R v Diallo & Ors

Catchwords

Zirilli v The Queen (2014) 253 CLR 58[2014] HCA 2 BP v R [2010] NSWCCA 159(2010) 201 A Crim R 379 Britton v R [2024] NSWCCA 138 Bugmy v The Queen (2013) 249 CLR 571[2010] NSWCCA 194 DS v RDM v R (2022) 109 NSWLR 82[2022] NSWCCA 156 Ghamraoui v R [2009] NSWCCA 111 Green v The QueenQuinn v The Queen (2011) 244 CLR 462[2011] HCA 49 Hili v The QueenJones v The Queen (2010) 242 CLR 520[2010] HCA 45 JM v R [2014] NSWCCA 297(2014) 246 A Crim R 528 Lloyd v R [2022] NSWCCA 18 Lowe v The Queen (1984) 154 CLR 606[1984] HCA 46 Muldrock v The Queen (2011) 244 CLR 120[2011] HCA 39 Newburn v R [2022] NSWCCA 139 PG v R [2017] NSWCCA 179(2017) 268 A Crim R 61 Postiglione v The Queen (1997) 189 CLR 295[1997] HCA 26 R v Amati [2019] NSWCCA 193R v MSK [2006] NSWCCA 381(2006) 167 A Crim R 159 R v Millwood [2012] NSWCCA 2 R v MR

Judgment (42 paragraphs)

[1]

Background and the events of 31 August 2021

There were communications tendered demonstrating animosity in the weeks and months beforehand particularly on the part of AD directed to Oliver Coleman, MM, and a social media account of QSB. There was taunting and mocking of the other side's music. It is tolerably clear that those responsible for the taunting were members of, or associated with, MOB.
On 31 August 2021 AD, YA and Mr Karise attended William Street in the area of Oliver Coleman's home. There were social media posts afterwards bragging about what had occurred and there is CCTV footage taken from a house down the road which showed part of the incident. There were also short video clips (on AD's telephone) showing that he was armed with a knife as he and the others drove through various suburbs towards Blacktown.
EC gave evidence about the incident in which he may have exaggerated slightly the number of people present. Oliver Coleman made a Snapchat recording of what happened that night. I accept the Prosecutor's submission that Oliver's account can be accepted as a generally accurate description of what occurred on the night of 31 August 2021. He said: "Hey look, real shit, this what happened. Nigga, some random ass nigga hit me up for dugu, ah for those dugu lollies. I was like 'eetswa'. Hey, shut up EC. Niggas were walking down, it was red hot so I said 'ay MM come out with me'. It was at the, you know the dead end of my street where the park is, they were parked facing us like to drive off. Like 'what the fuck'. We were walking, and this is when you texted me saying 'Ollie I miss you this that' in the QSB group chat. I looked down and as soon as I look back up, the guy turned the key on, ignition, revved the fuck out of the car. I jumped on the side like on the footpath, you know. I was like 'what the fuck'. They tried ramming us and MM jumped out of the way. They drove a little bit up the street and then 2 niggas jumped out. Me and MM hit legs into the park and we were looking for sticks and what not, you know? We walked back and then 2 niggas, ah, started hitting legs. Nigga, I was wearing slides and that so me and MM hit legs. We just running, running, running around to the park, turned left, ran. I caught niggas, smurk and that. Smurk, Jmoney, EC and AK at the crib, they ran out the front of the crib. As they ran out the front of the crib, there was a nigga. There was a nigga, he fucking, like, you know? Did a uturn, same car, flashed them. they got out of the car and they started fighting, this, that, this, that, this, that. Yeah, this, that, this, that. And then, you know, niggas were fighting. They came into my house and they just dipped, niggas dipped. And you know, old mate got sliced by his (inaudible)."
Joshua Okot received a small cut or graze that night and there is a suggestion that "AK" was also injured although he denied it in evidence. A recording made by YA shows him boasting that he stabbed "that fat cunt AK". I am unable to determine - certainly not to the criminal standard - that he stabbed anybody that night and he is not to be sentenced for that event. However, the recording is potent evidence of YA's state of mind which I accept continued until the following evening. I also accept that his behaviour was motivated by a sad attempt to be accepted by others associated with MOB.
There was a great deal of chatter online after that event although it was not all admissible in the case of each accused. Certainly, based on their own communications AG was "gassed" about what had occurred, YA was boastful, and Mr Karise seemed pleased with himself and the outcome of the visit.
I will consider this body of evidence in a little more detail in the context of resolving a factual dispute concerning the nature of the joint criminal enterprise and whether the offenders (or any of them) should be sentenced on the basis that they joined and participated in a joint criminal enterprise to inflict grievous bodily harm (as contended for by the Prosecutor). The alternative basis of liability (extended joint criminal enterprise) and one of the bases upon which the jury may have convicted of manslaughter (unlawful and dangerous act) required proof of an agreement to commit an armed assault.
At around 10:41pm that night AD sent a message to AG, YA and Mr Diallo saying: "Round 2 tmr".
So commenced the planning of the events that led to Oliver Coleman's death and the serious wounding of EO and EC.

[2]

The factual dispute as to the joint criminal enterprise

The message from AD at 10:41pm appears to be the germination of the joint criminal enterprise which formed the foundation of the offences committed by each of the offenders. There is a dispute on sentence as to the precise content of that enterprise or that agreement. There was an abundance of communications over the course of the next 20 hours - admissible against some or all of the offenders - and each party placed some reliance on the contents of those communications, as well as many other relevant pieces of evidence, in making its submissions as to the nature of the joint criminal enterprise.
The case was put to the jury on alternative bases:

First, and primarily, the prosecution put that there was an agreement to inflict grievous bodily harm (or even death) on members of Oliver Coleman's group. The stabbings of Oliver Coleman, EO and EC gave effect to that criminal agreement. The acts of the stabbers were attributed to each participant in the joint criminal enterprise and the mental element was established (directly) by the entry into the agreement.
Secondly, and in the alternative, it was put that the agreement was to commit an armed assault or assaults and that the individual accused contemplated the possibility that somebody may go beyond the scope of that enterprise and commit the more serious crimes (murder, attempted murder or wounding with intent to do grievous bodily harm). Under this alternative formulation of the case, which was identified as a case based on "extended joint criminal enterprise", both the act(s) and the state of mind of the stabber were attributed to the other participants. That is, the liability was "derivative".

Self-defence was also put to the jury in relation to each count. In summary, and leaving aside the distinction between direct and derivative liability and the precise formulation based on the onus and standard of proof, the jury was instructed:

In relation to each count, and each alternative, self-defence could constitute a complete defence if the prosecution did not establish that (i) the accused did not believe the conduct was necessary and/or (ii) the conduct was not a reasonable one in the circumstances as the accused perceived them.

[3]

The possession of knives and weapons and the events of 1 September 2021

[4]

Knives and weapons

An important feature of the prosecution case at trial related to the number of knives available to the offenders. The opening portion of the Prosecutor's closing address to the jury was dedicated to this issue and was presented with a PowerPoint display cutting between relevant parts of the evidence. It was compelling.
There was evidence that two Scanpan branded knives were missing from a knife block in Mr Karise's rented flat, evidence that Mr Karise purchased a Mint brand cook's knife on 28 August 2021 and that the police found empty knife packets in and outside of Mr Karise's car which was left at the scene. Several broken knife blades and handles were present at the scene. These were scattered from around 51 William Street to a fair distance along Norfolk Street. Forensic findings (DNA and fingerprint) can connect most of those knives with particular offenders or particular stabbings or both.
I accept the prosecution's contention that there were (at least) six knives available to the offenders when they attended William Street on the evening of the events. There was evidence from those who came out of 51 William Street that some, most or all the offenders were presenting their weapons. I accept Ms Avenell's submission that the evidence does not allow for a finding, beyond reasonable doubt, that AG was doing so at that time. I note however, that he certainly had a knife in his hand ten or twenty minutes later after the stabbing had occurred and he was attempting to decamp the scene. I do not accept that whether or not AG had a knife in his hand at the outset has much impact on his objective criminality given that these young men were so obviously acting in concert.
As to those who came out of 51 William Street, the evidence is overwhelming that most were armed with golf clubs which were distributed to the group by Lee Coleman. Further, I am satisfied that Oliver Coleman came from the house with a large "zombie" knife and that another man emerged with a large machete. Again, clubs, broken and intact, were scattered about the scene, the zombie knife - which is a terrifying weapon - was located where Oliver Coleman fell and the machete was found in a culvert or drain near to the arrest of MM (a member of the Coleman group). Forensic findings, along with the location of these knives and some of the witness testimony, allows for certain conclusions to be drawn.

