THE APPLICATION BY THE OFFENDER DS FOR A PROVISIONAL SENTENCE
Counsel for DS made an application for the imposition of a provisional sentence pursuant to s 60B of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Act). At the conclusion of the hearing I rejected that application and indicated that the reasons for reaching that decision would be incorporated in my judgment. Those reasons now follow.
Section 60B of the Sentencing Act is in the following terms:
60B Power to impose provisional sentence
(1) A court that imposes a sentence on an offender for the offence of murder may impose a sentence for that offence as a provisional sentence if--
(a) the offender was less than 16 years of age when the offence was committed, and
(b) the offender is less than 18 years of age when the provisional sentence is imposed, and
(c) the sentence proposed to be imposed for the offence is or includes a term of imprisonment, and
(d) the court is of the opinion that it is not appropriate to impose an ordinary sentence on the offender because the information presently available does not permit a satisfactory assessment of whether the offender has or is likely to develop a serious personality or psychiatric disorder, or a serious cognitive impairment, such that the court cannot satisfactorily assess either or both of the following matters--
(i) whether the offender is likely to re-offend,
(ii) the offender's prospects of rehabilitation.
(2) A court may impose a sentence as a provisional sentence of its own motion or on application of a party to the proceedings.
(3) A reference in this Division to a sentence for the offence of murder includes a reference to an aggregate sentence for the offence of murder and for one or more other offences.
In the present case, had I been otherwise minded to accede to the application, each of the provisions of s 60B(1)(a),(b) and (c) would have been engaged. The issue is whether the requirements of s 60B(1)(d) are met.
The term "serious cognitive impairment" which appears in s 60B(1)(d) is not defined in the Sentencing Act. However, the term "cognitive impairment" is defined in s 32(6) of the Mental Health (Forensic Provisions) Act 1990 (NSW) (the MHA) as follows:
32 Persons suffering from mental illness or condition or cognitive impairment
…
(6) In this section:
"cognitive impairment" means ongoing impairment of a person's comprehension, reasoning, adaptive functioning, judgment, learning or memory that materially affects the person's ability to function in daily life and is the result of damage to, or dysfunction, developmental delay or deterioration of, the person's brain or mind, and includes (without limitation) any of the following:
(a) intellectual disability,
(b) borderline intellectual functioning,
(c) dementia,
(d) acquired brain injury,
(e) drug or alcohol related brain damage, including foetal alcohol spectrum disorder,
(f) autism spectrum disorder.
In order to form the opinion that it is not appropriate to impose an ordinary sentence on the offender because of the matters set out in s60B(1)(d), the court must firstly conclude that the information presently available does not permit a satisfactory assessment to be made of whether the offender has, or is likely to develop, a serious personality or psychiatric disorder, or a serious cognitive impairment. Various aspects of the medical evidence touch on this issue.
Dr Milic did not diagnose DS as suffering from any mental health disorder, including depression. He concluded that the offender's responses to questions posed in the course of a mental health assessment indicated that he suffered from a depressed and submissive personality style. [20]
Like Dr Milic, Ms Lucas concluded that the offender did not present with a diagnosable psychological disorder or mental illness. [21] She also found that the offender's description of his general functioning, combined with results of his IQ assessment, did not indicate the presence of any developmental intellectual disability. [22] Significantly however, Ms Lucas specifically tested the level of the offender's cognitive ability. [23] She concluded that the offender had a full score IQ of 79, stating: [24]
This would place him in the Borderline descriptive category. His full score IQ suggested that when compared to individuals of similar age his intellectual function would fall below 92% of his peers.
She went on to say: [25]
… [The offender's] cognitive functioning is not within the range of intellectual disability. He does however experience difficulties in attention, concentration, cognitive flexibility, abstract thinking and verbal expression/understanding as compared to his same aged peers. Any substances such as cannabis or Methamphetamine taken around the time of the alleged offending would be expected to have had further negative effects on his cognitive ability.
In the course of giving evidence Ms Darragh agreed that a cognitive impairment can be serious, yet brief in time. [26] She also agreed that she did not see any obvious sign of cognitive impairment in the offender. However, she agreed that unlike Ms Lucas, she had not specifically tested for the presence of such impairment. [27]
In the absence of any definition of the term "cognitive impairment" in the Sentencing Act, it is appropriate to apply the definition set out in the MHA. Significantly, pursuant to that definition, cognitive impairment includes (inter alia) borderline intellectual functioning. The unchallenged opinion of Ms Lucas is that the offender's functioning falls at that level. The evidence of Ms Darragh that she saw no indication of such impairment was obviously qualified by her concession that she had not administered any relevant testing. For these reasons, I am satisfied that the offender suffers from a cognitive impairment. Whether that impairment is serious is a separate question.
The Macquarie Dictionary defines the word "serious" as meaning (inter alia):
Of grave or solemn disposition or character; … weighty or important.
The opinion of Ms Lucas was that the offender's borderline intellectual functioning was reflected in several factors, to the point where he was placed equal to, or above, only 4% of his same-aged peers. A borderline intellectual functioning which manifests itself in multiple ways is obviously serious. In these circumstances, the evidence supports a conclusion that DS has a serious cognitive impairment.
For all of these reasons, and in terms of the first limb of 60B(1)(d), the evidence does permit a satisfactory assessment of whether the offender has, or is likely to develop, a serious cognitive impairment. That being the case, the terms of s 60B(1)(d) are not engaged. I should also say that even if the contrary conclusion were reached, the imposition of a provisional sentence would depend upon the Court being further satisfied that it was not in a position to satisfactorily assess the likelihood of re-offending, and/or the offender's prospects of rehabilitation. For the reasons I have discussed further below, [28] the evidence does permit me to make both of those assessments.
[2]
SENTENCING PRINCIPLES IN RESPECT OF YOUNG OFFENDERS
At the time of the offending, DS was 15 years and 1 month old, and DM was 16 years and 8 months old. Counsel for each offender submitted that the principles applicable to sentencing young offenders necessarily had a role to play in determining an appropriate sentence. In R v Khalid and ors I summarised those principles in the following terms: [29]
[109] The principles … cited by McClellan CJ at CL in KT v R [30] may be summarised as follows:
(i) considerations of general deterrence and principles of retribution are, in most cases, of less significance than they would be when sentencing an adult for the same offence. In recognition of the capacity for young people to reform and mould their character to conform to society's norms, considerable emphasis is placed on the need to provide an opportunity for rehabilitation (at [22]);
(ii) the law recognises the potential for the cognitive, emotional and/or psychological immaturity of a young person to contribute to their breach of the law. Accordingly, allowance will be made for an offender's youth and not just their biological age (at [23]);
(iii) where the immaturity of the offender is a significant factor in the commission of the offence, the criminality involved will be less than if the same offence was committed by an adult (at [23]);
(iv) although accepted to be of less significance than when sentencing adults, considerations of general deterrence and retribution cannot be completely ignored when sentencing young offenders. There remains a significant public interest in deterring antisocial conduct (at [24]);
(v) the emphasis given to rehabilitation rather than general deterrence and retribution when sentencing young offenders may be moderated when the young person has conducted him or herself in the way an adult might conduct him or herself, and has committed a crime of violence or considerable gravity (at [25]);
(vi) in determining whether a young offender has engaged in 'adult behaviour', the Court will look to various matters including the use of weapons, planning or pre-meditation, the existence of an extensive criminal history and the nature and circumstances of the offence. Where some or all of these factors are present the need for rehabilitation of the offender may be diminished by the need to protect society (at [25]);
(vii) the weight to be given to considerations relevant to a person's youth diminishes the closer the offender approaches the age of maturity. A 'child offender' of almost eighteen years of age cannot expect to be treated substantially differently from an offender who is just over eighteen years of age. However, the younger the offender, the greater the weight to be afforded to the element of youth (at [26]).
[110] In BP v R [31] Hodgson JA accepted the correctness of these principles before emphasising [32] that Courts should not be "over-ready" to discount the relevance of an offender's youth on the basis that the offender has engaged in adult behaviour or acted as an adult. In the same case Johnson J, having set out the principles in KT said [33] :
"[75] [T]he law recognises the potential for the cognitive, emotional and/or psychological immaturity of a young person to contribute to their breach of the law. The law considers youth and not just biological age. Where immaturity of an offender is a significant contributing factor to the commission of the offence, the criminality involved will be less than if the same offence was committed by an adult."
[111] In JM v R [34] Simpson J (as her Honour then was), having reviewed the authorities, said:
"[108] It seems to me that the weight of authority is that the seriousness of an offence is relevant to the emphasis that can be given to the youth of an offender. That does not mean that youth is not an important consideration; but retribution and deterrence cannot, in a case as serious as the present, give way entirely or even substantially to the interests of rehabilitation…
[112] In R v Tran [35] Callaway JA observed that in the case of a youthful offender, rehabilitation is usually far more important than general deterrence. At the same time, his Honour emphasised that there are cases where just punishment, general deterrence, and other sentencing objectives carry at least equal importance. In Azzopardi v R [36] it was observed that whilst, as the level of seriousness of the criminality increases there will be a corresponding reduction in the mitigatory effect of an offender's youth, it is only in the circumstances of the gravest criminal offending, and where there is no realistic prospect of rehabilitation, that the mitigatory consideration of youth is viewed as being all but extinguished. More recently in HJ v R [37] Garling J (with whom Hoeben CJ at CL and R S Hulme AJ agreed) observed:
"[56] It is undoubted that the youth of an offender is a relevant factor to be considered in assessing what sentence ought be imposed. The Court makes an allowance for the youth of the offender because immaturity is usually involved. Where that immaturity is a significant contributing factor to an offence, then it may fairly be said that the criminality involved is less than it would be in the case of an adult of more mature years: R v Hearne [2001] NSWCCA 37 at [25].
