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Cases Cited: BP v R [2010] NSWCCA 159; (2010) 201 A Crim R 379
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Carr v R [2024] NSWCCA 103
Ciaron McCullough v R [2009] NSWCCA 94; (2009) 194 A Crim R 439
Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
MB v R [2013] NSWCCA 254
R v Brooks (No.5) [2017] NSWSC 824
R v Carr [2009] NSWSC 995
R v Hines (No 3) [2014] NSWSC 1273
R v Isaacs (1997) 41 NSWLR 374
R v Liavaa; Liavaa v R [2025] NSWCCA 101
R v Millwood [2012] NSWCCA 2
R v Morris [2017] NSWSC 637
R v PO [2017] NSWSC 757
R v Scott (No 6) [2015] NSWSC 678
R v Stephens [2024] NSWCCA 170
R v Wilson [2005] NSWCCA 112
R v Wilson-Winship [2007] NSWCCA 163; (2007) 172 A Crim R 505
R v Wong [2010] NSWSC 171
Regina v Mitchell, Regina v Gallagher [2007] NSWCCA 296; (2007) 177 A Crim R 94
Regina v Saleib [2005] NSWCCA 85
Sarhene v R [2022] NSWCCA 79
The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
Yildiz v R [2020] NSWCCA 69

Category: Sentence

Parties: Rex (Crown)
Wesley Dates (Offender)

Representation: Counsel:
A McMaster (Crown)
S Fraser (Offender)
Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
SJT Law (Offender)

File Number(s): 2023/00321260

Publication restriction: Pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 (NSW), the publication of the name or any information identifying any children referred to in the proceedings is prohibited.

JUDGMENT

1. Wesley Dates (“the offender”) is a 21 year old Aboriginal man who is to be sentenced for an offence of murder. On 1 October 2023 (when he was 18 years old), he stabbed George Woods (also aged 18), causing his death. The offender’s actions were catastrophic and tragic, resulting in the death of a young man who had done nothing to provoke the violence.

2. On the same date and during the same incident, the offender wounded Joshua Ratu with intent to cause Mr Ratu grievous bodily harm. He pleaded guilty to that offence. The facts and circumstances relating to the conduct will be set out below.

3. The offender must now be sentenced for two offences: an offence of murder contrary to s 18(1)(a) of the Crimes Act 1900 (NSW) (“Crimes Act”), which carries a maximum penalty of life imprisonment and a standard non-parole period of 20 years; and an offence of wounding with intent to cause grievous bodily harm, contrary to s 33(1)(a) of the Crimes Act*,* which carries a maximum penalty of 25 years’ imprisonment and a standard non-parole period of 7 years: see table at s 54D of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“CSPA”).

4. The offender and his brother Peter Dates first went to trial in relation to allegations of murder (Wesley Dates) and wounding with intent to cause grievous bodily harm (Peter Dates) in May 2025. After approximately two weeks of deliberation, the jury were unable to reach verdicts.

5. The brothers appeared before me for retrial on 4 February 2026. On that occasion Wesley Dates was arraigned and entered a plea of not guilty to murder, but guilty to manslaughter. The Crown did not accept the plea of guilty to manslaughter in full discharge of the indictment. Peter Dates entered a plea of not guilty to an allegation of wounding Mr Ratu with intent to cause him grievous bodily harm.

6. A jury was empanelled and the trials commenced. On 27 February 2026, the jury returned a verdict of guilty to murder. Peter Dates was found not guilty of the s 33(1)(a) offence.

7. The offender had entered a plea of guilty to the charge of wound with intent to cause grievous bodily harm (against Mr Ratu) on 13 December 2024 before Hamill J. Pursuant to s 25D(2)(b) of the CSPA*,* the offender is entitled to a 10% discount on his sentence for that offence. The sentence proceedings for both offences were conducted before me on 1 May 2026.

The Victim Impact Statement

8. The victim impact statement of George Woods Snr (father of the deceased) was tendered in the proceedings and read out by him. The contents revealed a compelling and powerful account of the distress and deep emotional hurt caused but also highlighted the strength and dignity with which Mr Woods Snr is seeking to navigate this catastrophic event.

9. Mr Woods Snr expressed the deep sadness that he and his family continue to experience. He remembers his son as “the type of person that would feed me before himself” and that “[h]e was more of a man than anyone” he had ever met. At the age of 15, the deceased’s mother died. His father described the deceased as being his “rock” during that time.

10. Unsurprisingly, the deceased’s death has had a significant impact on Mr Woods Snr. He stated that his life has not been the same and that this has affected his sanity, mental health, and relationships with his loved ones. He has chosen healing and peace despite the trauma he has experienced.

11. It is appropriate to commence these remarks by acknowledging the life lost. In matters such as this, judges are asked to perform an impossible equation. No human life can ever be equated with any penalty, including a period of imprisonment. No gaol term, of any length, can return a loved one. A life should never be measured simply by the punishment meted out to an offender.

12. The sentence I impose does not, and cannot, measure the value of the deceased’s life. Instead, it reflects the sentencing discretion informed by proper principle. It must reflect adequate punishment, deterrence, and denunciation, in addition to rehabilitation and protection of the community. It must hold the offender to account and reflect the objective seriousness of the offence. It must also reflect the offender’s subjective case, his moral culpability, his prospects of rehabilitation, and the likelihood, or unlikelihood, of future offending.

13. The purposes of sentencing require that the offender be punished and held to account for his actions. He will be sentenced to a term of imprisonment. The offender’s sentence to a term of full-time custody goes a long way to fulfilling those purposes. Punishment is not, however, the only purpose of sentencing.

Circumstances of the offending

14. Given the offender’s willingness to plead guilty to an offence of manslaughter, several facts are agreed upon between the parties. For example, it was never in issue that it was the deliberate act of the offender that caused the death of the deceased. There are, however, a number of findings sought by the Crown which are disputed on behalf of the offender. It was contended that significant aspects of the Crown case were not established by the evidence and should not form part of the factual findings for the purposes of sentence. It follows that there are several preliminary matters to decide regarding the factual circumstances underpinning the offences. They include the following:

(a) Whether the offender gestured towards the knife during the argument between Peter Dates and Mr Ratu. (b) Whether, once the offender became involved in the fight between Peter Dates and Mr Ratu, it was all “one sided”. (c) The description of the weapon used as a large “Rambo” knife. (d) Whether the offender produced the knife in the kitchen of the unit before the stabbing.

15. It is appropriate to resolve (in so far as the Court can) these factual matters while recounting the facts upon which the objective seriousness of the offences is to be assessed and upon which the offender is to be sentenced.

