R v Waters

R v Waters - [2020] NSWDC 636 - NSWDC 2020 case summary — Zoe

[4]

Facts

On the evening of Monday 11 March 2019 Mr Sault, was staying with friends in a unit at Northcliffe Drive, Warrawong. Around 8.30pm he went to a neighbouring unit. A number of people were there including the young person, Liam Waters (a pseudonym). Mr Sault had known Waters since January 2019 and considered him a friend. He hung out at the neighbouring unit for some time then he and Waters went back to the unit where he was staying. There, they and others, listened to music and watched TV. One of those others was Thomas Mook, who came and went from the unit a number of times.
Sometime in the early hours of the morning of Tuesday 12 March 2019 Sault had a disagreement with Waters and another man. He left the unit about 3am. They had argued about Sault not sharing "ice", methylamphetamine, with Waters the day before. CCTV from the neighbouring unit block allows for the times of some events to be determined with reasonable accuracy.
Mr Sault left the unit and went to the unit's common area. He was listening to music using a portable speaker. As he left the unit a friend enquired if he was all right. He replied, "Yes". He was told, "Come back when you're ready".
He then walked to the car park of the neighbouring Warrawong Plaza. He met up with some friends there and told them that he had left the unit after a disagreement. About 4:00am he received a call on his mobile phone. It was Waters, using another friend's phone. Waters said, "I've got rocks, come up". - "rocks" is another term for "ice". Sault walked across the car park back towards the stairwell of the unit.
At 4.10am Waters and Mook left the unit. Mook was shown on security CCTV to be carrying a yellow object. Soon after, Mr Sault heard a whistle. He looked up and saw someone step out in front of him. It was Waters. His arm was raised. He was holding a machete. Mr Sault, fearing he was about to be hit put his left arm up above his head. Waters swung the machete, striking the arm and nearly severing it above the wrist. Sault fell to the ground.
He saw Waters swing the machete again but it missed him. Waters said, "Give me the packet out of your pocket". Sault presumes he was referring to a packet of approximately 0.1 of a gram of "rock" or "ice" he had in his pocket. Waters reached for the victim's pocket. Police later found a small bag of ice on the ground near the door where the victim went to seek help.
Waters then struck his victim with the machete again causing a deep wound in his left leg: exhibit A, tab 4, image 3. The victim then saw a second man - he was holding a blowtorch in one hand and using his other arm to shield his face and disguise his identity. He saw a 30 centimetre blue flame and the sound of gas burning. The other male put the torch close to the victim and burnt him behind his ear, towards the top of his neck: exhibit A, tab 4, image 3. It is accepted that this man was Thomas Mook. Mook and Waters then ran off from the scene, leaving the unit block and not returning.
The victim got up from the ground and sought help from occupants at the unit block. He was in a lot of pain. He screamed "Call an ambulance, call an ambulance, I'm going to die". Residents of the unit block phoned Triple‑0.
The ambulance and police attended and he received medical treatment at the scene and then in Wollongong Hospital. He was transferred to a Sydney hospital the next day where he underwent reconstructive surgery.
The summary of the s 177 expert report states: "25 year old male with partial forearm amputation from machete injury to his left forearm. This is a severe, limb threatening injury, and due to the multitude of tendon and nerve issues sustained prognosis is extremely poor. He is likely to have very stiff, weak fingers and wrist with reduced sensation and power. Long term function of the hand will be very limited."
Mr Sault now has a permanent disability. His left hand has almost zero function and his fingers are fused in a closed position. He is unable to straighten his fingers and he has feeling in only three of the five fingers and little feeling in his hand. There is significant scarring to his hand, lower arm and left leg.
Waters was arrested for unrelated matters on 13 March 2019. At the time of his arrest he had a black coloured machete down his pants. Waters told police, "The machete is mine. I'm carrying it for protection. I'm dangerous". It is not known if this was the machete used in the assault upon the victim.
In recorded telephone calls between Waters and his grandmother, from Juvenile Detention, he admitted to her he was the person who used the machete during the assault on the victim.
Following a police search of the crime scene a yellow gas cylinder was found in a bin in the common area of the unit block where the offence took place: exhibit C. Mook's DNA or fingerprints were not found on it. Mook did, however, tell police that he had a cylinder with him when he left the unit with Waters. Mook initially denied being involved in any assault on the victim and told police that when Waters ran up behind him, in possession of a machete he was scared that Waters was going to "cut him up". He told police after the incident he ran up to "behind the mission:" (the former Coomaditchie Aboriginal Mission in Port Kembla) and then went to Nowra.

