Supreme Court New South Wales Medium Neutral Citation: R v MR, JB and CS (young persons) (No 5) [2024] NSWSC 912 Hearing dates: 14 June 2024 Date of orders: 26 July 2024 Decision date: 26 July 2024 Jurisdiction: Common Law Before: Huggett J Decision: 1. For the offence of Manslaughter, MR is convicted and sentenced to imprisonment for 4 years and 6 months to commence on 28 July 2022 and to expire on 27 January 2027 with a non-parole period of 2 years and 6 months to commence on 28 July 2022 and to expire on 27 January 2025. I order that MR serve the whole of his sentence prior to his release on parole as a juvenile offender. 2. For the offence of Affray against JB, without recording a conviction, pursuant to s 33(1)(a) of the Children (Criminal Proceedings) Act 1987 (NSW), the offence is dismissed. 3. For the offence of Wield Knife in a Public Place against JB, the offence is not proven and is dismissed. 4. For the offence of Affray against CS, without recording a conviction, pursuant to s 33(1)(a) of the Children (Criminal Proceedings) Act 1987 (NSW), the offence is dismissed. 5. For the offence of Wield Knife in a Public Place against CS, the offence is not proven and is dismissed. Catchwords: CRIME – sentence – manslaughter by excessive self-defence – affray – juvenile offenders – offences of lower objective seriousness – reduced moral culpability on account of background and immaturity Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW), Pt 3, Div 4, ss 3, 6, 19(3), 19(4), 19(4)(a), 31(6), 33(1)(a) Crimes Act 1900 (NSW), s 93C(1) Crimes (Sentencing Procedure) Act 1999 (NSW), ss 25E, 44(2) Summary Offences Act 1988 (NSW), s 11E(1)(a) Cases Cited: BP v R (2010) A Crim R 379 Markarian v R (2005) 228 CLR 357; [2005] HCA 25 R v Blacklidge (Court of Criminal Appeal (NSW), Gleeson CJ, 12 December 1995, unrep) R v GDP (1991) 53 A Crim R 112 R v Loveridge [2014] NSWCCA 120 R v Millwood [2012] NSWCCA 2 Tepania v R [2018] NSWCCA 247 Williams v R [2012] NSWCCA 172 Category: Principal judgment Parties: Rex (Crown) MR (Offender) JB (Offender) CS (Offender) Representation: Counsel: E Balodis (Crown) A Evers (MR) S Talbert (JB) C Wasley (CS) Solicitors: Solicitor for Public Prosecutions (NSW) (Crown) Criminal Defence Lawyers Australia (MR) Legal Aid Commission (JB) Caulfield Solicitors (CS) File Number(s): 2022/00221664; 2022/00221698; 2022/00221444 Publication restriction: Certain names have been anonymised to comply with s 15A of the Children (Criminal Proceedings) Act 1987 (NSW). JUDGMENT 1. On 4 June 2022 the young person MR was aged 17 and 2 months, the young person JB was aged 16 and 2 months and the young person CS was aged 17 and 5 months. 2. As each was a juvenile at the time of the incident that brings them before this Court, their names are not to be published and they will be referred to by initials. Many of the witnesses called in the trial were also young persons. Accordingly, I shall refer to all witnesses by their first initial. 3. In March 2024 MR, JB and CS stood trial before a jury on an indictment alleging that on 4 June 2022 at Ropes Crossing, they did murder AS. AS (the deceased) was aged 16 and 6 months at the time of his death. 4. MR was found not guilty of murder but guilty of manslaughter. As he offered to plead guilty to that offence before being committed for trial, it is accepted he is entitled to a reduction of 25% on the sentence that would otherwise have been imposed pursuant to s 25E of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSPA). 5. Manslaughter has a maximum penalty of 25 years imprisonment. It is a "serious children's indictable offence" pursuant to s 3 of the Children (Criminal Proceedings) Act 1987 (NSW) (CCPA) and must be dealt with according to law. 6. JB and CS were found not guilty of murder and not guilty of manslaughter. They appear before this Court pursuant to s 31(6) of the CCPA in relation to two related offences. Namely, affray (charged pursuant to s 93C(1) of the Crimes Act 1900 (NSW)) and wielding a knife in a public place (charged pursuant to the then s 11E(1)(a) of the Summary Offences Act 1988 (NSW)). 7. Both JB and CS pleaded guilty before me to affray and pleaded not guilty to wielding a knife in a public place. 8. Having heard the evidence called in the trial that established the guilt of JB and CS for affray and that is relied upon to prove (separately against each) the offence of wielding a knife in a public place, it is in the interests of justice that I deal with the related offences. That evidence does not establish beyond reasonable doubt that JB or CS were in possession of a knife which they wielded on 4 June 2022. Their guilt (considered separately) has not been proven beyond reasonable doubt and that offence will be dismissed. Whilst not determinative, I note the Crown made no submission to the contrary. 9. The offence of affray has a maximum penalty of 10 years imprisonment when prosecuted on indictment. It is not a "serious children's indictable offence" pursuant to the CCPA. JB and CS are to be (separately) sentenced pursuant to Part 3 of Division 4 of the CCPA. A jurisdictional limit of 2 years control applies. 