The principles relevant to fact finding following a jury verdict

16. The principles relevant to fact finding by a sentencing judge following a jury verdict are well established and are summarised in R v Isaacs (1997) 41 NSWLR 374 at 377-378:

“1. Where, following a trial by jury, a person has been convicted of a criminal offence, the power and responsibility of determining the punishment to be inflicted upon the offender rest with the judge, and not with the jury: R v Harris [1961] VR 236; see also Kingswell v The Queen (1958) 159 CLR 264 at 283, per Mason J.

2. Subject to certain constraints, it is the duty of the judge to determine the facts relevant to sentencing. Some of these facts will have emerged in evidence at the trial; others may only emerge in the course of the sentencing proceedings. The fixing of an appropriate sentence ordinarily involves an exercise of judicial discretion, and it is for the judge to find the facts which are material to that exercise of discretion: Savvas v The Queen (1995) 183 CLR 1.

3. The primary constraint upon the power and duty of decision-making referred to above is that the view of the facts adopted by the judge for purposes of sentencing must be consistent with the verdict of the jury. This may produce the result that, in a particular case, the view of the facts which the judge is obliged to take is different from the view which the judge would have taken if unconstrained by the verdict: cf Maxwell v The Queen (1995) 184 CLR 501. In the present case, for example, a trial judge might have considered that the facts supported a verdict of murder, not manslaughter; nevertheless, the judge would be obliged to sentence on the basis that the case was one of manslaughter. The fact that a judge may not agree with a jury’s verdict, and thus may be required to sentence on a basis different from the judge’s personal view of the case, is an inevitable consequence of the division of functions inherent in trial by jury.

4. A second constraint is that findings of fact made against an offender by a sentencing judge must be arrived at beyond reasonable doubt.

5. There is no general requirement that a sentencing judge must sentence an offender upon the basis of the view of the facts, consistent with the verdict, which is most favourable to the offender: R v Harris. However, the practical effect of 4 above, in a given case, may be that, because the judge is required to resolve any reasonable doubt in favour of the accused, then the judge will be obliged, for that reason, to sentence upon a view of the facts which is most favourable to the offender. When that occurs, it will be because of the application of the principle referred to in 4 to the facts of the particular case, and not because of some principle requiring sentencing on the basis of leniency: R v Lupoi (1984) 15 A Crim R 183 at 184.”

17. There are occasions where it is not possible to make a finding about one or more factual matters pertaining to the events constituting the offending or the roles of individuals involved in the offending. It may be that a sentencing judge is simply unable to make findings either because of the absence of evidence or due to the unreliability of the evidence. So much was recognised in Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 (“Filippou”) at [70]:

“Certainly, a sentencing judge must do his or her best to find the facts which determine the nature and gravity of the offending, including the facts which inform the offender’s moral culpability. Even so, it is sometimes not possible for the judge to ascertain everything which is relevant, especially where an offender chooses not to offer any evidence on the plea. Where that occurs, the judge must proceed on the basis of what is proved and leave to one side what is not proved to the requisite standard. As was stated in Weininger v The Queen:

‘The sentencing judge may not be able to make findings about all matters that may go to describe [the] circumstances. In particular, an offender may urge a particular view of the nature and circumstances of the offence, favourable to the offender. The sentencing judge may be unpersuaded that the view urged is, more probably than not, an accurate view of the circumstances. In such a case, it is not correct that the judge is bound to sentence the offender on that favourable basis, unless the prosecution proves the contrary beyond reasonable doubt. Accordingly, in the particular facts of Olbrich, where the offender asserted that he was no more than a courier of the drugs, but the sentencing judge disbelieved him, it was neither necessary nor appropriate to sentence him on the basis that he was a courier.’

That accords with the requirements in s 21A(1) of the Sentencing Act that facts be taken into account only in so far as they are ‘known to the court’ according to the principles of proof laid down in Olbrich.” (Footnotes omitted.)

18. As indicated above, there are several areas of dispute. I cannot take facts into account in a way that is adverse to the interests of the offender unless those facts have been established beyond reasonable doubt: The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27]-[28] (per Gleeson CJ, Gaudron, Hayne and Callinan JJ); Filippou at [64], [66] (per French CJ, Bell, Keane and Nettle JJ). It is, therefore, necessary to make findings in respect of these contentious issues in recounting the facts upon which the offender will be sentenced.

Facts on sentence

19. Mr Woods and the offender attended primary school together at one stage, although they had little contact after that. As a child, Mr Woods played football with the offender’s brother, Peter Dates.

1 October 2023

20. On 1 October 2023, the offender and his brother were at a friend’s unit in Woodward Crescent, Miller where a group of young men had gathered to watch the National Rugby League (NRL) grand final on television. The offender and his brother had been drinking earlier in the day, and they continued drinking at the unit.

21. What transpired at the front of the unit block was captured on CCTV from a Woolworths carpark on the opposite side of Woodward Crescent. The quality of the footage is relatively poor, but some of the movements of the offender, his brother, and others are depicted.

22. At about half time in the football, Mr Woods and Mr Ratu were walking down Woodward Crescent to a nearby hotel when they walked past the unit where the group of young men had gathered. Some of those at the gathering were friends with Mr Ratu, and with Mr Woods, and so young men from the unit went to the front of the unit block to greet the pair and chat with them. A short time later the offences were committed.

23. The timestamps are taken from Exhibit H (CCTV footage) and MFI 9 (the Crown aid to Exhibit H).

24. At 7:46pm, the offender, Peter Dates, and another companion, arrived at the unit to drink and socialise. Jeremy English-Barry lived at the unit with family members.

25. At 8:52pm, Mr Woods and Mr Ratu and another companion, Kaiser Hamoo, arrived outside the unit block and shortly after, at 8:55pm, the offender exited the unit block and shook hands with Mr Ratu. The encounter was friendly.

26. The offender left the front of the building to return upstairs. It was in his absence that Peter Dates began accusing the deceased of past wrongdoing. Mr Ratu gave evidence that Peter Dates said: “…[r]emember when you used to go cheeky to me and footy, something, something like that…”. Mr Woods was calm and saying things like “[i]t wasn’t me”, “[y]ou got mistaken for someone else”, and “I don’t know what you’re talking about”.

27. Mr Ratu intervened and began arguing with Peter Dates. Mr Woods said, “leave it”. I pause to observe that during the trial it was put to Mr Ratu that he was armed with knuckle dusters, a proposition he denied. It is accepted on behalf of the offender that the evidence cannot establish on a balance of probabilities that Mr Ratu was in possession of knuckle dusters. I therefore proceed on the basis that Mr Ratu was not armed.