[6]

Assault occasioning bodily harm in company - s59(2) Crimes Act 1900

A blowtorch is a particularly vicious weapon to use. Here, only a small burn was inflicted but, the apparent vindictiveness of its use; committed while the victim was suffering from the immediate impact of the grievous bodily harm, has to be taken into account.
Mook told police the screaming was "the scariest thing he had ever heard." But, he acted to inflict further harm on his victim regardless.
The offenders were both participants in the commission of the same crimes. The principal offence was a violent act where a weapon was used with considerable force to maim. It was an unprovoked attack committed in public. The attack had a profound and devastating physical and psychological impact on its victim.
This sentence must be determined by having regard to the circumstances of both co‑offenders and their respective degrees of culpability. Like must be compared with like. Proper application of the parity principle discussed below does not necessarily mean that each offender is sentenced on the basis their individual actions had the same objective criminality. It was Waters who made the call that lured Sault to the scene. Waters left the unit shortly after having armed himself with the machete which he wielded with some ferocity. He used that machete again while Sault was helpless on the ground. His motivation was trivial - a small slight about a tiny quantity of ice.
Mook did not play any direct part in this first attack. He was not used by Waters to assist in the assault. What Waters did was done with intent to cause grievous bodily harm, and he must have been aware, despite the fact he had been using ice, that his actions would cause his victim substantial harm.
On the other hand, while Mook was not a party to any argument between Sault and Waters, he was present when the machete was used, but he played no direct part in either luring Sault to the scene or the use of that weapon. He must have been aware of the consequences of it being used. Sault appears unaware of Mook's presence until after he was struck by Waters. There is no evidence Mook acted as a lookout or egged Waters on in any way. His acceptance of responsibility for his offending cannot establish such matters. He did, however, join Waters at the ambush and then callously made his own contribution by the assault with the gas burner, but only after the machete wounds had been inflicted. His motivation is unfathomable.

[10]