[113] Finally, DPP v MHK (A Pseudonym) [38] was a case of a 17 year old offender who had pleaded guilty to doing acts in preparation for, or planning, a terrorist act. In terms of his youth, the Court made the following relevant observations [39] :
"As the authorities, to which we have referred, make plain, while youth is relevant in determining the weight to be given to general deterrence and denunciation in the sentencing equation, its weight is diminished, quite measurably, in cases such as this, in which a youthful offender either participates in, or plans to carry out, actions of extreme violence. The protection of our society, and the upholding of its most fundamental values, necessitate that in cases such as this the sentencing considerations of general deterrence and denunciation must be given primacy above the ameliorating effect of youth."
I will return to the application of these principles when dealing with the respective subjective cases of each offender.
[3]
THE FACTS
The statement of agreed facts tendered by the Crown encompasses the entirety of the offending and is in the following terms:
1. As at April 2017, the offender DS had resided in Queanbeyan for several years.
2. The offender DM had only recently arrived in Queanbeyan. He was living with his mother at [XXX].
3. In the early afternoon of Thursday 6 April 2017, DS was with DM at [XXX]. Also present were a number of other young persons: MD, KB, DB, DN, DN, BH, TG and AF.
4. DM spoke of committing offences, such as 'break and enters', in order to obtain money to buy drugs.
5. TG, who was aged 13, placed a knife in her backpack, at DM's request.
6. At one point DM told the group he had joined 'ISIS'. He showed DB some photos on his mobile phone of an "Arab looking dude" with a human head in the background, and a number of text messages between DM and 'the Arab'.
7. At some point DM's mother told the group to leave. They walked down near the Queanbeyan River to a place they referred to as 'The Rocks', where they smoked some cannabis.
8. At about 5pm the group returned to DM's residence at [XXX]. TG and AF left and went home.
9. A discussion took place between the group in relation to stealing a bottle of alcohol from a liquor store. DM suggested a bottle shop in Oaks Estate in the Australian Capital Territory as he claimed he knew someone who worked there.
10. A short time later the group left for Oaks Estate, via downtown.
11. On the way downtown, BH saw a knife tucked into DM's pants, on the right side. DM said, "If anyone gets in my way, I'll stab them."
12. Whilst downtown, the group met up with another young person, CP.
13. On this evening Chamkaur Singh ("Singh") was working at the 'Local Liquor' store in Oaks Estate, ACT.
14. Singh was 28 years of age at the time.
15. At 7:30pm Singh closed the store for the night. After securing the premises, Singh turned and faced the direction of his vehicle, which was parked about 6 metres away. He noticed three young males standing on the other side of his vehicle. These were the offenders DM and DS, and DN.
16. DM approached Singh, who by this time was standing near his vehicle. DM was wearing a white cap and a white and green coloured handkerchief covering his face. Singh could only see his eyes and the top of his nose. DM held one hand behind his back as if he were holding something.
DM said to Singh, "Give me the cash."
Singh replied, "What are you talking about?" Singh initially thought it was a joke.
DM said, "Give me the cash, I'll shoot you motherfucker. I run for the Rebels."
Singh replied, "Everything is inside. I don't have anything."
DM said, "Give me your wallet and your phone."
As DM spoke, he was standing side on, in a fighting stance. Singh told DM he would not give him his wallet or phone.
DM then approached Singh and punched him with a closed fist to the right side of his jaw. Singh described the impact as 'forceful'.
Singh removed his mobile phone from his pocket and told DM, "I'll call the cops".
17. DM, together with DS and DN, then ran across the railway bridge where they met up with the rest of their group - consisting of MD, CP, KB, DB and DN. All of these persons were under the age of 18 years.
18. This incident was captured on CCTV.
Assault occasioning actual bodily harm upon Thomas Cameron [40]
19. At about 8pm, Thomas Cameron ("Cameron'') was sitting on a bench beside the walking path, not far from the end of Erin Street. He was drinking a 'long neck' glass bottle of VB beer. At the time it was quite dark with the area lit only by nearby street lights and walking lights.
20. Cameron was 34 years of age at the time.
21. The group of young people, which included DM and DS, walked along the pathway and encountered Cameron. They stopped near him.
22. MD approached Cameron and sat next to him on the bench. Cameron recognised her as someone he had seen regularly around town.
MD asked Cameron for a smoke.
Cameron replied, "I'll roll it."
MD asked, "Why can't I roll my own?"
One or more of the males in the group said, "Just give her a smoke."
Cameron replied, "No I will."
23. DM then approached the bench where Cameron and MD were seated. Cameron recognised DM as someone he had met twice before, through a friend.
Cameron said to DM, "G'day what's your name again?"
DM replied, "DM."
Cameron said, "Cool give me 5."
Cameron put out his hand and DM slapped it.
24. DM then began to swear at Cameron, saying, "What are you fucking doing here?" DM was standing directly in front of Cameron at the time.
DM said to Cameron, "Give me ya bottle."
Cameron replied, "Nah that's my drink."
DM said, "I'll fucking smash ya with it."
Cameron replied, "You can have just a sip."
25. DM then took the bottle from Cameron. MD continued to demand a cigarette. Cameron's attention was focused on MD. DM then struck Cameron to the side of the head with the bottle, causing the bottle to break. DM was yelling and cursing at Cameron at the time.
26. Cameron stood up and started to run in the direction of the hospital. As he did so DM shouted, "Come back and I will stab you, you're dead, get fucked."
27. Cameron ran to the hospital where he was treated for his injuries.
28. The group of young people, including DM and DS, ran from the scene, down the walking path in the direction of the centre of town. When they got to the bottom of the hill, DB said to his brother KB, "Let's go home KB." DB then said to DS, "Are you going to come with us DS?" DS replied, "Yeah." DM, who was standing nearby, said, "DS's not going anywhere, he is staying with me tonight." DM then lifted up his t-shirt revealing a black handled kitchen knife in the band of his jeans.
29. As a result of the assault Cameron received a concussion, bilateral nasal bone fracture and multiple lacerations over the right eyebrow/eyelid and face which were treated by way of steri-strips.
30. The injuries sustained by Cameron were later photographed by police.
31. The Crown accepts that neither DS, nor any other person, could have foreseen the actions of DM in assaulting Cameron.
32. The group then walked to DM's residence at [XXX].
33. A discussion took place between DM, DS and DN about attending the residence of an acquaintance of DM. When they were about to leave DM's residence, he grabbed a knife. DM asked DS to also grab a knife or a weapon. DM retrieved a wheel brace out of his shed.
Aggravated (in company) enter dwelling house with intent to steal [41]
34. At about 10:15pm on Thursday 6 April 2017, Thomas Field ("Field") was sitting in the living room of his apartment at [XXX] when he heard a knock at the door.
Field heard a voice say, "Tom, it's DM. Open the door."
Field replied, "Yeah hang on."
Field walked to the front door and opened it. DM entered the premises together with DS and DN.
35. Field was 41 years of age at the time.
36. Field previously met DM through a friend and had attended Field's premises on a regular basis.
37. Field had never met DS or DN before.
38. Once inside Field told them to take a seat and they talked for a while. DM asked for a cigarette so Field handed him his tobacco. DM started making comments that led Field to believe DM was going to rob him. Field recalls DM asking where all his stuff was. DM then produced a knife and told Field he was going to stab him. The knife was about 30cm long (including the blade and handle).
39. Field began to struggle with DM resulting in DM dropping the knife behind the couch. DM's cap also fell off his head. DM and Field then began to punch each other.
40. While he was fighting with DM, Field was hit in the face with a cross-shaped wheel brace. The Crown is unable to prove, beyond reasonable doubt, the circumstances in which that occurred, including who was responsible.
41. DM and Field continued to fight until DM, DS and DN ran from the apartment.
42. Field contacted '000' and reported the incident.
43. Police attended a short time later and established a crime scene. During a search of the premises, police located a knife. DNA testing was carried out on the knife. The testing indicated mixed profiles but identification of any profiles could not occur due to the low levels and complexity.
44. As a result of the incident Field received cuts and bruises to his mouth area, swelling to the right forearm and a laceration to the right lower leg.
45. The injuries sustained by Field were later photographed by police.
46. After leaving Field's residence, DM, DS and DN made their way to an area near a caravan park, close to the Queanbeyan River. There was discussion about attending the service station. DN told DM and DS he was not going with them and returned to DM's residence. DN left DM and DS as they crossed the 'low level bridge'.
47. DM and DS continued walking to the Caltex Service Station located on Bungendore Road, Queanbeyan East.
Murder [42]
Robbery armed with offensive weapon with wounding [43]
48. At about 11:46pm, DM and DS arrived at the Caltex Service Station.
49. The deceased, Zeeshan Akbar ("Akbar"), was standing outside the store at the time.
50. Akbar was 29 years of age at the time.
51. The following events were captured on several CCTV cameras located within the store. That footage forms part of these agreed facts.