28. The offender put his head out from the first-floor landing and exchanged words with Mr Ratu. At 8:59pm, Peter Dates moved to the top of the steps while he and Mr Ratu continued to argue. Shortly after, the offender returned downstairs and stood in the doorway. Mr Ratu said to the offender something like “[w]hy are you acting like a mad cunt coming down here?”. Peter Dates and Mr Ratu continued to argue.

29. I am not satisfied that the offender made the gesture as described by Mr Ratu, namely, that he reached towards or into his bag, suggestive of being armed with a weapon. Little if anything turns on this factual finding given that I am satisfied that immediately before the stabbing, the offender was in possession of a knife. It was somewhere on his person or in his bag. He pulled it out immediately before stabbing the deceased.

30. At 9:00pm, Mr Ratu moved to the grassed area to the left of the front door. Peter Dates, and others, moved to the grassed area as well. At about this time, Elijah Bristowe exited the building and walked to the right of the front path. Mr Ratu moved sharply to the left of the screen, where he commenced trading punches with Peter Dates (not visible on CCTV). Mr English-Barry and another witness (“witness A”), who cannot be named by reason of s 15A(1)(b) of the Children (Criminal Proceedings) Act 1987 (NSW), tried to break up the fight.

31. The offender and another male moved to the right of the front path, away from where Mr Ratu and Peter Dates were engaged in a fist fight. Mr Ratu had the better of Peter Dates at that very early stage. When the pair started the fist fight, people were yelling words like “stop” or “[b]reak it up”.

32. At 9:01pm, the offender moved quickly from right to left across the front path and stabbed the deceased. The Crown contends that the offender repeatedly stabbed Mr Woods’ upper body 3-4 times whilst making the sound “mmm mmm mmm”. That contention is primarily based on the evidence of Mr Bristowe.

33. Mr Bristowe’s evidence was deficient in many respects. He was not an impressive witness and unless corroborated by other evidence, his account of the number of blows delivered by the offender towards the deceased is questionable.

34. Witness A also observed the offender strike the deceased. He stated that the offender lunged towards the deceased with the knife “one, two” times. That description is consistent with the medical findings which identified two wounds attributable to the use of the knife.

35. Whether or not the offender made the noise attributed to him is of little significance. It could not be said that what Mr Bristowe described he heard is necessarily demonstrative of the offender exerting significant force as he thrust the knife into the deceased.

36. I am satisfied that the offender stabbed the deceased twice.

37. The offender then ran in the direction of Mr Ratu and Peter Dates. At this stage, the fist fight between Peter Dates and Mr Ratu had proceeded for about 52 seconds. The offender hit Mr Ratu to the back of the head and commenced simultaneously assaulting Mr Ratu with Peter Dates.

38. As the assault continued, Mr Ratu fell to the ground, laying on his stomach, while both the offender and Peter Dates kicked him in the ribs and head.

39. I do not accept the description that when the offender got involved, the contest was entirely one sided. Mr Ratu accepted in cross examination that he continued to throw punches in an effort to protect himself. However, I do find that once the offender became involved in the fight, it was clearly an uneven fight with Mr Ratu being outnumbered by the offender and his brother.

40. The offender and Peter Dates walked away some distance north of Woodward Crescent, before returning to Mr Ratu to further assault him. The offender and Peter Dates again punched Mr Ratu and continued to do so even after Mr Ratu was again lying on the ground. Mr Ratu recalled that he “crouched again and kind of just took it, you know, just took it, ended back on the ground and I just laid on the ground for a bit”.

41. Mr Ratu sustained a number of injuries including two stab wounds to his back, bruising and swelling to his face, a fractured left eye socket, a broken nose, and abrasions and lacerations to both arms and his left shoulder. I have taken into account the fact that at the time Mr Ratu was wounded, he was being assaulted by the offender and Peter Dates.

42. Fortunately, none of Mr Ratu’s injuries resulted in permanent incapacity.

Events following the incident

43. Neither Peter Dates nor the offender had visible injuries.

44. Mr Woods was taken to Liverpool Hospital. He was declared dead on 5 October 2023. The cause of death was complications arising from a 4 cm stab wound to the left of the neck inflicted by the offender. A further stab wound was located to the back of the left upper arm causing a second 2.5 cm wound that was 4 cm deep.

Disputed facts – whether the weapon used in the offending was a large “Rambo” knife and whether the kitchen incident occurred?

45. It was conceded by the offender that the use of a weapon serves to aggravate the offending. Relevant considerations include the nature of the weapon itself and the degree of danger it poses: see R v Wilson-Winship [2007] NSWCCA 163; (2007) 172 A Crim R 505.

46. Both Mr Bristowe and Mr English-Barry gave evidence describing the weapon as a large “Rambo” knife and provided further descriptions of its colour and markings.

47. The offender submitted that both witnesses were unimpressive and that the Court would place little weight on their evidence.

48. Mr Bristowe gave evidence that he had seen the knife earlier in the kitchen. His evidence has been the subject of robust challenge. Having reviewed his evidence, I do not accept his account of what he claims happened in the kitchen. Nor do I accept that any account he may have given his mother (Leah Harkin) in respect of the description of the knife, was an account based upon being shown the knife in the kitchen.

49. Notwithstanding the fact that Mr Bristowe accepted that this was a significant detail, he omitted the kitchen incident from his statement to police. While he was able to offer details to police, including details about the food that was being cooked in the kitchen, he failed to mention in his police statement that the offender had produced the knife in the kitchen and was boasting about it.

50. When pressed about his failure to include that detail in his police statement, Mr Bristowe lied by suggesting he had been hurried by Detective Senior Constable Bjelan (“the OIC”). The OIC gave evidence that he did not rush Mr Bristowe when taking his statement. Mr Bristowe claimed to have told his mother about the kitchen incident, but his mother also failed to include that exchange in her police statement.

51. Mr Bristowe’s observations of the knife are otherwise limited to what he saw outside the unit block as it was used during the incident. On the evidence, Mr Bristowe was further from the incident than witness A, who did not see the knife. In addition, the CCTV footage makes clear that whatever observations Mr Bristowe made, he did so as he was already moving up the street. I also note that the footage demonstrates that it was nighttime and lighting conditions were poor.

52. Mr Bristowe and Ms Harkin gave implausible evidence of having not spoken about the events save for in the immediate aftermath of the incident. The two witnesses had given conflicting accounts about when Mr Bristowe told Ms Harkin about the kitchen incident, about whether they had a close relationship, and whether they were talking to each other around the time they gave their statements and during the first trial.

