CRIMINAL LAW – SENTENCE – RELEVANT FACTORS – NATURE AND
CIRCUMSTANCES OF OFFENCE – GENERALLY – where
the defendants formed
an intention to steal a car – where an uber was ordered to the first
Source
Original judgment source is linked above.
Catchwords
CRIMINAL LAW – SENTENCE – RELEVANT FACTORS – NATURE ANDCIRCUMSTANCES OF OFFENCE – GENERALLY – wherethe defendants formedan intention to steal a car – where an uber was ordered to the firstdefendant’s house –where the first defendant went into his house toarm himself and the second defendant with a knife and meat cleaver respectively– where the uber driver was forced at knifepoint into the luggagecompartment of the car – where the first defendantthen drove the vehicleto a remote location whilst the second defendant was in the passenger seat– where, upon arrival, thesecond defendant opened the luggage compartmentand the first defendant instantaneously stabbed the uber driver – wheretheuber driver attempted to run away but fell to the ground – where thefirst defendant further stabbed the uber driver –where the stab woundscaused the death of the uber driver – where the defendants then returnedto the stolen vehicle and drove
away – where the defendants lit the car on
fire with the weapons and blood-stained clothing inside the vehicle –
where
both defendants pleaded guilty to one count of armed robbery, in company,
with personal violence
one count of unlawfully using a
motor vehicle
and one
count of arson – where the first defendant pled guilty to murder –
where the second defendant
pled guilty to manslaughter – what is the
appropriate sentence
CRIMINAL LAW – SENTENCE – SENTENCING OF JUVENILES –
RELEVANT FACTORS – where the first defendant was a juvenile
at the time of
the offending – where the juvenile pled guilty to murder – where the
first defendant faces a maximum of
10 years’ imprisonment unless the
offence was “particularly heinous” – where a finding of
particular heinousness
increases the maximum penalty to life imprisonment
– whether the offence committed by the first defendant was
“particularly
heinous” in all the circumstances
Criminal
Code, s 302, s 305, s 355, s 408A, s 409, s 411, s 461
Youth Justice Act 1992, s 150, s 176, s 227, Sch 1
Power v The
Queen (1974) 131 CLR 623
[1974] HCA 26, considered
R v D [1996] 1
Qd R 363
[1995] QCA 329, cited
R v Free
Ex-parte Attorney-General (Qld)
(2020) 4 QR 80
[2020] QCA 58, followed
R v Granz-Glenn [2023] QCA
157, cited
R v Jervis [1993] 1 Qd R 643, cited
R v Kirke
[2020] QCA 53, cited
R v KU
Ex-parte Attorney-General (Qld) (No
2) [2011] 1 Qd R 439
[2008] QCA 154, cited
R v McDougall and Collas
[2007] 2 Qd R 87
[2006] QCA 365, considered
R v Nagy [2004] 1 Qd
R 63
[2003] QCA 175, followed
R v SDK (2020) 6 QR 568
[2020] QCA
269, cited
R v Wales [2019] QCA 157, cited
R v William (a
pseudonym) [2020] QCA 174, cited
R v YTZ
Ex parte Attorney-General
(Qld) [2023] QCA 87, considered
Judgment (56 paragraphs)
[1]
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENCE - GENERALLY - where the defendants formed an intention to steal a car - where an uber was ordered to the first defendant's house - where the first defendant went into his house to arm himself and the second defendant with a knife and meat cleaver respectively - where the uber driver was forced at knifepoint into the luggage compartment of the car - where the first defendant then drove the vehicle to a remote location whilst the second defendant was in the passenger seat - where, upon arrival, the second defendant opened the luggage compartment and the first defendant instantaneously stabbed the uber driver - where the uber driver attempted to run away but fell to the ground - where the first defendant further stabbed the uber driver - where the stab wounds caused the death of the uber driver - where the defendants then returned to the stolen vehicle and drove away - where the defendants lit the car on fire with the weapons and blood-stained clothing inside the vehicle - where both defendants pleaded guilty to one count of armed robbery, in company, with personal violence; one count of unlawfully using a motor vehicle; and one count of arson - where the first defendant pled guilty to murder - where the second defendant pled guilty to manslaughter - what is the appropriate sentence
[2]
CRIMINAL LAW - SENTENCE - SENTENCING OF JUVENILES - RELEVANT FACTORS - where the first defendant was a juvenile at the time of the offending - where the juvenile pled guilty to murder - where the first defendant faces a maximum of 10 years' imprisonment unless the offence was "particularly heinous" - where a finding of particular heinousness increases the maximum penalty to life imprisonment - whether the offence committed by the first defendant was "particularly heinous" in all the circumstances
[3]
Criminal Code, s 302, s 305, s 355, s 408A, s 409, s 411, s 461
R v YTZ; Ex parte Attorney-General (Qld)[2023] QCA 87, considered
[17]
A Mackay for the Chief Executive of the Department of Children, Youth Justice and Multicultural Affairs
[18]
Office of Director of Public Prosecutions (Qld) for the Crown
[19]
Geldard Sherrington Lawyers for the second defendant
[20]
[1]LZY, you pleaded guilty before me on 11 March 2024 to four counts on an indictment as follows:
[21]
Count 1 that on or about the seventh day of February, 2023 at Pacific Haven in the State of Queensland you and TYE WAYNE PORTER robbed SCOTT ANDREW CABRIE.
[22]
And you and TYE WAYNE PORTER were armed with a dangerous weapon, namely, a knife.
[23]
And at the time of the robbery, you and TYE WAYNE PORTER used other personal violence to SCOTT ANDREW CABRIE.
[24]
Count 2 that on or about the seventh day of February, 2023 at Howard and elsewhere in the State of Queensland, you and TYE WAYNE PORTER unlawfully used a motor vehicle without the consent of SCOTT ANDREW CABRIE, the person in lawful possession of it.