1. Akbar used his card to allow DM and DS access to the store;
2. DM entered the store first, followed by DS;
3. DM was wearing a dark coloured jacket with a zipper down the front with a dark coloured cap;
4. DS was wearing a dark coloured hoody (with the hoody over his head);
5. DM walked down the second aisle and appeared to look at products on the shelves;
6. DS walked down the third aisle and then turned left and took up a position directly next to DM on his right;
7. Akbar stood on the mat directly in front of the sliding doors entrance. He appeared to be looking at a clip-board containing documents;
8. DS then walked away and approached the service counter and looked in the direction of the service desk;
9. DM appeared to engage the deceased in conversation. The deceased appeared to speak to DM. Akbar pointed with his pen in the direction of the service counter and motioned for DM to follow him. Akbar commenced walking in the direction of the service counter, followed closely by DM;
10. DS then walked back in the direction from where he came, turned left into the second aisle, walked along the aisle and exited behind DM;
11. As Akbar turned left in front of the service counter, DM removed a knife from the right side of his pants, moved quickly towards Akbar, and stabbed him to the right side of the back. DM placed his right arm around the neck of Akbar. DS was standing on the other side of the ice-cream freezer looking in the direction of DM and Akbar;
12. Akbar commenced to struggle with DM and moved backwards in an attempt to get away from him. DM continued to stab Akbar;
13. Akbar turned and ran towards the rear of the store;
14. DS moved through the second aisle and approached the service counter. He removed a wheel brace and a saw from his pants. He opened a small swinging door and walked behind the service counter;
15. DM continued to stab Akbar while they struggled at the rear of the store;
16. DS removed the hoody from his head and attempted to remove the cash register till closest to the door. He was unsuccessful as it remained connected to a computer by a cord. He placed the cash register till on the floor, together with the wheel brace and the saw. He then moved to the second cash register till which he also attempted to remove, but encountered the same difficulty;
17. DM ran towards the service counter and leapt up onto the service desk, and then down behind the counter. He was still holding the knife;
18. DM assisted DS to remove the cash register till from the computer;
19. DS then picked up the wheel brace and saw from the floor;
20. DM turned around and opened the cigarette cabinet. He then placed a number of packets of cigarettes into a bag;
21. DS and DM then walked around from behind the service counter and approached the entrance door. DS was carrying a cash register till;
22. DM approached Akbar who was lying on the floor. DM dipped his finger in Akbar's blood, walked to the glass window, and wrote the letter 'I' on it. He then returned to Akbar, once again dipped his finger in his blood, walked to the glass window, and wrote the letter 'S';
23. DS and DM commenced to kick the entrance door in an attempt to exit the store. DS threw the wheel brace at the door resulting in it wedging in the door. DM removed the wheel brace and commenced to hit the door with it. DS commenced to walk in the direction of the service counter. DM once again kicked the door and then used his shoulder to push it ajar. DS returned to the area of the door and they both maneuvered their bodies to fit through the gap created in the door.
52. DM and DS made their way back to DM's residence.
53. Muhammad Amjid ("Amjid"), who was a flatmate of the deceased, was due to start work at the service station at midnight. He was not aware that the deceased was rostered for the shift before his.
54. Amjid arrived at the service station at about 11:52pm and saw the deceased's car parked in the parking lot. Amjid noticed the glass door had been smashed but could not see the deceased. It was not until he got closer that he saw the deceased and a quantity of blood on the floor.
55. Amjid tried to enter the store to help but realised that the doors were locked. Amjid contacted '000' to seek assistance and was still on the phone when the first police arrived. A number of other police and ambulance personnel arrived thereafter and a crime scene was established.
56. A post mortem was conducted on 10 April 2017. Three significant wounds were located. The first to the left anterior of the chest perforating the heart. This wound was 60mm to the left of midline and was approximately 145mm deep. The second to the lower abdominal wall to the left with a partial transection of the left external iliac artery, causing heavy blood loss. The third to the upper lumbar area of the back on the right with soft tissue only and no significant structures involved. Other injuries were observed such as defensive wounds to his hands.
57. The direct cause of death was found to be the stab wounds to the chest and abdomen.
Wound with intent to cause grievous bodily harm [44]
Aggravated take and drive motor vehicle with occupant in vehicle [45]
58. At about 6:20am on Friday 7 April 2017, Sankalpa Mahatara ("Mahatara") dropped a female friend off in Southwell Place, Queanbeyan. He was driving his vehicle, a silver Ford Fairmont.
59. Mahatara was 29 years of age at the time.
60. Mahatara was driving his car when he saw DM and DS waving him down. Mahatara stopped his car and asked DM and DS if they needed a ride somewhere.
61. DM told Mahatara that they had killed someone and had held up a service station. DM also said he had bottled a homeless guy. Mahatara was confused.
62. DM was standing near the driver's side window. DS was standing near the front of the car. DS had his hoody over his head.
63. At one point DM produced a knife and showed it to Mahatara. DS was holding a wheel brace and used it to tap on the window of the car. Mahatara felt scared.
64. DM opened the car door and stabbed Mahatara with the knife to the right side of his chest under his armpit. DM said to Mahatara, "Keys bro. Give me the keys. Give me your phone too. I don't want you fuckin' calling the cops and stuff. Give me the phone." Mahatara was having difficulty breathing. He got out of the car and left the keys and his phone in the vehicle.
65. Mahatara ran to try and get help before collapsing on the ground.
66. Both DM and DS got in the car and drove away. DM drove initially, however they later swapped, and DS then drove the vehicle.
67. Mahatara was able to wave down a passing motorist who provided assistance and contacted police.
68. As a result of the incident, Mahatara received a right sided chest wall wound consistent with an entry wound caused by a penetrating assault to the right chest with a sharp object. Subsequent CT scan of his chest and abdomen revealed a small haemo-pneumothorax and a small right bronchial artery pseudoaneurysm. No other injuries to the chest or abdomen were revealed. Although he sustained minimal internal injuries, this mechanism of trauma had the potential to cause death via an injury to a major lung or heart blood vessel, as well as the heart itself.
69. Police located the vehicle travelling on the Monaro Highway. They signaled for it to stop, however it did not. A police pursuit ensued. The pursuit continued into the ACT at low speed.
70. The vehicle was ultimately stopped on the Monaro Highway in the ACT.
71. DS was located in the driver's seat wearing the same clothing in the CCTV footage from the Caltex Service Station. DM was located in the front passenger seat wearing the same clothing in the CCTV footage from the Caltex Service Station.
72. Whilst being placed under arrest DM called out "Allah Akbar. Allah Akbar. I'm going to cut your heads off. There is only one God."
73. DM continued making comments to police suggesting that Sydney was going to be blown up and that he was going to behead every police officer.
74. The motor vehicle was searched. Located inside was a cash register till from the service station. Also located was a bloodied knife and a hand held saw. Subsequent forensic analysis confirmed the blood on the knife matched the DNA profile of the deceased.
75. On 8 April 2017 the ACT Children's Court authorised the extradition of DM and DS to New South Wales.
76. DM was placed into the custody of New South Wales Police and cautioned before being taken to Queanbeyan Police Station. Whilst travelling to the Police Station DM made a number of comments including: "I'm not a murderer. I felt sorry for DS. He shouldn't get as long as me aye? I never thought I would do something like this, end up here. It's the last time I get DS to drive. Fucken idiot."
77. At the Queanbeyan Police, DM was introduced to the Custody Manager. DM subsequently exercised his right to silence and declined to be interviewed. He was later charged.
78. Whilst in the police cells DM was heard to call out, "I'm going to do 50 years. I'm a fucking murderer." He also drew the letters 'IS' in tomato sauce on the wall of the cell.
79. DS was also introduced to the Custody Manager. He also exercised his right to silence and declined to be interviewed. He was later charged.
[4]
Submissions of the Crown - The offender DS
In respect of the murder offence, the Crown acknowledged that the offender's plea of guilty had been entered on the basis of constructive murder, the foundational offence being that of robbery armed with an offensive weapon with wounding. The Crown pointed to the fact that the offender was wearing his "hoody" over his head when he entered the service station, and that he saw DM stab the victim. The Crown also pointed out that in circumstances where the offender could see that the deceased was being attacked, he removed his hoody from his head and went about committing the robbery, assisted by DM.
The Crown emphasised that the offender did not seek to deter DM from attacking the deceased, and that having observed the attack, he did not withdraw from any plan to rob the service station. However, the Crown acknowledged that there was no evidence that the offender knew of any intention on the part of DM to kill the deceased, describing his (i.e. the offender's) involvement in the deceased's murder as "passive". The Crown accepted that the overall criminality of DS was less than that of DM.
In respect of the offence of aggravated taking and driving of a motor vehicle, the Crown pointed to the fact that after Mr Mahatara had been stopped, the offender had tapped a wheel brace against the window of his vehicle. The Crown submitted that was obviously done in an attempt to frighten Mr Mahatara. The Crown also emphasised that this offence had been committed only a short time after the offender had witnessed DM kill the deceased.
The Crown also pointed to the fact that it was this offender who was driving Mr Mahatara's vehicle during the subsequent police pursuit, although the Crown again accepted that the offender had played a substantially lesser role in the commission of this offence than DM.