Subjective case Mook

Born in 1996 Mook had been before the Children's Court and Local Court, and although he has served a short suspended sentence for dishonesty offences, has never before been gaoled. He has been in custody since he was arrested on 28 March 2019. He was on bail at the time.
On 18 August 2018 he was arrested in possession of an air rifle designed to fire plastic pellets. He was ultimately sentenced for that offence to three months imprisonment from 14 April 2019. The commission of any offence while subject to bail and the promise to be of good behaviour inherent in the granted bail aggravates any penalty. Given Mook was already bail refused when sentenced no other option other than gaol was available to the Magistrate.
Ms Van De Velde's report and a history of psychological assessments from a very early age were put before me: exhibit 1, tabs 1-5.
Mook told Ms Van De Velde the victim's scream was the scariest thing he had ever heard but he failed to say why he then applied the blowtorch to Sault. He told her he tried to "blank" the incident out. Through her he accepted responsibility: "It shouldn't have happened, was overboard... I regret it all... lads got no arm… can't work ever again... didn't deserve to lose his arm... I feel bad... it's my fault but not my fault... I take responsibility for my part."
Ms Van De Velde notes his distress and "perhaps shame, when he thought about what had been done to the victim." He told her he had been using many drugs, but in particular ice, including just before the incident.
As Mr Fraser, his counsel, submitted, Mook chose needlessly to involve himself in Waters' dispute with Sault, despite there being no apparent reason to do so. No explanation has been offered. As his involvement appears irrational, the only rational explanation is that he had no sense of the moral wrong of what he was doing. That may be explained in part by both recent and long term drug use, which of itself cannot mitigate or excuse, and the consequences of his childhood exposure to violence and drug and alcohol abuse.
Mook is an Aboriginal man who lived for most of his life in Nowra, but as a teenager, and despite his aunt's efforts, he gravitated to the old Coomaditchie Mission at Port Kembla. He was born addicted to opioids. His parents struggled with addictions and his father died when he was three years old. He was adopted and raised by his aunt. He had a good life in Nowra, but was a hyperactive child and was diagnosed with ADHD. He spent time in support classes and was expelled from school while in year 10. He is still illiterate and finds it hard to write his own name.
At Coomaditchie he was exposed to substance and alcohol abuse and violence. All these things he came to see as "normal". By 15 he was drinking heavily. His drinking diminished as his ice use increased. He has few pro‑social friends. Both his older brothers are in gaol. He has never had a job. The only treatment Mook has received for substance abuse is the EQUIPS addiction program completed while on remand. He has been working in a furniture shop and as a welder while on remand.
After examining Mook and his records Ms Van De Velde concluded he suffered from a Major Depressive Disorder and a Stimulant Use disorder, Amphetamine-Type Substance. His history and presentation were also consistent with ADHD with resulting deficits in executive functioning including problem solving. While she speculates amphetamine use could have contributed to his offending, as he could not or would not elaborate further, she herself went no further than the suggestion. A comprehensive risk assessment led her to the opinion Mook poses a moderate risk of reoffending but a low risk of engaging in violence should he reoffend. Risk of reoffending would likely be associated with resumption of substance abuse. She noted some protective factors, in particular his growing insight into his substance abuse and mental health problems. A risk management and treatment plan was proposed involving if possible motivational psychotherapy, drug relapse prevention, counselling, peer relationships counselling, participation in gaol programs such as VOTP and EQUIPS Aggression, psychoeducation about ADHD and vocational and education support.
Without going into detail the other reports before me confirm the various problems faced by Mook since he was born and the interventions by his aunt with professional assistance from Royal Far West to deal with a number of significant concerns with Mook's anger, defiant and oppositional behaviour and superficial self-harm as a child, his ADHD and his inability to read and write. A number of opinions were offered which succinctly summarised by Dr D'Souza on December 19 2002 resulting from a number of biological and environmental factors impinging on his behaviour, not uncommon among children born to drug affected parents.
Mook's Aunt Donna was in court, and also wrote a letter to me. She reaffirms her love and continuing support for the offender. Her commitment to him is heartening. He will need all the help he can get adjusting to normal life on release - and strong pro-family connections can make a big difference. Aunt Donna has always been there for him, and as he matures. I hope Mook realises how important that support is and contrasts it with the ephemeral friendships he formed with other drug users and criminals.

[11]