[25]
Count 3 that on or about the seventh day of February, 2023 at Howard in the State of Queensland, you and TYE WAYNE PORTER murdered SCOTT ANDREW CABRIE.
[26]
Count 4 that on or about the seventh day of February, 2023 at Pacific Haven in the State of Queensland, you and TYE WAYNE PORTER wilfully and unlawfully set fire to a motor vehicle namely a Nissan X-Trail.
[27]
[2] TYE WAYNE PORTER, on 22 April 2024 you pleaded guilty to each of counts 1, 2 and 4 to which LZY pleaded guilty. However, to count 3 you pleaded "not guilty to murder but guilty to manslaughter". The Crown accepted your plea of guilty to manslaughter in discharge of count 3.
[3] I heard submissions on sentence in relation to both of you on 27 August 2024.
[4] LZY, you were born on 25 August 2005. You are now 19 years of age but you were 17 at the time of the commission of the offences. You therefore fall to be sentenced under the regime of the Youth Justice Act1992.
[5] Porter, you were born on 17 May 2004. You are now 20 years of age. You were 18 at the time of the commission of the offences and you therefore fall to be sentenced as an adult.
[6] The four counts all arose from one tragic episode which occurred late on 6 February 2023 and continued into the early hours of 7 February 2023. The indictment charges that the offending occurred on or about 7 February 2023, however with reference to the statement of facts, count 1 occurred shortly after 11:33pm on 6 February and count 4 occurred before 1:00am on 7 February, as that was the time Emergency Services extinguished the fire you created.
[7] Both of you have cooperated with the administration of justice in that you not only made pleas of guilty, but you agreed to a statement of facts upon which you fall to be sentenced. Various people fell within the narrative that ultimately led to the death of your victim, Mr Cabrie. While these various people must be mentioned so that the episode can be explained, they had nothing directly to do with the offending and certainly no responsibility for it.
[8] The events occurred in and around the broader Maryborough area, taking into account Hervey Bay.
[9] You, LZY, lived at Pacific Haven Drive, Pacific Haven with your mother and two of your siblings.
[10] You, Porter, lived at 516 Boat Harbour Drive, Urangan. Also living there was your girlfriend, Hailee Stallan-McLoughlin, and her aunt, Amanda Hohn. Your biological family lived elsewhere. Your father, Sam Porter, lived at 16 Moorabinda Drive, Sunshine Acres.
[28]
"Sentencing judges ought experience little difficulty in practice if there is unqualified adherence to the fundamental principles which emerge from the decisions of the High Court in De Simoni and subsequent cases. We will try to summarise those principles in a manner which should be adequate for most purposes.
[29]
(a) a sentencing judge should take account of all the circumstances of the offence of which the person to be sentenced has been convicted, either on a plea of guilty or after a trial, whether those circumstances increase or decrease the culpability of the offender;
(b) common sense and fairness determine what acts, omissions and matters constitute the offence and the attendant circumstances for sentencing purposes (cp. Merriman at 593, R. v. T. at 455); and
(c) an act, omission, matter or circumstance within (b) which might itself technically constitute a separate offence is not, for that reason, necessarily excluded from consideration.
[30]
An act, omission, matter or circumstance which it would be permissible otherwise to take into account may not be taken into account if the circumstances would then establish:
[31]
(a) a separate offence which consisted of, or included, conduct which did not form part of the offence of which the person to be sentenced has been convicted;
(b) a more serious offence than the offence of which the person to be sentenced has been convicted; or
(c) a "circumstance of aggravation" (Code, s 1) of which the person to be sentenced has not been convicted; i.e., a circumstance which increases the maximum penalty to which that person is exposed.
[32]
An act, omission, matter or circumstance which may not be taken into account may not be considered for any purpose, either to increase the penalty or deny leniency; and this restriction is not to be circumvented by reference to considerations which are immaterial unless used to increase penalty or deny leniency, e.g., "context" or the "relationship" between the victim and offender, or to establish, for example, the offender's "past conduct", "character", "reputation", or that the offence was not an "isolated incident", etc."[2]
[33]
[43] Both of you are charged with armed robbery. Both of you are also charged with the killing of Mr Cabrie, you LZY with his murder, and you Porter with his manslaughter. No part of the sentences I will impose reflect the illegal act of depriving Mr Cabrie of his liberty. What I have taken into account, which may be considered as at least incidental to the abduction but are aspects of the offences to which you have pleaded guilty is:
[34]
(a) forcing Mr Cabrie into the luggage compartment of the vehicle at knifepoint was part of the violence which constitutes the circumstances of aggravation to count 1;
(b) the killing took place in a remote location;
(c) Mr Cabrie was vulnerable when you attacked him;
(d) Mr Cabrie would have been terrified; and
(e) Mr Cabrie was no threat to you.
[35]
[44] In your case Porter, given that you committed the offences whilst an adult, the maximum sentence for each of counts 1, armed robbery with circumstances of aggravation, 3, manslaughter, and 4, arson, is life imprisonment. The maximum for count 2 is seven years' imprisonment.
[45] The sentencing of you LZY is different because you fall to be sentenced pursuant to the Youth Justice Act. That raises a number of issues, the first of which is the impact of the legislation upon the maximum sentences you face.
[46] In your case LZY, the maximum sentences for counts 1, 3 and 4 are each ten years' detention unless certain findings are made. In that case, it rises to life. The maximum for count 2 is three and a half years' detention.
[47] Section 176(3)(b)(i) and (ii) of the Youth Justice Act provides that the maximum for each of the three life sentences is in your case ten years' imprisonment unless two conditions are fulfilled:
[36]
(a) the offence involves the commission of violence against a person; and
(b) the Court considers the offence to be a particularly heinous offence having regard to all the circumstances.
