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Representation: Counsel:
A Isaacs (Crown)
S Climo (DT)
S Talbert (DA)
Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
Legal Aid NSW (DT)
First Choice Legal (DA)

File Number(s): 2023/00212723; 2023/00186716; 2024/00078296

Publication restriction: Statutory prohibition on the publication of a juvenile referred to as GH and any material that might identify them. See s 15A Children (Criminal Proceedings) Act 1987 (NSW).
Pursuant to orders made on 28 May 2026 there is to be no publication of information that can identify the persons referred to as DA and DT in this judgment or the deceased in these proceedings.

JUDGMENT

1. The offenders are to be sentenced for the murder of the deceased on 10 June 2023 at Tregear, New South Wales. They pleaded guilty in the Local Court and are entitled to a 25% discount because of those pleas. The offence of murder carries a maximum penalty of life imprisonment and a standard non-parole period of 20 years. DA is also to be sentenced for recklessly causing grievous bodily harm to an inmate at Goulburn Correctional Centre on 28 November 2023. He will also receive a 25% discount for pleading guilty to this offence in the Local Court. It has a maximum penalty of 10 years imprisonment and a standard non-parole period of four years.

2. I have previously made an order prohibiting the publication of the names of the offenders and the deceased, or anything that may identify them. Those orders were made because of the significant focus in these proceedings on sexual abuse suffered by the offenders as children, and the alleged sexual offending, including against children, and impropriety of the deceased. It is unavoidable for these matters to be clearly and openly disclosed in my reasons for sentencing these offenders. There is no capacity to obliquely refer to the offenders as having traumatic backgrounds, without revealing that they were sexually abused; yet as victims of sexual abuse, they should not be identified. Nor is it possible to take into account that which is alleged against the deceased as relevant only because it has been said against him. In the main, the allegations made by the offenders against him are only relevant if they are true. The Crown takes no issue with what has been alleged against the deceased, and I will on the balance of probabilities accept it. However the deceased has plainly not had an opportunity to respond to the allegations made against him, and the allegations have not been tested. They have not been proven as would be required for criminal misconduct, which is what some of what is alleged against him would amount to.

3. There is a statutory prohibition against the publication of anything that may identify a juvenile, GH, who was a co-accused found not guilty at trial.

Circumstances of the o****ffending

4. The circumstances of the offending are before the Court by way of agreed facts. The agreed facts were similar between the two offenders, except for different admissions made by each, admitted in their own case only. Other variations are minor. The agreed facts are detailed and I propose to refer only to the most salient aspects of them.

5. It is agreed between the parties that the deceased was subjected to a series of assaults at the hands of four people – the offenders, the adult maternal aunt of DT, SB, who has pleaded guilty to and been sentenced for manslaughter, and GH. The assaults continued over the course of four days until the deceased died as a result of blunt force head injury.

6. The offenders have accepted liability for the offence of murder on the basis of each being a party to a joint criminal enterprise with each other and GH in which they intended to and did cause grievous bodily harm to the deceased. The Crown cannot identify which of the offenders struck the fatal blow or blows.

7. The description in the agreed facts of the occurrences in a home at Tregear where DA, DT, GH and the deceased lived (“the house”) over the four days prior to the arrival of emergency services on 10 June 2023 appears, other than the sections setting out the version provided by each offender, to be substantially based on the accounts of two witnesses who visited the premises over those four days, Ms James and AG. Those two witnesses gave evidence in the judge alone trial of GH determined by me recently: R v GH (No 2) [2026] NSWSC 787. They did not then give evidence of the involvement of GH in the events in the house resembling in any way the account set out in the agreed facts in these offenders’ proceedings, and GH was found not guilty. Even in relation to the actions of these offenders, the evidence of those witnesses was meaningfully different. However the parties to these proceedings are entitled to agree upon facts for sentence and I am bound to act on the evidence in these proceedings, putting aside the variation in the evidence given before me at GH’s trial. The seriousness of the offending of these two offenders is increased because of the number of people they have agreed were involved in assaulting the deceased.

8. At the time of the offence, DA and GH were in a relationship. GH was aged 16 years, DA 18 years and 3 months and DT 19 years and 1 month. DA and DT had been very close friends since childhood. These three were living with the deceased at the house. The house was sublet to the occupants by SB. Each offender referred to her as his “Aunty”.

9. The deceased was a vulnerable person who lived with Marfan syndrome and had suffered a stroke in 2021. He was 32 years of age at his death. After the stroke, the deceased suffered from partial paralysis and limped. Following rehabilitation he continued to suffer from weakness in his left side, and his ill-health meant he suffered from mobility and vision issues.

Wednesday 7 June 2023

10. On 7 June 2023 DA walked up to the deceased and said, “What the fuck did you just say?” and punched the deceased to the face. The deceased fell to the floor and did not defend himself. GH approached the deceased and kicked him to the face. Ms James told them to stop but DT walked up to the deceased and punched him to the face a number of times.

11. At a later point DT and GH grabbed the deceased and pushed him into the dining room and both offenders and GH punched the deceased. He ended up on the ground and his face was swollen. DT grabbed the deceased from behind, placed one arm around his neck and squeezed his neck for around one minute. The deceased’s face changed colour.

12. DA and GH smashed some of the deceased’s possessions then repeatedly said to him “What did you say, just say it, don’t lie”. DA threatened to punch the deceased in the face if he did not “say it”. GH said, “Did you just say you want to rape me?”, which the deceased denied. GH and DA continued to accuse the deceased of lying. DT punched the deceased to the face.

Thursday 8 June 2023

13. During the afternoon of 8 June 2023 GH and the offenders accused the deceased of saying that he wanted to rape GH. DA walked up to the deceased and punched him to the face multiple times. DT and GH joined DA in kicking and punching the deceased. His face was swollen, and he was bleeding from his nose.

14. At some point later, DT punched the deceased to the face and restrained him in a loose choke hold.

15. At a later point DA kicked the deceased to the face and directed him to enter the spare room. DT struck the deceased with his fists and knee. The deceased walked to the spare room and the offenders and GH followed him and closed the door. The deceased was heard by Ms James to be screaming and yelling from the spare room, and said “Please leave me alone, you’se have got me enough”. At some point the offenders urinated on the deceased. The two offenders and GH emerged after half an hour, leaving the deceased in the room. In DT’s proceedings it is an agreed fact that DA told Ms James that they had poured bleach on the deceased.

16. The offenders and GH continued to take turns going into the spare bedroom to assault the deceased until Ms James left the residence.

Friday 9 June 2023

17. AG, a friend of DT’s, had stayed overnight at the house in DT’s bedroom. Soon after 7 am, DA told AG that the deceased had gone into the bedroom he shared with GH. DA pushed the deceased into the hallway, causing damage to the hallway wall.

18. Whilst the deceased lay on the ground in the hallway, DA punched him a few times to his body. The deceased’s face was swollen. Both offenders dragged the deceased into the spare bedroom and closed the door.

19. Ms James arrived at the house around mid-morning. The offenders and GH were in the loungeroom and the deceased was in the spare bedroom, wearing only shorts. His face was severely swollen, and he had bruises all over his body and face. The deceased was unresponsive.

20. The offenders and GH dragged the deceased out of the bedroom and into the bathroom. They placed him in the bath full of water with his shorts on. The deceased’s eyes were closed from swelling and he required assistance getting into the bath. He was left there for about 10 minutes. The offenders then placed him back on the mattress in the spare bedroom.

21. It is agreed in DA’s case that at some point this day he struck the deceased with a stick.

Saturday 10 June 2023

22. On the morning of 10 June 2023 Ms James returned to the house. The offenders and GH were sitting in the lounge room. She checked on the deceased, who was heavily bruised and gasping for air.

