, an overall sentence of 10 years imprisonment with a non-parole period of 7 years 6 months. (2)For the offence of robbery in company and the infliction of grievous bodily harm, an overall sentence of 1 year 8 months imprisonment with a non-parole period of 1 year 3 months. (3)For recruiting a child to commit a crime, a fixed term of 3 years imprisonment. (4)For influencing witnesses, a fixed term of 3 years imprisonment. (5)For the murder of Alan Gordon, a non-parole period of 30 years with a balance of term of 15 years. The aggregate sentence is a non-parole period of 30 years with a balance of term of 15 years. 64AB: (1)For the offence of breaking and entering in circumstances of aggravation, namely the intentional or reckless infliction of actual bodily harm on Elena Parrelli, an overall sentence of 7 years and 6 months imprisonment with a non-parole period of 5 years 6 months. (2)For the offence of intimidation, taking into account the offence on the Form 1, a fixed term of 2 years imprisonment. (3)For the murder of Alan Gordon, a non-parole period of 30 years with a balance of term of 15 years. The aggregate sentence is a non-parole period of 30 years with a balance of term of 15 years. 65The earliest date upon which Loveridge can be released on parole is 2 December 2040. The earliest date upon which AB can be released on parole is 16 December 2040.