[5]

The sequence of events up to the stabbing of Oliver Coleman

Just after 9.30pm, Mr Karise's Corolla was captured by CCTV on Richmond Road (the main thoroughfare to the north and east of the three streets where the event unfolded). It proceeded to William Street, drove past the residence at number 51 and turned around at a canal which breaks William Street into two parts. The car was parked, probably in Suffolk or Norfolk Street, and the group of AG, AD, Mr Karise, Mr Diallo and YA were in and around 51 William Street for a few minutes. They were heard to yell out "come out" from the car and were caught on CCTV moving around in the vicinity of the Coleman home. EO, EC and Oliver and Lee Coleman came outside and remained in the front yard. EO said he saw three or four men standing near the fence and one was armed with a knife. EC said there were "roughly five males". He heard his father telling the group to leave, although no doubt the exact language was more colourful and cast in the imperative. Mr Coleman gave evidence that he told the group to "fuck off" and "piss off". A local resident (Ms McFarland) made some audio recordings that were tendered at the trial. These recorded shouting between the groups although what was said is not clear.
The MOB group then left and drove to a spot near the canal on William Street. They were there from about 9:50 until 10:00pm. During that time, AG engaged in communications with Oliver Coleman in the following terms: At 9:52pm AG started a video chat with Oliver which lasted 00:00:16. AG then messaged Oliver: "Come out boy" At 9:52pm AG started a second video chat with Oliver which lasted 00:00:49. AG then started a third video chat with Oliver which ended at 9:53pm. At 9:53pm AG messaged Oliver: "6-2 you ain't coming out" At 9:54pm AG messaged Oliver: "Your a Fkn bitch" At 9:54pm AG started a video chat with Oliver which lasted 00:00:05. AG then messaged Oliver: "Yous ain't on piss" At 9:55pm AG messaged Oliver: "Mothers" "Come out your crib" At 9:55pm AG started a video chat with Oliver which lasted 00:00:05. At 9:55pm Oliver messaged AG: "Pussy" At 9:55pm AG started a video chat with Oliver which lasted 00:00:12. At 9:56pm AG sent Oliver an audio message: "Cuz, my nigga. You're fucking bitch cuz. Nigga, six niggas at the crib, my nigga cos You niggas are standing at the door bro. Fucking door cuz, you aint come out of your crib. Had a nigga, had your dad calling niggas out, telling them stay there. Telling the dog come out. My Nigga you're a bitch bro, you're fucking bitch cuz. You're white yute. Put your shirt back on. Put your fucking shirt back on. You aint got no body my nigga. Put your fucking shirt back on my nigga" At 9:57pm Oliver sent AG an audio message: "Cuz, go fucking enjoy your ride home you little pussy" At 9:59pm AG sent Oliver an audio message: "Aye, listen my nigga. You didn't come out your crib cuz. You had your dad telling us to fuck off my nigga. Come out your crib my nigga. Come out your crib cuz. We'll come back to your crib right now. Post up bitch. Show me what your on cuz. You're telling me oh I aint with it cuz. MOB aint this nigga. Two days we rid cuz. Come back for your boys. GBG my nigga"

[6]

The events after Oliver Coleman received the fatal stab wound

After Oliver was stabbed, the CCTV shows the two groups moving in a generally easterly direction down Norfolk Street. EO gave evidence that he thought he was the only person who was chasing "the guy that [he] thought just stabbed Oliver". In cross-examination, he acknowledged he was not really sure if he was alone and was focused on the chase. He made a recording of events on his telephone. The audio part of the recording shows he was behaving aggressively and in a very provocative way. [6]
It seems around this time, YA became afraid and went somewhere to hide. The Prosecutor submits that "the precise reason" he was not with the group does not need to be determined. But I am satisfied that he was scared. By his plea of guilty to the stabbings of EO and EC, he accepts the joint criminal enterprise continued and that he had not withdrawn from it.
The CCTV evidence shows the MOB group, excluding YA, running down the road towards 21 Norfolk Street at about 10:05pm. The CCTV shows members of the 51 William Street group following not very far behind, walking at first and then breaking into a trot. Lee Coleman followed, with his distinctive gait, a minute or so later.
AD ran to the front door of 21 Norfolk Street and was banging on the door and crying for help. He was confronted by several men and tried to escape but was caught on the front porch where there were some pot plants. He threw one of the pots at his assailants. EC, EO, Joshua Okot and another member of the Coleman group, Monzir Komei, were present and there may have been others. Mr Komei, like EO, recorded part of the incident on his telephone. Both EC and EO provided evidence generally consistent with what I have just described, and it is not inconsistent with the CCTV footage, the telephone videos and the evidence of some local residents. For example:

Ms Brotherton lived at 21 Norfolk Street. She could not remember anybody knocking at her door but said she was upstairs and may not have heard it.
Jahpeth and Darren Gonzales lived at 1/21A Norfolk Street and gave evidence that they could hear people yelling "kill him, kill him, kill him" from the front of 21 Norfolk. Each said they could see three or four men in the front yard of 21 Norfolk Street. Their view was somewhat obscured.

[7]

The arrival of emergency services, the offenders' movements and conduct after the stabbings and the injuries the offenders sustained

Several local residents contacted emergency services while these events were unfolding. Police and ambulance officers were on the scene promptly. Some of the offenders decamped or attempted to do so, some were taken into custody at or near the scene, and some had been injured.
YA was found by police hiding in the carport of 6 Suffolk Street. The occupant of those premises, Mr Fisk, had contacted the police. YA was found and spoken to by police and then arrested. The things he said to police on arrest were held to be inadmissible at his trial. [8]
Mr Diallo's movements after the incident were well documented. CCTV footage showed that he caught a bus on Richmond Road near the intersection of William Street at 10:11pm. He travelled to the Blacktown railway and bus interchange. At 10:24pm he caught a train from Blacktown to Lidcombe alighting at 10:49pm where he changed trains, arriving at Chester Hill at 11:31pm.
CCTV footage from the Richmond Road and the eastern end of Norfolk Street showed AD, AG and Mr Karise attempting furtively to make their escape from the scene. Mr Karise managed to make his way across the park and was arrested near 37 Dan Street. AG and AD went down William Street where they were seen from a police helicopter. There was also some CCTV footage taken from a driveway at 15 Norfolk Street Blacktown showing AD and AG under the carport. By that time, AG was carrying a knife and AD was carrying a broken golf club. AD was found hiding in a tree at 15 William Street and AG was found hiding in the yard of number 15. They were both arrested.
On arrest, three of the offenders had injuries:

AD suffered a puncture wound to his right forearm which was 0.5 to 1cm in diameter and whose depth could not be assessed due to constant oozing. His wound was washed and dressed, and he was referred to "plastics" for further management.
Mr Karise had a deep laceration to his left triceps and a superficial laceration to his right bicep. An X-ray of his left arm also revealed a small incomplete fracture due to the stab injury.
AG suffered a deep 5cm laceration to his left thumb, exposing the tendon. The wound was initially cleaned and dressed, and the following day AG underwent a surgical washout and repair of the tendon.