23. It is agreed in DA’s case that Ms James and DT left the residence. DT returned at about 6:30-7 pm. It is agreed in DT’s case that he was absent from the house between 8 am and 11:30 am, then leaving again soon thereafter and remaining at Ms James’ house for the afternoon, not returning until 6 pm, then leaving again until about 8:30 pm at which time he observed the deceased to be breathing “faintly”.

000 c****all

24. At 10:21 pm DA telephoned 000. In DA’s case it is agreed that he told the operator the following:

25. He found out the previous night the deceased was a paedophile, as he was standing over his girlfriend when she was sleeping.

26. He woke up, “blacked out” and “bashed him”.

27. The deceased “only just stopped breathing. He was breathing all day and he only just stopped breathing and he’s choking on his saliva” and it looked like there was “a lot of snot coming out of him”.

28. He was breathing very, very lightly, and he could do CPR, but he did not want to put his mouth on him.

29. He said there were no weapons involved but he did hit the deceased with a stick and the stick was broken.

30. He said there was no bleeding, but the deceased’s face was swollen.

31. He said “Because I got him to admit everything, and he said he’d done it four times...” and that he had hurt the deceased around 2-3 am. He said after the last hit the deceased had gone to sleep and had been snoring all day. He became unconscious around 6 am and had been sleeping all day.

Paramedic a****rrival

25. At around 10:30 pm, paramedics arrived. In DA’s case it is agreed that he told paramedics “He was hovering over my girlfriend’s bed this morning. This was the third time that this happened, and I bashed him.”

26. Paramedics located the deceased in the spare bedroom. He was wearing only shorts and laying on his left side. He was dead.

27. In DA’s case it is agreed that he told paramedics that after the incident with his girlfriend the deceased went back to his bedroom and was masturbating into underwear belonging to another child which he kept under his pillow.

Police a****rrival

28. Shortly after 10:30 pm, police also arrived at the house. The deceased had bruises and injuries to his entire body. His skin appeared yellowish, and his eye lids were purple and swollen. There was mucus coming from his nose that ran down across his moustache towards his mouth.

29. DA told the police “I did it, it was me. I bashed him” and that he called 000. He told police:

30. Around 3-3:30 am that morning, the deceased came into his bedroom and was standing over him and GH whilst they were sleeping. He thought the deceased was going to touch GH’s vagina as he saw the deceased’s hand “ready to go on top of the blanket”.

31. He pushed the deceased out into the hallway and just “blacked out”. He “snapped”, punched and kicked the deceased.

32. He used a wooden stick that broke when he hit the deceased on the leg. The offender struck the deceased around three to four times with the stick that was from the laundry cupboard. He struck the deceased once in the leg and once in the arm. He had not used anything else to hit the deceased.

33. He did not hit the deceased on the head. However, he said that the assault would have been for a while for the deceased’s face to end up the way it did, and that it was “a few good hits” but he did not know exactly how long it had gone on for.

34. Afterwards, he put the deceased in the bath. He had to help him because he was “a bit wobbly” and “dazed”. The deceased was not unconscious. He was breathing, and his eyes were open.

35. When he took the deceased out of the bath, the deceased told him that he wanted him to kill him and to put him out of his pain.

36. He was the only one involved, no one else assaulted the deceased.

37. Around 6:30 am, after the bath, he took the deceased into his bedroom and put him on the bed. The deceased was conscious and started “rattling around” with things, “grabbing cords and stuff”.

38. He left the deceased’s door open, and the deceased was grabbing cords next to his mattress and putting them near his throat, so he moved his mattress to the other room where there were no cords and nothing for him to hurt himself with.

39. He was going to take the deceased to hospital the next day after the deceased had paid his rent. He was going to tell the hospital what he had done to him.

40. After he had moved the deceased to the other room, he was snoring. The deceased was sleeping and mumbling, saying “someone is going to save me”. At about 10:30 pm, he was lying in bed with GH when he heard the deceased choking. He got up and saw the deceased choking on his phlegm. He sat the deceased up against the wall and thought he felt that the deceased still had a heartbeat. He placed the deceased in the recovery position and called for an ambulance.

41. The deceased would steal GH’s underwear for his collection. They had found a pair of his auntie’s underwear in the deceased’s room.

42. There was a burnt mobile phone that had child pornography on it.

43. DA was arrested. He showed police the wooden stick he had used to strike the deceased. He also showed police his right hand which was swollen and had a bruise around the knuckle of his middle finger. He also told police:

44. He hit the deceased four times with the stick, hard enough for it to break.

45. He mainly hit the deceased in the legs and elbow.

46. Before he hit the deceased, the deceased already had a broken elbow and something wrong with his legs. Nothing was wrong with his face and nothing else was wrong with his body.

47. He pushed the deceased into the wall and that was why there were holes in the wall. After that he hit the deceased in the legs because he wanted the deceased “to feel pain” but did not want to kill him. He was prepared to take the deceased to the “mental hospital” the next day after he got the rent money.

48. Before placing the deceased in the bath, he sat the deceased down on the ground out the front of the bathroom in the hallway and the deceased admitted wanting to touch GH’s vagina and breasts as well as having DA’s auntie’s underwear in his room.

49. He placed the deceased in the bath as the deceased smelt like urine because he had urinated on him. The deceased was in the bath for 15-20 minutes. He got him out at around 7 am.

50. The injuries to the deceased’s face were probably from his fists.

51. He punched the deceased once in the jaw the day prior because the deceased had admitted everything.

52. The deceased had been talking and breathing when he put him into his room about 7:30 am. He offered him food, a cone (of cannabis) and a coffee.

53. When he carried the deceased into the other room, the deceased was breathing heavily and there had been blood coming from his nose only. The deceased was awake and conscious at this point. He then laid down and started snoring. The offender did not think that he needed to call an ambulance at that point.

54. For the remainder of the morning, he was in the lounge room smoking cones with his girlfriend.

55. At 10:30 he heard the deceased choking on his phlegm, and he called an ambulance. He thought the deceased had stopped breathing.

56. DT was arrested. He made the following admissions to police at the house:

57. He hit the deceased one to three times, two days previously, because the deceased had his auntie’s underwear in his room and was smelling it / them;

58. He hit the deceased because he was making sexual advances towards his auntie in the hallway after she had said “stop”.

59. When he returned to the residence, the deceased was still awake but was not well and was moaning, so he said to call an ambulance.

Formal interviews of the offenders

32. The offenders were conveyed to Mt Druitt Police Station.

33. DT was interviewed by police in the early morning of Sunday 11 June 2023. He made admissions as to participating in the physical assault between lunchtime on Thursday 8 June and the evening of Friday 9 June 2023. The conduct admitted did not involve the use of a weapon. His account to police included a significant amount of blame placed on DA, who DT described as having killed the deceased. It is not necessary to recount all the detail of DT’s account regarding the alleged actions of DA, and DT’s statements that he endeavored to stop this. Relevantly, DT said the following to police during his recorded interview:

34. On Wednesday 7 June the deceased was acting weirdly, staring at GH for hours. She asked him to stop several times before DA hit him.

35. The same occurred on Thursday 8 June with the deceased also following GH around, threatening to rape her, and saying that he wanted to touch her vagina. DA was angered and DT punched the deceased four times (twice in the face and twice in the chest) after he was trying to touch his aunty and threatened to rape her. DA had punched him a few times before this.

36. On Friday 9 June he was woken at 3:00 am by DA yelling at the deceased because the deceased was in his room and had tried to jump in his bed. The deceased said “Ah, I want to rape your missus, I want to rape your missus, I want to touch her vagina. I want to touch her boobs and vagina” and “I’m lonely”. DA attacked the deceased including with the handle of a mattock and DT tried to stop him.