[5]
Submissions of the Crown - The offender DM
In terms of the offence of murder, the Crown submitted that it was obvious that the offender had intended to kill the deceased, and that such intention had been formed at some time prior to the offender entering the service station. Whilst the Crown accepted that the evidence did not support a finding that the offender was carrying the knife solely as part of a planned or premeditated attack on the deceased, it was submitted that the robbery had been planned, and had been motivated by a need for money.
The Crown submitted that it was clear from the CCTV footage that having entered the service station, the offender almost instantaneously put his arm around the neck of the deceased and stabbed him in the back. The Crown emphasised that as the deceased tried to escape, the offender followed him down to the other end of the store and stabbed him again, assisted DS to commit the robbery, and then dipped his finger into the deceased's blood and used it to write the letters "IS" on a glass window of the service station. It was submitted that the offence of murder was "a very very serious" crime which demanded severe punishment.
In terms of the wounding of Mr Mahatara, and the associated aggravated offence of taking and driving his vehicle, the Crown submitted that it was the offender who had principally engaged with Mr Mahatara, and who played the more significant role in the offending. It was submitted that the offender's stabbing of Mr Mahatara was nothing more than a completely unprovoked act of violence, which resulted in Mr Mahatara suffering significant injuries.
[6]
Submissions on behalf of DS
Counsel for DS emphasised that the offender's plea of guilty had been entered on the basis of constructive murder. Whilst accepting that the CCTV footage was obviously graphic, counsel submitted that it was clear from that footage that DS had not played any active role in the deceased's murder. It was submitted, in particular, that there was no evidence that the offender had any intention to kill, or inflict grievous bodily harm upon, the deceased, and that there was no evidence that he was aware of any such intention held by DM. .
Counsel submitted that the relevant intention on the part of the offender was an intention to participate in the robbery of the service station. Whilst counsel acknowledged that the robbery had obviously been planned to some degree, he emphasised that this was not the case in terms of any involvement of DS in the deceased's murder. It was submitted, in particular, that DS could not be held responsible for any planning in relation to DM's use of the knife which was in his possession.
In respect of the aggravated offence of taking and driving Mr Mahatara's vehicle, counsel for DS acknowledged that Mr Mahatara had been alone when he was stopped. Counsel emphasised that DS had not touched Mr Mahatara at any time. However, it was accepted that the offender had clearly intimidated Mr Mahatara, and that his conduct of tapping the wheel brace on the window must have placed Mr Mahatara in fear. Counsel also emphasised that DS had entered the vehicle after DM had threatened Mr Mahatara.
[7]
Submissions on behalf of DM
Counsel for DM accepted that it was open to conclude that the offender had acted with an intention to kill the deceased. However, he submitted that the evidence did not support a conclusion that the offender was carrying the knife as part of a planned or premeditated attack on the deceased. Counsel described DM's offending as "the tragic culmination of [the offender's] ongoing pre-occupation with violence as a means to an end".
In terms of the wounding of Mr Mahatara, counsel accepted that the offender's actions had the potential to cause death or very serious injury, to the point where Mr Mahatara could count himself fortunate to be alive. Counsel accepted that the offender's plea of guilty carried with it an acceptance that Mr Mahatara had been stabbed with an intention to cause him really serious bodily injury. However, Counsel submitted that I could not be satisfied beyond reasonable doubt that the offender had intentionally stabbed Mr Mahatara to a particularly vulnerable area of his body. It was further submitted that the evidence did not support a conclusion that the wounding was premeditated or planned.
[8]
Consideration
The entirety of the conduct of the offenders, including the conduct encompassed by the additional matters that each offender has asked me to take into account, had a number of serious consequences. It left one man murdered. It resulted in the service station where the deceased worked being robbed. It caused Mr Mahatara to be seriously injured, to the point where he was fortunate not to have lost his life. It resulted in Mr Cameron sustaining concussion along with a bilateral fracture of the nasal bones and facial lacerations. It resulted in Mr Field sustaining cuts and bruises to his mouth.
Viewed in an overall sense, the conduct of the offenders on the afternoon and evening of 6 April 2017, and on the morning of 7 April 2017, is best described as amounting to a violent and uncontrolled criminal rampage. That said, it is obviously necessary to assess the objective seriousness of each individual instance of offending. In doing so, I turn firstly to the offence of murder.
Whilst the description of the deceased's murder which is set out in the statement of agreed facts might be described as graphic, it does not properly convey the true nature of the offending. The CCTV footage of the incident, which was obtained from multiple cameras placed inside the service station supplements the agreed facts in a material way. I have viewed the entirety of that footage. It is, quite frankly, horrifying in the extreme.
The agreed facts make reference to the offender DM appearing to "engage the deceased in conversation" after which the deceased "pointed with his pen in the direction of the service counter and motioned for [DM] to follow him". [46] It is apparent from the footage that DM had enquired of the deceased about the location of a particular item or items within the service station. That this is so, is evident from the fact that the deceased motioned for DM to follow him. DM had no interest in knowing the whereabouts of anything at all. DM engaged in an act of complete subterfuge in that respect, and set up the deceased to be attacked only seconds later. I am satisfied that at least by the time of engaging in conversation with the deceased, DM had formed the intention to kill him.
As he followed the deceased to the front counter area, DM removed the knife from his pants and attacked the deceased from behind. The deceased was working by himself that evening. There was nobody who could come to his assistance. He was in a position of complete vulnerability. He was largely, if not completely, defenceless. DM's act of attacking the deceased from behind was, quite simply, an act of unmitigated cowardice.
The deceased was obviously startled by the first blow struck by DM, however the initial wound he sustained was comparatively superficial in nature. The deceased attempted to fight back, and tried to get away from DM. The injuries on the deceased's hands are indicative of the degree to which he attempted to defend himself. However, he was overpowered by DM who, in an uncontrolled and ferocious display of gratuitous violence, inflicted two further blows with the knife. One perforated the deceased's heart, the other partially transected his left external iliac artery. The extent of the immediate loss of blood brought about by these two blows is evident from the CCTV footage.
Having then assisted DS to carry out what was obviously a planned robbery motivated by a desire to obtain money to purchase drugs, [47] DM's final act, which can only be described as both macabre and callous in the extreme, was to dip his finger in the deceased's blood and draw the letters "IS" in that blood on the glass window of the service station. Along with DS, he then forced his way out of the service station, leaving the deceased to die in the aftermath of what was, in a very real sense, a cold blooded murder.
The actions of DM in writing the letters "IS" in the deceased's blood on the window, and the statements he made at the time of his arrest, necessarily raise the question of whether his actions were motivated by an adherence to some form of extremist ideology. Dr Eagle noted that the offender had initially told her that he did not intend the attack on the deceased to be an act of terrorism, before telling her that he "pretty much" did have that intention. [48] He then told her that the attack on the deceased was "not part of a terror plan", and attributed any terrorism tendencies to DS. [49]
The variations in these histories must necessarily be assessed in light of DM's mental illness which I have discussed further below. The actions of DM following his attack on the deceased, and his statements to police, are obviously disturbing. However, I am not satisfied that in acting as he did, the offender was motivated by any form of extremism. The Crown did not suggest that this was the case. However, that must not be allowed to detract from the seriousness of DM's offending which was aggravated by the complete vulnerability of the deceased. [50]
Any further observations about the objective seriousness of DM's offending in murdering the deceased would be superfluous. The offending finds itself substantially above the mid-range of objective seriousness.
As far as DS is concerned, it must be acknowledged that his plea of guilty was entered on the basis of constructive murder. That does not automatically lead to the conclusion that DS should receive a lesser sentence than would be the case if his plea had been entered on some other basis. [51] The approach to be applied in sentencing in a case of constructive murder was set out by Wood CJ at CL in R v Jacobs: [52]
Constructive murder is not to be regarded as less serious, and thereby attracting a lighter total sentence or non-parole period than that which is appropriate for other categories of murder. Just as is the case for the other categories, there are degrees of seriousness of constructive murder, and the determination of the appropriate sentence for any individual offence depends upon the nature of the offender's conduct and the part which he or she played in the events giving rise to the death.
The relevant intention of DS was to participate in the robbery. That robbery was obviously planned. DS watched the attack on the deceased unfold. As he did so, he approached the service station counter and proceeded to carry out the planned robbery.
Having observed DM attacking the deceased, who as I have pointed out was in a position of complete vulnerability, DS did not attempt, at any time, to withdraw from the planned robbery. On the contrary, he took immediate steps to carry it out. However, there is no evidence that he was aware in advance of any intention which had been formed by DM to kill the deceased, be it with the use of a knife or otherwise. It is also clear that he did not actually participate, in any way, in DM's attack on the deceased. In all of these circumstances, and whilst the objective seriousness of the deceased's murder is, as I have found, above the mid-range, the criminality of DS is substantially less than that of DM.
In terms of the offences involving Mr Mahatara the first observation to make is that such events occurred within hours of the attack on the deceased. It is evident that in waving Mr Mahatara's vehicle down, both offenders were engaging in a further act of subterfuge designed to assist them in achieving their criminal ends. Clearly, Mr Mahatara formed the impression that the offenders were in need of some assistance. Mr Mahatara acted as a concerned and responsible citizen, and stopped to assist them. He was immediately confronted by DM telling him that he and DS had "killed someone and held up a service station". DM then showed Mr Mahatara the knife that he was carrying. DS, in a further act of intimidation, tapped the wheel brace that he was holding on the window of Mr Mahatara's vehicle. It is little wonder in those circumstances that the agreed facts record that Mr Mahatara was scared.
