R v PO

Material events of 20 September and 21 September 2014

1. On 20 September 2014 Mr Farmer met with friends, Robert Hawken and Derek Ayriss, by prearrangement to celebrate the birth of Mr Hawken's child. The three friends met at the East Port Bowling Club in Port Macquarie at 6.00pm where they remained drinking for some hours.
2. At about 11.00pm they continued their celebration at Finnian's Irish Tavern, also in Port Macquarie, and at about 12.00am they moved on to the Down Under Night Club. They continued drinking at the club until about 1.00am after which time Mr Ayriss made his way home. Mr Hawken and Mr Farmer left the club together, walking east along William Street towards Horton Street. By this time both men had consumed between 10 and 16 alcoholic drinks. Mr Hawken gave evidence that upon leaving the club he was "very, very drunk". On autopsy Mr Farmer's blood alcohol content was .230 grams per 100 millilitres of blood.
3. On nearing the intersection of William Street and Horton Street, they encountered the offender in company with James Deeth. Mr Deeth was aged 19. The offender and Mr Deeth had driven to Port Macquarie from Kempsey in Mr Deeth's car earlier that evening. An off-duty police officer noted the car on the Pacific Highway travelling south shortly after 11.40pm.
4. The offender and Mr Deeth lived in Kempsey. The offender was a student at Macleay Vocational College. He had been living with the family of a school friend for some months, his family structure having fractured some years earlier following his mother's death and his father's admission to an aged care facility. Mr Deeth was the former boyfriend of his school friend's sister. The offender met him as a visitor to the house where he was living. Mr Deeth was not called by the Crown at the offender's trial.
5. The offender and Mr Deeth consumed some home-brewed alcohol, supplied and prepared by Mr Deeth, before leaving Kempsey. There was uncontested evidence led by the Crown at trial that Mr Deeth had also supplied the offender with the drug methamphetamine earlier in the afternoon which he had smoked. There is no evidence to contradict the offender's volunteered account to a number of people the day after the fatal stabbing that that was the first occasion he had used that drug.
6. There was no evidence led at the trial or on sentence as to the likely duration of the intoxicating effects of the drug methamphetamine in the quantity the offender was given to smoke or the extent to which he was under the combined effects of the drug or the home-brewed alcohol at the time of the fatal stabbing.
7. Although the knife used to inflict the fatal wounds was not recovered (the offender told various people the following day that he threw it in a rubbish bin as he ran from the scene), the uncontested evidence led by the Crown at trial was that his school friend had given him the knife that afternoon after stealing it from a homewares store in Kempsey and that he understood the offender had taken the knife with him to Port Macquarie in Mr Deeth's car. The offender told Mark Morrison, his school principal, that he had left the knife in Mr Deeth's car when they arrived in Port Macquarie, but retrieved it at Mr Deeth's direction, after their first encounter with Mr Farmer and Mr Hawken on the south-west corner of William Street and Horton Street.
8. That encounter was witnessed by a security guard at the Altitude Nightclub. He gave evidence of a verbal and a physical confrontation between the four males which he described as an argument with some pushing and shoving, after which the two groups separated. Two police officers who were patrolling the area also saw the encounter although they did not see any physical confrontation. Senior Constable Caire described what he described as "a bit of a verbal altercation" while Senior Constable McAnarney described seeing four males on the corner of Horton Street and William Street and then seeing two of them walk past the police car and travel west along William Street while the other two males remained on the corner. The offender and Mr Deeth were the two males who walked away. Mr Farmer and Mr Hawken were spoken to by the police officers. The police intended to follow and speak with the offender and Mr Deeth but they were called to another incident before they had the opportunity to do so.
9. It would appear that as the offender and Mr Deeth walked west along William Street, Mr Farmer and Mr Hawken continued walking east along William Street before turning into Horton Street towards a group of people who had congregated outside a kebab shop serving late night patrons of various hotels and clubs in the area, approximately 25 metres from the intersection. Two buskers were playing music nearby.
10. At approximately 1.20am, two CCTV cameras positioned in commercial premises around the kebab shop recorded Mr Farmer purchasing a kebab, after which he was seen talking with various people who were milling around on the footpath.