[37]
[48] Count 3, the count of murder, is submitted by the Crown to be a particularly heinous offence and the Crown seek a finding to that effect. The Crown does not seek to establish that either counts 1 or 4 are particularly heinous.
[49] It is an odd concept that in relation to the offence of murder, consideration must be had to whether the offence is "particularly heinous". Murder carries life imprisonment for an adult, which is the most onerous penalty that can be imposed by the law upon a citizen. One would think that by definition any offence which carries life imprisonment is a particularly heinous offence.
[50] However, the Youth Justice Act draws a distinction between life offences that are or are not "particularly heinous", and the necessary consequence of that is that there are some offences of murder which are "particularly heinous" and some which are not.
[51] In determining whether an offence is "particularly heinous" the Court must take into account "all the circumstances". As was explained by Sofronoff P in R v William (a pseudonym)[3], "all the circumstances" include subjective factors such as rehabilitative prospects.
[52] The Crown submits that the features which lead to the offence of murder being determined to be particularly heinous include:
[38]
(a) the murder occurred in a remote location;
(b) both you, LZY, and your co-accused Porter, were armed;
(c) Mr Cabrie was effectively defenceless;
(d) the murder was very violent;
(e) you took steps to conceal the offending; and
(f) you have a lack of remorse, insight and prospects of rehabilitation.
[39]
[53] On your behalf, it is said that the factors which ought to lead to no finding that the offence was particularly heinous include:
[40]
(a) there was no intent by you, LZY, to kill Mr Cabrie, but only an intent to inflict grievous bodily harm upon him;
(b) there is no allegation of significant pre-meditation; and
(c) there are subjective features which contributed to the commission of the offence and other mitigating circumstances.
[41]
[54] I have already made comment about the fact that you were not charged, let alone convicted, of deprivation of Mr Cabrie's liberty. As explained earlier, you are not to be sentenced on any basis that you abducted him. However, he was in the back of the vehicle. He could only leave once you, Porter, opened the back door. He was therefore in a completely vulnerable position when you attacked him.
[55] In remarks which I make later, I make findings as to various personal circumstances of yours, such as your background, reasons for offending, remorse and your rehabilitation prospects. I have taken all these things into account when determining whether count 3, murder, is, in all the circumstances, particularly heinous.
[56] Notwithstanding all the mitigating circumstances, I find that the offence of murder represented by count 3 is particularly heinous. You were with Mr Cabrie in a lonely dark place as I have explained. He was vulnerable and only had one way of exiting the vehicle; past you. As Porter released him from the car, you attacked him with a knife. Apart from the statements which you made to the psychologist Ms Geddes, there is not the slightest suggestion that Mr Cabrie was violent to you. As earlier observed, you have now abandoned as false the things you told Ms Geddes to the extent that they are inconsistent with the agreed statement of facts.
[57] The fact was that Mr Cabrie was no threat to you. But you couldn't just let him go. Your plan was to steal his car. That was bad enough. Instead, you viciously attacked him with a knife and when he ran away and fell to the ground you later attacked him again. It is accepted that you had no intention to actually kill Mr Cabrie but you did intend to do him grievous bodily harm. Grievous bodily harm is a legal term. By way of general explanation, you intended to hurt him very badly with a knife and you did so.
[58] Turning to your personal circumstances, LZY, I have before me a pre-sentence report, a psychological report and an addendum report prepared by Dr Hatzipetrou, as well as some other material.
[59] As already observed you, LZY, were born on 25 August 2005.
[60] Your home life was not good. You were the eldest of three children born to your mother and father. You have other siblings as well, as a result of your mother and father separating when you were about 15 years of age, and repartnering.
[11] Shane Barton was known to you, LZY. You met up with him in the afternoon of 6 February at a post office on William Street in Howard. You asked him to drive you home, namely Pacific Haven Drive, Pacific Haven, and then to a friend's place. You then asked him to drive you to Sam Porter's house at 16 Moorabinda Drive, Sunshine Acres. Mr Barton obliged.
[12] After Mr Barton had dropped you at Moorabinda Drive, he left and you remained drinking cans of Johnnie Walker and Coke with Sam Porter. You finished what alcohol you had but you wished to go to a liquor store to buy more. Apparently, you, Porter, were at that time with Stallan-McLoughlin and in the vicinity of that liquor store.
[13] Mr Barton's services were again enlisted. You, LZY, asked him to pick you up from Moorabinda Drive and drive you to the liquor store. There, you, LZY, met up with you, Porter, and Stallan-McLoughlin. Mr Barton then drove the three of you to Moorabinda Drive and left. The three of you consumed alcohol and you, Porter, and Stallan-McLoughlin also smoked cannabis. At about 7.20 pm you, Porter, and Stallan-McLoughlin went back to the liquor store to purchase more alcohol and then returned to Moorabinda Drive. The three of you continued drinking.
[14] Your residence, LZY, at Pacific Haven Drive is about 30 minutes by car from Moorabinda Drive. The three of you decided to go to Pacific Haven Drive but were unsure how to get there. After unsuccessfully trying to convince friends to collect you and take you to Pacific Haven, it was decided to order an Uber. By this stage, you, LZY, asked you, Porter, whether you wished to steal a car. You, Porter, agreed to such an enterprise. At that stage no specific plans were discussed as to how that would be achieved.
[15] An Uber was summoned. Mr Cabrie, in his Nissan X-Trail, accepted the job of transporting you.
[16] Mr Cabrie lived alone at 55 Kingfisher Parade, Toogoom. He drove the Nissan X-Trail as an Uber share ride vehicle. He did this on a part-time basis.