Subjective case Waters

Ms Lynch, a very experienced solicitor with the Children's Legal Service, reviewed Waters' Family and Community Service records, Juvenile Justice reports and other records relating to him. In her affidavit of 7 July 2020 she explained that attempts to obtain a comprehensive psycho‑legal report were thwarted by Waters' refusal to cooperate. Her considerable efforts however enabled by reference to contemporaneous records for material tending to establish a background of severe deprivation to be put before me: Bugmy v The Queen (2013) 249 CLR 571.
Waters was born on 28 May 2002. He is an Aboriginal Australian. He has a number of siblings and half-siblings. Family and Community Services (FACS) have been involved with his family since before he was born because of drug use and domestic violence. FACS supervised him from the moment he was born. No fears were expressed about Waters' mother physically abusing her children, but her neglect of them was a concern. Both his parents had their own histories of abuse, neglect, substance abuse and domestic violence. Both had spent time in gaol. Waters' mother was in gaol just before he was born. His father spent time in boys' homes, juvenile detention and gaol. When Waters was born his father he was in custody for breach of parole. Waters has never had any relationship with his father.
At less than six months old Waters had already been in FACS respite care after reports of insufficient food and clothing. By 2003 Waters was in FACS care. He had been left in the care of a friend who had been robbed by associates, and those associates had made threats towards Waters. He and his siblings were placed in the care of their grandmother. Even then Family and Community Services noted concerns about the grandmother's ability to care for the children. Formally, the Minister for Community Services had contact responsibility for him until he turned 18. There is no evidence before me that any Minister had met their responsibilities.
In 2011 the children were spending time with their mother, including overnight stays. There are reports from this period of her drug use, drug dealing and prostitution. The children frequently saw physical abuse between their mother and her partner. Reports from this period when Waters was eight or nine years old note his behaviour was becoming aggressive. Other reports note his grandmother's house was inappropriately small for the number of people living in it and that she was leaving the younger children with Waters so she could go out.
In 2012 it was reported the boys were seen as completely out of control and that their grandmother was unable to manage them. Issues relating to alcohol consumption were raised, as were issues about inadequate shelter and inadequate supervision. Waters was said to be at risk due to his own risk taking behaviour, and considered as being extremely low range of adaptive functions. Between 2000 and 2011 there were 16 reports raising concerns about the children being at risk of sexual harm or inappropriate sexual behaviour.
For most of his life Waters has been unsupervised. He lived predominantly away from his grandmother's home and participated in high risk and criminal activity from a very young age. He has received minimal formal education, and when he did attend little was accomplished because of his lack of focus and motivation. He spent only one hour in high school, and that was in a special program designed to meet his needs because of behavioural problems and truanting when he was in primary school. He is regarded as illiterate.
Juvenile Justice records note two psychological assessments of Waters' intellectual capacity. In 2011 he was assessed as extremely low range of general intellectual disability, and in 2012 a conclusion is one of mild mental retardation.
Ms Lynch's review of the material in his FACS and DOCS and Juvenile Justice Files do not contain any reports from any medical professional, just notes as to him having been diagnosed. On 29 April 2011 there is a note that he has shown signs of foetal alcohol syndrome but this was never diagnosed. In July 2012 notes show a diagnosis of ADHD and mild intellectual disability, and that Waters generally expresses himself in a negative way, that he could benefit from a mentor to enhance communication skills. Further his literacy and writing skills are below age level and his behaviour is becoming increasingly dangerous; carrying weapons, physical violence, theft and damage of property reported. As reported he had limited contact with his parents as both were in gaol.
There are also notes of diagnoses of conduct disorder, mild developmental disorder and underdeveloped social skills due to a lack of role models.
His peers were often older or were involved in crime. He has a history of substance abuse and reports no motivation to cease when he is released. He has been previously diagnosed as I said with a number of disorders; Attention Deficit Disorder, Conduct disorder and Oppositional Defiance disorder. He will not take medications prescribed for these conditions. He may have a mild intellectual disability.
Over the last three years Waters has spent long periods in custody. The custodial notes indicate he had been aggressive to staff and other young people. He participated to some extent with cultural groups but this was the only cultural integration he has ever had. His behaviour also kept him out of the education programs run in detention centres.
From 2015 his criminal and Juvenile Justice records show increasing aggression with him sustaining injuries following behavioural outbursts in custody. This evidence lead to finding that he is unable to regulate his emotions and acts without concern for consequences. In custody "he displayed a limited ability to comprehend instruction and uses aggression or threats of violence to negotiate his needs being met." He has made repeated comments indicating he has no regrets or concerns for his victim in this matter and may pose a threat to him in the future.
Waters is now 18. He was transferred to an adult gaol from juvenile detention on his 18th birthday. His custodial record starts in 2012 when he was ten, although he only spent one night in Reiby Juvenile Detention Centre at that age. He spent most of 2015 and some of 2016 at Reiby. He was in detention from October 2017 until released to parole on 4 January 2019. In February 2018 I dismissed an appeal against the control orders made by the Children's Court for armed robbery offences. He was on parole for assault and destroy property offences when he committed these offences.
Since his return to custody on 13 March 2019 a breach of probation call up and further offences in custody relating to destruction of property and intimidation and assaults on officers have resulted in additional control orders being imposed. He became eligible for parole on 11 June 2020. On 18 June 2020 he received his first adult prison discipline punishment for fighting.
Telephone intercepts reveal that while in juvenile detention he was subject to administrative punishments and additional security measures such as being handcuffed, having no contact with juvenile detention workers, being kept in a holding room with only two hours out of cells and two hours TV a day.