[8]

Post offence conduct and arrest

As observed earlier each of the offenders was arrested and ultimately charged with the murder of Oliver Coleman. As part of the police investigation which was conducted between 1 September 2021 and the day each of the offenders was arrested (22 February 2022), the police conducted covert electronic surveillance.
Three of the offenders (AG, YA and, a while later, AD) were left together in the back of a police truck on the day of their arrest. Investigators had provided them with some information, no doubt to promote conversation between the three offenders. Their conversations were recorded by a listening device over several hours. There was a dispute as to the admissibility of the evidence, largely resolved in favour of the accused, but a few parts of the recordings were admitted over objection. [9] One of the more significant pieces of evidence was AG threatening to "smoke" YA if he spoke to police. Later in the trial, an attempt to tender a dictionary definition of that verb was rejected. [10]
Telephone intercepts were also deployed and, again, there were disputes as to the admissibility of parts of the evidence. One dispute concerned a conversation between Mr Karise and a man called Phillip Nkpolukwu in which Mr Karise ruminated on the fact that somebody had died in the incident and said either "I dig it" or "I deep it". The words used were disputed. I determined that what was said and the significance of the comment was a question for the tribunal of fact and the evidence was admitted over objection. [11]
These and other aspects of the post offence conduct of each offender went to the issue of "consciousness of guilt" on the part of the offender to whom the evidence related. The evidence may also play a role in the determination of the basis of liability to which I now return.

[9]

Finding as to the content of the joint criminal enterprise and the basis of criminal liability

As I have said the main controversy between the parties concerns the conflicting submissions as to the basis of each offender's criminal liability. This will turn on my finding as to the nature of the joint criminal enterprise into which each man entered. I will first summarise, as best as I can, the position of the parties.
As to the manslaughter of Oliver Coleman:

The case against AD was put on the basis that he was the principal in the first degree.
The prosecution submits that AD stabbed Oliver Coleman with intent to inflict grievous bodily harm and in conformity with a joint criminal enterprise to kill or inflict grievous bodily harm on Mr Coleman. His liability for manslaughter (rather than murder) arises because he believed his actions were necessary to defend himself but his action was not a reasonable response in the circumstances as he perceived them.
AD submits that he should be sentenced on the basis that his act was unlawful and dangerous and that the jury rejected the objective aspect of self-defence.
The case against each of the other offenders on count 1 (murder) was based on joint criminal enterprise. There were two paths to the verdict of manslaughter. First, if the jury did not accept the joint enterprise was to kill or inflict grievous bodily harm, it could convict on the basis that the participants in the joint criminal enterprise agreed to commit an unlawful and dangerous act (for example, to commit an assault using weapons). Secondly, it could have accepted that the agreement was to inflict death or grievous bodily harm but determined that the offence was reduced to manslaughter based on excessive self-defence.
The prosecution submitted that the agreement was to inflict (at least) grievous bodily harm and that each of the offenders should be sentenced on the basis that this proved a murderous intention but that their liability was reduced to manslaughter by excessive self-defence.
Mr Wilson SC, on behalf of Mr Diallo, submitted that his client should be sentenced on the basis that "the joint criminal enterprise was to assault an occupant or occupants of 51 William Street Blacktown while armed with a knife", that AD stabbed Oliver Coleman without a murderous intent and that the jury rejected the objective component of self-defence.

[10]

Self-defence

I accept the submissions of the offenders that there was a subjective element of self-defence in each of the offences. I act on the jury's rejection of any suggestion that the response was reasonable in the circumstances that the offenders perceived them to be. I also note that these five offenders were the initial aggressors in the sense that they arrived at a suburban home armed with dangerous weapons and goaded the occupants to come outside for what was always going to be, and was intended to be, a physical confrontation.
I put little store in AD's message about "the white kid first". There is no doubt on the evidence that Oliver Coleman ran at AD and did so while wielding a terrifying looking "zombie" knife. Based on the nature of the wound and the pathologist's concessions, there was an element of the deceased falling onto the knife. However, it is reasonably clear that AD presented the knife and was moving it towards his victim even as his victim ran at him. As Dr Du Plessis explained, the dynamics of such a situation are difficult to assess. However, the jury obviously found that AD's actions went beyond what was objectively reasonable. That conclusion could not be supported by merely standing there holding the knife in front of him. AD deliberately stabbed Oliver Coleman in the area of the chest, an act that was both dangerous and unlawful (because it was not a reasonable response to the circumstances). Because it was a single stab wound and because of the nature of the weapon with which he was being assailed, the degree to which AD's action exceeded what was reasonable is relatively slight.
As to the attempted murder of EO, I find that Mr Karise and the others present believed in the extremely urgent circumstances that prevailed that both they and AD were in grave danger. The videos taken on the telephones of Mr Komei and EO himself, show that the victims' group were behaving with extreme aggression having quickly gained the upper hand in the conflict. They were hitting the MOB members with such force that golf clubs were broken and EO acknowledged that his broken club may have looked like a large knife. However, once the bear hug came to an end, Mr Karise's infliction of so many stab wounds exceeded by a large margin a reasonable response to the circumstances.
As to the wounding with intent to inflict grievous bodily harm on EC, that incident seemed to follow very shortly upon the stabbing of EO. The circumstances remained urgent and, I accept that the offenders (and whoever inflicted the stab wounds) believed they needed to act in self-defence. However, as the verdicts show, the conduct went beyond that which was necessary in the circumstances. I would assess the degree to which the conduct was unreasonably disproportionate to the threat to be substantial.

[11]

Objective gravity

Each of the offences is very serious. It is necessary to explain why and, for the purpose of the standard non-parole period that applies to Mr Diallo and Mr Karise for the offences of attempted murder of EO (count 2) and the wounding with intent of EC (count 5), it is appropriate to place that seriousness on a putative scale relative to all offences caught by the statutory provisions creating those offences.

[12]

Manslaughter of Oliver Coleman

Manslaughter arises in a very wide range of circumstances. As in all such offences, human life has been taken away. The victim was still a child and had a long and promising future in front of him. The present offence did not involve an intention to kill or to inflict grievous bodily harm, but it was an offence of violence, involved the use of weapons and was committed in company in a public street. There was an element of (subjective) self-defence but thrusting or presenting the knife in the chest area was (objectively) disproportionate to the threat and, it must be remembered, the occasion for self-defence only occurred because the offenders attempted to intimidate and assault the occupants of 51 William Street for reasons which remain unfathomable. There was some planning involved - knives were purchased and obtained from Mr Karise's rented flat, face coverings and balaclavas were worn (noting it was during a period of COVID where masks were commonplace) and there was an attempt (apparently failed) to obtain a car that could not be traced to the offenders. When the initial opportunity to withdraw arose, the offenders instead regrouped and then proceeded to the scene as a group. The events unfolded in a suburban street.
I consider AD's objective criminality for the manslaughter to be more significant than his co-offenders because it was he who wielded the knife and there is more evidence of his personal animosity toward the victim. However, each of the offenders are responsible for AD's actions at law and all agreed to commit the unlawful and dangerous act that led to Oliver Coleman's death. There was a degree of random luck as to which of the offenders, all of whom were in close proximity to each other, actually struck the fatal blow with a knife. AG's conduct in goading Oliver to come out places his conduct at a significant level of seriousness.
This was a serious offence of manslaughter although it was very far from the most serious. Considered in the very wide range of offences of unlawful killings it lies in the lower part of the spectrum. That assessment should not detract from the fact that this was a very serious criminal offence.