[17] It is notorious that taxi drivers and Uber drivers are vulnerable. By the nature of their work, they answer calls from complete strangers and allow them into their vehicles, putting themselves in close physical proximity to their passengers.
[18] Mr Cabrie was unfortunate enough to have accepted your request. He collected you both from Moorabinda Drive, together with Stallan-McLoughlin. Although the three of you were heavily intoxicated, your exchanges with Mr Cabrie were initially pleasant. You, LZY, though soon began misbehaving. You were rude and aggressive to Mr Cabrie and demanded that he pull over so you could urinate by the road. Mr Cabrie stopped and you left the car for a moment. You did not urinate and then you, Porter, and Stallan-McLoughlin had to persuade you, LZY, to get back in the car. You did so and the journey continued.
[19] Then you, LZY, became unreasonable when Mr Cabrie stopped his car at a red traffic light. You got out of the car apparently to press a button on the traffic light pole to cause the light to turn green. You, Porter, together with Stallan-McLoughlin, screamed at you, LZY, to get back into the car but you refused. Eventually you, Porter, got out of the car and forced you, LZY, back into the vehicle.
[20] You all arrived at Pacific Haven around 11.33 pm. Initially you, LZY, walked Stallan-McLoughlin inside the house and you, Porter, waited in the vehicle with Mr Cabrie. Then you, Porter, asked Mr Cabrie to wait for you and you went inside and spoke to you, LZY. At this point it was decided between the two of you to steal Mr Cabrie's car from him.
[21] The pair of you went into the kitchen and armed yourselves. You LZY, took a knife and gave you Porter, a meat cleaver. You, LZY, put a balaclava over your head. By this stage you had told Stallan-McLoughlin that the pair of you would go to a friend's house and then return to her. She knew nothing of your plan and did not see you with knives.
[22] The pair of you then left the house at Pacific Haven, approached Mr Cabrie's car and he wound down the window at the request of you, LZY. You, LZY, then held a knife at him and demanded he get out of the car. You, Porter, reached inside the cabin and turned the car off. Both of you punched and pushed Mr Cabrie once he got out of the car. You then forced him into the luggage compartment area of the Nissan X-Trail, which is an SUV. While doing so you, Porter, demanded that Mr Cabrie give you his mobile phone, which he did. You also stole a necklace that he was wearing. That stealing, together with the violence, constituted count 1 on the indictment to which you both pleaded guilty, namely armed robbery with circumstances of aggravation being that you were in company with each other and you used personal violence to Mr Cabrie.
[23] With Mr Cabrie in the luggage compartment of the vehicle you then drove to a nearby boat ramp. At this time you, LZY, drove and you, Porter, were in the front passenger seat. The boat ramp was about an eight minute drive from Pacific Haven Drive. The use of the vehicle constituted count 2 on the indictment, unlawfully using the motor vehicle.
[24] There was no conversation during the drive but no doubt Mr Cabrie was terrified and had you had any concern for him at all, you would have realised that.
[25] Arriving at the boat ramp, both of you got out of the car. You, Porter, smashed and stabbed Mr Cabrie's phone with the meat cleaver and threw it in the ocean. You, LZY, had a second phone of Mr Cabrie's which you also smashed. You, Porter, said to LZY that you should break both phones so that Mr Cabrie was unable to call the police. You, LZY, remarked that was a good idea. That indicates that you were both well aware of the need to avoid detection as you were engaged in serious criminal activity.
[26] It was decided that you would release Mr Cabrie from the vehicle. There was an argument as to who was going to open the door to the luggage compartment. You, LZY, were holding the knife and yelling at you, Porter, to open it. This you, Porter, did and you, LZY, immediately stabbed Mr Cabrie. Mr Cabrie managed to leave the back of the vehicle and run away from it, but after travelling a short distance, he fell over. You, Porter, told Mr Cabrie to stay down on the ground while you, LZY, unsuccessfully tried to start the vehicle. You, Porter, then told you, LZY, to "come over here and sort him out" while you, Porter, tried to start the car.
[27] You, LZY, walked up to Mr Cabrie and then stabbed him again. You, LZY, then stood over Mr Cabrie, who was now fatally injured, and yelled at him. After you, Porter, got the car started you drove towards LZY, who got in the car and told you "I think he's dead". The pair of you could not see Mr Cabrie when you drove away. The killing of Mr Cabrie constituted count 3 as to murder by you, LZY, and as to manslaughter by you, Porter.
[28] The difference in the offences that the pair of you have been convicted of respectively by force of count 3 is explicable by your different actions and your different states of mind at the time of Mr Cabrie's killing.
[29] You, LZY, pleaded guilty to murder. Murder can be constituted by different acts and different intentions. You have pleaded guilty on the basis that you caused the death of Mr Cabrie by stabbing him. It is accepted that at the time you stabbed Mr Cabrie you did not have an intention to kill him but you did have an intention to cause him grievous bodily harm. That is sufficient under the law to make you guilty of murder.
[30] You, Porter, did not do the act which killed. You did not stab Mr Cabrie. A person who does not do the act which constitutes an offence may still commit the offence in various circumstances. One of those is where the offence is a probable consequence of an unlawful plan. Here, you Porter, formed a common unlawful purpose of armed robbery with LZY, a probable consequence of which was not the murder of Mr Cabrie but the unlawful killing or manslaughter of him. You are guilty of manslaughter on that basis.
[31] You, LZY, gave a version of events to a psychologist, Rebecca Geddes. You told her that when you opened the luggage compartment door of the vehicle, Mr Cabrie, who was then in the luggage compartment, came at you with something described as an "emergency hammer". Through your counsel you have abandoned those assertions and you now accept the statement of facts as an agreed statement.