[13]

Submissions

Helpful oral and written submissions were provided. They have informed this judgment.
For the Director of Public Prosecutions, Ms Olender, solicitor, asked for appropriate weight to be given to the relative seriousness of the s 33(1)(b) offence, particularly Waters' arming himself with a machete and its use to inflict extreme and gratuitous violence, putting it in her assessment well above mid-range. She stressed the consequences to the victim which would lead me to that conclusion, being the effective loss of his hand and the ongoing pain, physical and psychological. She noted the danger in cases such as this of double-counting matters in aggravation, but said they still had to be factored into any sentencing exercise.
Mr Fraser, Public Defender, for Mook noted the violence inherent in this offence was at odds with Mook's history, which showed no prior acts of criminal violence. He stressed the need to examine the relative culpability of both offenders, noting Mook's minimal involvement in the actions that caused the serious injury to Sault. Mook was, he accepted, armed, but only the sense that he used an item originally intended to facilitate drug ingestion, that is to heat ice prior to smoking. His remorse and response to gaol similarly showed no indication of violence. To the contrary, it seems he is maturing, performing well and engaged in programs that would assist his rehabilitation. Mr Fraser further submits that if appropriate programs could be put in place to help him overcome his history of disadvantage, his drug use and consequent involvement in this offence his prospects are good. He does not present as a danger to the community and should be removed from it only for the minimum period necessary to ensure adequate punishment.
Ms Doosey, counsel for Waters, took me through the principles applying to sentencing children and intellectually disabled and otherwise offenders, and goes to the background of profound disadvantage. She put to me that little if any weight needed to be given to principles regarding general deterrence. It was conceded that other than residual optimism, that the young can mature and reform with life experience, no positive findings in that regard could be made here. That said, she noted that Waters should be given some incentives towards changing his behaviour and that as he matured he may come to take advantage of them, justifying a finding of special circumstances.

[15]

Children and young offenders

Principles concerning sentencing of young offenders have particular application in this case. Waters was a child, Mook was very immature. Both come from backgrounds that meant their capacity to reason and make moral decisions was compromised. In custody Mook has shown some developing maturity. Waters has not. He still behaves as he did when a young, troubled child.
Section 6 of the Children's Criminal Proceedings Act 1987 must be considered in Waters' case. It sets out the significant principles that courts must take into account when sentencing children. The relevant principles stated in s 6 and their application to an individual case depends to a very large extent on the age of the offender and the nature of the offence committed: Bus v R; S v R (unreported CCA NSW 3/11/1995).
There are well‑established principles that when sentencing a child or young adult considerations of punishment and general deterrence may be given less weight in favour of individual treatment aimed at rehabilitation: R v GDP (1991) 53 A Crim R 112. What underpins the general practice of imposing lesser sentences on youthful offenders than those imposed on adults who commit similar crimes lies in the recognition of the immaturity of youth: Hearne v R (2001) 124 A Crim R 451.
Those principles recognise and emphasise the potential for cognitive, emotional and physiological immaturity of a young person and its contribution to their breaches 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-20s: Al v R; R v SB; R v Al [2011] NSWCCA 95; Howard v R [2019] NSWCCA 109; Yildiz v R [2020] NSWCCA 69; Kannis v R [2020] NSWCCA 79.
Where serious crimes of violence are committed by young adults or children the focus of any sentencing exercise can shift, while acting in the best interests of the child remains relevant, so too does the significant public interest in punishing and deterring serious crime. This can at times require adult type penalties: R v Pham & Ly (1991) 55 A Crim R 128; KT v R [2008] NSWCCA 51. The closer the child is to 18, the notional age of maturity, and the need to protect the community from a child offender are both relevant considerations. Nevertheless, even for crimes which here fit very serious categories, it is recognised that harsh dealing with children or even young adults under the guise of community protection can often have a greater adverse impact on the community than an initial focus that does not take into account the need for rehabilitation. It must be asked in each case: 1. How did the offender's youth impact on his offending? 2. Did it play any role in diminishing his criminality? 3. Have the prosecution put forward any evidence to suggest that rehabilitation should not be the paramount consideration for sentencing process?
Here so far as questions one and two are concerned, the answer is yes. The answer to question three is more problematic. Rehabilitation is always a significant consideration, but here it cannot be given paramountcy in either case. It has perhaps more resonance for Mook, but tragically less so for Waters.

[16]

Parity - young adult and child offender

When fashioning a sentence for a young adult and a child offender the sentence to be imposed on the young offender is not irrelevant: R v Wong [2003] NSWCCA 247; R v Boney [2001] NSWCCA 432. This is particularly so if the adult involved in the same crime is, as here, young and immature. The extent of the comparison may be limited given the different sentencing objectives and other considerations in the Children (Criminal Proceedings) Act 1987 because those considerations do not operate to the same extent as they do when a child offender is sentenced. A sentencing court must be alert to the real risk that unless care is taken and proportionality applied a young adult may very well have a justifiable sense of grievance with respect to the very difference of the regimes that apply: R v Govinden (1999) 106 A Crim R 314 at [15].
Mook and Waters were participants in the commission of the same two crimes. This sentence must be determined by having regard to their individual circumstances and their individual respective degrees of culpability. At the end like must be compared with like. Different personal and criminal histories may justify a difference in sentence.
Proper application of the parity principle does not necessarily mean that each offender is sentenced on the basis their individual actions have the same objective criminality. There can be reasons why one offender is less objectively culpable than the others: Johnson v R [2010] NSWCCA 124.
Each participant may be equally legally responsible for crimes, but their respective levels must be individually assessed. There is accordingly a need to look at what each offender did: KR v R [2012] NSWCCCA 32 at [19]
Mook was present and armed with a torch. He had no apparent personal reason to be involved at all. He was a figure in the shadows not seen by the victim till he was struck down. Mook did not yield the machete; he did not directly inflict grievous bodily harm. His liability for the grievous bodily harm and its use was derivative. I am prepared to find that there is some significance in the different roles, but it does not significantly diminish the criminality of Mook because he was prepared to go with Waters when he ambushed his victim, knowing he was armed with the machete and he joined in that assault by burning Mr Sault with the gas burner.

[25]

Synthesis

As with any sentence, many of the sentencing principles I have outlined do not all point the same way. Two themes have emerged when dealing with immature adults and older children in circumstances such as this. One recognises the strong community interest in their rehabilitation, the other stresses the protective function of the Court, particularly where extreme acts of violence are involved: JM v R [2012] NSWCCA 83.
I must have proper regard to those purposes. It is also fundamental that when taking into account competing factors there is no correct balance of them: see Veen v The Queen No 2 (1988) 64 CLR 465 at [478]. As the High Court said in Weininger v The Queen (2003) 211 CLR 629 at [23]. "Sentencing is … a synthesis of competing features which attempts to translate the complexity of the human condition and human behaviour to the mathematics of units of punishment usually expressed in time or money":
One important principle is the sentence of imprisonment should never exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in the light of its objective circumstances: Hoare v The Queen (1985) 167 CLR 348.
The Court does not average out considerations. Some factors can be determinative.
Objectively the crimes committed by both offenders were so serious that there was little scope to ameliorate penalty by focus on rehabilitation. But without in any way intending to minimise the objective seriousness of the crimes, particularly the grievous bodily harm matter with intent matter, each offender's rehabilitation cannot be ignored either.
These crimes were committed by an immature young man and an immature child. For many reasons their criminal and moral failures should not be equated with those of mature adults. That said, both well knew the wrongness of their acts. It may be argued that general deterrence has little rational claim upon sentencing discretion in relation to crimes which are relatively spontaneous and are not thought through to any degree, and where no thought was put into the consequences to the victim or frankly by the offenders to the consequences to themselves as would occur because they would inevitably be caught. In such cases it may be said that heavy sentences are likely to be little utility in reducing the general incidence of crimes.
Mitigating factors must be given appropriate weight. But as I have said they cannot lead to the imposition of a penalty disproportionate with the gravity of the offence. I also note, as the High Court made clear in Munda v Western Australia (2013) 249 CLR 600: [2013] HCA 38 at [52] to [58], that the proper role of the criminal law is not limited to the utilitarian value of general deterrence. Sentencing courts have an obligation to vindicate the dignity of the victim, to express the community's disapproval of that offending and to afford such protection as can be afforded by the State to the vulnerable. Further, one of the historical functions of the criminal law has been to discourage victims and their friends and families from resorting to self-help and the consequence escalation of violent vendettas between members of the community.