[13]

The wounding of EO

The offence to which YA pleaded guilty is less serious than that to which the other four men were found guilty by the jury. While the maximum penalty is the same, an intention to kill is a more serious mental element than an intention to inflict really serious injury. Further, while YA acknowledged by his plea of guilty that he remained a part of the joint criminal enterprise and played his role early on, he was not in the immediate vicinity when EO was stabbed many times.
Mr Karise's role was the most significant - there is no evidence that anybody else inflicted any of the stab wounds that almost killed EO. The stabbing was repeated and vicious and appeared to have been inflicted in a frenzy. I accept that there was an occasion to act in defence of AD and other members of the group and that the victim's group were, by that time, well and truly on the attack and acting without restraint. I accept Mr Karise believed it was necessary to do what he did. However, his response was utterly disproportionate to the circumstances. The events unfolded quickly and would not have occurred had the men from 51 William Street not continued their pursuit after Oliver Coleman was stabbed. That action was motivated by anger and revenge, those men having quickly gained the upper hand in the physical confrontation. I assess Mr Karise's objective criminality as high approaching the mid-point of objective seriousness.
As with the manslaughter offence, there was planning in the lead up to the fracas and the whole escapade exhibited a wanton lawlessness inherent in the conduct. While the injuries were life threatening, EO appears to have made a good recovery.
Insofar as it is a meaningful description, Mr Karise's criminality falls in the lower part of a supposed mid-range of objective seriousness relative to all offences of wounding with intent to murder.
AG, AD and Mr Diallo are responsible for the physical actions of Mr Karise and his mental state is imputed (derivatively) to them. None can be established to have stabbed EO but neither did any of them make any attempt to stop the stabbing. By that stage, AD had killed Oliver Coleman (although none of those involved on either side would have known that) and AD had been calling for help and had been beaten. The criminality of those three offenders is less serious than that of Mr Karise.

[14]

The wounding of EC with intent to cause GBH

This offence is objectively much less serious than the manslaughter of Oliver Coleman or the wounding of EO. The injuries were far less severe and the degree to which the conduct departed from what was a reasonable defensive response in the circumstances was not as great. Against that, it was part of the planned activity of the night (in the sense that it was contemplated as a possibility by each offender) and played out in a public street with the use of weapons and groups of men fighting in the front yard of somebody's home. The wounds to EC were serious injuries although far from as serious as others encompassed by s 33 of the Crimes Act. Cases caught by s 33 can involve permanent and devastating injuries including brain damage, blinding, paraplegia and harm that would almost certainly cause death if not treated immediately.
There is little to distinguish the criminality of each of the offenders. As I said earlier, YA was probably hiding by that stage but that was because he was scared. He remains responsible for what happened as an extension of the joint criminal enterprise he willingly joined.
This offence falls towards the lower end of objective seriousness for offences of its kind. It remains a serious offence, a matter reflected in the maximum penalty and, in the case of the adult offenders, the standard non-parole period.

[15]

Personal circumstances and mitigating features of each offender's case

I turn to the personal circumstances of each of the offenders. I cannot refer to all of the evidence but will provide an overview of those parts of the material that has particular relevance to the question of sentence. Where there are disputes between the parties of real significance, I will attempt to resolve those differences. While the objective criminality of the offenders is broadly similar, subject to the distinguishing features to which I have already referred, each presents a different and important personal history that the law requires to be considered along with the facts of the offending.

[16]

In AD's case, the prosecution tendered a sentencing bundle which contained AD's criminal and custodial history including bail reports, misbehaviour reports, court attendance notices and police facts sheets, as well as a Background Report prepared by Youth Justice. The prosecution also tendered a report downloaded from the website of the United Nations Mission in Sierra Leone in an attempt to undermine the history provided by AD to the authors of the reports prepared for sentence.
AD was on conditional liberty when he committed the current offences and it was conceded that this was an aggravating feature (while obviously not increasing the objective gravity of the offence itself).
His prior criminal offending has been dealt with in the Children's Court. It is not an insignificant record for a person of his age but has, to this point, it resulted in non-custodial outcomes. In 2020, he was sentenced to 15 months' probation with a 12-month non-association condition for an offence of affray. In the same year, he was sentenced to 12 months' probation for two offences of robbery in company. Six months later he was called up and re-sentenced to an additional 12 months of probation. In 2021, AD was sentenced to community service for an offence of being armed (with a knife) with intent to commit an indictable offence. This related to an affray at the Blacktown bus interchange in which YA is alleged to have been involved. There were other minor offences including receiving stolen property, larceny and assaulting a police officer in the execution of their duty.
AD has faced disciplinary action on several occasions since he was taken into custody. He has been involved in a number of fights and, on the information in a record styled "Incident Advice", has assaulted several other young people in custody. A note relating to a group attack on another inmate says the background concerned "simmering tensions between Young People stemming from the community gang related issues".
However, the Background Report indicates that AD has started to exhibit an increasing "willingness to sit with rival gang members to resolve conflicts" and has become a positive influence among his peers. He interacts well with staff and has engaged in all programmes offered at Cobham YJC. He has participated in psychological therapy for his PTSD, issues related to violent beliefs and anti-social peer associations. In reflecting on his offending, AD said he never expected anyone to be seriously harmed but understands the wrongfulness of his actions. He said he feels "sad and stupid" and feels "bad for [the deceased's] family having to be without their son". The author of the report concluded that AD has the potential for continued personal growth and successful reintegration into society, citing his leadership qualities and willingness to resolve conflicts with rival gang members.

[17]

Panashe Karise

In Mr Karise's case, the Prosecutor's bundle included his criminal and custodial history, court attendance notices, police facts sheets, the offender's traffic record and transcripts from telephone intercepts. Mr Karise tendered a sentencing bundle which included a psychiatric report of Dr Olav Nielssen, a forensic psychiatrist and evidence of his enrolment at university and completion of a custodial program.
Mr Karise was aged 21 years and 10 months at the time of the offences. He has just turned 25. His personal history was reported to Dr Nielssen.
Mr Karise's criminal history commenced in 2020 when he was sentenced to a 2-year community corrections order ("CCO") for a series of offences of dishonesty. He breached the bond and when he was called up received a sentence of 6 months imprisonment.
In the transcripts of the telephone intercepts tendered by the prosecution, Mr Karise also spoke about stabbing people, which he said he had done "more than five times". In response to this evidence, Mr Karise told Dr Nielssen he had "never done any stabbings prior to [the subject incident] … it was kind of like talking myself up… wanting to be seen as someone really I am not". In the absence of any charges or convictions, the best course is largely to disregard this evidence. However, his boasting of committing such stabbings does not assist in making a positive finding as to his prospects of rehabilitation.
Since being in custody Mr Karise has been subject to a large number of disciplinary charges for fighting, not complying with directions or routines, intimidation, drug possession, possession of an offensive weapon and a serious assault of an officer which led to his transfer to a high-risk facility.
Mr Karise is the eldest of three children. He was born in Zimbabwe but did not remember living there. In 2000 he and his family moved to Australia, living in the western suburbs of Sydney. At home he was subjected to regular corporal punishment, particularly at the hands of his father. During his primary and secondary schooling, Mr Karise exhibited behavioural problems and was disruptive. He was suspended from school on three occasions. Mr Karise said he has been diagnosed with ADHD, PTSD, anxiety and depression.
Having first smoked cannabis at age 13, Mr Karise continued using the drug until he entered custody. He reported "heavily using" benzodiazepine and opioid medications and cannabis prior to his arrest. He said he used to be a binge drinker but had cut down by the time of the subject offending.

[18]

AG presented a compelling and complex subjective case. The Background Report prepared by Youth Justice is a remarkable document; probably the most positive I have seen in decades of working in the criminal law. A psychologist's report provided significant insight into AG's early life, his traumatic experiences and explained how he finds himself in custody.
AG was aged around 17½ at the time of the offences. He will turn 21 in January 2025.
AG has a limited criminal history. In 2020 he was placed on a Children's Court bond [13] for 12 months for an offence of assault with intent to rob. In 2022 he received a caution for damaging property and breaching an apprehended violence order. The other matters on his criminal history are related to the present offences and those for which he is not sentenced will be withdrawn by the Director of Public Prosecutions pursuant to the procedures in s 166 of the Criminal Procedure Act 1986 (NSW).
His conduct in custody was described by the author of the Background Report as exemplary. Under the incentive scheme at Cobham YJC, AG has received 129 out of a possible 134 weekly incentives "which demonstrates his overall compliant and positive behaviour in custody." He received a disciplinary report for fighting in April 2024 but the fight was initiated by another young person and AG retaliated. He later said that he needed to protect himself. He has not had a disciplinary report since then.
The background report is littered with superlatives as to AG's response to supervision, his involvement in programmes and courses and undertaking mentoring roles for younger inmates. He has "taken advantage of all the opportunities available to him", and is actively engaged in several programs and counselling, including psychological interventions that began in March 2023. He is currently enrolled in a Diploma in Sport Management and Recreation at TAFE. He is widely regarded as a leader among his peers and has assisted in de-escalating conflicts between other young offenders in his unit. He has attended counselling and engaged in various courses to improve his understanding of his behaviour and to foster his rehabilitation.
An assistant chaplain at Cobham YJC provided a letter which testifies to AG's "commitment to improving himself and those around him". He described AG as mature, respectful, and dedicated to his faith. He has become a role model to other inmates and gave a speech at an open day attended by members of Parliament. The chaplain believes he has a bright future and is confident that AG will "grow into a responsible adult and have a successful life ahead of him."