53. In all the circumstances, I am not satisfied to the requisite standard that the kitchen incident took place or that Mr Bristowe made an immediate complaint to his mother when he returned home on the night of the incident, that included a description of the knife. It may be that they spoke of the event at some later time, but I am unable, on the state of the evidence, to determine with any clarity when that was or what the content of the conversation was.

54. Mr English-Barry gave a description of the knife that is consistent with the description given by Mr Bristowe. However, I found Mr English-Barry an unimpressive witness. His demeanour in the witness box, together with the nature of some of the evidence he gave, raises significant doubts in my mind about the reliability of his description of the knife. I am not therefore satisfied to the requisite standard that the description of the knife, as a large “Rambo” knife, is accurate.

55. That said, I am satisfied that the knife was sufficiently sharp to cause significant injury and its use operates as an aggravating factor in respect of both offences.

Objective seriousness

56. The statutory guideposts, the maximum penalty of life imprisonment, and a standard non-parole period of 20 years’ imprisonment is indicative of the profound seriousness of the unlawful taking of another person’s life.

57. In respect of the offence of wounding with intent to cause grievous bodily harm, the maximum penalty is 25 years’ imprisonment with a standard non-parole period of 7 years’ imprisonment. Once again, the maximum penalty and standard non-parole period are statutory guideposts demonstrating the seriousness of this offence.

Possession of the knife

58. The Crown submitted that the offender’s possession of a knife (as opposed to its use) in his bumbag increases the gravity of the offending, particularly in circumstances where he was attending a social gathering armed with a knife that was not consistent with any legitimate purpose. The offender had deliberately armed himself with a weapon that had the capacity to inflict grave harm. The Crown did not contend that this constitutes premeditation or planning but rather a degree of deliberation on behalf of the offender.

59. I am not persuaded that the possession of the knife (as opposed to its use) informs the objective seriousness of either offence. I am unable to make a finding to the requisite standard as to how and when the offender came into possession of the knife. I cannot make a finding that the offender (at the time that he came into possession of the knife) deliberately armed himself with a weapon in order to inflict any harm or with a view to using it in connection with an act or acts of violence.

Aggravating factors

The use of the knife

60. I have already determined that the use of a knife is an aggravating feature pursuant to s 21A(2)(c) of the CSPA. The fact that the offender was willing to quickly resort to the use of a knife aggravates each offence.

Disregard for public safety

61. Pursuant to s 21A(2)(i) of the CSPA, the fact that an offence of violence was committed in the vicinity and within the sight of members of the public, whether the offence was considered to be in disregard of public safety, is an aggravating factor.

62. The Crown submitted that this is relevant as an aggravating factor under either ss 21A(2)(i) or 21A(1)(c) per Bell J with Adams and Hall JJ agreeing in R**egina v Saleib [2005] NSWCCA 85 (“Saleib”) at [55]-[57]. Bell J relevantly stated:

“I am inclined to the view that an offence involving an unprovoked ferocious assault committed in company on a public street in the near presence of members of the public does put public safety at risk. Putting members of the public in fear of immediate personal violence may itself be said to prejudice public safety. Equally, one or more members of the public may come to the assistance of the victim and thereby be endangered, just as others may suffer injury in fleeing from the scene. That the applicant committed the offence without regard to public safety may be the inference to be drawn from the fact that members of the public were in close proximity and that he nonetheless proceeded with the assault…” (Emphasis added.)

63. Saleib concerned a vicious assault near a crowded taxi rank, and there was evidence from bystanders that they were put in fear. In the present case the offences occurred in the front yard of the unit block, at a time when there were other members of the public close by, namely, the young men who had attended the social gathering, other residents of the unit block, and passers-by.

64. The offender acknowledged that Saleib held that a disregard for public safety is an aggravating factor which may be engaged but the finding fell short of stating that it did apply.

65. I do not take into account disregard for public safety as a separate aggravating factor. I have had regard, as part of the circumstances of the offending, to the fact that there were others present, some of whom were placed in fear by the events that unfolded.

In company

66. I have taken into account, as part of the circumstances of the offence of wounding with intent to cause grievous bodily harm, that the wounds were occasioned to Mr Ratu at a time when he was being assaulted by the offender, in company with his brother. I do not therefore take into account this factor as a separate aggravating factor pursuant to s 21A(2)(e).

In the presence of a child

67. Senior Counsel for the offender raised as a further aggravating factor that the offences occurred in the presence of a child, namely, witness A. Witness A was a teenager at the relevant time and was amongst the group of males present on the night of the incident to socialise and watch the NRL grand final. Strictly speaking, the offences were committed in the presence of a child and therefore this is an applicable aggravating factor: s 21A(2)(ea).

Callous lack of concern for the dying man

68. The Crown, in written submissions, contended that the offender displayed a “callous lack of concern for the dying man”. In support of that contention, the Crown relied upon the fact that the offender did not render aid to Mr Woods nor did he take any action such as calling triple zero or asking someone else to call an ambulance.

69. I reject the submission that the offender’s conduct (or lack of action) demonstrates a callous lack of concern for a dying man. It is equally open to find that the offender did not appreciate the extent of the injuries occasioned to Mr Woods and left the scene in an effort to avoid detection but without turning his mind to the seriousness of the injuries.

Mitigating factors relevant to an assessment of objective seriousness

70. The offender’s actions were wholly unplanned and spontaneous in nature. It was in his absence that the interaction between Peter Dates, Mr Woods, and Mr Ratu escalated to a heated confrontation between Peter Dates and Mr Ratu.

71. The offences took place over a relatively short period of time in circumstances where there were several young men congregated in a relatively small area. It was dark. There were raised voices. It was chaotic.

72. I have also had regard to the fact that although there were two stab wounds, this was not a sustained attack on the deceased.

Findings in respect of objective seriousness

73. Having considered the matters relevant to an assessment of objective seriousness I make the following findings. In respect of the offence of murder, I find that the objective seriousness falls just below the middle of the range but not at the lowest or lower end of the range.

74. In respect of the offence of wounding with intent to cause grievous bodily harm, generally speaking, the seriousness of the offence will significantly depend upon the seriousness of the wounding, although, the manner in which the wounds were inflicted and the circumstances surrounding the wounding are also relevant: Ciaron McCullough v R [2009] NSWCCA 94; (2009) 194 A Crim R 439 at [37]; Regina v Mitchell, Regina v Gallagher [2007] NSWCCA 296; (2007) 177 A Crim R 94 at [27].

75. The wounds occasioned to Mr Ratu were serious but not life-threatening and did not result in permanent incapacity. I have had regard to the fact that the offender wounded Mr Ratu in the back. I have also had regard to the fact that the offender briefly desisted from the assault upon Mr Ratu but returned shortly after and continued the assault.