DM then opened the door of Mr Mahatara's vehicle. In another act of senseless and gratuitous violence committed on an unsuspecting member of the public who had stopped because he thought the offenders needed help, DM stabbed him. The stab wounds, had they been inflicted in a marginally different area of the body, would have threatened Mr Mahatara's life. The plea of guilty entered by DM to the offence of wounding carries with it an admission that in stabbing Mr Mahatara, he intended to cause him really serious bodily injury. The offenders then took Mr Mahatara's vehicle and drove off.
I am satisfied in all of the circumstances that DM played a significantly greater role than DS in the commission of the offences involving Mr Mahatara. It was DM who primarily engaged with Mr Mahatara, it was DM who produced the knife, and it was DM who carried out the stabbing. DS did, however, engage in an act of intimidation in DM's company, although I acknowledge that he did not enter the vehicle until after DM.
The offending in the case of each offender is aggravated by the fact that, alone in his vehicle in the early hours of the morning, Mr Mahatara was vulnerable. I regard the offending surrounding Mr Mahatara as being at the mid-range of objective seriousness, although for the reasons set out the criminality of DM is again higher than that of DS.
[9]
The offender's background
DS was born on 8 March 2002 and is now 18 years of age. His heritage is from the Wiradjuri people. [53] He was in Year 10 at the time of his arrest and was living with his mother, [54] although he rarely attended school. [55] On one account the offender was expelled from school at one point, [56] on another account he was suspended from one school and expelled from another. [57]
The offender's father, who was incarcerated when the offender was 8 years of age, [58] passed away in 2014. The offender discovered his body. It is evident that these events had a marked effect on the offender, who was close to his late father, being the parent from whom he derives his indigenous heritage. [59] It was about this time that the offender first came into trouble with the law. [60] The offender's difficulties in the years leading up to his arrest were summarised by Ms Darragh: [61]
[The offender] has been engaging in disruptive and anti-social behaviours for the last 5 years following the death of his father, to whom he was very close with [sic]. These behaviours were likely compounded by subsequent lack of supervision and other family stressors during [the offender's] formative years.
The offender reported to Ms Lucas that he had commenced using cannabis and alcohol at the age of 12, and that he had later commenced to use MDMA and Ice. In 2016 he was involved in a foundation designed to assist with substance abuse problems but did not complete the relevant programme. [62] The offender reported to Dr Milic that he had developed a daily marijuana habit from a young age and that although he had "tried" other illicit drugs, he did not use them habitually. [63] The offender reported to Ms Thomas and Ms Bender that he had used marijuana, methamphetamines, cocaine and ecstasy from the age of 13 years. [64] Their joint report confirmed the offender's prior attendance at the foundation. [65] The obvious inconsistencies in the histories provided by the offender in respect of his drug use will be apparent. However, on any view of the evidence, he has had difficulties in that respect since entering his teenage years.
I have previously set out the results of cognitive testing administered to the offender. [66] He is clearly in the borderline range, a factor which reduces his moral culpability for the offending.
[10]
The offender's pleas of guilty
The offender's pleas of guilty were entered virtually immediately prior to the scheduled commencement of his trial. In these circumstances, I propose to allow a discount of 10%.
[11]
The offender's criminal history
The offender first came before the Children's Court in 2016 and was given the benefit of a control order in respect of an offence of aggravated break and enter and commit a serious indictable offence in company. He has other entries for offences of dishonesty, including obtaining a financial advantage by deception and larceny, being carried in a conveyance taken without the consent of the owner, having custody of a knife in a public place, destroying or damaging property, and affray. That history disentitles the offender to leniency.
[12]
Remorse
The offender told Ms Thomas and Ms Bender that his motivation for the offending was to obtain money for drugs. [67] Their report went on to state:
[The offender] is now able to identify the decisions that contributed to him committing the offence such as peer association, drug use and poor choices. He does agree that just being there makes him responsible. While he admits responsibility for his part in the offence, he also said that his co-offender is 'most responsible'.
When asked what his feelings are now about the offences, [the offender] said he is 'sad and sorry', especially about people getting hurt.
These expressions must necessarily be assessed through the prism of a person found to have borderline intellectual functioning. In circumstances where the offender has pleaded guilty to the offences, I am satisfied that his expressions of remorse are genuine. I am fortified in that view by the statements made by the offender to Ms Potts to the effect that he was disturbed that one innocent person was dead, and that another was severely injured.
[13]
The offender's prospects of rehabilitation and the likelihood of re-offending
Ms Darragh's report records that since been taken into custody, the offender has continued his education by pursuing a number of subjects including English, Mathematics and Ancient History. [68] He has received Bronze and Silver teachers' awards and his school reports generally make reference to him being focused, being respectful towards teachers and students, having healthy attitudes, and being courteous.
Although Ms Darragh noted numerous instances of the offender misbehaving in custody, there has been some significant improvement in this regard, to the point where Juvenile Justice staff have indicated that the offender is "easy to manage and pleasant" and "would do as he was asked". [69] Ms Darragh concluded: [70]
[The offender's] previous behaviour demonstrates that he is more able to manage his emotions in adaptive ways, however, can struggle at times with bigger issues. [The offender's] behaviour in the current review period suggests that he is currently struggling with making decisions and external stressors and may need more support in finding intrinsic motivation to manage his emotions. [The offender's] current case plan addresses the support and his caseworker and this author will increase support in order to assist him in gaining better outcomes.
In her report of 8 November 2019, Ms Darragh recorded that the offender was continuing his education and had received further awards. [71] His school report made reference to him being capable and having potential, but identified a need to work on his motivation and applying himself to his work. It was noted that he had engaged well during counselling and had been happy to cooperate. [72] Ms Darragh concluded: [73]
[The offender's] behaviour in the current reporting period has been very positive with [the offender] putting his developing skills into practice. This may be due to defined goals and direction and the competent use of behavioural management techniques he has been focusing on with his supports at Cobham.
In her oral evidence, Ms Darragh agreed that the offender was respectful and quiet, that he engaged well, and that he did his best to talk things through with her. [74] She also said that there were a number of rehabilitation programs available to the offender if he remained in juvenile custody which she considered would be beneficial to his prospects of rehabilitation. [75] In their joint report Ms Thomas and Ms Bender confirmed that the offender had participated in a number of recreational programs and that reports from custodial staff were all positive "stating that [the offender] has put in effort and shown growth". [76]
Quite apart from these matters, the large number of educational certificates tendered in the offender's case demonstrate that he has been using his time in custody productively, having completed modules in a wide range of academic and other subjects.
Whilst the offender's successful rehabilitation is necessarily dependent upon him continuing on his present course, his prospects in that regard appear favourable.
The offender's likelihood of reoffending is necessarily tied to the same evidence. He is obviously far less likely to lapse into reoffending when he is eventually released if he properly addresses his drug use. He has engaged in drug and alcohol counselling whilst in custody. [77] In her report of 8 November 2019 Ms Darragh stated: [78]
During the current reporting period counselling sessions with [the offender] were as needed and focused on achieving goals and problem solving potential issues. [The offender] also reflected on the skills he has used to manage stressors and was able to look at how he would like to better manage stressors in the future. [The offender] showed skills in help seeking and using his supports to help him through difficult situations. He also showed development in the management of interpersonal relationships.
During counselling [the offender] has engaged well and has been polite and happy to cooperate.
I am satisfied that if the offender maintains his current path of rehabilitation in respect of his drug use, he is far less likely to offend than might otherwise be the case.
I am satisfied on the whole of the evidence that, particularly given his youth, the offender would benefit from a longer period on parole to assist in his rehabilitation and his reintegration into the community. Accordingly, I propose to make a finding of special circumstances and will adjust the ratio between the head sentence in the non-parole period accordingly. The Crown did not oppose that course.
Finally, the evidence of Ms Darragh makes it clear that there are, as she put it, "lots of great programs" from which the offender would benefit, and which will remain available to him for such time as he remains in juvenile custody. [79]
It is obviously in the offender's interests, and in the interests of the wider community, that his rehabilitation continue in the most beneficial way. Section 19 of the Children (Criminal Proceedings) Act 1987 provides (inter alia) as follows:
Court may direct imprisonment to be served as a juvenile offender
(1) If a court sentences a person under 21 years of age to whom this Division applies to imprisonment in respect of an indictable offence, the court may, subject to this section, make an order directing that the whole or any part of the term of the sentence of imprisonment be served as a juvenile offender.
Note. The effect of such an order is that the person to whom the order relates will be committed to a detention centre (see subsection (6)). There he or she will be detained as specified in the order. In certain circumstances, he or she may subsequently be transferred to a correctional centre pursuant to an order under section 28 of the Children (Detention Centres) Act 1987.
(1A) In the case of a person of or above the age of 18 years who is serving, or has previously served, the whole or any part of a term of imprisonment in a correctional centre, such an order may not be made unless the court decides that there are special circumstances justifying detention of the person as a juvenile offender.
…
(3) A person who is sentenced to imprisonment in respect of a serious children's indictable offence is not eligible to serve a sentence of imprisonment as a juvenile offender after the person has attained the age of 18 years, unless -
(a) the sentencing court is satisfied that there are special circumstances justifying detention of the person as a juvenile offender after that age, or
(b) in the case of a sentence for which a non-parole period has been set - the non-parole period will end within 6 months after the person has attained that age, or
(c) in the case of a sentence for which a non-parole period has not been set - the term of the sentence of imprisonment will end within 6 months after the person has attained that age.