[19]

Ibrahima Diallo

Mr Diallo's case on sentence included (as tendered by the prosecution) his criminal and custodial history, court attendance notices and police facts sheets and (as tendered by the offender) a psychological report from Ms Stephanie Bennett and an affidavit of Fatima Diallo, the offender's mother.
Mr Diallo is the second oldest of the five offenders but was still only 20 years and 3 months at the time of the offences. He is now aged 23 years and 9 months. He remains a young offender.
Like AG, he has a limited criminal history. In January 2021, Mr Diallo was fined $750 and placed on community correction orders in 2021 for offences of affray and "wielding" a knife in a public place. A month later he was fined $300 for bringing a drug into a place of detention in 2021. He has a trial pending in the District Court for drug offences which were allegedly committed after being granted bail on these offences.
Mr Diallo was born in Guinea-Bissau, raised in Guinea and experienced a childhood "marked by significant exposure to violence and intertribal conflict". Growing up in West Africa as the eldest of six children, his family lacked basic amenities including proper housing, electricity, and what was euphemistically described as "consistent food security". His family was part of a tribal minority and he witnessed violent attacks on his family and tribe, including the stabbing of his uncle. When he was five, he was the victim of a severe assault, sustaining a skull fracture when he was struck with a metal pole.
On coming to Australia, Mr Diallo lived and grew up in a low socioeconomic environment in Sydney's western suburbs. He struggled to adapt culturally and faced language barriers, racism and social isolation. He made some connections in high school, but they were superficial. He was bullied both at school and in his neighbourhood and reported being physically assaulted by his peers and by a school teacher. His social isolation was exacerbated by his mother's mental health problems. Mr Diallo struggled academically at school, had ongoing behavioural issues and often responded to racist taunts by fighting. This led to suspensions and an expulsion from school in year seven. By year nine, he began to avoid school regularly, experiencing anxiety and disengagement.
Despite these challenges, Mr Diallo completed his Higher School Certificate (HSC) on a non-ATAR pathway. After school Mr Diallo worked as a plumber but struggled with low confidence and a lack of motivation, which he linked to substance abuse and depression. He resigned after four years. He worked in a warehouse but faced similar issues. Before his current offences, he worked sporadically as a plumber.

[20]

Like AD and AG, YA was under 18 years old at the time of the offences. He was 17 years and 3 months and is now 20 years and 6 months.
His case presents several complications. He was in custody overnight from 1-2 September 2021 when he was charged with affray and breaching COVID restrictions. He was then arrested for the murder and other offences on 22 February 2022 and remained in custody until granted bail by Weinstein J on 24 April 2023. He has been on conditional liberty since that date. He seems to have made substantial progress towards rehabilitation. The Prosecutor submitted he should be taken into adult custody as soon as sentence was imposed. That is a difficult question and will be addressed later in these remarks.
Apart from the current offences, and related offences which will be withdrawn at the conclusion of the sentencing hearing, there is only one matter on YA's criminal history. That is an offence of affray which allegedly occurred at Blacktown bus interchange on 12 June 2021. The case remains before the Children's Court where it is listed for defended hearing in January next year. This is the matter that also appears on AD's record and is referred to above at [129]. Part of the material on sentence is CCTV footage that depicts YA's apprehension shortly after that offence was allegedly committed. He was clearly in possession of a knife. Even in the absence of a finding of guilt, that is a matter relevant to the present sentencing proceedings. Even so, YA will be treated as a person with no prior convictions which is a mitigating circumstance pursuant to s 21A(3) of the Sentencing Act.
As part of the agreement leading to YA's pleas of guilty, the Prosecutor tendered the transcript and exhibits from the joint trial, a social medial table of specific relevance to YA, and YA's statement of 18 April 2023. As to the statement, I have already said that I disregarded that document in dealing with the co-offenders as it was not tendered in their case and they did not have the opportunity to test its contents. I have treated the statement with considerable circumspection in assessing the facts of the case. It seems to be somewhat self-serving and the language appears to be that of a lawyer rather than this young offender. I accept the Prosecutor's criticisms of its contents and have given it little weight overall. However, I do accept those parts which deal with YA's changed attitude and progress towards reform and, contrary to the Prosecutor's submission, I am satisfied that it is capable of falling within the terms of s 19(4)(c) of the Children (Criminal Proceedings) Act.

[21]

Some relevant legal and sentencing principles

I will not set out all of the relevant legal and sentencing principles or parrot in the fashion of some kind of check list the aggravating and mitigating features of the case: cf Ghamraoui v R [2009] NSWCCA 111 at [23] ("Ghamraoui"). I have attempted to avoid the kind of "prolixity of expression" criticised in Ghamraoui but have already exceeded the "187 numbered paragraphs" that drew the ire of Grove J in that case. However, this is a far more complex sentencing exercise and - without criticising counsel in the week before Christmas - the parties have been thorough and adversarial to a fault.
From what I have said or written to this point, I hope the factual findings and relevant considerations are clear, that my reasoning is transparent and that this judgment serves the true and primary purpose of remarks on sentence: again, see the judgment of Grove J in Ghamraoui. However, it is necessary that I provide some brief comments as to some relevant principles of sentencing and resolve some residual issues addressed by the parties.

[22]

Proportionality and the objects and purposes of punishment

The law insists that the punishment must fit the crime. The penalty imposed must be proportionate to the gravity of the offending. In this case, no sentence other than one of full-time imprisonment could encompass the seriousness of the offending. As I indicated earlier, nobody suggested otherwise.
Section 3A of the Sentencing Act distils the purposes of sentencing and reflects the objects of punishment as they have long been understood under the common law. The offender must be adequately punished and held to be accountable for their offences and their conduct must be denounced. The sentence must protect the community against the offender and deter others from committing similar offences. The process and penalty must recognise the harm done to the victim and the community. At the same time, the court should aim to promote the offender's rehabilitation.
Sentencing is a process of synthesising many relevant considerations. Lengthy judgments such as this one can distract from the intuitive nature of the sentencing process. Often the considerations relevant to sentencing pull in different, even opposite, directions.
The cases of YA and AG provide stark examples of this. Each of those young men are to be sentenced for extremely serious offences but each has presented a compelling subjective case that demands close and careful attention. It is said that a sentencing judge must not allow an offender's tragic circumstances, or their progress to rehabilitation, to distract from the gravity of the crime such that an unduly merciful sentence is imposed. Where lines such as that should be drawn is a matter upon which minds may, and often do, differ.

[23]

Sentencing children and young offenders

In sentencing children and young offenders, the weight afforded to general deterrence is usually considered to be less. However, in offences as serious as these, general deterrence remains of some significance.
In sentencing children, rehabilitation often takes primacy over punishment. The balance is a fine one. While the provisions of the Children (Criminal Proceedings) Act apply to offenders under the age of 18 (at the time of the offence), the law understands that there is no bright line when an offender turns 18 years of age. There is now an understanding that a young adult's brain continues to develop into their twenties. There are many authorities on the sentencing of children and those who have recently come of age: see, for example, BP v R [2010] NSWCCA 159; (2010) 201 A Crim R 379, TM v R [2023] NSWCCA 185 at [49]-[52] and Carr v R [2024] NSWCCA 103 at [40]-[47].
While AD, AG and YA are each to be sentenced "at law" various provisions of the Children (Criminal Proceedings) Act remain relevant. There are also decisions to be made, based on the terms of s 19, as to where the offenders should serve their sentence up until the age of 21 years and, depending on the length of the non-parole period, beyond that.