11. That group comprised Cameron and Amy Wilson, Jarrad and Erin Mudford, Anna Nagler, Melissa Johnson and Steven Ostler-Hosking, who had been together during the evening celebrating Ms Wilson's birthday. Another man, Matthew Irby, not affiliated with that group, also appears in the CCTV footage.
12. These people gave evidence of their observations of Mr Farmer, and to a lesser extent of Mr Hawken, before the offender and Mr Deeth arrived. They all gave evidence, with differing degrees of emphasis, that although Mr Farmer was obviously drunk, in that he was slurring his words and was unsteady on his feet, he also appeared happy and talkative and was not displaying any signs of irritation or aggression. Their evidence is generally supported by CCTV footage which shows Mr Farmer dancing in and out of the camera frame to the street music from about 1.21am before he moves out of range of the camera at about 1.30am.
13. At about 1.34am, the CCTV camera records the offender and Mr Deeth walking across the camera's field of view from right to left (that is, from the intersection with William street north along Horton Street). From what followed, it is clear beyond doubt that the offender was carrying the knife concealed in his clothing.
14. At 1.37am two security guards, including Mr Frank-Morrall, the security guard who had witnessed the earlier confrontation, are seen to run from right to left across the CCTV camera's field of view. Mr Frank-Morrall gave evidence that from where he was stationed on the south-west corner of Horton Street and William Street he heard and saw what looked like a "yelling match" in Horton Street in the direction of the Commonwealth Bank (next door to the kebab shop). He also said he saw two people run north on Horton Street toward the taxi rank. It is common ground that what he saw was the offender and Mr Deeth running from the scene after Mr Farmer had been fatally stabbed.
15. From their different vantage points on the street and footpath, various of the eyewitnesses also gave evidence of what they heard and saw of the fight that erupted between Mr Deeth and Mr Hawken, on the one hand, and Mr Farmer and the offender on the other, within about a minute of their arrival. The two buskers also gave evidence of their observations of these events.
16. There was uncontradicted evidence at trial that it was the verbal taunts exchanged between Mr Hawken and Mr Deeth, as to which Mr Hawken responded aggressively by rising from where he was seated in the gutter to confront Mr Deeth, that was the trigger event for the physical fight which erupted between those two men. Mr Hawken gave evidence that although he recalled the exchange of words with Mr Deeth and confronting him, he had no memory of fighting with him and did not see Mr Farmer fighting with the offender. He explained this by his level of intoxication.
17. There were significant discrepancies in the evidence given by the eyewitnesses as to who (of the offender and Mr Farmer) did what in the course of the fight in which they were seen to engage, in particular whether any of what were described as Mr Farmer's wild, swinging punches made contact before the offender must be taken to have drawn the knife and stabbed him. There were also significant discrepancies in the evidence given by some of the eyewitnesses as to who approached whom as the fight between them moved off the footpath and onto the road. Importantly, no one gave any evidence of how the fight started or what, if anything, was said by either of them to cause the fight to escalate before the offender withdrew the knife from his clothing and used it with fatal consequences.
18. Although it was the Crown case at trial that there was nothing in the circumstances as the offender perceived them to justify him stabbing Mr Farmer in self-defence, a finding the jury made to the criminal standard as reflected in their verdict, in assessing the offender's moral culpability for Mr Farmer's murder for sentencing purposes, I am obliged to take into account all the circumstances that might inform that assessment.
19. In making that assessment, I was invited by Mr Agius SC to take into account what the offender said to various people about the circumstances in which he stabbed Mr Farmer before he was charged with his murder on the afternoon of 21 September 2014 and what he said to police about the incident upon being remanded in police custody. The fact that the Crown led this evidence at the offender's trial in discharge of the Crown's duty of fairness neither advances nor diminishes its probative weight for sentencing purposes. The issue is whether, in assessing the offender's moral culpability, I am prepared to accept what he said to various people as an honest version of the events as he genuinely perceived them, in particular his explanation for how and why he became embroiled in a fight he said he did not instigate.