37. Also on Friday 9 June: the deceased took SB’s underwear and was caught sniffing it / them, and continued to talk about wanting to rape GH; DA continued to exhibit considerable violence to the deceased, leaving the deceased snoring and gasping for air; DA told him that the deceased had child pornography on his phone; and at about 8:35 pm the deceased called “Help ambulance” after which there was a loud thud and DA told him he had picked up the deceased’s head and punched him. The deceased was unconscious, and his body looked lifeless although he was breathing, snoring heavily, and gasping for air. He put the deceased in the recovery position and wanted to call the police but was scared of DA.

38. On Saturday 10 June to the extent he was in the house he saw the deceased “just snoring” and “perfectly fine”, breathing normally. He was out at various stages during the day and when he returned after dinner and checked on the deceased, he told DA to call the ambulance as the deceased was not breathing and looked like he was covered in something like chocolate.

39. At Mt Druitt Police Station DA was also formally interviewed by police in the early hours of Sunday 11 June 2023, and told them the following:

40. The day before, he had woken up at 3 am to find the deceased standing over him and GH, who had been sleeping, and the deceased was reaching his hand close to GH’s vagina. He got up, pushed the deceased into the hallway through the door and that is when the “blackout” started. The push was a charge by grabbing the deceased by the shoulder with his back causing a hole in the wall. All he remembered was getting a pole after the blackout and breaking the pole on the deceased’s leg and arm, putting him into the bath and then putting him into the room. He had placed him into the bath because he had urinated on him to make him feel “filthy”.

41. The wooden pole he hit the deceased with (previously an axe handle) was about two and a half to three inches thick, round, and about one metre long. He hit the deceased on his right knee, his right shin and left elbow, and then his knee again. In between hitting him, he paused and moved the deceased. The deceased had not said much except, “I’m sorry”. He hit him four times with the pole “pretty hard”. The pole snapped in half on the deceased’s leg. He first hit him in his knee, before hitting his shin and then arm. On the last hit, on the leg, the pole broke. The deceased said “hurry up and finish it”. After the deceased said this, he walked away because he did not want to kill him.

42. Before he had placed the deceased into the shower, the deceased admitted to: touching GH four nights in a row whilst they had been asleep, and that he had gotten inches away from touching her vagina; then masturbating and ejaculating into another child’s underwear that he kept underneath his pillow.

43. He found SB’s underwear in the deceased’s room and when he confronted the deceased about it, he started saying “I’m sorry” and ‘‘just do it”, asking him to kill him because he couldn’t live with the fact that he was a paedophile.

44. He helped the deceased out of the bath and carried him to his room. About five minutes later or less, he heard the deceased going to grab cords or rattling with something and he went to check on him in his room. The deceased had a cord next to his bed and he held it up to his neck, so the offender grabbed it and called him a “dickhead”. He sat the deceased up against the door that was in the corner room and moved the deceased’s mattress out into the spare bedroom. He emptied the whole room out, gave the deceased a pillow and blanket, and put him into the spare bedroom to sleep.

45. The deceased had been snoring and around 10:30 pm, he started choking on something. The offender got out of bed and went to check on him before calling the ambulance because the deceased was choking, and he could not see that he was breathing. The deceased’s heartbeat had been “very, very light”.

46. On Thursday 8 June, the deceased “admitted everything” to them. He punched him once that day in the mouth and told him to go to his room.

47. He punched the deceased before hitting him with the stick. After he punched him, the deceased’s face was all swollen and his eye was black.

48. On Friday 9 June they sat down and had a conversation with the deceased. He punched him once in the mouth for staring at GH and told him “If I catch you doin’ it again it’s gonna be more than one hit”. Then the deceased went into their room at 3 am on Saturday morning. He had gone to sleep around 12 am or 1:30 am and when he woke up, he saw the deceased standing over GH. He thought “He’s doing it again. He hasn’t learnt his lesson” and “snapped” straight away and pushed the deceased out of his room. He was not thinking at all.

49. The deceased admitted to having child pornography on his phone, which the deceased had thrown into a fire they had out the back a few days prior. He saw it on the deceased’s phone. The burnt phone underneath the television belonged to the deceased.

50. He thought the reason he “snapped” was because he had been raped when he was a little kid, and no one had believed him or done anything. GH had also been raped, and her family had not believed her when she tried telling the police.

51. After he had taken the deceased into his room he had heard rattling. The deceased had a lot of old music players in his room, and he always had a lot of cords, and the television plugged in. He also had soldering kits and a tool bag. He knew he was going to try to do something to himself, so he went in there. The deceased was about to put the cord up against his throat and he went in and grabbed it from him. That was when he pulled the deceased off his bed and sat him against his door and took the mattress into the spare room. He helped him everywhere he put him because he felt bad for what he had done. He agreed that he had “beaten him senseless” and that the deceased could not move on his own accord because he had broken a pole on him.

52. He sat down and said, “Mate, I’m just trying to help you. I know you’re a paedophile and all that and I know just bashed the fuck out of you, but after you pay rent to me, well rent to my aunty and what you owe us, I’ll take you to the hospital and I’ll sit down and I’ll tell them exactly what I done to you and why I done it”.

53. He threw the cord into the middle of the room before moving the deceased to where the door was. He heard him choking and then heard the deceased snoring all day. Suddenly, the deceased choked and then stopped. The deceased was conscious after he finished bashing him and put him into the room. He even heard the deceased snoring about 15-20 minutes after leaving the room.

54. He called 000 because he was alarmed by the white gooey phlegm and everything coming out of the deceased’s throat. He saw a big puddle of it on the deceased’s pillow when he went in to check on him.

55. Besides using the pole, he also kicked the deceased a couple of times to the side of his face. He thought he had kicked him around the same number of times that he had punched him.

Crime scene examination

35. Crime scene officers located: two broken pieces of a timber pole on top of the dining table; the burned remnants of a mobile phone on the shelf of the television unit in the living room; two apparent fire pit areas with burned debris in the back yard; and several pieces of a broken mobile phone nearby.

Post-mortem examination

36. A forensic post-mortem examination was undertaken upon the deceased by Dr Istvan Szentmariay who opined that the direct cause of death was “Blunt force head injury”. There were no antecedent causes or other significant factors noted as contributing to the deceased’s death.

37. External examination showed the extensive presence of blunt force injuries to the head and neck area, the torso and the upper and lower extremities (mostly contusions/bruises). Many of the larger bruises showed an associated underlying soft tissue bleed. Larger confluent bruises were observed on the back of the forearms and the back of the hands (defensive-type injuries).

38. Internal examination showed extensive blunt force head injuries and injuries to the soft tissues of anterior neck (with intact hyoid bone and thyroid cartilage).

39. CT scan examination showed subdural bleed (right side), changes due to raised intracranial pressure (herniation), and multiple acute infarctions. There were multiple acute displaced rib fractures on the left side.

Further out of court representations by offenders

40. On 3 July 2023 DT (who was on bail for assaulting the deceased) was arrested and interviewed. His answers included a number of admissions. I again do not propose to refer to the detail in which he says he observed DA assault the deceased. He told police the following:

41. He became involved in fighting the deceased on Thursday 8 June. The deceased was smelling SB’s underwear and threatened to rape her. He punched the deceased four times (twice in the face and twice in the chest), and kicked the deceased’s legs out from under him when the deceased tried to punch him.

42. Also on Thursday 8 June, after the deceased was making threats about raping SB and killing him, he ran up and grabbed the deceased and put him in a rear naked chokehold from behind. He did not put pressure into it but held him there because he was scared that the deceased would attack him. He let go when SB told him to. The deceased was conscious and went to his room.

43. There was yelling on Friday 9 June when the deceased went into DA and GH’s room and tried to “molest” GH. He was woken again at 6:00 am by DA and SB who made further allegations against the deceased.