[24]

Aggregate sentencing, totality and notional accumulation

Section 53A of the Sentencing Act allows a sentencing judge to impose an aggregate sentence when sentencing an offender for a number of offences. The provision was subject to authoritative comment by RA Hulme J in JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528. His Honour's list of propositions at [39]-[40] is often quoted and I will apply those principles in this case. For the sake of transparency, the section requires the sentencing Judge to indicate the individual sentences that would have been imposed if an aggregate sentence was not imposed. Where an offence carries a standard non-parole period, the Judge must also state an indicative non-parole period. If an offender receives a sentencing discount (for their plea of guilty or for assistance to authorities), that should be applied to the indicative sentences and not to the aggregate sentence: PG v R [2017] NSWCCA 179; (2017) 268 A Crim R 61.
The imposition of an aggregate sentence does not relieve the Court from applying the principle of totality and considering the extent of any notional accumulation and concurrency. That principle requires the Court to stand back after settling on the appropriate sentence to ensure that the total sentence is not crushing. In R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159 the Court observed at [16]: "The severity of a sentence is not simply the product of a linear relationship. That is to say severity may increase at a greater rate than an increase in the length of a sentence."
On the other hand, a sentencing court must "take care when applying the totality principle" and ensure there is no suggestion that an offender is receiving "some kind of discount for multiple offending": R v MAK; R v MSK at [18]. Put another way, the totality principle is to be applied hand in glove with the requirement that the total (or aggregate) sentence is proportionate to the gravity of the whole of the offending.
In the present case each of the offences was committed over a very short period, around five or ten minutes based on the CCTV footage. While the plan, such as it was, was formulated over about a day, the three stabbings all occurred within a very short time frame. That fact militates in favour of a substantial (if notional) concurrence between the sentences.
On the other hand, there were three distinct victims and that demands a degree of notional accumulation to ensure that the individual dignity of each victim is vindicated in the sentencing process and in the punishment imposed. That approach is also calculated to ensure there is no erosion of "public confidence" of the kind referred to by the Court in R v MAK; R v MSK at [18].

[25]

Individual justice - consistency in sentencing - parity and proportionality of sentences imposed on co-offenders

The notion of equal justice is fundamental to the law, including the law of sentencing. In sentencing co-offenders, the Court must strive to achieve equal justice: see, for example, Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46, Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 and Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49. When all things are equal, the sentences should be the same. However, the sentences must reflect relevant differences. As Dawson and Gaudron JJ said in Postiglione v the Queen: "Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality."
An equally important and fundamental principle is that justice must be individual and must discriminate between cases. As Mahoney ACJ famously said in R v Lattouf (Court of Criminal Appeal (NSW), 12 December 1996, unrep): "A sentencing process which is seen by the public merely as draconian and not just will lose the support of those whom it is designed to protect. If a sentencing process does not achieve justice, it should be put aside. As I have elsewhere said, if justice is not individual, it is nothing. "But, in addition, a sentencing process must be capable of discriminating between cases. There is, as I have said, a public interest in punishment. But if the desire to punish results in a person who would otherwise not become a confirmed criminal becoming such, that sentencing process is inconsistent with the public interest."
In the present case, the differences between the individual cases lies not only in the different assessments of the objective gravity of each offender's conduct but also in the diminution of their moral culpability, which in some cases is substantial, and also in their criminal histories and their prospects of rehabilitation.
The sentences I will announce attempt to distinguish between the cases while, at the same time, not leaving any of the offenders wearing the "badge of unfairness" of which Mason J (as he then was) spoke in his important dissenting judgment in Lowe v The Queen.

[26]

AG's personal circumstances and his objective criminality

Senior Counsel for AG sought to rely on the decision of the Court of Criminal Appeal in Tepania v R [2018] NSWCCA 247; (2018) 275 A Crim R 233 ("Tepania") to argue that AG's objective criminality - as distinct from his moral culpability - is reduced as a result of the peculiar combination of circumstances personal to him. The parties provided notes on this issue after the hearing. Reference was made to several authorities decided after the decision in Tepania, the more significant of which appear to be DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156, Britton v R [2024] NSWCCA 138 and R v Eaton [2023] NSWCCA 125.
A lively debate continued as to the relevance of the briefing letter provided to Dr Dornan and I allowed that document to be tendered after the evidence closed because it appeared that the Prosecutor's position may have unwittingly misstated the effect of the report upon which AG relied.
I accept Ms Avenell's submission that her client's particular history and personal circumstances made him more vulnerable to being involved in this kind of group offending, to be influenced by others and to join the criminal enterprise. Equally, it is clear that AG did not personally commit either of the stabbings in which the stabber has been identified. However, he did - at least later in the night, and possibly earlier - have possession of a knife and he was close enough to the fray to receive a wound to his hand. He was responsible for the goading of Oliver Coleman to come out.
I do not accept that these matters, however important they may otherwise be to the appropriate sentence, reduce AG's objective criminality. I am unable to accept that the facts of this case fit within the kind of matters contemplated by Johnson J in Tepania at [112]. When his Honour referred to "motive" I expect he had in mind the kind of distinction that might be drawn, in an assessment of objective seriousness, between a person motivated by greed and one who is desperate for money. The distinction may be considered to be a fine one, but I am of the view that it is tolerably clear.
Having said all of that, the factual matters which form the foundation of this submission diminish substantially AG's moral culpability and, in turn, have a large impact on the sentence to be imposed on him: cf, for example, Camilleri v R [2023] NSWCCA 106.

[27]

Moral culpability - youth - deprivation - psychological issues

The individual backgrounds and personal circumstances of the offenders raise complex and sometimes interrelated issues. The youth of the offenders, their difficult backgrounds and in some instances their psychological make-up are each capable of impacting upon their moral culpability. In making assessments as to those matters, I am conscious of what Yehia J said in TM v R (supra) at [64]-[65] concerning the need for such matters to receive separate consideration. While the language of this judgment may appear at times to conflate these issues, I have given separate consideration both to the youth of the offenders and, where relevant, to the evidence of their deprived backgrounds or psychological issues. I have not fallen into the error of conflating those issues.

[28]

Punishment v rehabilitation

While each of these offenders must be punished sternly for these serious offences, I remain conscious of the words of King CJ written in South Australia in 1982: "There must be a place for the exercise of mercy where a judge's sympathies are reasonably excited by the circumstance of the case. There must be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender's life might lead to reform" See The Queen v Osenkowksi (1982) 30 SASR 212 at 212-213; (1982) 5 A Crim R 394 and to similar effect R v James Henry Sargeant (1974) 60 Cr App R 74 at 77-78.

[29]

Section 19 of the Children (Criminal Proceedings) Act

Another area of dispute between the parties concerned the application of s 19 of the Children (Criminal Proceedings) Act. That section allows a court which sentences a person under the age of 21 to direct that the offender remain in a juvenile detention facility "for the whole or any part of the term of the sentence": s 19(1). Such an order does not apply once the person attains the age of 21 years unless the sentence or non-parole period will expire within six months of the person turning 21: s 19(2). Where, as here, the offender is sentenced for a "serious children's indictable offence" [15] the person cannot serve the sentence as a juvenile offender after they turn 18 unless (relevantly) the court finds there are "special circumstances justifying detention of the person as a juvenile offender": s 19(3).
However, a person cannot serve their sentence "as a juvenile offender" after the person turns 21 unless the sentence or non-parole period will expire within six months of their 21st birthday: s 19(2).
Each of AD, AG and YA argued that a direction under s 19 should be made in their favour. [16] In each case, the Prosecutor chose to resist the making of such a direction.
Sub-section 19(4) provides that a finding of special circumstances can only be made on one of the following grounds: (a) that the person is vulnerable on account of illness or disability (within the meaning of the Anti-Discrimination Act 1977), (b) that the only available educational, vocational training or therapeutic programs that are suitable to the person's needs are those available in detention centres, (c) that, if the person were committed to a correctional centre, there would be an unacceptable risk of the person suffering physical or psychological harm, whether due to the nature of the person's offence, any assistance given by the person in the prosecution of other persons or otherwise.
While there is no evidence as to what might be available by way of programmes and the like in an adult gaol, the evidence shows that both AD and AG have responded well to courses and programmes available to them in "detention centres" and, based on my knowledge of both systems of incarceration, I would find special circumstance on the basis of subpar (b) in the case of AD and subpars (a) and (b) in the case of AG. I am satisfied that AG's psychological conditions means he is "vulnerable on account of illness".