The offender's account to others

1. The offender first spoke about the incident to his school friend, DD, after he was overheard speaking with Mr Deeth and Mr Deeth's brother the following morning, saying that he had stabbed someone. DD gave the following evidence of what the offender said to him: Yeah, I stabbed someone over at Port as James and the other fella had a fight. That fella was fighting James. His friend jumped up and hit me in the jaw so I stabbed him.
2. SD, DD's older sister, gave evidence of how she learned of the stabbing. She said that she had come home from a wedding at about 3.00am on Sunday 21 September 2014, at which time she had a general conversation with the offender and Mr Deeth, but that neither of them spoke of what had happened. SD gave evidence that when she woke up later that morning, the offender told her that he had been in a fight and stabbed someone. When she asked why he did that he told her: He started on me for no reason. James and the other guy were having a fight. I was just watching. He came over to me and hit me, so I hit him back and then stabbed [him] about four or five times.
3. Mrs Barker, DD and SD's mother, gave evidence that she also learned of what had happened after her son told her the offender needed to speak with her. While he initially only told Mrs Barker that he had been on "ice" and that he and Mr Deeth had been in a fight, he went on to say that after the fight between Mr Hawken and Mr Deeth had erupted he was: ….kicking back, watching it, thinking, 'Mad swack', then this other fella come in and king hit me from the side, we started having a go, I pulled out a knife and stabbed him with it. Me and James ran back to the car, put the knife in the bin and drove back to Kempsey.
4. Later in the day Mrs Barker learned via social media that the person who had been stabbed had died. She said she told the offender: The lad died. I'm ringing the police. I'm going to take you up and you'll hand yourself in.
5. The offender offered no resistance to being taken to the police station by Mrs Barker. Mrs Barker also telephoned Mr Morrison and asked him to attend the police station as a support person.
6. At the police station, despite electing not to be formally interviewed, the offender gave a spontaneous account to Detective Derbridge of the event in which he said: He rushed me. I'm only a kid. I stabbed him in the arm to scare him off. He must have been on drugs or something.
7. In determining what weight to give to the offender's unsworn account to each of the people he spoke to that he struck out at Mr Farmer in retaliation at being hit (or "rushed" as he described it to Detective Derbridge) before drawing the knife and stabbing him, as I noted earlier, no one called by the Crown saw the commencement of the fight, although they all saw various aspects of it as it escalated.
8. The witnesses at trial who gave evidence of the fight fell loosely in three groups. Ms Johnson, Mr Ostler-Hosking and Mr Irby were gathered outside the kebab shop. The buskers, Mr Adcock and Mr Everett, and Mr Archibald, a casual bystander, were outside the Commonwealth Bank (adjacent to the kebab shop on the left, that is, north along Horton Street) while Mr and Mrs Wilson, Mr and Mrs Mudford, and Ms Nagler had moved further north along Horton Street when they were alerted to the fight erupting behind them. They heard what they variously described as "yelling and arguing", a "commotion", a "scuffle" and "raised voices".
9. Upon turning around, Mr Mudford, Mrs Mudford and Ms Nagler saw what they described as a "scuffle" or "pushing and shoving", including swinging punch-like actions by some, or all, of the four men in a two-on-two configuration. In the first moments of engagement between the offender and Mr Farmer, Mr Mudford described more of Mr Farmer's punches landing on the offender, although Mrs Mudford described the offender throwing "sharp jabs" towards Mr Farmer.
10. Of the eyewitnesses, only Mr Mudford and Mr Wilson saw what was described as a punch making contacting with Mr Farmer's upper chest in what I accept must have been the infliction of one of the fatal wounds. Mr Archibald (who was with Mr Adcock and Mr Everett) also described the offender lunging at Mr Farmer's abdomen left of the midline, in what I accept was the infliction of the second fatal wound.
11. Mr Mudford and Mr Wilson also described, in different ways, how the fight between the offender and Mr Farmer moved from the footpath to the road. Mr Mudford described a punch being delivered by the offender after seeing him backing onto the road with Mr Farmer following him. He said he only saw one punch landing, despite both throwing other punches at each other. He described the offender's punch as directed toward Mr Farmer's upper chest after which he heard Mr Farmer moaning, with his hands clasped on his chest. He said Mr Farmer stood still, momentarily, before he fell over.