[32] After the pair of you killed Mr Cabrie, you drove away in Mr Cabrie's vehicle, going back to the residence of you, LZY, at Pacific Haven Drive. There you, LZY, filled a plastic jerry can with fuel and a discussion was had between the pair of you that Mr Cabrie's vehicle should be burned so as to destroy any evidence. You drove the vehicle to Wieland Street, which is close to Pacific Haven Drive, parked it on the side of the road and put the knife, meat cleaver and balaclava in the front passenger footwell. You, LZY, poured petrol through the car, soaked your shirt in fuel, lit the shirt and threw it into the car which caught fire. Emergency Services were called by residents of Wieland Street but by the time they arrived, the vehicle was destroyed. That constituted count 4 on the indictment, arson of Mr Cabrie's vehicle.
[33] Even though you burnt the vehicle, the registration plate could be read. That enabled police to identify the vehicle and the owner of it as Mr Cabrie. Police began attempting to contact him. Mr Cabrie was not located until 12 February 2023, some five days after he had died.
[34] Mr Cabrie was found in the area where you had killed him. The autopsy revealed seven wounds inflicted by the knife that you, LZY, wielded. The significant injuries were three stab wounds. One was to Mr Cabrie's left chest, one to his upper back and one to his abdomen. The stab wound to his chest penetrated 120mm, perforated the chest wall, his heart, diaphragm and liver. In addition to the three stab wounds, he suffered four incised wounds, two to his left mid and lower back, one to his left upper arm and one to his left mid thigh. Mr Cabrie also suffered a fracture of upper parts of his thyroid cartilage and there were minor bruises and abrasions to his right leg.
[35] Once you had set the vehicle on fire, the pair of you walked back to Pacific Haven Drive. There, you both met up with Stallan-McLoughlin. She asked you where you had both been and you lied and said you had been at a friend's house. The pair of you were later in a room joking about stabbing someone and this was overheard by LZY's younger sister Sharkiah. Stallan-McLoughlin saw you play acting, stabbing each other, and you told her you were thinking about how, if you were to stab someone, you would do it. You, LZY, told Stallan-McLoughlin that if anyone asks, to say that you were at Pacific Haven Drive the whole time.
[36] Over the next few days the pair of you told various lies about the offending. Your sister Sharkiah confronted you, LZY, about blood on your pants and you told a story about the Uber driver attacking Porter. That story was told to other people. It is accepted by you both that Mr Cabrie did not attack either of you, not even in self-defence.
[37] On 12 February you were both arrested. You, LZY, refused to participate in an interview with police.
[38] You, Porter, did take part in interviews. Throughout your first interview you lied and denied involvement completely. You then invented a story that you stayed with Stallan-McLoughlin at LZY's house while LZY went out alone and when he came back he told you that he had stabbed the Uber driver. You then finally made a truthful confession and when, on 13 February 2023, police sent a law enforcement participant into the watchhouse cell with you, you confessed truthfully to him and your brother, who was also in the watchhouse for an unrelated matter.
[39] The offending by both of you has had a devastating effect, not only upon Mr Cabrie, whose life you took, but also on his family and friends. Four victim impact statements were received. One was by Mr Cabrie's brother Ian who read his statement out in court. Another was from Cameron Thomas. He described Mr Cabrie as his best friend. Another was from Jasmine Upton who was a close friend, and she described Mr Cabrie as an uncle figure to her children. Lastly, there was Leanne Greaves, who was both a neighbour and friend of Mr Cabrie's. I find that all the victim impact statements are reasonable and considered and show the devastating impact that your crimes have had.
[40] To the extent that any factual references in the victim impact statements differ from the agreed statement of facts, I have of course followed the statement of facts.
[41] Part of the episode which led to Mr Cabrie's death was his abduction and restraint in the luggage compartment of the Nissan. That act could have been charged as an offence against s 355 of the Code; deprivation of liberty. It was not. That raises questions as to the extent that you deprived Mr Cabrie of his liberty can be taken into account in sentence.
[42] In R v D[1], the Court of Appeal considered how evidence of surrounding circumstances can be taken into account on sentence on a particular charge where that evidence disclosed another, but uncharged offence.
[61] During the period before separation, your father was violent to you, your mother and your siblings, although predominately your mother. These problems led you to alcohol and illicit substance abuse in your teens.
[62] Your parental support was limited. Both your parents misused illegal substances. A strange aspect of this case is that you went to Sam Porter's residence and drank with him for some time. Dr Hatzipetrou refers to this in his reports. Sam Porter is obviously much older and is of a different generation to you. Apparently, the Porter family and your family had known each other since you were very young, as both families had illicit drug connections.
[63] You first began experimenting with cannabis at about 14 years of age which developed to the use of MDMA and some dependency on methylamphetamine. In the days leading up to the offending, you had consumed significant quantities of alcohol and methylamphetamine.
[64] Perhaps unsurprisingly, given the trauma in your personal life, you exited formal education early. The presentence report reveals this as during grade 10 in 2021, although Dr Hatzipetrou has you leaving school in grade 9. The difference is immaterial for present purposes. After leaving school, you completed various vocational pursuits but suffered a physical injury in the workplace and your paid legitimate employment ceased. It is reported that you involved yourself in the drug trade so as to self-medicate but also for financial gain.
[65] You have experienced a number of personal stressors which have affected you badly and with which you seemed unable to cope. All these factors have led to you seeking contact with members of outlaw motorcycle gangs and you formed an attraction to a criminal lifestyle.
[66] Ms Geddes performed a number of clinical tests. She thought there was some evidence of major mental disorder, experiences which have led to trauma and some indication of psychopathic traits. You, in her view, were at risk of being attracted to a criminal lifestyle which would bring with it a propensity to violence.
[67] Your psychiatric history is a little complicated. There is a suggestion that you suffer from ADHD. There has been a diagnosis of post-traumatic stress disorder. In November 2022, you were admitted to hospital after having some sort of episode. You believe there has been suggestions of you being schizophrenic, but there is no formal diagnosis of that. There is evidence of you acting in a paranoid fashion.