[30]

Sentencing discounts

The Sentencing Act provides a prescriptive regime of sentencing discounts where an adult offender pleads, or offers to plead, guilty depending on the timing of the plea or the offer. The common law also requires the utilitarian value of a plea of guilty to be recognised by a meaningful reduction in a sentence imposed after a plea of guilty is entered. The relevant factors are the complexity and length of the trial and the timing of the plea. Based on those provisions, the parties agree:

Each of the offenders offered to plead guilty to manslaughter in the Local Court and each is entitled to a 25% sentencing discount for that offence.
AD and Mr Karise are each entitled to a similar (25%) discount from the sentence to be imposed for count 5 (that is, the wounding of EC with intent to cause grievous bodily harm).
YA offered to plead guilty to the two counts under s 33 of the Crimes Act less than two weeks before the re-scheduled trial date. The plea was very late but it saved about a month or so of court time. YA will receive, as his counsel submitted he should, a discount of 5% from the sentence to be imposed.

[31]

Commencement dates

Section 47 of the Sentencing Act provides for the commencement date of the sentences. Based on the amount of pre-sentence custody, the parties have agreed upon the commencement date in each instance. The basis of those dates, which I have not questioned, is set out in a "note" that was marked MFI 15 yesterday. The relevant dates are:

AD - 9 February 2022.
Mr Karise - 1 November 2022.
Mr Diallo - 8 November 2022.
AG - 19 February 2022.
YA - 17 October 2023.

[32]

Special circumstances under s 44 of the Sentencing Act

In each case I have considered whether to make an adjustment to the proportion of the non-parole period relative to the total aggregate sentence: Sentencing Act, s 44(2B). The question is whether there are "special circumstances" for the period of the sentence to be served after the expiration of the non-parole period to be more than one third of the non-parole period. In all but Mr Karise's case, I have concluded that there are special circumstances under s 44, and some adjustment will be made to what is often referred to as the statutory ratio whereby the non-parole period is 75% of the total aggregate sentence. In each case, the extent of the adjustment is considered and designed to meet the demands of the case.
In reducing the non-parole periods below 75% of the aggregate sentence, I have kept in mind that, like the total sentence and the indicative sentences, the minimum period of actual gaol time to be served by the offender must reflect the objective gravity of the criminality. I am also conscious to avoid so called "double counting" although most matters are relevant to both components of the sentence while some will be entitled to greater weight in determining the non-parole period.

[33]

Statutory guideposts and comparable cases

I have earlier referred to both the maximum penalties which apply to all of the offenders, and the standard non-parole periods which apply to Mr Karise and Mr Diallo. Each represents an important statutory guidepost. The former must be kept in mind from beginning to end of the sentencing process although the maximum penalty itself is rarely imposed and is reserved for the worst cases and for offenders with little by way of mitigation. None of the offences and none of these offenders come close to fitting those descriptions. The High Court explained in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 the way in which the standard non-parole period is to used in sentencing.
The parties provided me with various tables, statistics and summaries of past sentencing cases said to be comparable and I also reviewed tables that are available on the NSW Public Defenders' web-site. Each of those resources was useful and I am grateful to counsel for their diligence. However, I must treat the survey of these cases with appropriate circumspection. Results in past cases provide a guide as to what has happened in other cases but they do not establish "a range" within which the sentences to be imposed on a particular offender, or group of offenders, must fall. The observations of Simpson J (as her Honour then was) in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 are important and have been endorsed by the High Court: [18] "303 A history of sentencing can establish a range of sentences that have in fact been imposed. Such a history does not establish that that range is the correct range, nor that either the upper or the lower limit is the correct upper and lower limit. Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts. 304 But it would be a mistake to regard an established range as fixing the boundaries within which future judges must, or even ought, to sentence. To take that attitude would be, de facto, to substitute judicial selection of sentences in individual cases for the boundaries of sentencing for a particular offence laid down by Parliament. In this case, that range is from 0 to 25 years. Of course, it is well established that the maximum sentence is reserved for the most serious cases. It is equally well established that it would be an extraordinary proposition that a person convicted of an offence of importing prohibited drugs would escape any custodial penalty. The point I am making is that the ranges of sentences actually imposed, while illuminating, are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence. But it is only by examination of the whole of the circumstances that have given rise to the sentence that 'unifying principles' may be discerned: Wong and Leung, at [59]. 305 In the end, the sentencing discretion is individual: it must be exercised by the individual judge, in respect of the individual offender."

[34]

Indicative sentences

I will now inform the offenders and those present or listening online of the aggregate sentences that will be imposed after nominating the indicative sentences on each count. In the case of the adult offenders, I will also indicate the putative non-parole periods in accordance with s 54B(4) of the Sentencing Act. I will then formally impose the sentences on each offender.

[35]

In the case of AD, following the application of a 25% sentencing discount for counts 1 and 5, I indicate the following sentences for the purpose of s 53A(2)(b):

Count 1 - 6 years.
Count 2 - 5 years.
Count 5 - 3 years.

There will be an aggregate sentence of 8 years with a non-parole period of 5 years. I have found special circumstances based on AD's youth, recent improvements in his response to counselling and the like, but mainly to ensure he has a lengthy period of supervised parole on release.

[36]

Panashe Karise

In Mr Karise's case, following the application of the 25% discount for counts 1 and 5, the indicative sentences are:

Count 1 - 4½ years.
Count 2 - 8 years with a non-parole period of 6 years.
Count 5 - 3 years and 9 months with a non-parole period of 2 years and 9 months.

There will be an aggregate sentence of 10 years with a non-parole period of 7½ years. I have not found special circumstances in Mr Karise's case.

[37]

Ibrahima Diallo

In Mr Diallo's case, following application of the 25% discount on count 1, the indicative sentences are:

Count 1 - 3 years and 9 months.
Count 2 - 6 years with a non-parole period of 3 years and 9 months.
Count 5 - 3 years with a non-parole period of 2 years.

There will be an aggregate sentence of 7½ years with a non-parole period of 5 years. I have found special circumstances based on Mr Diallo's progress to this point, his psychological needs arising out a childhood of dysfunction and deprivation, and the desirability of him having assistance when he is released to parole to foster his ongoing rehabilitation. The adjustment to the non-parole period is relatively small and the 2 years and 6 months he will have on parole should be sufficient to foster his re-integration into the community.

[38]

In AG's case, following the application of the 25% discount on count 1, the indicative sentences are:

Count 1 - 3 years.
Count 2 - 4½ years.
Count 3 - 2 years.

There will be an aggregate sentence of 6½ years with a non-parole period of 4 years. I have found special circumstances based on the desirability for AG to continue his excellent progress towards rehabilitation. I record that my intention is to impose the most lenient sentence that I could, consistent with the need not to infringe the other purposes of punishment and the need to impose a sentence and minimum period of incarceration which are proportionate to the gravity of the offending.

[39]

In YA's case, following the application of the 25% discount on count 1 and the 5% discounts on counts 2 and 3, the indicative sentences are:

Count 1 - 3 years and 9 months.
Count 2 - 4 years and 9 months.
Count 3 - 2 years and 4 months.

The aggregate sentence will be 6 years and 9 months with a non-parole period of 4 year and 3 months. Again, there is a relatively small adjustment for special circumstances. The finding is based on YA's progress towards rehabilitation, the possibility his time in custody will be more onerous and the desirability that he have assistance on re-entering the community.