12. In direct contrast with Mr Mudford's account, Mr Wilson described Mr Farmer moving backwards onto the road with the offender following him and both men throwing punches. He said he saw the offender deliver what he described as an unusual sort of punch. He said it was more like a swing than a punch, with the offender's straight arm coming across his body at shoulder height and contacting with Mr Farmer's chest. He said that once that blow landed, the offender moved his arm away from Mr Farmer's chest, holding onto something that looked to be a knife with a fairly substantial blade, dripping with blood. He said the offender's hand and arm were covered with blood. He said he saw Mr Farmer stumble back towards the Commonwealth Bank with blood dripping from his shirt.
13. I do not regard the jury's verdict as informing the question whether the offender or Mr Farmer was the aggressor in the physical fight. Although there was evidence given of the two groups "squaring off" after Mr Hawken confronted Mr Deeth, I am satisfied that it was the confrontation between those two men when they re-encountered one another in Horton Street, a confrontation that rapidly escalated to physical violence, which triggered the physical fight between the offender and Mr Farmer. I am compelled to that finding, there being no evidence of anything said by either the offender or Mr Farmer or done by either of them to precipitate them fighting independently of the fight involving their respective friends.
14. On the available evidence, I am also unable to find, beyond reasonable doubt, that it was the offender who engaged Mr Farmer in a physical fight by punching him first or by physically challenging him to a fight, as submitted by the Crown. While no one saw the offender being "king hit", as he claimed to Mrs Barker, some of the eyewitnesses gave evidence of some of Mr Farmer's punches landing on the offender. This allows me to afford some weight to the offender's statements that it was when he was punched that he struck back and then stabbed Mr Farmer. His accounts to various people within a short time of the incident have a degree of consistency between them and are not inconsistent with evidence of the eyewitnesses.
15. While it is true that Mr Farmer was, as the Crown submitted, grossly intoxicated and unarmed, in the immediacy of the fight, with punches being thrown by both the offender and Mr Farmer (and some landing), I am unable to find that the offender appreciated that fact.
16. From the overall context in which the knife was drawn, and the speed with which the fatal wounds were inflicted in a fight that extended over little more than a minute before Mr Farmer dropped to the ground and the offender ran from the scene, I am satisfied that the offender's intention was to cause Mr Farmer really serious injury by stabbing him to the chest and midline and that his conduct was reactive to the dynamic circumstances in which he found himself embroiled.
17. I intend to sentence him on that basis. The Crown did not seek to persuade me otherwise.
18. While in some cases of murder an intention to kill renders the objective seriousness of the offence of greater order than if the causative act is accompanied by an intention to cause really serious harm, where the level of violence employed is considerable, as it was here with two stab wounds delivered by the offender in quick succession, each of which was causative of death, the impact on sentence of finding that the intention was to inflict grievous bodily harm is limited.
19. There was no dissent from the Crown at the sentencing hearing that it was open to me to find that the offender's emotional immaturity, as much a product of his youth as the privations he had suffered as a young child followed by exposure to violence throughout his adolescence, significantly contributed to his decision to draw the knife and use it as he did. In accordance with long established sentencing principle, where an offender's youth and immaturity have contributed in a discernible and material way to the commission of an offence, the impact of both factors on the evaluation of the offender's moral culpability can be considerable, even where serious offences of violence are committed (see R v YS [2014] NSWCCA 226). The authorities also recognise that youth and immaturity may also have the effect of moderating the weight to be given to general deterrence and retribution in the sentencing exercise.
20. That is not to say that an offender's youth automatically produces the result that a lesser sentence will be imposed than that which might be imposed on an adult offender who commits an offence in similar circumstances, or that an offender's youth automatically diminishes the need for a sentence to reflect principles of retribution, denunciation and deterrence in the synthesis of factors that are engaged in the exercise of the sentencing discretion. An offender's youth may, however, in the particular circumstances of the case under consideration, enhance the need for the sentence to make allowance for the rehabilitation of a young offender and the social benefits that brings in the medium to long term. In addition, where a young offender has taken deliberate and positive steps towards their rehabilitation at the time of sentence, as I am satisfied this offender has done over the course of his lengthy remand to date, the sentence should also reflect that fact in recognition of the obvious social benefits in the maintenance and advancement of a young offender's prospects of successful reintegration into the community at the expiration of the minimum period of full-time custody imposed as part of the sentencing order.