76. Having regard to the circumstances of this offence, aggravated by the use of a knife, I am satisfied that the offence falls below the middle of the range of objective seriousness but not at the lowest or lower end of the range. In making that determination I have had regard to the fact that the offending was not premeditated, nor did it involve planning. Rather, the violence perpetrated by the offender was spontaneous. For reasons that I will come to, I am of the view that the offender’s moral blameworthiness is significantly reduced.

77. I do not intend to impose the standard non-parole period applicable in each case. I depart from the standard non-parole period because in respect of the offence of murder, it falls just below the middle of the range of objective seriousness. In respect of the offence of wounding with intent to cause grievous bodily harm, the offender entered a plea of guilty, and the offence falls below the middle of the range of objective seriousness.

Subjective circumstances

78. The offender’s background is set out in the psychological report prepared by Ms Hubner, a forensic psychologist, dated 25 March 2026, and a number of extracts from a file held by the Department of Communities and Justice (Exhibit 2).

79. The subjective material discloses that the offender had a very difficult life, one marred by abandonment, separation from his mother, substance abuse, and mental health conditions.

Family background

80. The offender is a young Aboriginal man who was born at John Hunter Hospital and grew up predominantly in the Busby and Campbelltown areas with some time spent in Dubbo. The offender described growing up in a setting marked by disadvantage and instability.

81. The offender and his siblings entered out-of-home care in the context of parental substance use, domestic violence, untreated mental health issues, and inconsistent parental involvement. The offender was told that his parents separated when he was 1 year old. His father had a history of alcohol misuse and there was little contact between the two, before his father died when the offender was aged 6.

82. The offender’s mother was and is a caring parent. A supervised contact report from when his mother was detained in custody when the offender was a young child reveals the nature of her contact with her children. The report observed his mother giving her children appropriate attention and affection when they visited. However, she had difficulties with substance abuse issues and was reportedly violent. She spent periods in custody when the offender was a child. As a result, the offender and his siblings were removed from her care from young ages. The offender remained in out-of-home care until he was approximately 12 years old.

83. A KARI Case Review Plan for the offender covering 2 October 2007 to 5 November 2007 confirms that he remained in long term out-of-home care under Children’s Court orders. The plan identified ongoing developmental and health needs, including referral for speech assessment, and records his attendance in preschool. Emerging concerns regarding speech and language development were noted at that time.

84. Associated KARI contact records from 2007 outline structured contact arrangements for the offender and his siblings. Contact with their mother was limited and supervised. Regular sibling contact was maintained through coordinated arrangements between their separate carers. The offender reported approximately 20 foster care placements throughout his childhood.

85. He was exposed to physical abuse across most placements and sexual abuse in at least two of the placements when he was aged between 3 and 12 years old. He was the victim of severe physical punishment, including being beaten, placed in a cold shower for an extended period, and being punched and choked.

86. A Speech Pathology Assessment Report prepared by South West Kids Clinic dated 17 June 2015 indicates that the offender presented with a moderate language delay relative to age expectations. Difficulties were identified in both receptive and expressive language, including following instructions, vocabulary development, and sentence formulation. The report notes that these difficulties were affecting his classroom functioning and learning.

87. The offender was placed in a home with his older brother, Peter Dates, when he was about 3 years old. He described a close and mutually protective relationship with Peter. The brothers remained together across multiple placements and were reportedly exposed to similar patterns of physical and sexual abuse. This relationship has continued into adulthood and is fundamentally relevant to the events as they unfolded on the night of the offences.

88. At around 12 years old, the offender absconded from care and experienced ongoing instability, including short-term placements with extended family members, followed by periods in refuge accommodation, and temporary placements facilitated by services. He described repeated placement breakdowns and relocations throughout his adolescence.

89. Immediately prior to the index offences, the offender had been residing in a unit with his brother for a period of approximately 9 to 10 months.

Education and employment

90. The offender completed primary education then commenced secondary education briefly where his attendance was “very limited”. He later attended a behavioural school where he completed education to Year 10. This placement was reportedly arranged through support services. The offender has no reported suspensions. This is attributed to low attendance.

91. Following this, the offender completed approximately 6 months of a plumbing course at TAFE. His employment history is limited and consists of short-term pick packing roles of approximately 1 to 5 months duration. The offender’s employment ceased on multiple occasions due to absconding or interpersonal conflict. The offender reported that his most recent employment ceased due to interpersonal conflict with co-workers, which was described as involving racial bullying. At the time of the index offences, the offender was not employed.

Medical history and mental health

92. The offender has no history of significant medical conditions. There was an altercation in custody one year prior to the assessment where the offender sustained a head injury. He reported a loss of consciousness for approximately 2 to 3 minutes; however, no further medical follow-up was reported.

93. No formal psychiatric diagnosis and no history of psychiatric treatment or hospitalisation were reported by the offender. The offender described ongoing stress and reported a pattern of suppressing emotional responses, stating that he tends to “bottle things up”. He described difficulty expressing emotions and managing distress. He reported experiencing intrusive thoughts, relating to the safety and wellbeing of family members.

94. Ms Hubner opined that, based on his presentation, self-report, and psychometric findings, the offender’s symptoms are consistent with Post Traumatic Stress Disorder (PTSD), Major Depressive Disorder, Generalised Anxiety Disorder and Substance Use Disorders.

95. The offender reported emotional and physical reactivity in situations of perceived threat. He stated that when those he cares about are involved in conflict, he is more likely to intervene. The offender described his older brother as protective of him and reported that he responds similarly in return. He also described a tendency towards hypervigilance in social situations.

Substance abuse

96. The offender commenced substance use, namely, alcohol and cannabis use at 12 years old. He described binge-drinking, occurring both in response to stress and when bored. Cannabis use was described as regular.

97. At 14 to 15 years old, the offender used MDMA on a frequent basis. He reported methamphetamine, cocaine, and benzodiazepine use at approximately 18 years old. Methamphetamine use was described as opportunistic (“when offered to him”) and cocaine and benzodiazepine use occurred in social settings.

98. The offender has no prior history of engagement with drug or alcohol treatment services, including counselling, detoxification, or rehabilitation.

Psychometric assessment

Personality assessment

99. Following a psychometric personality test, Ms Hubner opined that the offender has a tendency to endorse distress, personal difficulties, and negative self-appraisal. Ms Hubner stated that these elevations indicate the presence of persistent internal tension, worry, and heightened physiological arousal, alongside sustained low mood.

100. The offender reported feelings of sadness, reduced enjoyment, and emotional burden. His presentation suggested ongoing distress rather than a transient mood state, with features consistent with both chronic low mood and more acute depressive symptoms.