44. The interview was stopped abruptly when DT became extremely distressed and requested a break.

45. On 11 July 2023 police attended upon DA in custody to conduct a forensic procedure. He told them amongst other things that assaults were filmed, and DT had been trying to get the deceased to admit things on video. He said he understood DT to have deleted the videos on his phone prior to police arrival.

Mobile footage of assaults

43. On 10 August 2023 police located videos of the deceased being assaulted by DT in the hallway of the house on a mobile phone of a party unrelated to the offences. DA was not in any of these videos.

44. In the first video, the deceased is depicted sitting on the ground with significant injuries and bruising to his face. GH and DT question the deceased about his sexual attraction to a child (not GH), why he had that child’s underwear under his pillow, and whether he had gone into GH’s bedroom and tried to touch her. SB asked the deceased why her underwear is inside his bedroom. When asked whether he had entered the bedroom to touch GH’s breasts or vagina, the deceased answered “vagina”. A female voice claimed that the deceased had admitted to touching the other child and masturbating over that child’s underwear.

45. In the second video, the deceased is further questioned about why he tried to touch GH, and his sexual interest towards GH and “Aunty [SB]”. GH calls the deceased “a rapist”. DT kicks the deceased in the head. When asked why he had tried to touch GH’s vagina, the deceased answered “because... being a hold off”. DT stands over the deceased and says they have had these discussions many times about GH’s age over the past two weeks. When asked how many times he tried to touch GH’s vagina, the deceased answered “four”. DT kneed the deceased twice to the head and kicked him once to the head. The deceased, who was sitting on the ground, fell over. DT kicked the deceased with his right foot to his backside area.

46. In the third video, DT confronts the deceased about trying to rape the 16-year-old “missus” of someone who is ‘‘just like his brother” inside his house. DT spits on the deceased and calls him “a piece of fucking shit”. The deceased continues to lay on the ground and slowly flaps his hands. DT instructs the deceased to ‘‘just listen”. DT says to the deceased “You tried to touch a sixteen-year-old girl’s pussy in my house. That is molestation. The same shit that happened to me. Why do you think I fucking lost my shit at you?”. DT slaps the deceased hard to the left side of his head. GH says she wants to strike the deceased a couple of times and then punches and strikes the deceased’s head at least 28 times and kicks him to the head once, saying “Rape me Motherfucker?” then “I’m not finished yet Motherfucker” whilst grabbing a large, rounded item sitting on the ground in the hallway and striking the deceased’s head with it. DT slaps the deceased one more time to the head before pushing him over by the head.

DA**’**s offence of recklessly causing grievous bodily harm

47. DA has also pleaded guilty to causing grievous bodily harm, being reckless as to causing actual bodily harm, contrary to s 35(2) of the Crimes Act 1900 (NSW). This offence was committed against another inmate at a correctional centre.

48. On 28 November 2023 the victim was standing in a line with other inmates waiting for medication. DA approached him from behind and punched the right side of his face with a closed fist, striking the victim’s jaw. The victim was treated for his injuries. He suffered from a bleeding mouth, loose teeth, an undisplaced mandibular fracture extending from the right side of the jaw through to the front and to the left, breakdown of bone tissue in his tooth and holes in bone as a result of inflammation under the root of the tooth. The victim had to have plates screwed into his jaw to correct the fractures and have two lower teeth extracted. A few months later DA was charged by police and admitted this conduct.

49. To the author of a Sentencing Assessment Report (“SAR”) DA stated he felt pressured to commit the offence to gain acceptance among fellow inmates.

The offender – DA

50. The offender’s background is set out in the report of psychologist Mr Mitchell McLean of 18 March 2026, and an affidavit sworn by his paternal grandmother EV on 18 May 2026, tendered on his behalf. Also before the Court is an undated letter of remorse handwritten by the offender, received by the solicitor with carriage of his matter on 7 May 2026. DA’s criminal and custodial history, and a SAR prepared in relation to the offence of recklessly causing grievous bodily harm, were tendered by the Crown. The consequences of childhood sexual abuse for this offender set out in Mr McLean’s report were supported by the chapter on Childhood Sexual Abuse from the Bugmy Bar Book which was also tendered in the offender’s case.

Youth

51. DA was born in February 2005 and was 18 years and 4 months old at the time of the deceased’s death. He was 18 years and 9 months old at the time of recklessly causing grievous bodily harm. He is now 21 years old.

52. Mr McLean explained a causal link between the offending and the offender’s youth in this case, in combination with his other vulnerabilities:

“…research shows that the prefrontal cortex doesn’t fully develop until one’s mid-20s. As such, his deficit in executive functioning, which appeared to add to the offending, likely stemmed from multiple factors including his trauma, ADHD, substance intoxication, and age.”

Background

53. His parents separated when he was an infant, whereupon he resided with his mother but continued to see his father on occasion throughout his formative years. DA was exposed to his mother’s alcohol abuse growing up, and it was understood by him and EV that she drank alcohol throughout the pregnancy. His father also struggled with alcohol abuse and bipolar disorder, and DA expressed feeling that he grew up without a father. He also felt neglect from his mother after his two brothers were born.

54. During school the offender experienced bullying, including physical tormenting. He was suspended from school on multiple occasions due to reactive anger issues, such as punching computers and shouting at students in class. He struggled to make friends growing up but remained close with those from his early childhood, including DT. He reported being physically aggressive as a child and teenager, mainly towards his friend group, and that his friends were also violent towards him.

55. The offender ran away from home twice at around 13 years old, reporting to Mr McLean that he did not feel wanted by his family. His mother also kicked him out of home when aged 16-17 due to his drug use. EV deposed that DA began couch surfing by posting on social media that he needed a place to stay. He briefly resided with his father, during which period he witnessed his father’s then-partner overdose on drugs where paramedics were called to revive her. He reported that he lived with his grandmother on several occasions, but that she also kicked him out for drug use. EV explained that she had arranged housing for DA with Marist 180 Youth Services, where he was evicted for drug use, and then with Link2Home. DA reported no stable accommodation for approximately two and a half years prior to the offending in June 2023.

Sexual abuse

56. DA was the victim of sexual abuse in his childhood. He was first sexually abused when aged 5 years old by his stepmother’s son aged 10-11 years old. This involved DA on multiple occasions being forced to perform oral sex on him and his friends. He disclosed further sexual abuse around the age of 6-7 years at the hands of his father’s neighbour’s adolescent son on several occasions, where he again was forced to perform oral sex.

Drug use

57. DA started using alcohol and cannabis at 13 years old, and ice towards the end of age 16. He drank alcohol frequently between the ages of 13 and 16 years, ceasing after an incident where he was hospitalised having consumed four bottles of spirits. His cannabis and ice use led to him being kicked out of home around 16-17 years old as aforementioned. He was engaged in heavy cannabis use from age 16 up until the murder, smoking 3.5 grams daily. Since commencing his relationship with GH, he had ceased smoking ice daily. DA confirmed to Mr McLean he was affected by alcohol and cannabis at the time of the murder, and Mr McLean was of the opinion that DA was substance dependant during that period, which contributed to the offending by compounding his difficulties in decision making and impulse control.

58. The offender has never been referred to or accessed alcohol and other drug treatment. He has however been taking prescribed monthly injections of buprenorphine since June 2024, reporting it helps him manage his drug cravings without experiencing negative side effects. DA denied having used ice in the eight months prior to his assessment with Mr McLean, but admitted he would take the substance if offered to him. The report of Mr McLean states that DA’s main trigger for drug relapse is being around other drug users.