21. In KT v R [2008] NSWCCA 51, McClellan CJ at CL made the following observations when examining the rationale behind s 6 of the Children (Criminal Proceedings) Act in the course of reviewing the authorities when sentencing juveniles as they stood at that time: [24] Although accepted to be of less significance than when sentencing adults, considerations of general deterrence and retribution cannot be completely ignored when sentencing young offenders. There remains a significant public interest in deterring antisocial conduct. In R v Pham & Ly (1991) 55 A Crim R 128 Lee CJ at CL said (at 135): "It is true that courts must refrain from sending young persons to prison, unless that course is necessary, but the gravity of the crime and the fact that it is a crime of violence frequently committed by persons even in their teens must be kept steadfastly in mind otherwise the protective aspect of the criminal court's function will cease to operate. In short, deterrence and retribution do not cease to be significant merely because persons in their late teens are the persons committing grave crimes , particularly crimes involving physical violence to persons in their own homes. It is appropriate to refer to the decision of Williscroft (1975) VR 292 at 299, where the majority of the Full Court of Victoria expressed the view that, notwithstanding the enlightened approach that is now made to sentencing compared to earlier days, the concept of punishment ie coercive action is fundamental to correctional treatment in our society." [25] The emphasis given to rehabilitation rather than general deterrence and retribution when sentencing young offenders, may be moderated when the young person has conducted him or herself in the way an adult might conduct him or herself and has committed a crime of violence or considerable gravity (R v Bus, unreported, NSWCCA, 3 November 1995, Hunt CJ at CL; R v Tran [1999] NSWCCA 109 at [9]-[10]; R v TJP [1999] NSWCCA 408 at [23]; R v LC [2001] NSWCCA 175 at [48]; R v AEM Snr, KEM and MM[2002] NSWCCA 58 at [96]-[98]; R v Adamson (2002) 132 A Crim R 511 at [31]; R v Voss [2003] NSWCCA 182 at [16]). In determining whether a young offender has engaged in "adult behaviour" (Voss at [14]), the court will look to various matters including the use of weapons, planning or pre-meditation, the existence of an extensive criminal history and the nature and circumstances of the offence (Adamson at [31]-[32]). Where some or all of these factors are present the need for rehabilitation of the offender may be diminished by the need to protect society. [26] The weight to be given to considerations relevant to a person's youth diminishes the closer the offender approaches the age of maturity (R v Hoang [2003] NSWCCA 380 at [45]). A 'child-offender' of almost eighteen years of age cannot expect to be treated substantially differently from an offender who is just over eighteen years of age (R v Bus, unreported, NSWCCA, 3 November 1995; R v Voss [2003] NSWCCA 182 at [15]). However, the younger the offender, the greater the weight to be afforded to the element of youth (Hearne at [27]).
22. In assessing the objective seriousness of the offence for sentencing purposes, and the offender's moral culpability for that offence, I consider his use of the knife as both impulsive and irrational, the antithesis of the mature decision making ordinarily attributed to an adult offender (see the observations of Hodgson JA in BP v R [2010] NSWCCA 159; 201 A Crim R 379 at [6], with whom Rothman J agreed).
23. The Crown conceded that the evidence did not support a finding beyond reasonable doubt that the offender was carrying the knife as part of a planned or premeditated assault on Mr Farmer or Mr Hawken and, further, that it was open to me to be satisfied on the probabilities that he was only carrying it at all because he was asked to by Mr Deeth.
24. I am also satisfied that in the immediacy of the events as they unfolded on Horton Street, there was no time for rational or calm reflection. Although the offender has committed an extremely grave offence of violence, resulting in a tragic loss of a young man's life, and although that offence involved the use of a knife which, by reason of its sheer size had the potential to inflict lethal wounds, I do not consider that he engaged in "adult behaviour" as that concept is understood in the authorities to which I have referred such that the rehabilitative objectives of sentence should cede to the need to protect society. I do not regard the offender's use of the knife as a feature of aggravation under s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW). Although the offence of murder can, of course, be committed without the use of a weapon, I have already accounted for the knife used to inflict the mortal wounds in this case in my assessment of the objective seriousness of the offending as extremely grave. That said, I am acutely conscious of the community's abhorrence of knives being carried on the person, concealed or otherwise, and the legitimate community expectation that the sentence imposed in this case will reflect that fact, as it will the need to denounce the offender's violent conduct in causing the loss of life in the strongest terms.