[40]

Expression of gratitude to the lawyers

This case has occupied a great deal of court time and has been litigated by the parties seriously and with diligence. I have received great assistance from counsel and I have observed from a little distance the work of their instructing solicitors. It would be remiss of me to not express my sincere gratitude for the assistance I have received from all solicitors and barristers involved in the case from the first mention back in May until yesterday's final skirmishes.

[41]

Formal orders and directions

I now turn formally to impose sentence on each of the offenders.
I am required to advise each one of you that the Crimes (High Risk Offenders) Act 2006 (NSW) applies to you and to the crimes for which you are about to be sentenced. This means at the end of your sentence or parole period you may be subject to orders for continuing detention or extended supervision. I direct your legal representatives to explain the possible implications of that Act to you.
AD, for the unlawful killing of Oliver Coleman, the attempted murder of EO and the wounding of EC with intent to inflict grievous bodily harm on 1 September 2021, you are convicted and sentenced as follows: 1. You are sentenced to an aggregate sentence of 8 years commencing on 9 February 2022 and expiring on 8 February 2030. 2. There will be a single non-parole period of 5 years commencing on 9 February 2022 and expiring on 8 February 2027. 3. Pursuant to ss 19(1) and 19(4) of the Children (Criminal Proceedings) Act 1987 (NSW), I direct that the sentence be served as a juvenile offender up until the offender attains the age of 21. 4. The offences listed on the certificate under s 166 of the Criminal Procedure Act 1986 (NSW), sequence numbers H86926262/4, H86926262/5, H86926262/6, H86926262/7, H86926262/8 are withdrawn and dismissed.
Panashe Karise, for the unlawful killing of Oliver Coleman, the attempted murder of EO and the wounding of EC with intent to inflict grievous bodily harm on 1 September 2021, you are convicted and sentenced as follows: 1. You are sentenced to an aggregate sentence of 10 years commencing on 1 November 2022 and expiring on 31 October 2032. 2. There will be a single non-parole period of 7½ years commencing on 1 November 2022 and expiring on 30 April 2030. 3. The offences listed on the certificate under s 166 of the Criminal Procedure Act 1986 (NSW), sequence numbers H87948308/4, H87948308/5, H87948308/6, H82751236/1 and H82751236/2 are withdrawn and dismissed.
Panashe Karise, for the four related traffic offences on 1 September 2021, you are convicted and sentenced as follows: 1. For not disclosing the identity of a driver/passenger, you are convicted with no other penalty under s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW). 2. For driving a motor vehicle while your licence was suspended, you are convicted with no other penalty under s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW). You are also disqualified from driving for a period of 12 months from the date you are admitted to parole or, if not so admitted, from the date of your release from custody. 3. For using an unregistered registrable Class A motor vehicle on the road, you are convicted with no other penalty under s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW). 4. For using an uninsured motor vehicle, you are convicted with no other penalty under s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW).

[42]

Endnotes

R v Basha (1989) 39 A Crim R 337, and see R v Diallo & Ors (No 1) [2024] NSWSC 852, R v Diallo & Ors (No 2) [2024] NSWSC 853, R v Diallo & Ors (No 3) [2024] NSWSC 877, R v Diallo & Ors (No 4) [2024] NSWSC 882, R v Diallo & Ors (No 5) [2024] NSWSC 914, R v Diallo & Ors (No 6) [2024] NSWSC 917 and R v Diallo & Ors (No 7) [2024] NSWSC 978.
The reasons for the discharge of the second juror is explained in R v Diallo & Ors (No 9) [2024] NSWSC 1084.
R v YA [2024] NSWSC 1445.
Because YA's sentencing hearing was heard separately, Mr Coleman read his victim impact statement twice.
Again, this turns on whether the jury was considering the case through the lens of basic joint criminal enterprise or extended joint criminal enterprise.
To borrow from the Prosecutor's written submission: "He was obviously excited and dismissive of the martial prowess of the offenders. He was soon to learn otherwise."
On Monday this week, after appearing in the sentencing hearing a few weeks earlier, counsel was sworn in as a Judge of the District Court.
R v Diallo & Ors (No 2) [2024] NSWSC 853.
R v Diallo & Ors (No 5) [2024] NSWCCA 914.
R v Diallo & Ors (No 15) [2024] NSWSC 1114.
R v Diallo & Ors (No 14) [2024] NSWSC 1101.
There was evidence of this in AG's case.
Children (Criminal Proceedings) Act 1987 (NSW), s 33(1B).
In the limited time available, no formal diagnosis of depression and PTSD was made although there were clearly symptoms consistent with those conditions.
A "serious children's indictable offence" includes homicide and offences carrying a maximum sentence of 25 years: Children (Criminal Proceedings) Act 1987 (NSW), s 3.
AD written submissions, paragraph 83 relying on the report of Ms Hawil at [74]-[75]; AG written submissions, paragraphs 12-15; YA written submissions, paragraphs 58-60.
AG written submissions, paragraph 15.
See Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [54] and Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2 at [41]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 December 2024

h) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156 Ghamraoui v R [2009] NSWCCA 111 Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528 Lloyd v R [2022] NSWCCA 18 Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 Newburn v R [2022] NSWCCA 139 PG v R [2017] NSWCCA 179; (2017) 268 A Crim R 61 Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 R v Amati [2019] NSWCCA 193; (2019) 279 A Crim R 73 R v Basha (1989) 39 A Crim R 337 R v Borja [2024] NSWSC 44 R v Butler [2024] NSWCCA 133 R v Da-Pra; Da-Pra v R [2014] NSWCCA 211 R v Diallo & Ors (No 1) [2024] NSWSC 852 R v Diallo & Ors (No 14) [2024] NSWSC 1101 R v Diallo & Ors (No 15) [2024] NSWSC 1114 R v Diallo & Ors (No 2) [2024] NSWSC 853 R v Diallo & Ors (No 3) [2024] NSWSC 877 R v Diallo & Ors (No 4) [2024] NSWSC 882 R v Diallo & Ors (No 5) [2024] NSWSC 914 R v Diallo & Ors (No 6) [2024] NSWSC 917 R v Diallo & Ors (No 7) [2024] NSWSC 978 R v Diallo & Ors (No 9) [2024] NSWSC 1084 R v Doan [2003] NSWSC 345 R v Donald William Reeves [2017] NSWSC 813 R v Eaton [2023] NSWCCA 125 R v James Henry Sargeant (1974) 60 Cr App R 74 R v Jay William Cook [2012] NSWSC 480 R v JM (sentence) [2024] NSWSC 1345 R v Lattouf (Court of Criminal Appeal (NSW), 12 December 1996, unrep) R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159 R v Millwood [2012] NSWCCA 2 R v MR; JB and CS (young persons) (No 5) [2024] NSWSC 912 R v Quach [2002] NSWCCA 173 R v Quinlin [2021] NSWCCA 284; (2021) 293 A Crim R 253 R v Qutami [2001] NSWCCA 353 R v Smith [2012] NSWSC 38 R v Stanley (No 2) [2023] NSWSC 74 R v Thew (Court of Criminal Appeal (NSW), 25 August 1998, unrep) R v YA [2024] NSWSC 1445 R v Zegura [2006] NSWCCA 230 Shine v R [2016] NSWCCA 149; (2016) 260 A Crim R 534 Smith v R [2015] NSWCCA 193 Tepania v R [2018] NSWCCA 247; (2018) 275 A Crim R 233 The Queen v Osenkowksi (1982) 30 SASR 212; (1982) 5 A Crim R 394 TM v R [2023] NSWCCA 185 Vaughan v R [2020] NSWCCA 3 Texts Cited: N/A Category: Principal judgment Parties: Rex (Prosecution) Ibrahima Diallo (Defendant) AG (Defendant) YA (Defendant) AD (Defendant) Panashe Morgan Ryan Karise (Defendant) Representation: Counsel: E Balodis (Rex) R Wilson SC (Diallo) M Avenell SC (AG) W Terracini SC KC and P Kondich (YA) B Robinson (AD) M Smith (Karise)

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (42 paragraphs)

Parties

Legislation Cited (7)

Cases Cited (65)