Mental conditions

59. Mr McLean opined that the offender had, at both the time of offending and of assessment, the following mental health conditions:

60. Attention deficit hyperactivity disorder (“ADHD”);

61. Bipolar affective disorder;

62. Substance abuse disorder (cannabis and methylamphetamine); and

63. Post-traumatic stress disorder (“PTSD”) (or symptoms of such).

64. DA was diagnosed with ADHD in Year 4, which was treated with stimulant medication. When he was required to leave home aged 16-17, he could no longer afford his ADHD medication and increased his cannabis use to manage this condition. The possibility that he was exposed to alcohol in utero may have predisposed him to ADHD. Since being remanded, he has been taking, as prescribed, atomoxetine (a medication commonly used to treat ADHD).

65. His paediatrician had also diagnosed him with a mood disorder, which was unspecified in the medical history, but which Mr McLean considered referred to bipolar affective disorder, a diagnosis which the expert also concurred with. It was successfully managed with mood stabiliser and anti-psychotic medication. His bipolar affective disorder causes him to cycle between manic states and depressive states. In remand he has been treated with olanzapine, and although he has indicated he wishes to change medication, he is generally medication compliant. At the time of assessment with Mr McLean in mid-December 2025, DA rated his mood as on average 4 out of 10 (where 1 represented severe depression and 10 represented severe mania) and reported he had low self-esteem but was not then experiencing suicidal ideation and had no plan to die.

66. DA reported eight suicide attempts and has been hospitalised in relation to his mental health on three occasions. He was hospitalised in February 2022 after intentionally overdosing on ADHD medication, and again in March 2022 where it was suspected that he had borderline personality disorder and antisocial personality disorder. Whilst Mr McLean did not consider DA met the diagnostic threshold for those conditions, he stated he has traits thereof which overlap with the diagnoses outlined above. In late 2022 DA was also hospitalised due to experiencing persecutory delusions secondary to drug use.

67. Mr McLean considered that DA’s symptoms of PTSD possibly emerged in response to his childhood sexual abuse occurring on multiple occasions and in different contexts, as detailed above. DA’s other childhood adversity (including parental divorce and neglect) likely predisposed him or increased his vulnerability to PTSD.

68. Mr McLean was of the view that DA’s ADHD and PTSD contributed to his emotional regulation issues, which likely had a role in the offending. According to Mr McLean, DA experiences negative emotions, including anger, in a heightened manner, is poor at detecting his anger in the moment, and is slow to calm or settle, and during that period, he is at risk of acting on aggressive impulses. The deceased’s behaviour to him and GH, comments about wanting to rape GH, and his perceived paedophilia were suspected by Mr McLean to have triggered psychological distress in DA in the form of fear and anger, and:

“Further, his tolerance for distress was likely already low around this period owing to his chronic issues with hypervigilance. This means that his ability to control these negative emotions was poor, and contributed to him acting aggressively against [the deceased]”.

65. Mr McLean described the offender’s likely motivation as complex, and likely changed with each instance of violence. DA has never accessed anger management or mental health counselling in the community, and was not taking psychiatric medication during this period, which might have made it more difficult to control his anger.

66. Mr McLean also conducted the following psychometric testing with DA, and reported results as follows:

67. Adverse Childhood Experiences Questionnaire (“ACE-Q”). DA received a score of 8 out of 10, indicating Very High Adversity. This score represents exposure to multiple forms of serious adversity during childhood and is associated with the highest risk for severe and complex mental health problems. He had a score of 4 out of 5 in each the Abuse/Neglect domain and the Household Dysfunction domain, suggesting exposure to a range of direct and environmental stressors during his development.

68. Post-Traumatic Stress Disorder Checklist for DSM-5 (“PCL-5”). DA’s responses were consistent with significant PTSD symptoms. His DSM-5 symptom clusters for PTSD were: 4 symptoms present for Re-experiencing (1 required); 2 symptoms present for Avoidance (1 required); 6 symptoms present for Negative alterations in cognition and mood (2 required) and 4 symptoms present for hyper-arousal (2 required). Mr McLean reported that DA is likely to have PTSD given his responses are consistent with a wide range of significant PTSD symptoms and in particular, he is experiencing a comparatively high degree of Avoidance (where he is avoiding memories or reminders of the traumatic event).

69. Autism Spectrum Quotient (“AQ”). DA’s overall AQ score is on the 99.7th percentile when compared to the general adult population, and the 54th percentile when compared to the autistic adult population. While his score is consistent with autism, scores may be reflective of phenomena other than, or co-occurring with, autism. DA’s scores on the subscales of Communication, Attention Switching, Social Skill and Attention to Detail are consistent with autism, and his scores on the first two listed are pronounced. He may experience difficulties in conversational flow and understanding indirect communication clues (tone of voice, body language, facial expressions) contributing to misunderstandings in social exchanges; preference for predictability and routine; and challenges shifting focus quickly and adjusting to new activities and interruptions. Whilst DA disclosed having been diagnosed with mild autism, this was not contained in the medical collateral provided to Mr McLean. However features of this condition were nonetheless evident in his medical history. The findings of the clinical interview and psychometric testing were suggestive of autism, though testing using tools such as ADOS 2.0 were beyond the scope of Mr McLean’s assessment, and he recommended DA undergo further assessment.

Onerousness of custody

67. DA reported to Mr McLean that he has been victimised on several occasions in custody, his worst experience being gang assaulted by 4-5 inmates to whom he owed money.

68. Mr McLean stated in his report that a full-time custodial sentence might weigh more heavily on DA given that hyperarousal accompanying PTSD (that is, chronic hypervigilance and alertness from the activation of the body’s threat detection system) is harder to manage in a prison environment with an ongoing sense of risk. The expert considered that DA’s bipolar affective disorder might worsen in prison as bouts may emerge in response to stress (and DA is currently facing notable stress, and it being his first time in custody, has poor coping strategies for managing stress). Mr McLean considered that in the event of a depressive episode, DA is at risk of suicide and self-harm; and in the event of a manic episode, he is more likely to be victimised by drawing unwanted attention from other inmates who might harm him.

69. DA’s substance use disorders appeared to Mr McLean to be in early remission (meaning an absence of problematic drug use for over three months but less than 12 months), and Mr McLean opined “These conditions are unlikely to worsen in prison given the controlled nature of the environment and reduced access to these substances”.

Remorse

70. The offender made several admissions as to his role in the murder when speaking with 000 and the police. Mr McLean noted DA had some insight and specific remorse in relation to the impact of his actions on the deceased’s family. His report notes that DA stated to him “I feel very bad. Sometimes, I cry myself to sleep. Sometimes, I wake up screaming”, and that Justice Health records note DA feeling “disturbed” by his actions leading to the death of the deceased. In Mr McLean’s report, he states that DA occasionally has broken sleep, experiences nightmares involving the deceased, and struggles to speak the deceased’s name aloud as it makes him feel anxious and upset.

71. The author of the SAR found that:

“[DA] displayed little insight into the impact of his actions. He said he felt ‘some remorse’ but contradicted this by stating he did what he did as a result of information he had received about the victim, claiming the victim had done something terrible.”

72. In relation to DA’s insight into his offending, Mr McLean reports that:

“[DA] said that although his offending against [the deceased] was 100% his choice, he felt somewhat pressured by [GH] into engaging in the violence. He explained that [GH] used to call him a ‘pussy’ and had criticised him in the past for not standing up for her.”

73. Mr McLean also found that although DA had good insight regarding his motivations for the offending, his insight regarding the factors which disinhibited him (including his current violence risk and need for psychological treatment) was poor. In Mr McLean’s opinion “This lack of insight likely stems from his troubled background and mental disorders.”

74. DA wrote a letter to the Court expressing his apology to the family and friends of the deceased and taking responsibility for what he did. He described his progress thus far in custody in terms of remaining abstinent of drugs and rekindling his relationship with his family, as well as his future ambitions of completing TAFE courses, and being a father to his two year old son. He also reported to Mr McLean that he would like to finish his Higher School Certificate in prison and complete a university program in architecture upon release.