The offender's criminal record

1. The offender first came to the attention of Juvenile Justice in July 2012 when he was charged with having custody of a knife in a public place. In January 2013 a bond to be of good behaviour for 6 months was imposed in the Children's Court for that offence. The bond was satisfactorily completed. On the date he was charged with Mr Farmer's murder, the offender was also charged with an assault with intent to rob in company. A 12-month probation order was imposed in the Children's Court on 2 May 2016. That sentence has since expired. The Court was not provided with any information about the commission of that offence. The Crown submitted that the offender's criminal history was "concerning" but did not develop that submission in any meaningful way. The Crown did not advance the submission that in determining the appropriate sentence the offender's criminal record was an aggravating factor. His criminal record does, however, have the effect of depriving him of a measure of leniency that might be afforded an offender without a criminal record, as well as indicating the need for some weight to be given to personal deterrence. The weight of that consideration is however moderated in this case, given what I accept is the offender's genuine desire not to reoffend in any way upon his eventual release, his exemplary behaviour in juvenile detention, and the length of the minimum term he must spend in custody as part of the sentencing order.

Subjective circumstances

1. The offender is the youngest of nine siblings. His mother died when he was aged nine. It would appear that the offender found his mother deceased. Two of his older brothers have also died. The offender reports only a vague recollection of his childhood. Departmental records have identified what was described as "a history of grief and loss experience within the home environment". Although his father is alive, he admitted himself into an aged care facility soon after the death of his wife, making no arrangements for the offender's custody and care. The offender has had little or no contact with his father since that time. It would appear that whilst he was in the company of one of his sisters (the other siblings having drifting away) she was also an adolescent. As a consequence of transient homelessness for some years, the offender did not attend school for lengthy periods (he did not attend school at all between Years 4 and 9) before he moved, with his sister, into the Kempsey area where more long-term accommodation was able to be arranged for them.
2. In the opinion of Dr Akkerman, consultant psychiatrist, whose report was tendered in the sentence proceedings, the break in the offender's primary schooling has both deprived him of peer relationships and associated development, whilst the lack of parental guidance from a very young age has left him vulnerable to being easily led by others. As the offender reported to the authors of the confidential background report prepared for sentencing purposes in accordance with s 25 of the Children (Criminal Proceedings) Act, he spent his time in the months before September 2014 mainly with older people in whose company he misused substances, principally cannabis, and involved himself in antisocial behaviour. He said he rarely engaged in any structured or prosocial activities with children his own age.
3. For reasons that are not entirely clear, the offender did not live permanently with his sister in Kempsey for very long. The evidence at trial from Mrs Barker was that "his sister had a baby and [his] family life tipped upside down". She said by that time the offender had become friends with her son and daughter through attending school together, and that she invited the offender to live with them. As I noted earlier, it was whilst he was living at Mrs Barker's home that he met Mr Deeth, a man who, on any view, was a negative influence on the offender and whose conduct, in significant measure, provided the situational context for the offender's offending. Mrs Barker gave evidence that she understood the offender had gone to bed on the night of Saturday 20 September 2014 only learning later that it was at Mr Deeth's urging that the offender got up, drank alcohol and travelled with him to Port Macquarie.
4. Mrs Barker, SD and Mr Morrison independently confirmed the offender's report to the authors of the confidential background report that he felt unsafe in the community after having been the target (for reasons he was unable to understand) of numerous assaults from groups of adolescents. The offender said that it was in these circumstances and because of his fears for his own safety that he habitually carried a knife to ward off his attackers. He also told the author of the report that he was not influenced by anyone else to carry a knife, but made the decision himself according to what he thought was right and wrong.
5. Dr Akkerman reported that in the course of interviewing the offender, he spontaneously expressed remorse on at least four or five occasions and expressed full responsibility for what had happened, blaming himself for his immaturity in carrying a knife and using it. During the interview with the Juvenile Justice officer, the offender did not seek to minimise or justify his actions in stabbing Mr Farmer. He did however inform them of his wish to maintain a renewed relationship with his sisters and a desire to be around "positive and humble people" in the future.

Education

1. At the time of the offence the offender was attending Macleay Vocational College. He had completed Year 10 after making up for lost time by applying himself to his studies. Mr Morrison gave evidence that despite the offender being what he described as previously "unschooled", and despite having found his first year in an institutional setting difficult, he had persevered and had received "a couple of certificates" before his remand.
2. At the time of the preparation of the confidential background report, the offender was engaged in a horticultural program in the Juvenile Justice detention centre and expressed an interest in commencing a Certificate 111 in information technology. Although he also successfully completed Year 11 in 2015, the onset of a deterioration in his mental health in early 2016, in particular the difficulties he had maintaining control over his anxiety levels, prevented him from completing Year 12.
3. A reference was provided by the Principal and Assistant Principal of Girrakool Education and Training Unit, from which the offender graduated at Year 11 as follows: [The offender] enrolled at Girrakool Education and Training Unit on the 04.05.15 to the 10.03.16 and the 11.05.16 to present. He is currently studying the Certificate II in Horticulture and is waiting to commence the Certificate III in Information Digital Media and Technology course. [The offender] has also been actively involved in a variety of academic and extra curricular activities including: Academic: Year 11 Preliminary Higher School Certificate Year 10 Life Skills Record of Student Achievement Sports, Lifestyle and Recreation (2 Unit Preliminary HSC) Statement of Attainment for Certificate II in Horticulture Extra Curricular: Intensive Numeracy Program Reintegration Expo Girrakool Baxter Charity Shield Harmony Day Athletics Carnival [The offender] is a polite student who interacts positively with other students in the classroom. He received the General Education Class Four Award at the 2015 Presentation Day. This award was in recognition of his outstanding efforts in the Year 10 Life Skills Record of Student Achievement course. [The offender] is able to work independently within the classroom and is highly respectful towards staff at all times. We recommend [the offender] continue with his studies and wish him success in achieving his future goals through education.
4. A further (unsolicited) reference was provided by the Conservation and Land Management Supervisor, Mr Pinkham. He also commended the offender for his work and study ethic and his determination to acquire the skills that will enable him to make a contribution to society upon his release. Mr Pinkham also observed that the programs that are on offer in the Juvenile Justice setting provide a concrete infrastructure for the offender's ongoing rehabilitation and that, in his view, it would be "unfortunate" if he were not able to complete the programs he has started before being transferred to an adult prison at age 21. He also informs me that he has spoken at length to the offender who he considers to be extremely remorseful.