101. The offender’s results are consistent with a pattern of low self-worth and negative self-evaluation, alongside sensitivity to rejection and interpersonal stress. It also suggests a tendency to withdraw or disengage in situations where he anticipates criticism or conflict.

102. An elevation was identified on the Schizotypal scale. This is associated with heightened sensitivity, particularly under stress, and may include unusual perceptual or cognitive experiences. Ms Hubner opined that this is consistent with the effects of long-term substance misuse and stress-related cognitive and perceptual disturbance rather than a primary psychotic process.

103. A further elevation was observed on the Bipolar (Manic) scale. This elevation is consistent with periods of increased emotional intensity, agitation, and impulsive responding suggesting that in heightened emotional states, there may also be reduced inhibition and an increased likelihood of reactive behaviour.

104. Ms Hubner opined that the elevation in substance related scales indicate problematic patterns of substance use and are consistent with the offender’s reported history of early onset and ongoing polysubstance use. Further, she stated that substance use appeared to function as a coping mechanism in response to stress and may contribute to impaired judgment and behavioural disinhibition.

105. An elevation was also detected on the Post Traumatic Stress Scale. Ms Hubner opined that this is consistent with the offender’s reported history of exposure to physical and sexual abuse during childhood and as a result the offender has a pattern of ongoing reactivity to perceived threat.

Moral Culpability

106. Evidence of the offender’s background of deprivation and disadvantage may materially impact on a sentence, including the reduction of moral culpability: R v Millwood [2012] NSWCCA 2 at [69] (per Simpson J, with Bathurst CJ and Adamson J agreeing); Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [43]-[44].

107. The evidence establishes that the offender had an extremely difficult life. His experiences as a child and in his teenage years impaired his capacity for consequential thinking, emotional regulation, and impulse control. Importantly, the history of out-of-home care and separation from his parents and siblings, meant that the relationship he had with his brother, Peter, became a highly protective one developed in the context of shared exposure to abuse and unstable care.

108. Having regard to the jury verdict, I do not proceed on the basis that the offender believed that he had to do what he did to protect himself or his brother. However, given the background recounted above and the highly protective relationship between the brothers that developed in the context of that background, I am satisfied that his moral culpability is significantly reduced.

109. In determining the extent of that reduction, I have also had regard to the offender’s mental health conditions as described by Ms Hubner and his youth. Each of these factors are cumulative in the assessment of reduction of moral culpability.

Remorse

110. Section 21A(3)(i) of the CSPA provides that the Court can take into account as a mitigating factor the remorse shown by the offender for the offence, but only if (i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and (ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both).

111. Ms Hubner stated that the offender presented as visibly tearful when discussing the index offences. He became emotional when referring to the deceased. The offender reported feeling “terrible” about what occurred and expressed regret in relation to the loss of life and consequences including the impact on the victim and the victim’s family. He also stated that he regularly thinks about the incident and the consequences and described ongoing distress related to the outcome.

112. In addition, the offender entered a plea of guilty to manslaughter when he was arraigned. Although that plea was rejected in full discharge of the indictment and notwithstanding the fact that the jury found him guilty in respect of murder, the entering of the plea does demonstrate an acknowledgement of responsibility for the death of Mr Woods.

113. I am satisfied that the offender is remorseful for his conduct and accepts responsibility for his actions. I am also satisfied that he acknowledges the injury and loss resulting from his violent acts.

Criminal history

114. The offender has no convictions as an adult which pre-date the offences currently before this Court. He was not on conditional liberty at the time of the present offences. However, he has been sentenced for an offence of affray that was committed while he was in custody, bail refused for these offences. The sentence for the affray was reduced on appeal.

115. The affray occurred on 4 February 2025 at Bathurst Correctional Centre where the offender and six inmates attacked another inmate. The assault was not initiated by the offender although he participated in it, causing serious injury to the victim.

116. The offender has a juvenile criminal record between 2020 and 2023. The offending from this time included robbery in company, assault occasioning actual bodily harm (including in company), common assault, affray, intimidation, shoplifting, and minor public order offences. These matters were finalised in the Children’s Court, with outcomes including probation orders, bonds, cautions, and a control order of approximately 7 months’ duration.

Prospects of rehabilitation

117. The offender’s criminal history is not an aggravating factor. Although he does have a record of offending for which he was dealt with in the Children’s Court, it does not disentitle him from some degree of leniency.

118. The offender’s criminal history together with the instances of misconduct in custody are relevant to an assessment of his prospects of rehabilitation and likelihood of reoffending.

119. Also relevant to that consideration is the assessment by Ms Hubner that the offender poses a moderate to high risk of reoffending.

120. On the other hand, the offender is relatively young, and it has been recognised by the Court of Criminal Appeal that the development of emotional maturity and impulse control continues into early adulthood. In BP v R [2010] NSWCCA 159; (2010) 201 A Crim R 379 at [5], Hodgson JA stated:

“Second, while I agree with the statements in KT at [26] that the weight to be given to considerations relevant to a person’s youth diminishes the closer the offender approaches the age of maturity, and that a ‘child offender’ of almost 18 years cannot expect to be treated substantially differently from an offender who is just over 18 years of age, it does not follow that the age of maturity is 18 (albeit that for certain purposes the law does draw a line there: Children (Criminal Proceedings) Act 1987). In my understanding, emotional maturity and impulse control develop progressively during adolescence and early adulthood, and may not be fully developed until the early to mid twenties: see R v Slade [2005] 2 NZLR 526 at [43], quoted by Kirby J in R v Elliott [2006] NSWCCA 305; (2006) 68 NSWLR 1 at 27 [127]. As shown by R v Hearne [2001] NSWCCA 37; (2001) 124 A Crim R 451, youth may be a material factor in sentencing even a 19 year old for a most serious crime.”

121. The Court of Criminal Appeal has continued to accept that the age of maturity is not necessarily 18 years old but rather emotional maturity and mature executive functioning does not occur until the early to mid-twenties: see Yildiz v R [2020] NSWCCA 69; Sarhene v R [2022] NSWCCA 79; Carr v R [2024] NSWCCA 103; R v Stephens [2024] NSWCCA 170; R v Liavaa*;* Liavaa v R [2025] NSWCCA 101.

122. Ms Hubner recommended that the offender would benefit from structured psychological intervention targeting emotional regulation, including identifying and managing heightened emotional states and responses to perceived threat. Intervention should include development of skills to improve impulse control and reduce reactive responding in high stress situations.

123. Trauma informed intervention is also recommended, as is intervention addressing substance use. The offender could be suitable for inclusion in the EQUIPS program in custody. He would also benefit from the Violent Offender Therapeutic Program which would address violent offending and identify risk factors in relation to recidivism.