This subsection is subject to subsection (2).
(4) A finding of special circumstances for the purposes of subsection (1A) or (3) may be made on one or more of the following grounds, and not otherwise -
(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.
(4A) In particular, a finding of special circumstances may not be made simply because of the person's youth or simply because the non-parole period of the person's sentence will expire while the person is still eligible to serve the sentence as a juvenile offender.
(4B) A court that makes a finding of special circumstances must make a record of its reasons for making that finding in the particular case.
…
I am satisfied that there are special circumstances justifying the offender's detention as a juvenile offender until the age of 21. Those circumstances include his access to educational and related programs and courses of the kind to which Ms Darragh referred and which are available in juvenile custody. For these reasons I propose in due course to make an order pursuant to s 19(1).
[14]
The offender's youth
I have already set out the principles which apply to the sentencing of young offenders. [80] Bearing in mind those principles, the following observations may be made as to their application in the case of this offender. Firstly, whilst accepting that considerations of general deterrence and principles of retribution are generally of less significance in sentencing a young offender, those considerations cannot be completely ignored in a case such as the present, given the seriousness of the offending. Secondly there is no evidence in the present case that the immaturity of this offender was a significant factor in the commission of any of the offences. Thirdly, the emphasis which is given to the rehabilitation of a young offender may be moderated when the offender has conducted himself or herself in a way that an adult might. In this regard, and as I have already observed, the robbery of the service station was clearly planned and the offender has a criminal history. In the circumstances, whilst there is an obvious need for rehabilitation, that need is tempered by the need to protect society.
The offender's youth is relevant and I have taken it into account. However, it is moderated given the extreme violence which was involved in the offending.
[15]
The offender's background
DM is the eldest of eight children, the youngest of whom is aged one. His parents separated when he was 15 years of age, a circumstance which he found particularly difficult. [81] The offender reported that his father had been "in and out of custody" over a period of time, but that he is now rehabilitated and has become a positive community member and a role model for the offender, although since his arrest the offender has had little contact with him. [82]
The offender reported that his childhood and adolescence were characterised by physical violence in the family home. A history provided to Dr Eagle by the offender's mother included the following: [83]
His father was absent for eight years and had been incarcerated eight times. He was suspended and expelled from primary school for fighting and aggressive behaviours. He was removed from his mother in 2009 and placed in a foster home due to exposure to domestic violence. Severe domestic violence was reported by [the offender's] mother involving weapons. [The offender's] mother also reported that [the offender] was "bashed" by his father.
Although the importance of attending school and avoiding problems were always impressed upon him, [84] the offender reported that he attended three different public schools in his youth and was suspended and/or expelled from them for a variety of reasons including truanting, smoking and fighting. He was suspended from high school for selling drugs. Shortly after that, he was arrested for the present offending.
The offender reported to Mr Pemberton and Ms Thomas that he had experimented with both alcohol and cannabis at the age of 11, and regularly used both substances from the age of 12. He commenced methamphetamine use at the age of 14, having been introduced to that drug by an older peer group. From that point onwards drug use played a prominent role in his life. He reported that he believed that a combination of drugs and alcohol significantly increased the likelihood of him engaging in criminal behaviour. [85] The offender told Dr Nielssen that he began drinking alcohol from around the age of 15 and was drinking regularly from that time, including during the period immediately before his offending. He also told Dr Nielssen that he began smoking cannabis at around the age of fourteen, and said that he was smoking it every day. [86]
The offender reported to Mr Pemberton and Ms Thomas that he had been involved with a number of support services to try and manage his behaviour, and he had been diagnosed with Attention Deficit Hyperactivity Disorder for which he was prescribed Ritalin. [87] As an adolescent, he spent a period of time in Austinmer Forensic Hospital, [88] at which time he was diagnosed with schizophrenia, substance use disorder and conduct disorder. He was prescribed Olanzapine, which he continues to take. Staff at that forensic facility commented that the offender was "desensitised to aggressive behaviour" and had "a lack of remorse towards people he had hurt". [89]
Dr Eagle concluded that it was likely that the offender had a post traumatic condition which she described as a complex post-traumatic stress disorder. She said: [90]
Complex post-traumatic stress disorder is a condition that occurs after exposure to prolonged and repeated trauma, particularly during childhood. Although [the offender] denied exposure to domestic violence, the statements and clinical records provided refer to severe and persistent domestic violence in the home from an early age. Symptoms displayed by [the offender] that are characteristic of the condition include difficulty controlling or regulating emotions, disturbed relationships, problems trusting others, periods of losing concentration, and identity disturbance. The disorder is similar to a post-traumatic stress disorder, except instead of occurring after life-threatening trauma, it occurs after prolonged and repeated traumatic events such as long-term domestic violence and/or childhood physical or sexual abuse.
In accordance with the principles set out by the High Court in Bugmy v The Queen, [91] I have had taken into account the offender's deprived background, particularly in respect of those matters reported by the offender's mother to Dr Eagle.
[16]
The offender's mental state
Dr Nielssen confirmed the offender's history that he was diagnosed with ADHD at around the age of 11, [92] and that he could still not read or write, although he could count. [93] On a mental state examination, Dr Nielssen diagnosed: [94]
1. a mild intellectual disability;
2. schizophrenia; and
3. a substance use disorder in remission.
Dr McSwiggan took a history from the offender which was generally consistent with that previously set out. Following a neuropsychological assessment, Dr McSwiggan reported: [95]
[The offender] has a history of low to borderline intellectual functioning over the developmental period. His school support needs were prompted by Severe Conduct Disorder and his educational history shows consistently low achievement and participation. He was sent to multiple schools and achieved Year 10 qualifications in the Life Skills Curriculum in juvenile justice. He was diagnosed with ADHD. Over the last two years he has been experiencing the symptoms of Schizophrenia. The cognitive deterioration associated with this major mental illness, primarily a disorder of thought processes, is established in the literature. Compared to results from 2017, [the offender] showed some deterioration, going from borderline to extremely low cognitive functioning in areas known to be impacted by major psychotic mental illness. [The offender] would be described as suffering from Schizophrenia with associated cognitive decline on a background of Borderline Intellectual Functioning. (Emphasis in original).
Dr Hepner concluded that the offender's overall level of intellectual functioning was within the range of those having mild intellectual disability, with his basic attentional function and speed of information processing being variable, and with deficits apparent in relation to some tasks. [96] She also noted that other testing revealed significant impairment in respect of memory, reading, spelling, sentence comprehension and several aspects of frontal executive function. She concluded that the offender presented as distractible, impulsive and immature for his age. [97]
A history provided to Dr Eagle by the offender's mother confirmed the offender's diagnosis of ADHD at the age of 6. [98] Dr Eagle also reported:
[The offender's] mother reported that [the offender] referred to hearing voices about 11 months prior to the Index Offences and appeared to change in the two weeks prior to the Index Offences including becoming increasingly aggressive towards his mother.
The offender told Dr Eagle that in the course of the offending he heard voices at various times, including at the service station when a voice was saying "kill him, kill him, kill him". [99]
Dr Eagle concluded that the offender may have a mild intellectual disability. [100] More significantly however, she diagnosed the offender as suffering from schizophrenia and said: [101]
Schizophrenia is a chronic psychotic illness. The illness has been characterised by auditory hallucinations, persecutory delusions, and disorganised behaviours. Signs of the disturbance have persisted for at least six months and in particular, [the offender] has reported auditory hallucinations as early as 2015. Given the reported presence of symptoms of mood disturbance and elevated mood, increased talkativeness, increased energy and associated risk-taking behaviours, [the offender] may have a diagnosis of schizoaffective disorder. In addition to symptoms of schizophrenia, in schizoaffective disorder a major mood episode is also experienced during an uninterrupted period of illness and symptoms that meet criteria for a major mood episode are present for the majority of the total duration of the active and residual portions of the illness. There is considerable overlap between schizophrenia and schizoaffective disorder and both disorders are chronic psychotic disorders. The use of illicit substances such as stimulants (i.e. methamphetamines) can trigger and exacerbate symptoms of psychosis associated with schizophrenia and schizoaffective disorder.
Dr Eagle also concluded that although the offender had displayed behaviour which was indicative of violent radicalisation, [102] and had also displayed a preoccupation with ISIS during the period leading up to the commission of the offences, such preoccupation was not part of the offender's psychotic illness. Nonetheless, she considered that given his complex mental disorders and low level of intellectual function, he remained highly susceptible to adverse influences, particularly violent extremists.
The evidence set out above, particularly the opinion of Dr Eagle, engages the principles which apply to the sentencing of mentally ill offenders. Those principles were set out by McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa as follows: [103]
177 Where an offender is suffering from a mental illness, intellectual handicap or other mental problems the courts have developed principles to be applied when sentencing. They can be summarised in the following manner:
● Where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence;
● It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed;
● It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced;
● It may reduce or eliminate the significance of specific deterrence;
● Conversely, it may be that because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence. Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public.
The Crown accepted that it would be open to the Court to find, based on the opinions of Dr Eagle, that the offender's mental state contributed to the commission the offences in a material way. At the same time, the Crown submitted that the offender presented as a danger to the community and that in these circumstances considerations of specific deterrence loomed large and required that any sentence address the need for protection of the public.