Victim impact statements

1. Mr Farmer's partner, Renee Vanderham, and his parents, Tony and Jean Farmer, have conveyed to me in statements read in open court the intense, pervasive and understandable sadness and grief they have experienced and continue to experience at what can only be described as the senseless and untimely death of a loved family member. I have had regard to both statements in accordance with settled principles. I also take the opportunity to publicly express my sympathies on my own behalf and that of the Court.
2. At the time of preparing their statements, Mr Farmer's family members were understandably unaware of the unsolicited, repeated and what I regard as the genuine remorse the offender has expressed to a range of people over the course of his remand. Most recently, his remorse was expressed publicly in his handwritten statement addressed to the Court and a statement to the family he read in the sentence proceedings. I accept and understand that, despite having heard from the offender, the family's pain and anger will be unlikely to be assuaged. The offender's remorse is, however, a mitigating factor to be afforded weight in the sentencing exercise under s 21A(1)(c) of the Crimes (Sentencing Procedure) Act.

The offender's mental health

1. The offender was admitted as an inpatient to the Austinmer Adolescent Forensic Hospital between March and May 2016 under the treatment of a resident psychiatrist following a diagnosis of a Delusional Disorder, a Major Depressive Disorder with a differential diagnosis of Schizophrenia. He remains subject to a Forensic Community Treatment Order which is reviewed every three months by the Mental Health Review Tribunal. As an inpatient, he was treated with a variety of antipsychotic and psychotropic medication, inclusive of a course of Paliperidone injections after experiencing flashbacks to the stabbing (described in the medical notes as visual and auditory hallucinations associated with symptoms of psychosis) and high levels of anxiety.
2. He is currently maintained on a pharmaceutical treatment program with which he is thoroughly compliant. After giving close consideration to the clinical notes and the offender's treatment records, Dr Akkerman assessed his prognosis as guarded and, further, that were his treatment interrupted for any reason, he was likely to relapse with the need for rehospitalisation. In Dr Akkerman's view, the offender's need for treatment with an antipsychotic medication is likely to be ongoing for a period of between two to four years.
3. Dr Akkerman also considered that with appropriate treatment and the offender's commitment to his educational and vocational advancement, his chances of reintegrating into the community are high and the prospect of his reoffending low.