124. The offender could be referred to culturally appropriate programs with informed interventions that support identity, connection, and culturally appropriate treatment. Consideration may also be given to a placement in the High Intensity Program Unit to address behavioural regulation and reintegration.

125. I have also had regard to the fact that notwithstanding the challenges faced by his mother in previous years, she is in a much better place and remains supportive of her son. The offender also has the support of his siblings. These are protective factors that point to the strengths of this family, notwithstanding the deprivation and disadvantage experienced.

126. Although the offender’s current prospects of rehabilitation are guarded and the current assessment of his likelihood of reoffending is negative, it cannot be said that the offender is without hope of rehabilitation in the future.

127. Given the nature of the offences, the offender will be sentenced to a lengthy term of imprisonment. He will not be released to the community for many years. In those circumstances it is difficult to predict with any certainty, what his prospects will be when he is released. However, the strengths alluded to earlier and the availability of programs that can address his underlying issues, are matters relevant to the offender’s prospects of rehabilitation and likelihood of reoffending.

128. Ultimately, while I assess his prospects as guarded, there is hope for his rehabilitation and his capacity to live a crime free life upon his release.

Facilitation of the administration of justice

129. The offender is not entitled to a discount for the utilitarian value of any plea of guilty in respect of the offence of murder. However, his plea of guilty to manslaughter refined the issues in the trial. He facilitated the administration of justice by acknowledging that he committed an unlawful and deliberate act which resulted in the death of Mr Woods.

130. The trial was conducted in an efficient manner, confining the issues in the trial to those actually in dispute. The tender of extensive agreed facts further narrowed the matters in dispute and meant that certain witnesses did not need to be called. The jury were provided with a document summarising the CCTV footage which was particularly helpful given that the footage was of poor quality.

131. In all of those circumstances I am satisfied that in this case it is appropriate to quantify the discount for the facilitation of the administration of justice. I will apply a 5% discount to the sentence imposed for murder: s 22A of the CSPA.

Purposes of sentencing

132. Section 3A of the CSPA provides:

3A Purposes of sentencing

The purposes for which a court may impose a sentence on an offender are as follows—

(a) to ensure that the offender is adequately punished for the offence,

(b) to prevent crime by deterring the offender and other persons from committing similar offences,

(c) to protect the community from the offender,

(d) to promote the rehabilitation of the offender,

(e) to make the offender accountable for his or her actions,

(f) to denounce the conduct of the offender,

(g) to recognise the harm done to the victim of the crime and the community.

133. The purposes of sentencing overlap and are sometimes conflicting. In R v Knight [2023] NSWSC 321, I made the following observations, at [101]:

“Section 3A, in setting out the various purposes of sentencing, does not identify a single overarching purpose, neither does it identify a primary purpose or establish any priority among the various purposes. In particular, it reflects the necessity to reconcile and rationalise the s 3A purposes in considering the sentence appropriate to the particular offence. I must engage in a process of ‘instinctive synthesis’ which takes account of and balances the ‘conflicting and contradictory’ factors which bear upon the sentencing exercise: see R v MA [2004] NSWCCA 92 at [23]; R v King [2004] NSWCCA 444 at [130]; R v MMK [2006] NSWCCA 272 at [10]; R v Burns (No 2) [2022] NSWSC 140 (Burns (No 2)) at [64].”

134. The sentence I impose must make the offender accountable for his actions and recognise the harm done to the victims and the community.

135. I have also had regard to the protection of the community and specific deterrence, in particular, having regard to the nature of the violence perpetrated by the offender and his continuing misconduct in custody.

136. The weight to be afforded to general deterrence is, however, moderated because his moral culpability is significantly reduced having regard to the offender’s background of disadvantage and deprivation, his mental health conditions, and his youth.

137. While the offender’s violent acts must be denounced, the weight afforded to denunciation is also moderated having regard to the offender’s reduced moral culpability.

138. I have also had regard to the purpose of rehabilitation.

Comparative Cases

139. The Crown relied upon R v Brooks (No.5) [2017] NSWSC 824 (“Brooks”) where Hamill J sentenced an offender who committed offences similar to those in the present matter. Mr Brooks stabbed two men with a knife in a late-night brawl outside of a pizza shop. One man died, and the other was wounded. Like the present case, Mr Brooks stood trial for murder in relation to one victim, and wounding with intent to cause grievous bodily harm in relation to the other victim.

140. Mr Brooks argued that he acted in self-defence (and defence of another) and relied on evidence that the surviving victim had pushed his brother to the ground during an altercation involving several people shouting and pushing each other. While the precise chronology of events could not be established, at some stage after the brother was pushed to the ground, Mr Brooks pulled a knife from his pants and stabbed each victim once to the chest. The jury rejected self-defence.

141. His Honour found that the offences were unplanned and not premeditated but rather, the offender had responded to the situation as it developed quickly before him.

142. Mr Brooks was 19 years old at the time of the offending, was an apprentice chef with no criminal history, and a person of prior good character. Hamill J imposed the following sentences:

(a) For murder: a non-parole period of 12 years and 6 months with a balance term of 7 years and 6 months. (b) For wounding with intent: a non-parole period of 5 years with a balance term of 2 years and 6 months.

143. In Brooks, Hamill J summarised several relevant cases which his Honour considered in determining the sentence in that matter. Those cases as summarised by his Honour are as follows (at [67], footnotes omitted):

144. R v Wilson [2005] NSWCCA 112. The offender stabbed a vulnerable victim (a taxi driver) to the chest after the driver asked him to pay the taxi fare. The offence was not planned or premeditated. The offender stole money from the deceased and left him by the side of the road in a concealed location. He set fire to the taxi. He made an exculpatory interview but later admitted his guilt. The offender received a 25% discount for his plea of guilty. He was 18 years old at the time of the offence. Simpson J (as her Honour was at that time) imposed a sentence of 12 years with a non-parole period of 8 years. On a Crown appeal a majority (Bryson JA and Studdert J) increased the sentence to 15 years with a non-parole period of 11 years. Adams J dissented and would not have interfered with the sentence imposed by Simpson J. The sentence imposed on appeal took into account the principle of double jeopardy.

145. R v Carr [2009] NSWSC 995 also involved a single stab wound. He pleaded guilty on the first day of the trial and received a 15% discount on his sentence. He was an 18 year old but had a criminal history and was on conditional liberty at the time of the offence. He was an Aboriginal offender with a history of social deprivation. McClellan CJ at CL imposed a sentence of 16 years with a non-parole period of 12 years.