[68] It is made clear in the reports that your cognitive abilities are within borderline range, specifically your comprehension and perception reasoning. Your ability to concentrate and exert mental control is in the low average range. This no doubt made coping with your compromised home life more difficult and also gives context to the decisions made by you on the night of the offending. As observed by Dr Hatzipetrou, your substance misuse also diminished your capacity for self-regulation and diminished your social judgement.
[69] You have been in detention since your arrest. Over that period, you have engaged in various rehabilitative programs and treatment. As well as engaging with psychologists in the Child Youth Forensic Mental Health Service, you have completed the Changing Habits and Reaching Targets program, the Emotional Regulation or Impulse Control programs and the Renavigating Angry and Guilty Emotions programs. You have also completed a Certificate I in General Education for Adults, and you have worked on a Certificate II in Visual Arts and a Certificate II in Construction Pathways. You have completed units in those two courses.
[70] All that is of significance for a number of reasons. Firstly, rehabilitation is an important consideration. Further, Dr Hatzipetrou opines that the offending arose as a result of the effect upon you of various factors that I have identified. He opines that the effect of those factors can successfully be the subject of treatment and rehabilitation.
[71] I note that you are not willing to engage in restorative justice and therefore, I find that it is not a suitable course of action in the circumstances.
[72] There is dispute as to the extent that you are remorseful for your offending and have insight into the harm you have caused.
[73] Undoubtably, you showed no remorse in the immediate aftermath of Mr Cabrie's death. You told various lies, one of which was to attempt to blame Mr Cabrie by inventing a story about Mr Cabrie attacking you with an "emergency hammer" that was told to Ms Geddes, a considerable time after you murdered Mr Cabrie.
[74] The various reports make assessment of remorse and insight difficult because of your cognitive and other limitations which have been identified.
[75] You have, as I have already observed, been busy whilst in custody. You have engaged with programs and the Prison Mental Health Service. I conclude that any apparent lack of remorse and insight is a reflection more of your limitations than anything else and I proceed on the basis that you have insight and remorse to the extent you are capable and I give full credit for remorse and insight.
[76] Before proceeding to the sentence itself, it is appropriate to turn to s 227(1) of the Youth Justice Act. That provides that if sentenced to a term of detention, you must serve 70 per cent of the period of detention unless there are special circumstances. If there are special circumstances, then a discretion arises to order you to be released after serving some period being between 50 per cent and 70 per cent of the term of detention.
[77] In my view, special circumstances exist here to enliven the discretion. You have not previously been the subject of any orders under the Youth Justice Act. While your offending is very serious, it was contributed to by various factors that have been identified and explained by the psychologists and you have taken steps towards rehabilitation. As I have observed, the negative effect of the factors should be amenable to treatment so there are prospects for rehabilitation.
[78] I have turned my mind to s 150 of the Youth Justice Act and also the Youth Justice Principles[4].
[79] I have taken into account the nature and seriousness of the offending. As I have described, you formed a plan with Porter to arm yourselves and steal a car. You carried that out by luring an Uber driver, Mr Cabrie, to the house, attacking him, taking control of the car and then attacking him with the intention to do grievous bodily harm to him and ultimately causing his death.
[80] I take into account the fact that you have been exposed to significant domestic violence. I have taken into account the pre-sentence reports and your rehabilitative efforts. I have directed myself to general sentencing principles, including the need for public denunciation and deterrence in relation to these types of offences.
[81] I have also directed myself to Principle 18 of the Youth Justice Principles which prescribes that detention is a last resort, and a child should be detained for the least time that is justified in the circumstances. Here, there is no rational alternative to detention. Your counsel did not submit otherwise. The sentence I will impose is the shortest term justified in the circumstances. I have taken into account your plea of guilty and the remorse and insight you have shown.
[82] I have had regard to the various comparative sentences that were cited to me. I have used the comparative sentences as a yardstick against which to gauge the appropriateness of the sentences I intend to impose. It is not my function to reconcile the various comparatives with each other or to the current case.
[83] However, I found two comparative cases of particular assistance. Both are relatively recent.
[84] In R v YTZ; Ex parte Attorney-General (Qld)[5], a 17-year-old offender drove recklessly for an extended period and then collided with and killed a young couple. The woman was pregnant. The child offender pleaded guilty to two counts of manslaughter, as well as other counts relevant to the driving which culminated in the deaths. A finding was made by the learned sentencing judge that the manslaughter offences were particularly heinous. A sentence of 10 years detention was not disturbed on appeal. Unlike you, LZY, the child had a previous criminal history. Unlike many manslaughter cases based on dangerous driving, the offending of the child was over a lengthy period (about 20 minutes). However, there was no intention to cause harm, let alone death. It was an accidental killing resulting from gross negligence. The manslaughter sentences of 10 years detention were the effective head sentence for the offending. Both the child and the Attorney-General appealed, and neither appeal was successful. The sentencing judge ordered the child be released after 60 per cent of the sentence had been served. That was not disturbed.
[85] R v HST concerns a sentence imposed by Sullivan J. Four youths determined to break into a house. Two of them approached the front door of what I will call the Lovell residence just before midnight on Boxing Day 2022. The youths entered the house. Mr and Mrs Lovell confronted HST who was armed with a knife. HST struggled with both Mr and Mrs Lovell, assaulting them both, and cutting them both. In the course of the struggle with Mrs Lovell, she was fatally stabbed in the heart. The child pleaded guilty to murder but not on the basis that he had an intention to kill or do grievous bodily harm to Mrs Lovell. The plea was on the basis of felony murder. It was accepted by the child that the prosecution of the unlawful purpose with the co-offenders to enter the house late at night, armed with a knife, was committed in such a way that the killing of Mrs Lovell was an act done in prosecution of it.