[27]

Conclusion - Waters

Despite Waters' youth, his record, his constant breaches of probation and parole and his offending in juvenile detention speak in general terms to a sentencing principle that says he is not deserving of leniency and a need for greater weight to be given to specific deterrence and protection of the community, every offender no matter how serious his crime however is deserving of individual consideration.
Waters by reason of his youth requires a nuanced approach, not just a retributive sentence designed to send a message to other wrongdoers.
His short life has been one of rejection by all but his grandmother and other members of his family. He has been met with negative responses by authorities all his life, and his responses to that rejection have helped form this young man. In the past his every action has been met with understandable ostracism, including by myself on an earlier occasion. He has received nothing and expects nothing from our community. Juvenile detention and gaol have reinforced his own negative views of himself and it appears he takes those negative attitudes when he inflicts harm on others, including his victim here and those he has offended against while on remand.
There are real social determinants to his behaviour; his intellectual disability, his poor mental health, a childhood where his lived reality was abuse, deprivation, drug and alcohol use and where violence and going to gaol were normalised. He has no impulse control and he has no concept of the long term consequence of his actions on himself, let alone others.
Telephone conversations with his grandmother from custody set out his disturbing attitudes towards the use of violence and hurting people, including the victim in this matter. He seems to view others as he views himself, with profound negativity.
He is still a young man, barely 18. He offended when he was a child. He must now spend his early adulthood in gaol. For someone with so little personal resources gaol will not deter him. Rather, the most probably consequence is that gaol will become a criminal learning environment. In gaol there are prison subcultures which act in opposition to prosocial or rehabilitative environment intended by the State. They can encourage or reinforce criminal behaviour. It is a sad reality that, and I quote from the Sentencing Advisory Council of Victoria: "Prisons are marked by the presence of cultural values supportive of crime that can be transmitted through daily interactions, and as a result criminal orientations are potentially reinforced. It appears that harsher prison conditions do not necessarily discourage future offending, and paradoxically the experience of imprisonment makes it criminogenic, that is a crime producing effect by producing a criminal learning environment by labelling and stigmatising offenders as criminals or by simply constituting an ineffective way of addressing the underlying causes of crime." Rethinking sentencing for young adult offenders in Victoria: Factsheet, Sentencing Advisory Council Victoria, December 2019.
Waters is presently in for the foreseeable future, resistant to any measures that might enable him to learn as he matures. Unless there is a remarkable change and a remarkable effort by those now responsible for him while he is incarcerated on release he will be less equipped to lead a normal community life than he is now. That does not mean the effort must not be made, and I quote again from the Victorian Sentencing Advisory Council: "Young adults are still forming habits and are not set in their ways as older adults. Research suggests that supportive approaches such as counselling, mentoring and providing multiple coordinated support services are the most effective ways to foster young adults to desist from further offending. These interventions have the greatest effect on the highest risk offenders." Rethinking sentencing for young adult offenders in Victoria: Factsheet, Sentencing Advisory Council Victoria, December 2019.

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