146. R v Wong [2010] NSWSC 171, like the present case, involved both a murder and an offence under s 33. However, the facts of that case were substantially more serious. The motive for the crime was not clear but, for no apparent reason, the offender took offence at the victim looking at him at a fast food restaurant. Wong and a co-offender then followed the victim from the restaurant. Wong stabbed the deceased to the chest and the offenders then chased a second victim who was struck with a hammer. Wong had a criminal record described as “minor” but he had previously been placed on bonds and probation. The offences constituted a breach of conditional liberty. Buddin J was guarded in his assessment of his prospects of rehabilitation. Wong was sentenced to a total effective sentence of 21 years with a non-parole period of 15½ years, having received a discount of 20% for his plea of guilty. His co-offender, who received a discount of 12.5% for a late plea, was sentenced by Price J to 19 years 3 months with a non-parole period of 13 years 3 months.

147. MB v R [2013] NSWCCA 254 involved the use of a broken bottle to stab the victim in the neck. This act was done after a group had been involved in a fight with the deceased in which the offender was the original aggressor. The offender was 16 years old at the time of the offence. The sentencing Judge (Howie J) considered the offence to be in the middle range of objective seriousness and imposed a sentence of 22 years with a non-parole period of 15 years 6 months. The original appeal against sentence was dismissed. Subsequent to the decision in Muldrock v The Queen, the case was reviewed, referred to the Court of Criminal Appeal and the appeal was allowed (Hoeben CJ at CL, Johnson and Bellew JJ). The offender was re-sentenced to 17½ years with a non-parole period of 12½ years.

148. R v Hines (No 3) [2014] NSWSC 1273 involved a single stab wound to the chest. The offender left a fight to obtain the knife and returned to use it. The victim also armed himself with a bar. The jury rejected self-defence and provocation. There was no intention to kill. There was a 5% reduction in the sentence due the facilitation of justice and efficient conduct of the trial. The offender was an Aboriginal offender with a personal history of deprivation. I sentenced him to a total sentence of 24 years with a non-parole period of 16 years and 6 months. Mr Hines had a criminal history and, notably, a previous offence of murder involving a single stab wound.

149. R v Scott (No 6) [2015] NSWSC 678 involved a single stab wound to the chest. There was a plea of not guilty and the offender argued that he acted in self-defence. Wilson J was not satisfied that the offender acted with an intention to kill. Her Honour imposed a sentence of 24 years with a non-parole period of 18 years. The offender was a 41-year-old man with a lengthy criminal history including a number of offences of violence including the use of a knife. He had been sentenced to gaol on many previous occasions.

150. R v Morris [2017] NSWSC 637 involved a single blow by a hammer to the throat of the victim. There was an argument between the men (who were neighbours) over an earlier drug transaction. There was no intention to kill, the offence was not planned and the offender had a mental illness that contributed to the commission of the offence. He was convicted after trial and Fagan J imposed a non-parole period of 12 years with a balance of term of 5 years.

151. R v PO [2017] NSWSC 757 involved two stab wounds to the chest and abdomen. The offender was involved in a fight involving four men. He was carrying a knife that a friend had stolen earlier in the day. There was no planning or premeditation – the use of the knife was “impulsive and irrational”. The sentencing Judge (Fullerton J) found an intention to inflict grievous bodily harm. The offender was aged 16 years 8 months and had what the prosecution described as a “concerning” criminal history. This included a previous offence of carrying a knife. The offender’s subjective case was a sad and compelling one. Fullerton J sentenced him to a non-parole period of 9 years with a balance of term of 6 years.

152. I have taken into account the comparative case relied upon by the Crown and those cited within Brooks in so far as they provide some guidance in determining the proportionate sentence. However, I am mindful that no two cases are identical and that distinguishing factors, both favourable and unfavourable to this offender, exist.

Special circumstances

145. I make a finding of special circumstances for the following combined reasons. Firstly, having regard to the offender’s mental health conditions, his time in custody is made more onerous. Secondly, given his relatively young age and the real scope for rehabilitation, a longer than usual additional term is warranted to facilitate that rehabilitation and to provide supervision, treatment, and care upon his release. Thirdly, considering the term of the non-parole period, the offender will require a longer than usual additional term to reintegrate into the community. Lastly, although the offender was sentenced to a term of imprisonment for the affray which occurred in custody, this will be the first time he serves a term of imprisonment in adult gaol.

146. I make a finding of special circumstances warranting a variation of the statutory ratio. In determining the extent of that variation, the primary perspective is the length of the minimum period of actual incarceration: Regina v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534 at [57]-[58].

Sentence and commencement date

147. Clearly, the only appropriate sentence is one of full-time imprisonment. I will proceed by way of an aggregate term of imprisonment which will reflect a degree of notional accumulation between the sentences. The offender committed two discrete offences involving separate and distinct victims. Each offence involved violent conduct whilst armed with a knife.

148. In determining the degree of notional accumulation, I have, however, taken into account that these two offences occurred in quick succession of one another during one episode of offending. I have also had regard to the principle of totality.

149. As indicated earlier, the offender committed an offence of affray whilst in custody and was sentenced to a term of imprisonment. That sentence was reduced on appeal to a term of imprisonment of 16 months to commence on 16 April 2025 and expiring on 15 August 2026, with a non-parole period of 8 months.

150. I am not minded to commence the present sentence from the date of arrest, so that it is wholly concurrent with the sentence of imprisonment imposed for the affray. Given the nature of the affray, including the fact that it occurred in custody, it is appropriate to commence the present sentence on 10 January 2024, thereby accumulating it by a period of three months on the sentence for the affray.

151. I am required to identify the indicative sentences, that is the sentence that would have been imposed for each offence, before announcing the aggregate sentence.

152. In respect of the offence of murder, applying a discount of 5% to reflect the offender’s facilitation of the administration of justice, I indicate a non-parole period of 12 years’ imprisonment with a balance of term of 7 years’ imprisonment.

153. In respect of the offence of wound with intent to cause grievous bodily harm, applying a 10% discount to reflect the utilitarian value of the plea of guilty, I indicate a non-parole period of 3 years and 6 months’ imprisonment, with an additional term of 2 years’ imprisonment.

154. Accordingly, I make the following orders:

155. Mr Dates is convicted.

156. Pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW), I impose an aggregate term of 21 years’ imprisonment, commencing on 10 January 2024 and expiring on 9 January 2045 with a non-parole period of 13 years’ imprisonment. The offender will first be eligible for release on parole on 9 January 2037.

157. In compliance with s 25C of the Crimes (High Risk Offenders) Act 2006 (NSW), I note that the provisions of that Act have potential application to Mr Dates. I direct that Mr Dates’ legal representatives advise him of the existence of the Act and its application to this offence.

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