75. DA’s expressions of remorse are consistent with his pleas of guilty to both offences entered at the earliest opportunity in the Local Court.

Risk of reoffending and prosects of rehabilitation

76. DA has no prior criminal history, and a good custodial record, save for one custodial infringement for assault in April 2025. He will be sentenced for his serious assault against an inmate committed in 2023.

77. The author of the SAR assessed DA’s risk of reoffending as medium. Mr McLean found that DA’s violence risk is equal to that of a mid-range violent offender, based on his Violence Risk Appraisal Guide – Revised (“VRAG-R”) score of 1, and that he has several dynamic, and thus treatable, risk factors for violence. DA was assessed against the Historical, Clinical, Risk Management-20, Version 3 (“HCR-20-V3”) and the results demonstrated that his historical risk factors included traumatic experiences and violent attitudes; his recent risk factors included insight and violent ideation or intent; and his future risk factors included his living situation and personal support.

78. DA expressed to Mr McLean that he would like to bash DT if given the opportunity, as he feels “berated” (though this is likely a typographical error, meant to be “betrayed”) by him for being intimate with GH. DA believes he may be the father of GH’s two year old child, though he has concerns that DT could actually be the child’s father. His relationship with GH and the other co-offenders has ended and DA has no interest in resuming contact with them, however Mr McLean opined that this is attributed more to his belief that GH and DT were intimate, rather than the offending.

79. Mr McLean explained that the physical and sexual abuse and bullying suffered by DA at sensitive developmental ages had contributed to attitudes favourable towards the use of violence in problem solving. Justice Health records also demonstrated an attitude favourable to harming sex offenders.

80. Mr McLean further stated in his report:

“I believe it is more probable than not that [DA] will engage in future violence in the absence of intervention to manage his violence risk. His violence risk does not, however, appear to be imminent or overhanging. Although he has issues with anger and emotion regulation, these appear to have improved somewhat given his medication adherence and absence of alcohol/illicit drug use. Further, his mood appeared stable and he did not seem to be involved in conflict with some third party at present. He was experiencing violent ideation at assessment, although this was limited to [DT]. It’s possible that if he engages in violence in the future, that this will be impulsive in nature and anger based. This violence might also be severe in nature given that he has previously demonstrated capacity for serious harm.”

81. Mr McLean considered that engaging with the recommendations outlined in his report, including accessing psychological treatment, attending Narcotics Anonymous meetings and maintaining contact with EV, would have a meaningful impact on lowering his risk of violence.

The offender – DT

82. DT’s subjective case was before the Court by virtue of a number of documents tendered by both parties. On behalf of the offender, this included two reports of forensic psychiatrists, one under the hand of Dr Sam Calvin dated 17 January 2025, and one of Dr Richard Furst dated 30 April 2026; a letter written by DT and one from his father MT; and Corrective Services NSW certificates. The Crown also tendered DT’s criminal history, disclosing he has no prior criminal record, and his custodial history.

83. The report of Dr Calvin was prepared based on a videoconference interview with DT and a review of various documentation including medical records, Justice Health records and Department of Education records. Dr Calvin’s report was commissioned for the purpose of determining whether there was available a partial defence of substantial impairment under s 23A of the Crimes Act, or a defence of Not Criminally Responsible under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW). That of Dr Furst was informed by a 90 minute assessment of DT via audio-visual link, Dr Calvin’s report, and further more recent documentation, and it was prepared for the purpose of assessing DT in relation to issues relevant on sentence.

Youth

84. The offender is young. He was 19 years and 1 month of age at the time of the offending, and is now 22 years old.

Early mental health impairment, l**earning difficulties, development and schooling

85. DT has a history of learning and communication difficulties. He was diagnosed with Autism Spectrum Disorder (“ASD”) and ADHD at around 4 to 5 years of age. His ADHD symptoms continued despite treatment with stimulant medications. His intelligence as a child was assessed in early 2013, with his IQ found to be in the average to borderline range, falling in the 25th percentile on the Weschler Intelligence Scale for Children. Dr Furst opined that those disorders impaired DT’s “capacity to socialise and to learn in his childhood and teenage years”.

86. DT attended four different primary schools and two high schools until Year 11, and was homeschooled for a brief period, partly due to bullying and family relocation back and forth between Newcastle and Sydney. At school he suffered frequent physical bullying and described himself to Dr Calvin as a “punching bag” for peers. On one occasion in Year 7, he retaliated after being physically assaulted, injuring a peer, which led to his suspension. He had few friends, low self-esteem, depressive symptoms and did not fit in with peers.

87. Dr Furst expressed the opinion that DT’s background developmental disadvantage set the foundation for his subsequent social dislocation, drinking and drug abuse.

Accommodation and drug use

88. DT was forced to leave home at 15 years of age and thereafter resided in a youth refuge for an extended period. During that period in youth refuge when aged 15 to 16 years old, he began using cannabis regularly and drinking alcohol. At 17 years old he moved in with his aunt SB where he had access to cocaine, cannabis, ice and alcohol and engaged in polysubstance use for several months, until he met his partner C who he credits with helping him cease drug use. He continued consuming alcohol however, and this escalated when he was 18 years old, a time where he reported daily drinking and episodes of binge drinking. Following the breakup with his partner C when aged 19 years, he resumed cannabis, ice and LSD use, and used ketamine and heroin on and off. His drinking and drug use was continuing during the period of his offending in mid-2023.

89. Both experts reported that DT meets the criteria for Alcohol/Substance Use Disorder. In Dr Furst’s report he stated that:

“[DT] was likely using alcohol and drugs as a maladaptive means of coping with the stress of his break-up with [C] and associated depression and was probably also using alcohol and drugs as a way of coping with his complex post-traumatic stress disorder …”.

Sexual abuse

90. DT was the victim of child sexual abuse at the hands of three different perpetrators in his formative years. As reported to Dr Furst and Dr Calvin, DT experienced ongoing sexual abuse between the ages of 12 to 14 when attending the Scouts. Dr Calvin stated in his report that this traumatic event deteriorated his mental state, “led to increased anger and depressive symptoms”, and that this “period was marked by episodes of destructive behaviour, including punching walls, as he struggled to cope with overwhelming emotions”. DT was again sexually assaulted when walking home from school one day in Year 7 and suffered further sexual abuse whilst living in the youth refuge. He experienced feelings of shame and fear of reprimand, and suffered recurrent flashbacks and nightmares, which have persisted throughout his life, though lessening in frequency in recent years.

91. Dr Furst stated that DT’s persistent temperamental, social and emotional deficits were compounded by the effects of being sexually abused on multiple occasions between the ages of 12 and 15 years. He found that DT’s history of child sexual abuse likely made him more sensitive to the deceased’s sexually suggestive comments towards 16 year old GH and the issue of child abuse material found on the deceased’s phone, which appeared to trigger the offending. He stated that his disorders and the effects of earlier abuse also made him more impulsive and affected his judgement, including likely deficits in his capacity to think of alternative courses of action when the offending question was taking place in June 2023.

Other m**ental health conditions

92. DT has suffered chronic depression and anxiety, beginning in childhood and continuing into adulthood. His medical records indicate a history of panic attacks, self-harming behaviour and suicidal ideation. These conditions were maintained by a poor relationship with his mother’s de facto partner with whom she formed a relationship after separating from his father MT, which eroded his sense of security in his childhood. In his teenage years, he was prescribed antidepressants and other psychotropic medications, and saw a number of psychologists and psychiatrists. After the breakup with his partner C he experienced severe depression and attempted suicide four times over two months. DT also experienced the death of a close friend in his adolescence.

93. Both experts concurred with a diagnosis of PTSD, although Dr Furst found DT fulfilled the diagnostic criteria for the subtype of complex Post-Traumatic Stress Disorder (“C-PTSD”). According to Dr Furst, this is often seen in victims of childhood sexual abuse and is associated with the additional symptoms of difficulties with emotional regulation, self-perception and interpersonal relationships.