[86] The child had what was described by the sentencing judge as "an extensive criminal history". No order was made under s 227 of the Youth Justice Act so the child is required to serve 70 per cent of the period of detention of 14 years.
[87] You have admitted, by your plea, to a deliberate act to stab a defenceless man with a knife intending to cause him grievous bodily harm. He was not known to you. He had done nothing adverse to you and he was no threat to you. You just decided to attack him and when he stumbled away, you attacked him again. Murder, by its very nature, is the most serious of offences, involving as it does the taking of a human life. The circumstances of your murder of Mr Cabrie are very serious and I have found that the offence is particularly heinous.
[88] Taking all things into account, I sentence you as follows:
On count 1 on the indictment, armed robbery, I sentence you to 3 years detention.
On count 2, unlawfully using a motor vehicle, I sentence you to 12 months detention.
In relation to count 3 on the indictment, murder, I sentence you to a term of detention of 15 years.
In relation to count 4 on the indictment, arson, I sentence you to a term of detention of 2 years.
[89] I direct that all periods of detention be served concurrently.
[90] As observed, you have been in custody since being arrested on 12 February 2023. By force of the Youth Justice Act, that time is taken into account as time served on the sentences without any order being made by me.
[91] I direct that you be released after serving 60 per cent of the terms of detention I have imposed, that is 9 years from 12 February 2023.
[92] A question arises as to whether convictions ought to be recorded. As earlier observed, you have not previously been the subject of any orders under the Youth Justice Act and you have taken opportunities presented to you while in detention. However, the seriousness of the offending may itself justify the recording of a conviction.[6] A conviction ought to be recorded on count 3 but not on the other counts.
[93] A publication order can be made under s 176(3)(b) of the Youth Justice Act. The question is whether it is in the interests of justice to do so. As was observed in R v SDK[7], there must be some reason justifying the publication. Here, the Crown makes no submission in relation to the making of such an order and in my view, a publication order ought not be made.
[94] As previously explained, you, Porter, fall to be sentenced as an adult but of course your plea of guilty to manslaughter was accepted, and therefore you are not convicted of murder as was LZY.
[95] It is important to understand the differing culpability of you and LZY, even though parity as such is not a great consideration because you and he are being sentenced under different statutory regimes.
[96] In my view, LZY was more the driving force behind this tragic series of events. It was LZY who made the initial suggestion that you steal a car. It was LZY who attacked Mr Cabrie as he got out of the back of the vehicle and it was LZY who attacked him a second time. It follows that it was LZY who inflicted the fatal wounds upon Mr Cabrie and caused his death. It was LZY who formed an intention to do grievous bodily harm to Mr Cabrie.
[97] You have pleaded guilty to manslaughter on the basis of the formation of an unlawful plan where the death of a person through an unlawful killing was a probable consequence. In the context of this case, whilst it might not have been actually foreseen by you, it is accepted that it was objectively probable that LZY would unlawfully kill whoever was driving the Uber that was called.
[98] The plan involved the use of weapons, namely bladed weapons; a knife and a meat cleaver. The plan involved the robbery of an Uber driver, the unfortunate Mr Cabrie, and that led to him being in a lonely place while confined to the back of the vehicle before LZY killed him. As I have already explained to you both, you are not to be sentenced for the act of abducting Mr Cabrie.
[99] Turning to your personal circumstances, Porter, as previously observed, you were born on 17 May 2004 and were therefore 18 at the time of the offending. You have no previous convictions.
[100] I have received into evidence a report of a psychologist, Ms Sarah Jones, to which I have had regard. Much of your relevant history is recorded in that report.
[101] You are one of six children, born to your parents in Ballarat. You are the oldest. The family moved to the Hervey Bay area where you attended school.
[102] School was difficult for you as you did not feel integrated with the mainstream cohort and fell to the influences of a more delinquent peer group. At the age of 12 you began consuming cannabis and from 13, you regularly consumed alcohol. By 14, you were using MDMA, amphetamines, cocaine and prescription drugs that had not been prescribed to you.
[103] You left school in grade 9 and left home at the age of 15.
[104] After leaving school, you worked at a service station. That is the only paid employment of substance that you have had.
[105] By the time of the commission of these offences, you were heavily using methylamphetamine and alcohol.
[106] You reported having no recollection of the period of the offending, saying that you had "blacked out". You had been consuming cannabis, methylamphetamines and alcohol in the days leading up to the offending. Ms Jones opined that this is consistent with a phenomenon known as an "alcoholic blackout". This would have affected your decision and judgement making, and your actions would have been more impulsive than rationally thought through. During submissions by your barrister Mr Taylor, it was said that you have some memory of events so any blackout was not total. Little turns on this. You were heavily intoxicated and your decision making abilities were compromised.
[107] Ms Jones opined that you were suffering alcohol use disorder, moderate, now in sustained remission; cannabis use disorder, severe, in sustained remission; stimulant use disorder, amphetamine type substance, severe, in sustained remission; and conduct disorder, child onset type, moderate. The various substance use disorders are in remission but of course, you have been in custody.
[108] Ms Jones opined that your substance abuse in your early life has had an effect upon your proper development. The result of all this is that your self-control and judgement making abilities were diminished. You would have been vulnerable to the negative influence of others, here, LZY, who as I have said, was more the driving force behind the offending. Ms Jones assessed you to be of average to below average intelligence.
[109] You have pleaded guilty to the charges on the indictment and have therefore assisted in the administration of justice. Because of your limited intelligence and the disorders which you have developed in childhood, it is difficult to assess your remorse and insight.
