1 JH, you have pleaded guilty before me to the murder of Greg Wayne Harrison at Dandenong on 13 May 2005.
2 The Crown's version of the events leading to Mr Harrison's death is not disputed by you, as it is largely based on your own statements to the police. On the night in question you were drinking in a bar called Zeini's on the Princes Highway, Dandenong with a number of friends, celebrating the engagement of one of your group. Two of your friends left the bar to obtain some take away food.
3 Mr Harrison and four of his associates, including his girlfriend and a female cousin, had been drinking at the Old Dandy Hotel. They were walking home when they encountered your two friends at the intersection of Princes Highway and Robinson Street. A verbal argument developed which became physical when Mr Harrison threw a punch at one of your friends which failed to connect.
4 After a short altercation your two friends escaped from the three men in the other group and they returned to the bar in an agitated state. You and a number of your friends and others celebrating the engagement went in search of the other group. Realising their predicament, Mr Harrison and his friends fled. Some ran into a block of flats. They were frightened and attempted to hide. You and your friends continued searching the area with the aid of a motor vehicle.
5 You then located Mr Harrison hiding in the bushes in McFarlane Crescent. You chased him into the front garden area of one of the flats at 6 McFarlane Crescent. This area was surrounded by fences which prevented any further escape by Mr Harrison. One of your group then punched Mr Harrison causing him to fall to the ground. Thereafter, he was attacked whilst on the ground. The group who participated in that attack numbered seven or eight, including yourself. The attack was forceful, continuous and frenzied in nature. There was kicking, stomping and punching to the head and body, as well as the use of an umbrella's metal tip. The attack lasted for about five minutes. Your group then fled the scene leaving an incapacitated Mr Harrison moaning on the ground.
6 After a loud and aggressive search of a nearby supermarket, you and one of your friends then left your group and returned to the scene of the earlier assault on Mr Harrison. He had not moved during the intervening period of about ten minutes. He was breathing heavily and moaning. You and your companion then proceeded again to kick Mr Harrison several times. Your companion struck Mr Harrison to the head with a plastic pot plant while you dropped a heavy terracotta pot plant on to his head. As a result the terracotta pot was broken. It weighed 10.4 kilograms when empty and between 13.8 and 21.5 kilograms with potting mix added. Mr Harrison died at the scene from extensive head injuries.
7 This was a most brutal and cowardly attack by your group of at least seven young men on a defenceless individual. What is worse from the sentencing point of view is that after the initial frenzied attack you and your companion returned to the scene and carried out the further fatal attack on an obviously seriously injured man. Your counsel conceded that the circumstances of your offence were indeed serious.
8 I turn then to your personal circumstances. At the time of the offence you were aged 18 years and two months, having been born on 8 March 1987. You were the third youngest in the group of eight young men now facing charges over this incident. Much of the following information has been obtained from a very helpful report prepared by Mr Patrick Newton, a forensic and counselling psychologist. Mr Newton also gave evidence.
9 You have one sibling, a younger sister. Your childhood was largely unremarkable. It was happy until parental conflict in the family home became more common. Your parents separated after an argument on your 17th birthday. I am told that you found your parents' separation intensely upsetting, particularly as you found yourself caught in the middle of competing parental pressures. Your father found a new partner and your mother suffered serious health problems, which left you with little parental guidance in the latter part of 2004.
10 It appears that you utilised two key strategies to deal with your distress. First, you commenced heavy alcohol consumption or "binge drinking" where your goal was to become as intoxicated as possible, as quickly as possible. Secondly, you affiliated closely with a group of school friends with whom you formed a sense of belonging and acceptance as well as finding companionship. Your bond with, and feelings of loyalty and friendship for, these friends was intense. Regrettably, however, this relationship only exacerbated your drinking problem. Mr Newton said that these responses reflected a significant level of immaturity.
11 Your performance at school deteriorated markedly after your parents' separation. Whereas you had once been a good student you almost failed Year 11. You left school at the end of Year 11 in an effort to support your mother and sister through work, but had some difficulty obtaining work. You had worked as a casual labourer on various jobs before this incident.
12 Despite these problems it seems that you maintained your interest in sport. In particular you were a valued member both on and off the field of the Silverton Cricket Club. You represented that club in its first eleven in the Dandenong District Cricket Association, winning the club and the association's batting average in the 2004/2005 season.
13 More importantly, you have no prior convictions. Given this fact and your age, you therefore fall into the category of a "youthful first offender" and the law requires that I treat this as a primary consideration in exercising the sentencing discretion. It is well established that "in the case of a youthful first offender rehabilitation is usually far more important than general deterrence" and that such an offender is not to be sent to an adult prison if that can be avoided.[1] Nevertheless, it seems to me that I must retain a balance between rehabilitation and general deterrence and denunciation of the brutality of this murder. The gravity of this crime is such, as was indeed recognised by your counsel, that there is no alternative other than adult prison.
14 I accept Mr Newton's evidence that you are genuinely and deeply remorseful for your behaviour and that you have expressed "considerable empathy for the suffering [you have] caused the victim and the victim's family." Your early actual remorse is, I consider, illustrated by the answer given to the police when you were being interviewed by them on 15 May 2005 after you had decided to tell them the truth about what you had done to Mr Harrison. When asked by the police how you felt after you had dropped the terracotta pot on to the victim's head, you replied: