R v Shillingsworth

Supreme Court of NSW|2023-02-10|Before: Wright J

Introduction

On 11 March 2022, the offender pleaded guilty in the Local Court to the offence of murder contrary to s 18(1)(a) of the Crimes Act 1900 (NSW) and was committed for sentence to the Supreme Court.
In the statement of agreed facts signed by the offender on 11 March 2022, the basis for the offender's plea was stated in par 2 as follows: "[The offender] is entering a plea on the basis that this is a constructive murder. The foundational '25 year' offence is an offence contrary to s.97(2) of the Crimes Act 1900, particularised as an assault with intent to rob in company while armed with a dangerous weapon."
The offender is now to be sentenced for the murder of Kevin Kourtis on 24 May 2020.
Before turning to consider the circumstances of the offending and the offender's subjective case, it is appropriate to acknowledge that Kevin Kourtis's death, like the death of every human being in such circumstances, was a tragedy. These remarks, however, must focus on the events leading up to, and what occurred on and after, 24 May 2020. In addition, the focus must necessarily be on the offender's rather than the deceased's circumstances. This is not, however, to diminish the importance or value of Mr Kourtis's life.

Maximum penalty and standard non-parole period

The maximum penalty for murder is imprisonment for life, which indicates the inherent gravity of offences of this kind. It was not submitted by the Crown Prosecutor, however, that the offending in the present case should attract the maximum penalty, and I accept that approach is correct. Nonetheless, the maximum penalty constitutes a legislative guidepost to which I have had regard.
In addition, the offence of murder attracts a standard non-parole period of 20 years' imprisonment. This is a further legislative guidepost which I have taken into account.

Purposes of sentencing

In order to identify and assess the many factors relevant to sentence, I have also had regard to the purposes of sentencing stated in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Procedure Act), which are: "(a) To ensure that the offender is adequately punished for the offence, (b) To prevent crime by deterring the offender and other persons from committing similar offences, (c) To protect the community from the offender, (d) To promote the rehabilitation of the offender, (e) To make the offender accountable for his or her actions, (f) To denounce the conduct of the offender, (g) To recognise the harm done to the victim of the crime and the community."

Sentencing for constructive murder

In the present case, the offender is to be sentenced for constructive murder on the basis that he was culpable because he admitted that: 1. he was a participant in a joint criminal enterprise to commit an offence of assault with intent to rob in company while armed with a dangerous weapon contrary to s 97(2) of the Crimes Act, which carries a maximum penalty of 25 years; and 2. the deceased was killed "during the commission, by [the offender], or some accomplice with him … of [that offence which is] a crime punishable by imprisonment … for 25 years", within s 18(1)(a) of the Crimes Act.
The principles to be applied in sentencing an offender for constructive murder in a case such as the present were not generally in dispute. These principles include: 1. Constructive murder is not to be regarded as less serious than other categories of murder and thereby attracting a lighter total sentence or non-parole period than that which is appropriate for other categories of murder; [1] 2. There are degrees of seriousness of constructive murder and the determination of the appropriate sentence for any individual offence depends upon the nature of an offender's conduct and the part which he or she played in the events giving rise to death; [2] 3. When sentencing parties to the commission of the same offence, differences in the part played in the commission of the offence, age, background, previous criminal history and general character have to be taken into account. [3]
The application of these principles was recently considered by the Court of Criminal Appeal in DS v R, DM v R [2022] NSWCCA 156 (DS). [4] At [109], the Court emphasised that the proper approach was to sentence an offender for constructive murder "on the basis that he pleaded guilty to it", including in that case that the only state of mind encompassed by the plea was an advertence to the possibility of the infliction of a non-fatal wound, rather than to sentence the offender by reference to his co-offender's offending and the offender's role in that. Accordingly, in the present case, the objective seriousness of his offending is to be assessed by reference to the offender's conduct and what was encompassed in his guilty plea rather than by reference to the conduct of his accomplices.

The facts

For the purpose of determining the sentence, I must make findings of fact as to what occurred. [5] The facts I find against the offender must be found beyond reasonable doubt but the facts I find in favour of the offender need only be found on the balance of probabilities. [6] In the present case, the offender has pleaded guilty and certain facts are agreed, as set out in the extensive statement of agreed facts which was signed by the offender on 11 March 2022.
As to what relevantly occurred, I find that the facts are as set out in the agreed facts. For present purposes, it is sufficient to summarise those findings in the following way.
The deceased, Mr Kevin Kourtis, lived in Langton Street, Riverstone, NSW, with Ms McKenzie and her partner, Mr Sorenson. Between April and May 2020, the deceased's girlfriend, Ms Howlett, stayed at the house frequently. A co-offender, DPD, had attended the house previously in March and April 2020 and had disagreements with the deceased.
On the evening of 23 May 2020, the offender was at his house in St Clair. Travis Murdoch arrived at the offender's house at about 7:30 pm. Shortly after, the offender went with his girlfriend, Ms Gillies, and a friend, Mr McGivney, to the BWS bottle-shop in Quakers Hill to purchase some beer. The girlfriend drove the three of them in the offender's Silver Subaru. They returned to the offender's residence at around 7:40 pm. At around 9:55 pm on 23 May 2020, the offender drove to the same BWS, and bought another carton of beer. At the BWS he was captured on CCTV and the clothing he was wearing could be seen. He returned to his house at around 9:59 pm.
At around 11:01 pm, the offender and Mr Murdoch left the house in the Silver Subaru. They were at a BP Service Station in Quakers Hill at around 11:55 pm, where Mr Murdoch was captured on CCTV when paying for petrol and the clothing he was wearing could be seen. Mr Murdoch returned to the front passenger's seat and the Subaru drove to the Aldi Car Park next door to the service station, arriving at 12:01 am. At 12:10 am, Mr Murdoch, who was in the Silver Subaru with the offender, received a phone call from DPD.
At some time, DPD and DJD met the offender and Mr Murdoch at the Aldi Car Park which was about 200 m from DJD's house.
The offender, Mr Murdoch, DPD, DJD and SP all drove in the Silver Subaru to the streets near Langton Street, where the deceased lived. CCTV footage captured the Silver Subaru driving down Annaluke Street, which runs parallel behind Langton Street, without headlights on.
After parking the Silver Subaru on a street near the deceased's house, at about 12.31am, all five males got out of the car and walked down Langton Street and looked at the deceased's house. They gathered in a circle on the roadway outside the house for about 20 seconds before walking together down the deceased's driveway towards the front door at about 12:32 am. They all had the lower half of their faces covered. The front sensor light came on as they approached the front door. DPD was holding a shortened .22 calibre 250 Remington savage model 110L repeating bolt action rifle in his right hand.
The men gathered around the front door and one of the accomplices knocked on the door before proceeding to knock again a second time. The deceased yelled "who is it?" and one of the accused replied, "It's James, come on man let me in". The deceased opened the door a fraction and then tried to shut it again but the men forced their way in, knocking the deceased's phone out of his hand in the process. The deceased was forced by the offender, Murdoch, DPD and DJD down the entry hallway, past the loungeroom which was located immediately to the right of the entry hallway, and into the kitchen which was located at the end of the hallway. DPD was still carrying the rifle, whilst another male involved in pushing the deceased was carrying a 30 cm knife.
While this was happening, Ms Howlett was sitting on a lounge in the loungeroom and SP entered that room and stood over her. He prevented her from calling the police and took about $200 from her wallet. SP remained in the loungeroom and did not enter the kitchen.
Whilst this was occurring, the deceased was in the kitchen arguing with the offender, Murdoch, DJD and DPD and various items in the kitchen were being broken. The deceased was physically assaulted which caused two of his teeth to be knocked out and he was also stabbed multiple times by at least one of these four males.
After the deceased had been stabbed, DPD, still carrying the rifle, went upstairs with another of the males into Ms McKenzie's bedroom. She was inside the room. These two men eventually returned downstairs but at different times.
Downstairs, another of the males approached Ms Howlett in the loungeroom and asked, "Where's the shit?". She said that she did not know what he was talking about, and he responded, "you better not be lying to me". As this conversation was taking place, Ms Howlett heard the metal garage roller door open. The other male then took the phone out of her hand, threw it on the floor and stomped on it and threw it at the wall. Ms Howlett then heard one of the other males say "we gotta go, the coppers are coming".
Mr Murdoch and SP went into the garage through the internal access door.
At some point after DPD returned downstairs, he was heard to say to the deceased, "wake up mate, wake up mate. Where's the keys to the ATV? Where's the keys to the quad?" Another of the males yelled "Kev where are the bike keys".
The offender, who was wearing Asic shoes, ran out of the house, stepping on the deceased's phone as he was leaving. This left a bloody shoe print on the phone.
At approximately 12:36 am, the offender, Murdoch, DJD and SP ran from the deceased's residence. They had been inside the deceased's house for about five minutes. DPD remained inside. The offender got into his car, which was parked on a nearby street, and drove away from the area. Shortly after running from the deceased's property, at around 12:37 am, SP walked back down the driveway and re-entered the garage. A short time later, DPD and SP left the premises together.
Once Ms Howlett could no longer hear any noises she went upstairs to check on Ms McKenzie. She was upstairs for a few minutes before she went back downstairs to check on the deceased who was lying on the kitchen floor with a large amount of blood on his mouth and chest, making a gurgling sound. She then returned upstairs and told Ms McKenzie to phone the police and they both locked themselves in the upstairs bathroom until police arrived.
A neighbour who lived on the same street as the deceased had seen the offenders enter and exit the deceased's property. The neighbour contacted police between 12:32 and 12:33 am when he heard yelling from within the house. Police arrived at Langton Street shortly after 12.45 am.
Upon entering the house through the garage, police saw that in the loungeroom the television was smashed, there was a hole in the wall to the right of the television no bigger than a hand and a smashed black smartphone on the floor in the hallway. There was drug paraphernalia and tools scattered throughout the premises. In the kitchen, police saw the deceased lying on the floor. There was a large amount of blood around the deceased's head and abdomen and there were blood smears and spatters on the kitchen floor, across the benches and the cupboards, broken plates and a hole in the gyprock. There was also a tooth on the ground and a large pool of vomit and blood around the deceased's head. Police commenced CPR on the deceased and an ambulance arrived around 12.51 am. After a 20-minute period of treatment from ambulance officers, the deceased was pronounced dead at the scene at 1:14 am.
After hearing police arrive, Ms Howlett and Ms McKenzie went downstairs. Ms McKenzie identified DPD as one of those involved. When asked by a police officer "what weapons did they have?", McKenzie replied "I don't know but [DPD] had a gun". The police officer asked "[DPD] was here?", to which the Ms McKenzie replied "yes".
At around 2:06 am on 24 May 2020, the offender arrived in the Silver Subaru at Woodcroft McDonalds "drive-thru". Mr McGivney was driving and the offender was in the front passenger seat. Also at the McDonalds "drive-thru" was Ms Varga, the mother of the offender, in a silver Commodore.
Both vehicles moved to the Coles carpark, where they parked the cars "facing the same way" and had the windows down. The offender and his mother exchanged words. The offender said that he was looking for "Travis" and that he would come round after he had seen "Travis".
The shortened rifle carried by DPD during the incident was found on 24 May 2020 in the gutter of a street in Riverstone.
On 26 May 2020 at 4:29 am, the offender informed police that his Subaru had been stolen from the street in which he lived in St Clair. At 12:00 pm that same day, police were informed by a member of the public that a burnt out vehicle had been found on Boronia Road, in North St Marys. Police attended Boronia Road and found that the burnt out vehicle was the offender's Subaru.
Autopsies of the deceased were completed on 26 and 27 May 2020 and the cause of death was identified as a stab wound of chest through the heart and into the lung. When the initial autopsy was conducted, a serrated edge knife blade was located within layers of the deceased's clothing, but the handle of the knife could not be located. The injuries sustained by the deceased included: 1. soft tissue swelling in the region of the parietal scalp without underlying skull or facial fracture; 2. seven stab wounds including one in the left upper chest through the heart and penetrating the lung, three in the abdomen, and three in the trunk; 3. two areas of laceration on the right parietal scalp; 4. blunt force injury of the mouth, including laceration of the lips and the avulsion of two teeth; and 5. defence type injuries including two incised wounds in the first web of the right hand, two in the dorsal aspect of the left hand, and a superficial laceration on the posterior left hand overlying the second metacarpophalangeal joint.
On 1 June 2020, the offender attended Riverstone Police Station. Three forms of demand were placed on him in relation to the occupants of the Subaru on the night of the offence. When asked about the homicide of Kevin Kourtis, the offender denied knowing about it. In audio recorded footage of the form of demand, when asked who the driver and occupants of the Subaru were at 12:25 am on 24 May 2020, the offender responded "nah, nah. My car was at home. It should be". When asked about who the driver and occupants of the vehicle were at 12:30 am on 24 May 2020, the offender replied "I don't know". When asked about who the driver and occupants of the vehicle were at 12:39 am on 24 May 2020 in McCulloch Street, the offender replied "Don't know" and "should have been home, should have been, yeah". When asked where he was at 12:30am on Sunday 24 March 2020, the offender stated he was at home with his partner Telisha Gillies.
On 31 July 2020 at 7:42 pm, a conversation took place between the offender (BS) and his mother (VV). This was recorded by a surveillance device installed inside the offender's residence on 17 June 2020 and included: VV: You just had a baby, what happened? (inaudible conversation) BS: … we made sixty grand from it, we made sixty… but we couldn't… so VV: Why'd you do that for them? You didn't do it, did ya? Was it Travis, or somebody else? BS: It was everyone. VV: … what the fuck … (inaudible conversation) BS: … I didn't mean to…
On 5 August 2020, there was a recorded conversation between the offender (BS) and a female (V1): V1: Yeh um so just letting me know the people are ringing into Crime Stoppers sayin that you was there BS: Who V1: A lot of phone calls comin in from Crime Stoppers sayin that you was there BS: I was fucken upstairs the cunts.
The offender was arrested and cautioned at his home on 12 August 2020 and taken to Riverstone Police Station. He refused to take part in a recorded interview and was taken into custody.

Objective seriousness

Based on the agreed facts and the plea of guilty, I accept that the offender entered the deceased's residence with four other young males as part of a joint criminal enterprise between them to assault Mr Kourtis with intent to rob him in company and one of the males, not the offender, was armed with a shortened rifle (which meets the relevant definition of a "dangerous weapon"). During or immediately after the assault on Mr Kourtis by the offender and three of the other participants in the kitchen during which two of Mr Kourtis's teeth were knocked out, he was fatally stabbed by one of them.
The offender entered a plea of guilty to murder on the basis set out in par 2 of the agreed facts, which has been quoted already. In the circumstances, the offender is not to be sentenced on the basis that he had, or agreed to, either an intention to kill or an intention to inflict grievous bodily harm.
Since it cannot be established beyond reasonable doubt which, or how many, of the offender, Murdoch, DPD and DJD, stabbed the deceased, the offender cannot be sentenced on the basis that he was the person who inflicted the fatal stab wound on Mr Kourtis. Furthermore, however, I was not satisfied on the balance of probabilities that it was not the offender who did the act causing death. Thus, I have proceeded on the basis that it was simply not known whether or not the offender inflicted the fatal wound.
While the offending involved a targeted and planned assault with intent to rob Mr Kourtis on the part of some of the participants, I cannot be satisfied beyond reasonable doubt that the offender's involvement in the offending commenced to any significant extent prior to his being present for telephone call at 12:10 am on 24 May 2020 between Murdoch and DPD. Nonetheless, the offender was in the car park in his Subaru when the three males joined him and Murdoch. He provided and drove the vehicle in which all five participants travelled together to the deceased's residence and, like the other participants, he had his face partially covered and stood in a circle with the others outside the deceased's house before barging in. Thus, there must have been some degree of planning and organisation. Nonetheless, I do not accept the Crown's submission that the level of planning involved was greater than what was inherent in the relevant foundational offence for the constructive murder, which was a joint criminal enterprise to assault Mr Kourtis with intent to rob him, in company and when armed with a dangerous weapon. In order for the offending to be "in company", in the circumstances of the present case, all five participants had to have made their way to the location at about the same time. In order for the element of carrying a dangerous weapon to be established, one of the participants had to carry such a weapon. In order for there to be a joint criminal enterprise to assault with intent to rob, in company armed with a dangerous weapon, the participants had to have reached an agreement to do carry out that crime knowing that one of them was armed with a dangerous weapon. Accordingly, in my view, the factors identified by the Crown as establishing the level of planning or organisation involved did not lead to the conclusion that the planning and organisation went beyond what was inherent in the offending. Furthermore, the offender does not appear to have had a particularly significant role in such planning and organisation as did occur. For these reasons, I am not satisfied that the aggravating factor within s 21A(2)(n) of the Sentencing Procedure Act has been made out in this case. Notwithstanding this conclusion, since there was some planning and organisation involved, I also reject the submission made on the offender's behalf that it was a mitigating factor in the present case that the offence was not part of planned or organised criminal activity, within s 21A(3)(b).
The offence, however, was committed in the home of the deceased and this is an aggravating factor within s 21A(2)(eb) of the Sentencing Procedure Act and has been taken into account.
The Crown also submitted, in effect, that the offender was the male who entered the loungeroom when Ms Howlett and SP were in there and asked her, "where's the shit?" and damaged her telephone. Paragraph 31 of the agreed facts which deals with this episode does not, however, identify the offender as that person. Paragraph 31 commences: "Downstairs another accused who was wearing a dark coloured face covering over his mouth approached Howlett in the lounge room. …" There is nothing in par 31 or elsewhere in the agreed facts which asserts or establishes that "another accused" was the offender. Indeed, par 32 could imply that "another accused" referred to Murdoch as the facts state he then entered the garage with SP. In these circumstances, I do not accept that it has been proved beyond reasonable doubt that the offender was the male who questioned Ms Howlett, in SP's presence, and damaged her telephone.
The offender, however, played a substantial role in the commission of the offence. As noted already, he provided the vehicle in which all of the participants travelled to the deceased's residence. He stood in the circle with the four other males outside the deceased's house and went to the front door of the residence with them. He was one of the participants who pushed Mr Kourtis down the hallway and he was present in the kitchen when Mr Kourtis was assaulted, had two teeth knocked out and was fatally stabbed.
The Crown submitted that the offending should be assessed as being "above the mid-range of objective seriousness for the offence of murder on a constructive murder basis". For the offender it was contended that his conduct lay "more towards the mid range on the spectrum of least serious instance to worst".
In my view, in all the circumstances relevant to the assessment of objective seriousness of the offender's conduct in relation to the constructive murder, his offending fell within the lower part of the mid-range for the offence of murder.

Aggravating and mitigating factors

I have already referred to two aggravating factors submitted to be relevant in the present case. The fact that the offence took place in the deceased's home has been taken into account in assessing objective seriousness but has not otherwise been relied on as increasing the appropriate sentence, in order to avoid double counting. As to the other, I did not accept that the offence was aggravated because it was part of a planned or organised criminal activity beyond what was inherent in the nature of the offending for which the offender is to be sentenced.
The only other aggravating factor was personal to the offender and was, therefore, not relevant to the assessment of objective seriousness. That was the fact that the offence was committed while the offender was on conditional liberty since he was on parole on 24 May 2020 in respect of a control order which commenced on 5 March 2017 and expired on 4 September 2020, with a non-parole period which expired on 4 December 2018. This aggravating factor has been taken into account in the sentence to be imposed.
Mr Hughes of counsel, who appeared for the offender, effectively made submissions on a number of mitigating factors for the purposes of s 21A(3) of the Sentencing Procedure Act that were subjective to the offender including the following: 1. The offender's plea of guilty; [7] 2. his remorse for his offending; [8] 3. his prospects of rehabilitation, by reason of his age and circumstances; [9] and 4. his lack of full awareness of the consequences of his actions because of his age. [10]
I shall deal with these and other relevant matters, when I consider the offender's subjective case.

The offender's subjective case

The material in relation to the offender's subjective case was derived from oral evidence given by him, the report of Dr Tanveer Ahmed, psychiatrist, dated 6 July 2022, the report of Mr Chafic Awit, psychologist, dated 21 October 2022, the Sentencing Assessment Report dated 21 October 2022 and: 1. an affidavit from the offender's mother, Veronica Varga, of 7 July 2022; 2. an affidavit from the offender's partner, Telisha Gillies, of 6 July 2022; 3. a letter from Sheryn Turvey, of 12 July 2022, who has known the offender all his life.
I have had regard to all this material and do not need to repeat it here except to make the following specific comments and findings.

Upbringing, education and employment

The offender was born in 1999 in Sydney and both his parents have Aboriginal heritage. He was 21 years old at the time of the offending.
The offender grew up initially with his parents, his half sister and two older brothers. There was significant violence between his parents and he reported seeing his mother "bloodied up" on many occasions. Nonetheless, he and his siblings were generally spared physical violence unless they intervened between their parents. His father was an ice addict. His half sister left when he was about eight years old and his parents separated when he was about 10. He continued to live with his mother. She was a former drug addict and struggled to support her children. When the offender was 10 years old, his six-year-old cousin was murdered by his aunt by marriage and it was said that this murder had an impact upon him for a number of years.
At about the age of 11, the offender began to associate with antisocial peers and engage in conduct he knew to be wrong and illegal and later he began to sell drugs to earn money to assist his mother. The offender reported that he hated being at home and by the time he turned 12 he would stay out anywhere but home until he needed to return home to sleep. He said that the neighbourhood was violent and he was always concerned about being attacked and reported that had been he had been attacked at least 8 to 10 times.
The offender attended primary school at Quakers Hill Public School. He attended high school through to Year 10 when he went into juvenile detention. At school, he was subject to racist taunts and bullying and retaliated by fighting but was never ashamed of his heritage. He was a member of the Mount Druitt Indigenous Church and Ms Turvey from that Church provided a letter of support. The offender stated that he enjoyed mathematics as well as turning to art and sport to release pent up stress and anger and he received encouragement and support from his coaches at Blacktown and later Quakers Hill Football Clubs.
The offender went into juvenile detention at the age of 16 and reported being physically and sexually abused whilst in detention. It was said that this adversely affected his mental health, including suffering post-traumatic stress disorder and he has made a claim in relation to this.
After his release on parole, in February 2019, the offender met his partner Ms Gillies and after that they spent most of their time together, although their relationship became increasingly strained as the offender turned to drugs as a result of financial pressures. In July 2020, their son was born, approximately two weeks before the offender was arrested in relation to the offending for which he is to be sentenced. The offender has had little contact with his son since being in custody especially because of the Covid-19 restrictions between 2020 and 2022.
Mr Awit recorded that the offender completed a number of courses and certificates while in juvenile detention. In addition, he commenced an apprenticeship as an electrician in 2018 and continued with that after his release until he was arrested in relation to offending for which he is to be sentenced, when he was just starting the third year of the apprenticeship. It also appears that, at times, he had previously worked as a landscaper and in a factory.
Dr Ahmed summarised the situation in his report as follows: "[The offender] has grown up amid severe conflict and trauma. As a result he has been very sensitive to feeling threatened from a very young age. Right from being a child he was regularly in fights and was constantly on the lookout for further threat. He is highly anxious and self-conscious around others, particularly in crowds or open spaces. He started self-medicating with substances from age 11 or 12. This only worsened his underlying sensitivity to threat, leading to problems in sustaining schooling."
I accept that the offender's circumstances, including what has been referred to already and what is to come, engage the principles in Bugmy v The Queen [11] such that, in the present case, his moral culpability is reduced as is his appropriateness as a vehicle for general deterrence and this should be reflected in the sentence imposed.

Substance abuse and gambling

The offender started using alcohol and drugs from about the age of 12. He commenced with cannabis but moved on to smoking ice and using "pills" and heroin at about the age of 15. After his release from juvenile detention, he again used ice, cocaine, heroin and "pills" and was drinking alcohol regularly.
Mr Awit also noted that the offender has had a problem with gambling since he was 19 years old, sometimes "blow[ing] his whole paycheck on the pokies" and gambling every day.

Mental health

Dr Ahmed diagnosed the offender as having the following mental health conditions: 1. polysubstance abuse, being dependent on both cocaine and heroin; and 2. anxiety disorder with his sense of feeling threatened and difficulty trusting others worsening when he was physically and sexually abused in juvenile detention. He reported sometimes having flashbacks and nightmares about this. Dr Ahmed was of the opinion that "this has not quite reached the academic threshold for Post-Traumatic Stress Disorder" but it could be considered a traumatic history that has worsened his pre-existing anxiety disorder.
Furthermore, Dr Ahmed was of the view: "[b]oth conditions directly contributed to the offence. He has long self-medicated his underlying sensitivities to threat with drugs. The offence related to him attempting to procure the drugs. The drugs worsened his impulse control, his judgment and sense of paranoia and threat."
The psychiatrist went on to note that the offender had had limited access to treatment for his conditions but was on buprenorphine, an opiate replacement treatment. Dr Ahmed recommended a treatment plan which included consulting a psychiatrist with the possibility of medication on a low-dose antidepressant, a general practitioner or medical officer to oversee his opiate replacement therapy and other medication, regular trauma and psychological counselling and group therapy to help with relapse prevention such as Narcotics Anonymous or any equivalent in custody. Dr Ahmed concluded as follows: "This combination of treatment, whether in Justice Health or in the longer term in a community setting, will reduce the risk of him reoffending significantly. He is motivated to recommence his apprenticeship and develop a relationship with his partner and child."
Mr Awit, the psychologist, gave similar diagnoses of generalised anxiety disorder, major depressive disorder, substance use disorder, alcohol use disorder and gambling disorder. The treatment plan recommended by Mr Awit was similar to that proposed by Dr Ahmed and Mr Awit's opinions in his report were largely consistent with those of the psychiatrist. However, I note that while Mr Awit concluded that the conditions suffered by the offender at the time of offending are "well known to affect decision-making ability…by leading to poorly evaluated decisions", he did not explicitly conclude that such conditions directly contributed to the offending.
The circumstances of the present case engage the principles referred to by Simpson J in Aslan v R [2014] NSWCCA 114 at [33] - [35], as follows: "33. … The compassion and sympathy that such a condition engenders collide with the need for sentences to reflect the objective gravity of the offence in question, the community's interest in general deterrence, and that criminal conduct must be met with appropriate denunciation and retribution. Over the years, the applicable principles have evolved. They were most recently re-stated by McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 at [177]. They are as follows: '[Principle 1]  Where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence ... [Principle 2]  It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed ... [Principle 3]  It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced ... [Principle 4]  It may reduce or eliminate the significance of specific deterrence ... [Principle 5]  Conversely, it may be that because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence... Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public...' (internal citations omitted, italics added)" 34. It will be observed that none of these principles is stated as absolute. What is recognised is the potential effect, in any given case, of a mental disability. It does not follow that, because an offender suffers from some mental impairment or disability, his or her moral culpability is reduced (principle 1); nor that he or she is an inappropriate vehicle for general deterrence (principle 2); nor that a custodial sentence will weigh more heavily upon him or her (principle 3); nor that the significance of specific deterrence is reduced or eliminated (principle 4). Nor, on the other hand, does it follow that a person with mental impairment is a danger to the community, indicating a need for community protection (principle 5). Too often, the mere fact of mental illness is advanced to this Court as necessarily calling for a more lenient sentence. What the principles spelled out by McClellan CJ at CL do is direct attention to considerations that experience has shown commonly arise in such cases. There is, however, no presumption. It remains necessary for the sentencing court to examine the relevant facts in order to determine whether, in the specific case, the mental condition has the consequence contended for. 35. A central question (but not the only question) is whether the mental illness or other condition had a causative role to play in the commission of the offence or offences for which the offender is to be sentenced. Counsel who appeared for the applicant accepted that this was the principal issue in this case. If it is concluded that there was a causal connection, then the offender's moral culpability may be reduced (see principle 1). That connection may also warrant lesser attention being paid to the need for the sentence to reflect considerations of general deterrence (principle 2)." (emphasis in original)
In accordance with these principles and given the offender's mental health conditions and the potential role they played in his offending, it appears to me that his moral culpability and his appropriateness as a vehicle for general deterrence are reduced to a certain extent. However, in light of the treatment plan proposed by Dr Ahmed and his view that the likelihood of reoffending may be reduced if the plan is implemented, the need for specific deterrence is not, in my view, reduced to a substantial extent in the offender's particular case. Indeed, a degree of attention to specific deterrence is likely to assist in reducing the offender's risk of reoffending.