94. At the time of the offending DT had not yet been diagnosed with PTSD and his symptoms of mental illness were not being treated, impacting his capacity to make rational and informed decisions.

95. In his report Dr Furst also stated that DT is “prone to irritability and impulsivity and struggles to control himself when under stress”.

96. Dr Furst found that the combination of DT’s depression, drinking and drug use likely aggravated his underlying autism and ADHD, such that he was more vulnerable to the influence of other people within the house when the victim began to be bashed over the issues described in the agreed facts.

Onerousness of custody

97. Dr Furst further opined that DT’s mental health conditions would make time in custody more onerous for him. He stated in his report:

“[DT]’s history of anxiety, depression and C-PTSD places him at increased vulnerability compared to other inmates and would likely make a custodial sentence more onerous for him. Specifically, he would be more vulnerable to the effects of stress in the jail environment and/or the effects of being ‘stood over’, intimidated, threatened and/or assaulted by other more mentally robust inmates in custody. The stress of being incarcerated would probably make the risk of him relapsing into more acute phases of anxiety, depression and C-PTSD higher.”

Remorse

98. DT has expressed a degree of remorse and insight into his offending. Upon arrest he made admissions to participating in the assault upon the deceased, and also participated in three recorded interviews with police in which he made further admissions. DT stated “I feel awful for what I’ve done… I hate myself for what I did.” In his letter to the Court DT again expressed regret and apology for his actions and demonstrated a realisation of the impact of his offending on the deceased’s family.

Prospects of rehabilitation

99. DT has no prior criminal history. This is his first time in custody. DT has maintained a relatively good custodial record and has demonstrated a commitment to rehabilitation whilst in custody. He has been actively employed and is currently working as a storeman including operating a forklift. He has also undertaken a number of TAFE courses and attended domestic violence programs, and is presently participating in fortnightly psychologist counselling sessions.

100. The offender also has family support evidenced in the letter of his father MT to the Court. MT expressed that he has noticed positive changes in DT whilst in custody, and that in their conversations, DT has shown a greater level of maturity and a stronger understanding of the consequences of his behaviour.

101. Dr Furst was of the opinion that DT “regrets his actions, accepts his guilt and appears motivated to work and study in the years ahead”. He further reported that DT did not present as being antisocial or pro-criminal, and has consistently engaged in various treatments and medications. For these reasons, Dr Furst considered that DT has reasonable prospects of successful rehabilitation.

The parties**’** submissions

102. I was greatly assisted by comprehensive written and oral submissions from all parties. There was a great deal of common ground in the submissions advanced, so I will only mention some aspects that require resolution or might not seem obvious.

103. It was accepted for the offenders that the seriousness of the offending is impacted by the extended duration of the assaults, the vulnerability of the victim, the use of a weapon by DA, the commission of the offence in company and the fact that the assaults occurred in the deceased’s home. It was not accepted that the level of violence or humiliation by the offenders reaches the level of the statutory aggravating factor of “gratuitous cruelty” to increase the objective seriousness of the offending (as submitted for the Crown), although it was acknowledged that the act of urination as a single act of humiliation can be otherwise taken into account.

104. It was submitted for DA that the assaults were not planned but were successive acts of impulsive, spontaneous, and reactive violence. The Crown did not accept this as a correct characterisation of the offending.

105. It was submitted for both offenders that the objective seriousness of the offending fell below the middle of the range. The Crown eschewed placing the objective seriousness on such a notional spectrum and described the offending as grave. However, to make transparent the Crown response to this submission for the offenders, it was contended that if forced to explain the submission by reference to such a scale, the offending should be viewed as at or just above the mid-range of objective seriousness.

106. It was contended for the Crown that the expert evidence in DA’s case suggested that although he might have viewed his violence initially as needed to protect himself and GH from the deceased, he knew of the deceased’s physical handicap before the incident and likely considered him less of a threat after the initial assault. He additionally seemed motivated to punish the deceased for sexually harassing GH and for being “a paedophile”, may have been endeavouring to impress GH and may have felt the violence towards the deceased as principled or moral. It was submitted that as DA knew at the time of the offending his behaviour was illegal, and did not appear to be experiencing a manic episode (a feature of bipolar affective disorder), psychosis or some cognitive impairment which might have seriously disturbed his insight into his behaviour, it was difficult to come to a concluded view that his mental health materially contributed to the offending behaviour.

107. The Crown Prosecutor submitted that the expert opinion that DT’s psychiatric conditions of ASD, ADHD and PTSD did not significantly impair his ability to understand events, assess the rightfulness or wrongfulness of his actions or exercise control over his behaviour, undermined the offender’s case of a causal connection between his mental health impairment and his offending. These conditions did not prevent him from understanding the nature or wrongfulness of his actions, make him unaware of the nature and degree and quality of his acts, or unable to reason, with a moderate degree of sense and composure, about whether his actions would be perceived as wrong by a reasonable person.

108. It was submitted for the Crown in relation to both offenders that there was a very fine line between the Court accepting the contribution of their background of sexual abuse and mental disorders to the crime and condoning vigilantism. The Crown submitted that reduction in moral culpability as a victim of child sexual abuse does not arise in the same way here as where this background contributes to sexual offending.

109. The Crown contended that there was concern in DA’s case because he had developed attitudes that were supportive of the use of violence in problem solving and that were favourable to harming sex offenders. This was submitted to heighten the need for the sentence to protect the community from DA.

110. There were no submissions advanced that the criminality of either offender was more serious than the other, for the purposes of considerations of parity – although it was noted for DT that he was absent for an extended period of time on Saturday 10 June 2023 when the condition of the deceased may have deteriorated. It was common ground that the sentencing decision of the District Court in sentencing SB for manslaughter was not important for parity purposes. As submitted by counsel for DA:

“There is no clear difference in the role and criminality of the offender and his co-offender [DT]. Whilst the offender used a stick to hit the deceased and [DT] did not, [DT] was involved in choking the deceased on two occasions and the offender was not. Whilst the offender appears to have commenced the initial violence, [DT] was an active, continued and enthusiastic participant in the joint criminal enterprise as seen in the mobile phone footage that the offender was not a part of.

The offender [SB] provides little comparative value in any parity analysis given that she was sentenced for manslaughter and her involvement was on the facts less than that of the offender.”

111. Regarding DA’s assault in custody, the Crown confirmed that he was not a “convicted inmate of a correctional centre” for the purposes of s 56 of the Crimes (Sentencing Procedure) Act 1999 (NSW). Had that provision applied it would require the sentence for the assault in custody to be served consecutively with the sentence of imprisonment for the offence of murder, absent a direction to the contrary*.* The Crown drew my attention to the decision of the Court of Criminal Appeal in R v Jeremiah [2016] NSWCCA 241 in which consistency with the policy of the provision supported an inmate who does not fall within the ambit of the section nonetheless receiving a sentence for the offence in custody accumulated on the sentence for an offence committed in the community. Ms Talbert submitted for DA that orthodox application of the principle of totality should be applied.

Determination

112. I take into account the maximum penalty of life imprisonment, and standard non-parole period of 20 years, demonstrating in the clearest of terms Parliament’s intention in relation to the sentencing of those who commit such a serious crime.