Counsel for the offender submitted that the offender's schizophrenic condition clearly contributed to the commission of the offences and that as a consequence, the offender's moral culpability was significantly reduced. It was submitted that in these circumstances the offender was not an appropriate vehicle for general deterrence.
In light of the unchallenged evidence of Dr Eagle, I am satisfied that the offender's schizophrenic condition contributed to the commission of these offences in a material way. That reduces his moral culpability and also reduces the need for general deterrence.
[17]
The offender's pleas of guilty
The offender's pleas of guilty were entered virtually immediately prior to the scheduled commencement of his trial. In these circumstances, I propose to allow a discount of 10%.
[18]
The offender's criminal history
The offender's criminal history contained a multiplicity of entries dating back to 2015 when he was aged 14 years and 7 months. Since that time, he has been before the Court for a range of offences including resisting arrest, common assault, aggravated break and enter in company, larceny and destroying property. Despite its length, the offender's criminal history is limited, in terms of violent offending, to an offence of common assault. His history is not an aggravating factor, but is one that disentitles him to leniency.
[19]
Remorse
The letter written by the offender and tendered to the Court was in the following terms:
To the Judge and the family of the victims
I am very sorry to everyone that got hurt and their families. I understand that these are just words, but I truly mean "I'M SORRY" and I fully regret what I did.
I'm not making excuses but at this time I just want all who I have effected [sic] to know I was a child out of control and clearly was not in the right head space for thinking which cause [sic] these hurtful and horrible incidents to happen.
I know today that what I did was soo [sic] very wrong and if I could take it back in a second I would.
I understand the families at this time may not want to hearing [sic] what I saying and may not also want to accept this letter of sorry, but I hope writing this gives all victims and families involved some kind of peace of mind or closure, knowing I will be punished for this.
I honestly regret everything I did that night, and I want all to know I suffer with the guilt of what I [sic] done and caused. This affects me every day/night as I consistently think of what hurt, pain and suffering I have caused to my victims and their families.
Again, I am truly sorry.
[DM]
The practice of tendering a letter of this kind from an offender has been discouraged, and considerable caution must be exercised in relation to the acceptance of such material in the absence of sworn evidence. [104] In circumstances where the offender has not given evidence, I place little weight on the contents of the letter in assessing the offender's remorse.
Mr Pemberton and Ms Thomas recorded: [105]
[The offender] made a number of statements indicating that he took full responsibility such as "it was my fault" and "I could have said no that night". When reflecting on these offences, he places a lot of importance on his negative peer group and high levels of drug use at the time. Additionally [the offender] spoke of his own immaturity at the time, stating "I was a show off" and saying he was naive about the consequences of his offending behaviour.
In relation to the violent offences earlier in the night, [the offender] displayed reduced levels of victim empathy due to beliefs about the character of the victims that is, he suspected that one was a paedophile and another [sic] drug dealer. [The offender] spoke of his paranoid state at the time due to his involvement in drug dealing, feeling the need to carry a knife "for protection". He acknowledges that there was planning and premeditation in regards to robberies and property thefts however denies that he was planning to hurt or injure anyone. He concedes that he engaged in All or Nothing Thinking for example "if we are going to do it, make it worthwhile" and "might aswell [sic] go on with it". [The offender] was highly reluctant to go into details about the murder as he appeared to find this highly distressing but did eventually when prompted. He struggled to understand or identify his thinking at the time but referenced certain images and feelings which he recalled as highly disturbing.
[The offender] was highly remorseful for the offences however the majority of this remorse was egocentric in nature. As demonstrated by his focus was [sic] on the significant impact that these offences have had upon his life and to [sic] that of his family. He was reluctant to discuss the impact on the victims.
Two observations may be about this evidence. Firstly, and for reasons which will be self-evident, some of the comments made by the offender are highly disturbing. Secondly, the observation that the offender was "highly remorseful" for his offending is substantially qualified by the fact that his expressions of remorse were described as "egocentric in nature".
In all of these circumstances, I am not persuaded that the offender has expressed any genuine remorse, although his plea of guilty is some indication of an acceptance of responsibility.
[20]
The offender's prospects of rehabilitation and the likelihood of re-offending
The report of Mr Pemberton and Ms Thomas noted that whilst under supervision prior to his arrest, the offender did not participate in any meaningful way in the treatment programs which were offered to him, as a consequence of which he made "minimal gains" in addressing his criminal behaviour. [106] They noted that since being transferred into adult custody, the offender's behaviour had improved and that during interviews for the purposes of the preparation of their report, the offender participated positively and openly. [107] In addressing the offender's ongoing education, they noted: [108]
[The offender] commented that once he is sentenced he is excited to commence education and that he wants to complete his year 10, 11 & 12. Throughout the interviews he seemed motivated to better himself whilst in custody. [The offender] also expressed an interest in job readiness programs and courses such as obtaining his white card. He was very pleased that he was transferred to Kempsey custodial centre as this is "a working gaol". [The offender] is excited to gain employment and "keep his head down". [The offender] has no employment history and is unsure what he would like to do when released.
At face value, such statements would tend to point positively towards the offender's rehabilitation. However, that assumes that the offender remains prepared to adhere to his expressed intentions. Moreover, in circumstances where Dr Eagle diagnosed the offender as having a severe substance use disorder, [109] there is nothing in the evidence which suggests that such an issue is being addressed. That is of particular significance in circumstances where there is evidence of an expressed belief by the offender that a combination of drugs and alcohol increased the likelihood that he would act in a criminal way, and that he found amphetamines made him "a better criminal" because they made him "more alert" and "focused". [110]
The report of Mr Pemberton and Ms Thomas identified that the continued use of methamphetamines was a risk factor for further offending which should be addressed in any rehabilitation of the offender. Despite this, there is nothing to suggest that this will be part of any rehabilitation program, nor is there anything to suggest that the offender has expressed any willingness to rehabilitate himself in that respect. This is particularly significant in light of Dr Eagle's observations: [111]
The use of substances has likely exacerbated [the offender's] underlying mental disorders and have [sic] played a significant role in his offending behaviour. [The offender's] substance use has been reported to escalate over time resulting in increasing disturbances of behaviour. Periods of abstinence in custody have not resulted in any sustained control of [the offender's] substance use.
On the whole of the evidence, and in circumstances where there is no evidence as to how (if at all) the offender proposes to address a principal catalyst of his offending behaviour, his prospects of rehabilitation appear to be poor.
In terms of assessing the likelihood of re-offending, counsel for the offender, whilst accepting that the offender's criminal history did him no credit, submitted that the general nature of his previous offending was not such as would lead to a conclusion that he is likely to re-offend in the same way as he did in this case, or that he presents as a danger to the community. Insofar as the basis of that submission was limited to the offender's criminal history, I accept it.
However, there are a number of further observations of Dr Eagle which cause me considerable concern. In particular, Dr Eagle said the following: [112]
[The offender] has engaged in behaviours consistent with severe conduct disorder, with limited prosocial emotions from early childhood and specifically before the age of 15 years old. Conduct disorder involves a repetitive and persistent pattern of behaviour in which the basic rights of others or major age-appropriate societal norms or rules are violated and can include aggression towards people and animals, destruction of property, deceitfulness or theft and serious violations of rules. He has a reported history of disruptive behaviour since as early as four years old. He has continued to exhibit antisocial personality traits including persistent rule breaking and criminal offending, aggression, deceitfulness, reckless disregard for the safety of others and lack of remorse or empathy. It is possible that [the offender] has a severe personality disorder characterised by a high loading of psychopathic traits. He has been assessed as scoring 36/40 on a Psychopathy Checklist, Youth Version. A personality disorder is considered a pervasive disorder that spans developmental periods. Given [the offender's] age, his mental illness and the context of the assessment, it is preferable to defer a conclusive diagnosis of personality disorder until a longer term period of clinical observation can be undertaken of [the offender] as an adult.
[The offender] has displayed behaviours indicative of violent radicalisation. He has maintained that he was converted to Islam in custody. He displayed a preoccupation with ISIS during the period leading up to the Index Offences. He has been reported to have posted pictures of violent terrorist acts on facebook, including pictures of persons holding a human head. He was also reported to have posted pictures of a recognised Islamic State flag. He has reported being in contact with representatives of ISIS. He has stated that he was intending to fight for ISIS and made mention of being required to be a suicide bomber. His preoccupation with ISIS does not appear to be part of his psychotic illness. Nonetheless given his complex mental disorders and low level of intellectual function, he has been and remains highly susceptible to adverse influences, particularly violent extremists.
Dr Eagle has made the point that it is preferable to defer any final diagnosis of personality disorder until a longer period of clinical observation of the offender can be undertaken. That said, what is presently known is that the offender's assessment score on the psychopathy checklist is neither marginal nor intermediate. It is disturbingly high. Moreover, the unchallenged opinion of Dr Eagle is that the offender remains highly susceptible to violent extremists on account of his mental disorder and low level of functioning. Those matters support a conclusion that, at least as things presently stand, the offender is at a substantial risk of re-offending.