Remorse

The offender pleaded guilty to the charge of murder and it can be accepted that this demonstrates some acceptance of responsibility for his actions.
The offender gave evidence and described his response to being involved in taking a man's life as: "I feel bad. I feel like it haunts me, like, on my mind every day. I wake up thinking about it, go to sleep thinking about it and thinking I was there when, like, a person's life was taken. It's just not a good feeling that's about it, but I'm devastated that I'm capable of doing something like that and I'm ashamed".
He also demonstrated a level of understanding of how the offending affected the deceased's family, based, to some extent, on his own experience of losing a family member, accepted his involvement in the offending and indicated he was sorry for what happened. His psychologist, Mr Awit, recorded in his report: "[The offender] has not once tried to minimize his responsibility in relation to the offence before the court. … He has express[ed] significant shame and remorse in relation to the offence. He still cannot believe where he is today, and how quickly the events unfolded."
The evidence from his mother, Ms Varga, and his partner, Ms Gillies, also included their understanding of his acceptance of responsibility and his expressions of remorse to them.
The Sentence assessment report dated 21 October 2022 included the following: "● [The offender] asserts that he cannot recall 'stabbing' the victim; however, he pleaded guilty because of the belief he did assault the victim while in the possession of a knife and that it was likely his involvement contributed to the victim's death. ● [The offender] claims he initially 'grabbed' the victim to prevent him from assaulting another co-offender. ● [The offender] stated that he remains in a state of 'shock' since the commission of the offence and cannot believe that he has significantly contributed to the death of another. He further reported 'Its just so wrong, it wasn't meant to happen, and no-one deserves that'. ● [The offender] has since attempted to write a letter of apology to the victims' family, as verified by CSNSW records. [The offender] claims the letter is not an attempt to gain leniency from the Courts and he has no intention of the letter being presented to anyone apart from the victim's family should they wish to receive it."
In all the circumstances, I accept that the offender is genuinely remorseful and that this should be taken into account in mitigation of his sentence.

Guilty plea

As noted above, the offender pleaded guilty in the Local Court and both parties accepted that he was consequently entitled to a discount of 25%, which I shall apply.

Prospects of rehabilitation

as to the offender's prospects of rehabilitation, the evidence tends to point in contrary directions. His sentence assessment report notes that according to the Level of Service Inventory - Revised (LSI-R) assessment tool, the offender is a "medium-high risk of reoffending" but also states that he is suitable to undertake community service work. On the other hand, Mr Awit has given evidence of the various courses and certificates the offender has undertaken whilst in custody and noted the work he has done and the electrical apprenticeship which he was undertaking for some time. In addition, as noted above, Dr Ahmed's opinion was that the combination of treatment which he proposed, whether delivered while in custody or in the community, would "reduce the risk of him reoffending significantly". I note the offender gave evidence that he is willing to follow treatment plans such as they are offered.
It is also relevant that the offender has been attending Narcotics Anonymous while in custody and has been given the position of sweeper in his pod, which he has held since about early January 2023. This is consistent with his custodial history, including that he was an indigenous mentor in juvenile detention, which indicated that his conduct has more recently improved, compared to his earlier more troubling punishment record while in custody. He also gave evidence that he has an ambition to complete his electrical apprenticeship, start his own electrician company and support young indigenous men through it.
Finally, I note that it appears that at least part of the motivation for the offending was to obtain money because of the difficulty he was experiencing in funding his lifestyle while an electrical apprentice.
In my view, the offender's prospects of rehabilitation depend to a large extent on his ability to remain abstinent from illicit drugs and free from the influence of antisocial peers as well as on his receiving treatment of the types envisaged by Dr Ahmed and his having stable employment and the support of his partner on an ongoing basis. In all the circumstances, I am prepared to find that the offender has some reasonable prospects of rehabilitation and the sentence should be set so as to take this into account.

Criminal history and conditional liberty

At the time of the offending, the offender was under supervision in the community as a result of a control order which was due to expire on 4 September 2020 with a non-parole period that expired on 4 December 2018. The fact that the offender was on conditional liberty is an aggravating factor which I have taken into account. [12] I also accept the Crown's submission that his criminal history disentitles him from any leniency that he might otherwise have been afforded.
While these matters have been mentioned together, I have taken care to avoid there being any impermissible double counting included in the sentence to be imposed.

Youth

The offender was 21 at the time of the offending. Although he was over 18, it does not follow that his relative youth is not to be taken into account. In Howard v R [2019] NSWCCA 109 Fullerton J (Macfarlan JA agreeing) observed at [13]: [13] "It is not necessary to restate the principles articulated in a succession of authorities governing the sentencing of youthful offenders …, save to emphasise that the law recognises the potential for the cognitive, emotional and/or physiological immaturity of a young person to contribute to their breach of the law. It is also well recognised that emotional maturity and impulse control develop progressively during adolescence and early adulthood and may not be developed until a person's mid-20's."
In my view, the offender's emotional immaturity and poor impulse control as a result of his age contributed to his offending. I have taken this into account as mitigating, to an extent, the sentence to be imposed and so that his prospects of rehabilitation are preserved or enhanced.

Special circumstances

Given the offender's circumstances to which I have already referred, in my view it is appropriate to find special circumstances exist for the purposes of s 44(2) of the Sentencing Procedure Act based in particular upon: 1. the offender's mental health conditions which mean that there is a need for him to have significant mental health and drug and alcohol treatment and supervision over an extended period once he is released into the community; and 2. the offender's relative youth and the fact that the offender has not been in adult custody previously and there is need for extended supervision and treatment to promote his prospects of rehabilitation.

Parity

The other four males who were participants, or are alleged to have been participants, in the offending for which the offender is to be sentenced were charged with murder under s 18(1)(a) of the Crimes Act arising out of the events which occurred on 24 May 2020. Three, including the offender, pleaded guilty. In the case of the other two who have pleaded guilty, there have also been offences on a Form 1 taken into account in sentencing, which is not so in the offender's case.
In a case such as the present where a number of persons have been charged with the same offence arising out of the same criminal conduct or enterprise, the parity principle, which is a norm of equal justice and an essential aspect of the rule of law, requires like offenders to be treated in a like manner and different sentences to be imposed upon like offenders to reflect the different degrees of culpability and any different circumstances of the offenders. [14]
In addition to the presence of the Form 1 offences in the other cases and the different timings of their pleas of guilty, the most relevant differences between the other offenders and the present case are: 1. the offender was not the participant who carried the shortened rifle, which was a "dangerous weapon", and which led to the foundational offence being one which carried a maximum penalty of 25 years' imprisonment; 2. the offender was not said to have any previous knowledge of or involvement with the deceased; 3. the offender did not stay behind after the others left, like DPD, and attempt to obtain the keys to the quad bike from the deceased without any apparent concern for Mr Kourtis's wellbeing at that time; and 4. the offender did participate in forcing the deceased into the kitchen and was present when the deceased was stabbed, unlike the other participant, SP, who remained in the loungeroom with Ms Howlett.
In addition, there were other differences which I have taken into account including: 1. the differences in the agreed facts in respect of the offender and the agreed facts relating to the other two participants who pleaded guilty; and 2. the different ages, backgrounds and other aspects of the subjective cases of each of the offender and the other males, including in particular their different prospects of rehabilitation, different expressions and depth of remorse and insight and different criminal histories.
These factors do not permit any simple or precise quantitative comparability between the sentences imposed and to be imposed. Some factors tend in one direction and other factors in the other direction. Nonetheless, all of these factors and the other circumstances of the case have been taken into account. Particular attention has been given to the differences and similarities in the respective circumstances and cases of those involved so as to arrive at a sentence for this offender which appropriately reflected the differences and similarities. This has included taking into account that the offender's involvement in the offending was very much more serious than that of SP but not as serious as that of DPD, as well as my assessment that DPD's age and subjective circumstances were such as to counterbalance to a significant extent the differences in the seriousness of the offending.

Time spent in custody

The offender was arrested on 12 August 2020 and has been in custody since that time. Both the Crown and the offender, in their respective submissions, noted however that part of that time spent in custody was attributable also to sentences imposed on the offender in respect of other offending.
As already noted, at the time of the offending the offender was subject to a 42 month control order for wounding with intent to cause grievous bodily harm, expiring on 4 September 2020 with a non-parole period which expired on 4 December 2018. As a result of the revocation of parole on 9 September 2020, the offender spent 24 days in custody after his arrest on 12 August 2020 as a result of the earlier control order.
In addition, on 13 May 2022, the offender was sentenced to a term of imprisonment for the offence of riot, which had been committed while he was in custody, and an offence of assaulting a law enforcement officer was taken into account on a Form 1. Eventually on appeal, the offender was resentenced for the riot offence to imprisonment for 20 months commencing on 16 July 2021 and expiring on 15 March 2023 with a non-parole period of 15 months concluding on 15 October 2022. Accordingly, 1 year, 3 months and 1 day (456 days) of his time in custody after arrest is attributable to that sentence.
It appears to me that the criminality involved in the wounding with intent to cause grievous bodily harm, which gave rise to the 42 month control order, was entirely distinct from that in relation to the offending for which the offender is to be sentenced. Nonetheless, parole was revoked because of the present offending and, accordingly, in my view, a finding that the 24 days spent in custody referrable to the control order should be made concurrent to some extent with the sentence to be imposed. In relation to the sentence for rioting, the offender would not have been in custody, where the offence was committed, but for his arrest in relation to the offending on 24 May 2020. Consideration of the principle of totality has also led me to the conclusion that some notional concurrency between the sentence for riot and the sentence to be imposed in the present case is also required. In addition, a degree of notional concurrency in respect of both the earlier control order and sentence for rioting will also assist to ensure that the sentence for the current offending is not crushing.
In relation to the time already spent in custody, I have also taken into account that during this time the offender has been adversely affected by the restrictions that resulted from the COVID-19 pandemic.
A total period of 1 year, 3 months and 25 days is referrable to the other offending. It is, in my view, appropriate in all the circumstances to allow notional concurrency to the extent that the commencement date of the sentence to be imposed should be 11 May 2021.

Comparable cases

Mr Hughes also provided a table of cases dealing with sentences imposed in cases of constructive murder. Both the Crown and Mr Hughes drew attention to a number of cases in that table. The sentences for constructive murder to which they referred in cases of home invasions or armed robberies ranged between: 1. 18 years (after an unspecified discount) for a 19 year old offender who stabbed a console operator during an armed robbery of a service station, [15] and 18 years (after a discount of 10%) for a 47 year old offender who did not actually inflict the fatal wound during an armed robbery of a tavern [16] ; and 2. 25 years and 4 months (after a 10% discount for a plea of guilty) for a 27 year old offender who shot and killed the victim during a home invasion. [17]
I have derived some assistance from a consideration of the decisions to which the parties referred and from the table provided. Nevertheless, the extent of any such assistance is necessarily limited given the inevitable differences between those cases and the facts of the present case. Ultimately, I must exercise my own sentencing discretion after having had proper regard to the relevant sentencing principles to which I have referred and after having considered the salient features of the present case.

Additional remarks

Before formally announcing the sentence of the Court, it remains important to acknowledge that the taking of Mr Kourtis's life was a human and personal tragedy, which should not be treated only as the subject of a criminal proceedings. His unnecessary death in such distressing circumstances has undoubtedly caused grief and sorrow for his family and loved ones.
The Court extends its sincere sympathy for their loss to the deceased's family and all those affected by his untimely death.

Sentence

Having considered all possible alternatives and given the nature of the offending and the circumstances of the offender, I am satisfied that no penalty other than imprisonment is appropriate.
Having regard to the purposes of sentencing, the objective seriousness and circumstances of the offending as well as the subjective case of the offender and the other relevant principles and considerations, in my view, before the application of the discount of 25% for the plea of guilty, the appropriate term of imprisonment for the offence of constructive murder in this case is 18 years. When the 25% discount is applied to that period, it results in a sentence of 13 years and 6 months. Given the finding of special circumstances in relation to the statutory ratio of the non-parole and parole periods, that sentence should be made up of a non-parole period of 9 years and 6 months (70.4%) and a balance of term of 4 years (29.6%).
As already noted, the commencement date of the sentence is to be backdated to 11 May 2021 and, thus, the non-parole period will expire on 10 November 2030.

Orders

Accordingly, the Court orders as follows: 1. The offender is sentenced for the murder of Kevin Kourtis to imprisonment for a non-parole period of 9 years and 6 months commencing on 11 May 2021 and expiring on 10 November 2030 and a balance of term of 4 years expiring on 10 November 2034.
The earliest date the offender will be eligible to be released on parole is 10 November 2030.
Pursuant to s 25C of the Crimes (High Risk Offenders) Act 2006 (NSW), the offender is advised of the existence of that Act and of its application to the offence he has committed.

Endnotes

R v Jacobs [2004] NSWCCA 462 (Jacobs) at [332] (Wood CJ at CL,Sperling and Kirby JJ agreeing); (2004) 151 A Crim R 452 at 512.
Jacobs at [332].
Lowe v The Queen (1984) 154 CLR 606 at 609 (Gibbs CJ, Wilson, Mason and Dawson JJ agreeing); [1984] HCA 46.
In that case, one of the offenders being sentenced, DS, had pleaded guilty to murder by reason of the combined effect of two forms of extended criminal liability, namely constructive murder and extended joint criminal enterprise. In that case, DS had agreed to commit an armed robbery with DM and in doing so was aware of the possibility that a weapon would be used to wound during that robbery. As it happened, during the robbery, DM violently assaulted and fatally stabbed the deceased. While the deceased was bleeding to death on the floor, DM dipped his finger in his blood and wrote the letters "I" and "S" on the window.
GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22 at [30].
The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [24]-[27].
Crimes (Sentencing Procedure) Act, s 21A(3)(k)
Crimes (Sentencing Procedure) Act, s 21A(3)(i).
Crimes (Sentencing Procedure) Act, s 21A(3)(h).
Crimes (Sentencing Procedure) Act, s 21A(3)(j).
(2013) 249 CLR 571; [2013] HCA 37.
Crimes (Sentencing Procedure) Act, s 21A(2)(j).
See also the helpful summary of the applicable principles by McNaughton J (Button J and R A Hulme AJ agreeing) in Carreno v R [2023] NSWCCA 20 at [69]-[70].
Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [28] (French CJ, Crennan and Kiefel JJ).
R v Houri [2007] NSWSC 615 as to an unspecified discount, see [55].
R v Garry Smale [2005] NSWSC 903 as to a discount of 10%, see [33] and [38].
R v Bell, Gavin Anthony [2013] NSWSC 1838 as to a discount of 10% see, [91].

Amendments 22 May 2023 - Catchwords amended 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: 22 May 2023

Crimes Act 1900(NSW)ss 18(1)(a), 97(2)

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (25 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (19)