113. The sustained nature of the offending against the deceased is an important aspect of its objective seriousness, as is the commission of the offence in company. Apart from the pre-existing physical vulnerability of the deceased, each time he was assaulted he was someone who had already been recently hurt by those participating in the joint criminal enterprise. The video recordings of DT and GH assaulting the deceased when he was obviously already severely injured, and seemingly vulnerable from a combination of that injury, fear and his physical disability, are confronting to watch. This would seem to be only a small component of the total harm inflicted upon him, in his home, where he was entitled to feel safe. Not having watched the rest of the offending does not detract from the recognition that must be given to these serious aspects of it. I accept the offending was not premeditated and not organised in a sense that would aggravate its seriousness. However the long period of time over which multiple acts of violence were perpetrated deprives the offenders of the benefit of a positive finding in mitigation that the offence was not part of a planned or organised activity. There was significant opportunity for recognising the wrong and harmful way they were treating the deceased, and dealing with the situation otherwise.

114. In circumstances where it is agreed that the offenders’ intentions were to inflict grievous bodily harm, and the above described features are so important to the objective seriousness of their offending, I am not of the view that it is appropriate to additionally find that the statutory aggravating factor of gratuitous cruelty is made out. I take into account as part of the objective seriousness of the offending the humiliation and distress that would have been caused to the deceased by the offenders urinating on him – regardless of their explanation for this – despite the fact that this was not part of the enterprise to cause him grievous bodily harm and did not cause his death.

115. I accept the submission for the Crown that this was a grave instance of the offence of murder. I do not accept the submissions for the offenders that I should find it to be below the middle of the range of seriousness, taking into account only the objective factors affecting the relative seriousness of the offending.

116. There is no issue between the parties as to the role that the youth of these offenders should play in sentencing them. The principles relevant to sentencing young offenders, such as set out in BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 159, are of considerable significance in this sentencing exercise. Both offenders were very young at the time of the commission of these offences, and their upbringing and other disadvantages were such that they had not had the chance to develop or mature to the extent that would be usually expected of young men of 18 and 19 years old.

117. In both cases I am comfortably satisfied that the offender’s moral culpability is significantly reduced by virtue of his youth, adverse background and mental health impairments. The evidence in each case well supports these factors reducing the blameworthiness of the offenders. Although it is not necessarily required, I am satisfied all of these materially contributed to the offending. The Crown submissions to the contrary, in relation to their mental health conditions, referred to aspects of the evidence indicating that the offenders did not have a mental illness defence, or partial defence of substantial impairment, available, or addressing similar matters. The evidence in each case still allows for a meaningful reduction in moral culpability, despite such a high level of impairment not being reached.

118. A core role of the criminal justice system is to prevent citizens from taking the law into their own hands. Courts must not condone vigilantism. I am highly conscious of this consideration in determining the appropriate punishment for these offenders. It is the idiosyncratic combination of their being victims of childhood sexual abuse and otherwise having adverse backgrounds, multiple significant mental health conditions, and being so young, when responding as they did to the deceased, that justifies the reduction in moral culpability that I have found.

119. I have taken into account each offender’s deprived background including suffering sexual abuse, their young age, and mental health impairments at the time of the offending. These factors reduce both offenders’ moral culpability and are taken into account as mitigating the sentences to be imposed. The punitive and denunciatory purposes of sentencing, and the suitability of the offenders as vehicles for general deterrence, are considerably reduced in this case. These purposes still however have some work to do. Further, recognition of the harm done to the deceased, his family and the community remains very important. I do not regard the reduced moral culpability, or any factor on which it is based, as indicating a reduced role for specific deterrence. The sentences to be imposed will be ones which should have the capacity to deter both offenders from future crime. I have taken into account the maximum penalty and standard non-parole period.

120. In the case of DT I am not of the view that there is any countervailing enhanced need for the sentence to protect the community. The confluence of circumstances in the house in June 2023 was profoundly idiosyncratic, with this tragic result. I am satisfied that he has reasonably good prospects of rehabilitation.

121. The reduction in DA’s moral culpability co-exists with a somewhat enhanced need for the sentence to protect the community from him. I accept the submission for the Crown that there are concerning aspects of the evidence in his case relevant to this issue. Given his age, lack of prior criminal history and the prospect of treatment of some aspects of his mental health conditions I do not see this as a particularly significant matter. I am not positively satisfied in his case that he has good prospects of rehabilitation. This does not mean that I see him as having poor prospects of rehabilitation, and given his youth the promotion of his rehabilitation is an important sentencing purpose (as it is for DT).

122. I am satisfied that each offender is remorseful. In each case I take into account his absence of prior convictions.

123. I am also satisfied that custody will be more onerous for each offender because of his mental health conditions and adverse background.

124. I accept the joint position of the parties that a finding of special circumstances to vary the usual ratio between the non-parole period and total sentence is warranted. Each young man will require an extended period of time to assist his reintegration into the community. In DA’s case there is a further need for a finding of special circumstances to preserve that aim, given that there will be a degree of accumulation between his sentences.

125. DA’s offence of inflicting grievous bodily harm upon Todd Loades, reckless as to causing actual bodily harm, was more serious because of the custodial setting in which it occurred. The victim was more vulnerable in such a setting, and the offender approached him without warning. The resulting injuries were serious but there is no indication of permanent injury or ongoing impairment. The offence was committed by a single blow.

126. With this offence as with the charge of murder, the offender’s youth, impulsivity and impaired reasoning from underlying mental impairment reduce his moral culpability – although in my view not to quite the same extent for this crime. I accept DA had received information about the victim and direction from other inmates to harm him or he would be harmed himself. For someone of his age, with no prior experience of prison, and limitations in reasoning skills, his moral culpability is reduced somewhat, as is the need for general deterrence. General deterrence is still however an important sentencing purpose for a crime of that nature. He was not a person of good character at the time he committed that crime.

127. I am of the view that orthodox application of the principle of totality should apply in relation to the degree of accumulation of DA’s sentence for this offence upon his sentence for murder. This principle accommodates the need to recognise the distinct harm done to the victim of that offence, and the avoidance of the perception of a discount for multiple offending, while avoiding a crushing sentence.

128. I have determined to impose similar but not identical sentences on both offenders for murder. There is no meaningful difference between the objective seriousness of their offending, and the issues that have resulted in reduction of their moral culpability and amelioration of sentence generally are very similar. However the more favourable finding in DT’s case of his prospects of rehabilitation, and the lesser need in his case for the sentence to protect the community, require some differentiation.

129. DA has been in custody since his arrest on 10 June 2023 and his sentence will commence on that date. DT spent 19 days in custody from 11 June to 29 June 2023 having been refused bail when first charged with assaulting the deceased occasioning him actual bodily harm (which charge was withdrawn and replaced with the charge of murder) before then being arrested again on 3 July 2023 and being in custody since. His sentence will commence 14 June 2023.

130. But for DT’s plea of guilty I would have sentenced him to imprisonment for 17 years and 4 months. But for DA’s plea of guilty to murder I would have sentenced him to imprisonment for 18 years. But for DA’s plea of guilty to causing grievous bodily harm, reckless as to actual bodily harm, I would have sentenced him to imprisonment for 3 years and 4 months.

Orders

131. For these reasons, in the case of DT:

132. For the murder of the deceased, I sentence you to 13 years imprisonment commencing on 14 June 2023 and concluding on 13 June 2036. I impose a non-parole period of 8 years and 8 months commencing on 14 June 2023 and concluding on 13 February 2032, on which date you will be first eligible for release on parole.

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

134. In the case of DA:

135. For causing grievous bodily harm to Todd Loades, being reckless as to causing actual bodily harm, I sentence you to 2 years and 6 months imprisonment commencing 10 June 2023 and concluding on 9 December 2025. I impose a non-parole period of 1 year and 8 months commencing on 10 June 2023 and concluding on 9 February 2025.

136. For the murder of the deceased, I sentence you to 13 years and 6 months imprisonment commencing on 10 December 2024 and concluding on 9 June 2038. I impose a non-parole period of 8 years and 6 months commencing on 10 December 2024 and concluding on 9 June 2033, on which date you will be first eligible for release on parole.

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

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