Relevant law

1. The offence of murder is a "serious children's indictable offence" within the meaning of s 17 of the Children (Criminal Proceedings) Act which requires that the offender be dealt with according to law. I am still obliged, however, to give consideration to s 6 of the Act which gives statutory expression to the principles of sentencing that are specific to children. In these proceedings, the following are of particular application: (6) A person or body that has functions under this Act is to exercise those functions having regard to the following principles: … (b) that children who commit offences bear responsibility for their actions but, because of their state of dependency and immaturity, require guidance and assistance, (c) that it is desirable, wherever possible, to allow the education or employment of a child to proceed without interruption, … (f) that it is desirable that children who commit offences be assisted with their reintegration into the community so as to sustain family and community ties, (g) that it is desirable that children who commit offences accept responsibility for their actions and, wherever possible, make reparation for their actions, (h) that, subject to the other principles described above, consideration should be given to the effect of any crime on the victim.
2. The offence of murder carries a maximum of life imprisonment. The Crown did not seek the imposition of a life sentence and did not provide any sentencing statistics or comparative cases to inform the sentencing discretion. In oral submissions the Crown accepted that the limited cohort of cases where a juvenile has been convicted of murder after trial, and the variety of circumstances (both subjective and objective) inherent in those cases, is such that no range of sentences appropriate for this offence and this offender is immediately discernible.
3. From my own researches, I have located two decisions of this Court which do share some features in common with this case, although both are sufficiently different to offer little assistance in the imposition of sentence in this case: R v SSA; R v Siose [2007] NSWSC 1202; R v SB; R v AE; R v MG [2015] NSWSC 659. I note that the sentence in R v SSA was imposed before the High Court's decision in Muldrock v R (2011) 244 CLR 120; [2011] HCA 39, and before the amendment to the Crimes (Sentencing Procedure) Act which now provides that the standard non-parole period of 25 years does not apply where the person to be sentenced is a child.
4. In written submissions, the parties addressed the power under s 19 of the Children (Criminal Proceedings) Act for the offender to serve his sentence in a Juvenile Justice facility until he reaches the age of 21, if I am satisfied there are special circumstances justifying his detention as a juvenile offender until that time. (I note he will turn 21 on 29 January 2019.) Section l9(4) provides as follows: A finding of special circumstances for the purposes of subsection (1A) or (3) may be made on one or more of the following grounds, and not otherwise: (a) that the person is vulnerable on account of illness or disability (within the meaning of the Anti-Discrimination Act 1977), (b) that the only available educational, vocational training or therapeutic programs that are suitable to the person's needs are those available in detention centres, (c) that, if the person were committed to a correctional centre, there would be an unacceptable risk of the person suffering physical or psychological harm, whether due to the nature of the person's offence, any assistance given by the person in the prosecution of other persons or otherwise.
5. The Crown accepted that the confidential background report, to which I have already referred, included material sufficient to constitute special circumstances such as to allow for an order to be made under s 19(4) of the Children (Criminal Proceedings) Act. In so finding, I accept that there is access to various therapeutic services specific to the offender's mental health needs within the juvenile detention facility, together with vocational training and other education-based courses that are unlikely to be available in an adult prison, some of which the offender has already availed himself of in the considerable progress he has made towards rehabilitation since his remand. I am also satisfied that were the offender to commence his sentence in an adult prison immediately, he would be physically and psychologically unprepared to deal with exposure to an adult prison population.

Special circumstances

1. I am satisfied that the offender's youth and the progress he has made towards his rehabilitation are also circumstances warranting a departure from the statutory ratio between the head sentence and non-parole period in s 44(2) of the Crimes (Sentencing Procedure) Act. I have also taken into account the deterioration in the offender's mental health since his remand, with its most recent manifestation in an acute episode requiring his hospitalisation, and that this is likely to render the further time he is to spend in custody more onerous. I also take into account the need for an extended period of supervision upon his eventual release in order to facilitate his reintegration into community life.
2. I am conscious that the non-parole period, being the minimum period the offender must serve in custody, must also reflect principles of retribution and general deterrence.
3. As I have sought to emphasise, however, it is well recognised that the chronological age of a young offender is not the sole determining factor in the weight to be attributed to general deterrence in assessing an appropriate sentence and the structure of that sentence. An adolescent offender's psychosocial immaturity alone may have inhibited the capacity for sound decision-making, rendering the adolescent vulnerable to the risk of exposure to anti-social attitudes and behaviour within their community of peers or older persons. In this case, the fact that the offender was without parental, or even quasi-parental guidance from age 9, and for some years until he came under Mr Morrison's notice and Mrs Barker's care, deprived him of a familial or institutional structure within which to gain the experience that adults can provide and the moral guidance that structured learning can give. For this reason, and for the reasons I have already given, I consider the offender's age and his emotional immaturity at the time of the offending operate to moderate the impact of general deterrence in the fixing of an appropriate sentence in this case.

Sentence

1. In this sentencing exercise there is an interplay of considerations bearing upon the exercise of the sentencing discretion, some of which point in dramatically different directions. In synthesising those competing considerations and acknowledging, as I do, the sentencing principles enshrined in s 3A of the Crimes (Sentencing procedure) Act, I sentence the offender as follows: PO, I sentence you to a term of imprisonment, comprising a non-parole period of 9 years commencing on 21 September 2014 and expiring 20 September 2023, with a balance of term of 6 years expiring on 20 September 2029. You will be eligible for release to parole on 21 September 2023. I direct that the offender serve his sentence as a juvenile offender until he turns 21 years of age.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 June 2017