[21]
The offender's youth
Counsel for the offender acknowledged that considerations of retribution could not be completely ignored when sentencing a young offender. He also acknowledged that an offender's youth does not automatically mean that a lesser sentence will be imposed than that which would be imposed on an adult offender for the same offending. However, it was submitted that the offender's age remained an important factor on sentence. Counsel submitted, in particular, that the offender's conduct did not involve significant planning or reflection, or any other indicia of mature decision making. It was submitted that the offender's immaturity, and the fact that his capacity to control impulses was not fully developed, were significant contributing factors to his offending conduct.
As I have noted, DM was 16 years and 8 months old at the time of the offending. Whilst he had not attained his majority, he is not properly regarded as a "child offender". [113] There is no evidence which supports the conclusion that his immaturity was a significant factor in the commission of any of the offences. Moreover, his use of a weapon, and the planning to which I have referred, support a conclusion that he engaged in what could be described as adult behaviour. [114] In those circumstances, the emphasis given to rehabilitation rather than general deterrence and retribution is moderated, particularly in light of the views that I have reached regarding his prospects of rehabilitation. Further, the seriousness of the offending is necessarily relevant to the emphasis which can be given to an offender's youth. [115] As Callaway JA observed in Tran there may be cases where just punishment and other sentencing objectives carry importance equal to that of the rehabilitation of the youthful offender. [116] Whilst I do not suggest that the offender's youth is completely extinguished in the present case, the fact of the matter is that his offending was grave, and his behaviour adult-like. In all of these circumstances, the mitigatory effect of his youth is necessarily reduced. As Sully J said in R v Mastronardi: [117]
… [I]t is timely to make plain, yet again, that youth, - whether it is real, or merely comparative, or defined with a generous elasticity, - is not a cloak of convenience behind which, relevantly, those who deliberately engage in armed robbery can shelter from the just consequences of the conduct.
The fact that his Honour's observations were made in the context of different offending does not render them any less apt in the circumstances of the present case.
[22]
ORDERS
I have taken into account the respective Form 1 offences in each case.
In structuring the sentences to be imposed in each case, I have had regard to considerations of totality. There must, in my view, be a measure of accumulation in each case to reflect the fact that the instances of offending are separate. As I have previously indicated, I have made a finding of special circumstances in favour of DS and the statutory ratio has been adjusted accordingly. In the case of DM, no such finding has been made, but an adjustment to the statutory ratio has been brought about by the level of accumulation that I consider appropriate.
Both offenders have been in custody since 7 April 2017. All sentences imposed should be backdated to commence on that day.
[23]
The offender DS
In respect of the offender DS, I make the following orders:
1. In respect of the charge of taking and driving a motor vehicle in circumstances of aggravation, the offender is convicted.
2. In respect of that charge, the offender is sentenced to 6 years and 4 months imprisonment commencing on 7 April 2017 and expiring on 6 August 2023. I decline to set a non-parole period on the basis that there is no utility in doing so.
3. In respect of the charge of murder, the offender is convicted.
4. In respect of that charge, the offender is sentenced to imprisonment for 15 years and 4 months to date from 7 April 2020 and to expire on 6 August 2035.
5. I specify a non-parole period of 10 years and 9 months to date from 7 April 2020 and to expire on 6 January 2031.
6. The total term of imprisonment imposed is one of 18 years and 4 months imprisonment.
7. The offender will be eligible for parole on 7 January 2031 and the sentence will expire on 6 August 2035.
8. Pursuant to s 19 of the Children (Criminal Proceedings) Act 1987 (NSW) I order that the offender serve his sentence as a juvenile offender until he attains 21 years of age.
9. Pursuant to s 25C of the Crimes (High Risk Offenders) Act 2006 (NSW) I advise the offender of the existence of that Act and of its application to the offences.
[24]
The offender DM
In respect of the offender DM, I make the following orders:
1. In respect of the offence of armed robbery with wounding, the offender is convicted.
2. In respect of the offence of armed robbery with wounding, the offender is sentenced to imprisonment for 11 years and 8 months commencing on 7 April 2017 and expiring on 6 December 2028. I decline to specify a non-parole period on the basis that there is no utility in doing so.
3. In respect of the offence of taking and driving a motor vehicle in circumstances of aggravation, the offender is convicted.
4. In respect of the offence of taking and driving a motor vehicle in circumstances of aggravation, the offender is sentenced to 9 years imprisonment commencing on 7 April 2017 and expiring on 6 April 2026. I decline to specify a non-parole period on the basis that there is no utility in doing so.
5. In respect of the offence of wounding with intent to do grievous bodily harm the offender is convicted.
6. In respect of the offence of wounding with intent to do grievous bodily harm, the offender is sentenced to imprisonment for a period of 12 years and 6 months commencing on 7 April 2017 and expiring on 6 October 2029. I decline to specify a non-parole period on the basis that there is no utility in doing so.
7. In respect of the offence of murder the offender is convicted.
8. In respect of the offence of murder, the offender is sentenced to imprisonment for a period of 31 years and 6 months commencing on 7 April 2021 and expiring on 6 October 2052.
9. I specify a non-parole period of 23 years and 6 months imprisonment commencing on 7 April 2021 and expiring on 6 October 2044.
10. The total term of imprisonment is one of 35 years and 6 months commencing on 7 April 2017.
11. The offender will be eligible for parole on 7 October 2044 and his sentence will expire on 6 October 2052.
12. Pursuant to s 25C of the Crimes (High Risk Offenders) Act 2006 (NSW) I advise the offender of the existence of that Act and of its application.
[25]
Endnotes
The Crown accepted these pleas in full discharge of an Indictment containing a number of other counts.
Crimes Act 1900 (NSW) s 18(1)(a) - Count 2.
Crimes Act 1900 (NSW) s 154C(2) - Count 4.
To be taken into account in respect of Count 2.
The Crown accepted these pleas in full discharge of an Indictment containing a number of other counts.
Crimes Act 1900 (NSW) s 18(1)(a) - Count 3.
Crimes Act 1900 (NSW) s 98 - Count 4.
Crimes Act 1900 (NSW) s 33(1)(a) - Count 5.
Crimes Act 1900 (NSW) s 154C(2) - Count 6.
Both matters are to be taken into account in respect of Count 3.
Count 2 DS; Count 3 DM.
Count 4 DS; Count 6 DM.
Count 4 DM.
Count 5 DM.
Exh. DS1.
Ms Darragh also gave evidence in the sentence proceedings.
Exh. DM1.
Exh. DS2.
Exh. DM1.
At the final page of his report.
At [85].
At [92].
Commencing at [44].
At [48].
At [102].
T21.21 - T21.23 (28 February 2020).
T26.6 - T26.9 (28 February 2020).
Commencing at [68].
[2017] NSWSC 1365 at [109] - [113].
(2008) 182 A Crim R 571; [2008] NSWCCA 51 at [22] - [26].
(2010) 201 A Crim R 379; [2010] NSWCCA 159 commencing at [3].
At [6].
At [75].
(2012) 223 A Crim R 55; [2012] NSWCCA 83 at [108].
R v Elfar [2003] NSWCCA 358 at [25] per Whealy J, Ipp JA and Davidson AJ agreeing.
At pp. 6 - 7.
At p. 3.
At p. 3.
At p. 4.
At [109].
Report of Luke Pemberton and Carol Thomas at p. 5.
At [109].
At [110]-[111].
KT at [26].
KT at [25].
JM at [108].
At [14].
(2000) 111 A Crim R 306; [2000] NSWCCA 12 at [20], Grove and Simpson JJ agreeing.
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: 01 May 2020
CRIMINAL LAW - Offences - Sentence - Murder - Armed robbery with wounding - Wounding with intent to cause grievous bodily harm - Aggravated taking of a motor vehicle with occupant on board - Where the offender intended to kill the victim - Where robbery planned - Series of aggravating factors including the vulnerability of the murder victim - Where offender was 16 years of age at the time of the offending - Relevance of youth in sentencing - Consideration of the extent of the mitigatory effect of youth in cases of extreme violence - Adult like behaviour - Mitigatory impact of offender's deprived background - Where the offender did not make any genuine expressions of remorse - Where the offender suffered from a mental disorder at the time of the offending - Mitigatory impact of mental disorder on moral capability and general deterrence - Poor prospects of rehabilitation
Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW)
Crimes Act 1900 (NSW)
Crimes (High Risk Offenders) Act 2006 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Mental Health (Forensic Provisions) Act 1990 (NSW)
Cases Cited: Azzopardi v R (2011) 35 VR 43; [2011] VSCA 372
BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 159
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
DPP v MHK (A Pseudonym) (2017) 52 VR 272; [2017] VSCA 157
HJ v R [2014] NSWCCA 21
JM v R (2012) 223 A Crim R 55; [2012] NSWCCA 83
KT v R (2008) 182 A Crim R 571; [2008] NSWCCA 51
R v Elfar [2003] NSWCCA 358
R v Hearne (2001) 124 A Crim R 451; [2001] NSWCCA 37
R v Jacobs (2004) 151 A Crim R 452; [2004] NSWCCA 462
R v Khalid and ors [2017] NSWSC 1365
R v Mills [1995] NSWCCA, 3 April 1995 (unreported)
R v Tran (2002) 4 VR 457; [2002] VSCA 52
R v Mastronardi (2000) 111 A Crim R 306; [2000] NSWCCA 12
Texts Cited: Macquarie Dictionary
Category: Sentence
Parties: DS - Offender
DM - Offender
Representation: Counsel:
M Hobart SC and D Robinson - Crown
S Corish - DS
T Jones - DM