[110] Ms Jones thought that you demonstrated a poor level of insight into the offending. When asked whether you regret the offending, you said "obviously I regret it, I am going to waste at least four years of my life in jail". The Crown points to that statement as demonstrating a lack of insight and remorse and a concentration only on your own plight.
[111] I should approach the issues of remorse and insight in your case in the same way as I did with LZY. There are obvious limitations which affect your ability to show insight and remorse. References have been tendered attesting to your good character and observing that this offending appears out of character. Those observations are consistent with the opinions of Ms Jones. As already noted, Ms Jones opined that your judgement on the fateful night would have been diminished and I have no doubt that logical realisation of the impact of your offending is also difficult.
[112] I intend to proceed on the basis that any apparent lack of remorse and insight is a reflection of your own limitations and sentence you on the basis that you have insight and remorse to the extent that you are capable. I will give you full credit for being insightful and remorseful.
[113] I accept that your judgement generally was impaired.
[114] It has often been observed that sentencing in cases of manslaughter is difficult because of the wide variety of circumstances in which the offence can be committed. It is also said that it is sometimes instructive to consider how close the offending behaviour is to constituting murder.
[115] In this case, LZY attacked Mr Cabrie with a knife intending to do him grievous bodily harm and that is why he is guilty of murder. You are only not guilty of murder because, while the attack upon Mr Cabrie and his death were a probable consequence of your plan, the formation by LZY of an intention to kill or do grievous bodily harm to Mr Cabrie is accepted by the Crown as not to be a probable consequence of the plan.
[116] The plan was a wicked one, to take advantage of a man attempting to earn money in an occupation where he was obliged, in effect, to trust the bona fides of complete strangers who might get in his vehicle. You were party to a plan whereby that vulnerability was preyed upon and your plan involved putting Mr Cabrie through a harrowing experience, even before he was ultimately killed by LZY.
[117] I take the view that this is a very serious example of the offence of manslaughter.
[118] As the Court of Appeal observed in R v Nagy[8], it may be appropriate where an offender faces sentence on a number of charges which are related to each other to impose a head sentence on the most serious offence, reflecting the criminality of the whole episode, and then ordering the sentences on the other offences to run concurrently with that principal offence and with each other. That is the approach I will adopt here.
[119] However, that approach can be complicated where a sentence either mandatorily attracts a serious violent offence declaration or attracts such a declaration in exercise of discretion. Care must be taken to avoid the declaration being inadvertently applied or unjustly applied to a global sentence calculated by reference to both offences listed on Schedule 1 and offences not listed on Schedule 1 of the Penalties and Sentences Act 1991.
[120] Here, the offences which potentially attract a serious violent offence declaration are counts 1, armed robbery with a circumstance of aggravation, and count 3, manslaughter. Counts 2, unlawful use of a motor vehicle, and 4, arson, do not attract such declarations.
[121] Before the decision of the Court of Appeal in R v Free; Ex-parte Attorney-General (Qld)[9], there was doubt as to whether a serious violent offence declaration could be made in the absence of factors which took the case "outside the norm for the type of offence". That issue was settled in Free. The Court followed its own decision in R vMcDougall and Collas[10], concluding that the discretion to make the declaration is but one of many factors considered in the integrated process of arriving at a just sentence. A declaration may be made, thus delaying parole to the 80 per cent mark where "... adequate punishment requires a longer period in actual custody before eligibility for parole than would otherwise be required".[11]
[122] It is also now well established that quite independently of the serious violent offence provisions, a sentencing judge may extend parole beyond the statutorily set usual of 50 per cent where the circumstances of the case so require. A sentencing judge is not therefore limited to the binary question of serious violent offence declaration or no declaration.
[123] It is also well established that a complication arises by virtue of the mandatory requirement to make a serious violent offence declaration where a sentence is imposed for a Schedule 1 offence of 10 years or more. In those cases, allowance can not be made for any mitigating circumstances by way of early eligibility for parole. A consequence is that all mitigating circumstances must be taken into account in setting the head sentence.
[124] I have been referred to various comparative cases including R v Jervis[12], R v Kirke[13], R v Wales[14] and R v Granz-Glenn[15]. In my view, but for your plea of guilty and the other mitigating circumstances, a global sentence imposed on count 3 would well exceed 10 years. I have explained the many and varied circumstances that are relevant to your sentence but a consideration which arises here of particular importance is the need to deter others from offending against taxi drivers and Uber drivers who are vulnerable by nature of their work. They are in reality "on-call victims".
[125] The Court of Appeal's decision in Free is in my respectful view consistent with a broader principle pronounced by the High Court 50 years ago in Power v The Queen[16]. There, the High Court determined that in a regime whereby a sentencing judge could set both a head sentence and a parole eligibility, both the head sentence and the setting of a non-parole period are factors which together make the sentence a just one. The aim is "... to provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence"[17]. It is not in my view necessary for you to serve 80 per cent of your sentence but it is necessary for you, in my judgement, to serve more than 50 per cent in order for the sentence, taken as a whole, to be a just one. Otherwise, amongst other considerations, too much credit will be given to the mitigating circumstances.
[126] I sentence you as follows:
In relation to count 1, armed robbery, I sentence you to 5 years' imprisonment.
In relation to count 2, unlawfully using a motor vehicle, I sentence you to 2 years' imprisonment.
In relation to count 3, manslaughter, I sentence you to a term of imprisonment of 9 ½ years.
In relation to count 4, arson, I sentence you to a term of imprisonment of 4 years' imprisonment.
[127] I order that all sentences be served concurrently. I direct that you be eligible for parole on 12 August 2029, that is after you have served 6 ½ years of the effective head sentence of 9 ½ years.
[128] I declare that the time you have spent in custody, from 12 February 2023 to 3 October 2024, a period of 600 days as time served on the sentence I have just imposed.