10. JB offered to plead guilty to manslaughter prior to being committed for trial. That offer, which was not accepted by the Crown, exceeded what was necessary to constitute a reasonably equivalent offence offer. It is accepted that JB is entitled to a reduction of 25% on the sentence that would otherwise have been imposed pursuant to s 25E of the CSPA. 11. CS offered to plead guilty to affray prior to being committed for trial. That offer was not accepted by the Crown. It is accepted that CS is entitled to a reduction of 25% on the sentence that would otherwise have been imposed pursuant to s 25E of the CSPA. Victim Impact Statements tendered against MR 1. Victim impact statements under the hand of the deceased's mother and aunt have been tendered in the sentence proceedings of MR. In her statement, the deceased's mother speaks of the pain and grief she endures at the passing of her son. She describes that her family "no longer eat dinner together because there's forever an empty seat where [the deceased] is supposed to be sitting". She describes the milestones they will miss seeing her son experience, such as marriage and becoming a father. 2. The deceased's aunt describes the close relationship she shared with the deceased and the mental and emotional toll his passing has had upon her. This includes being unable to sleep and feeling angry all of the time. 3. It is clear the deceased was a much-loved son, nephew, family and community member. He was popular, generous, funny and outgoing and had his future ahead of him and his family is devastated at his passing. On behalf of the Court, I extend my condolences to the deceased's family for the loss they have endured and will continue to endure. I recognise that no sentence I impose upon MR for his unlawful killing of the deceased will ever make up for that loss. Principles relevant to sentencing children 1. Section 6 of the CCPA sets out the principles to be taken into account when dealing with criminal proceedings involving young persons. These principles are applicable whether a young person is dealt with according to law (as is the case in relation to MR) or under the CCPA (as is the case for JB and CS). [1] These principles reflect that youth is a significant mitigating factor on sentence and that furthering the rehabilitation of young offenders and supporting their positive engagement within the community is a paramount consideration. The emphasis afforded to rehabilitation is such that considerations of general deterrence and retribution whilst not to be ignored may be afforded considerably less weight because of the primacy of promoting the rehabilitation of a youthful offender. The offences 1. In sentencing each young person, I am required to identify and consider all factors relevant to the sentence, both objective and subjective, and ultimately make a value judgment as to what is the appropriate sentence given all the factors in the case. [2] In determining the facts upon which each young person is to be sentenced I am bound by the verdicts of the jury and the facts implicit in those verdicts. The factual findings I make for the purpose of sentencing must be consistent with those verdicts. Furthermore, I am mindful of the different onuses of proof that apply depending on whether a factual finding is aggravating or mitigating. 2. On 3 June 2022, a social gathering took place at a home on Australis Drive, Ropes Crossing where the young person T lived with her family. T's mother S and partner J were home, as was a friend of theirs, M. T's boyfriend the young person B and one of B's best friends since childhood, the deceased, arrived at the gathering around midnight. B and the deceased had been at a party prior to arriving at T's home. 3. T had invited an acquaintance she knew from school, the young person A. In response to a request by A, T agreed that A's boyfriend, MR and MR's friends JB and CS could attend. MR, JB, CS, A, B and the deceased had attended a like gathering at T's home around a month or so earlier. That gathering carried on into the early hours of the morning and was otherwise uneventful. 4. MR, JB, CS and A travelled together to the gathering in an Uber arriving just after midnight on 4 June 2022. MR placed a carton of vodka cruisers into the boot before getting into the Uber. He also placed a large hunting knife which was within a pouch in the box of vodka cruisers. MR and his cousin had been pursued by 2 males holding knives on 1 January 2020 and MR carried the knife that evening for protection because he believed there was a lot of knife crime in the Mount Druitt area so he took it "just in case". [3] 5. MR, JB and CS spent the majority of their time at the gathering sitting at the table in the kitchen having little to no interaction with the deceased or B. 6. Shortly before the incident that led to the death of the deceased, the deceased approached MR and asked him to come for a walk. MR agreed and he and the deceased left T's house through the back door and went to the rear lane. The deceased told MR he was "going to get on" [4] and they walked to a nearby house. MR remained outside while the deceased approached the house. After failing to raise any occupant therein, MR and the deceased returned to T's house through the back door. MR walked to the front of the house. JB and CS were there and they agreed to leave. CS was on the grassy area at the front of the house (to the left if one was looking out the front door). He was using his mobile phone to book an Uber. Neither JB nor CS were armed with any weapon. 7. Around this time A was at the front of the house standing in the area of the letterbox on the footpath side of the front fence. MR, JB and CS were inside the front fence closer to the house. 8. The deceased came out the front of the premises and told MR that A had tried to touch his dick. A denied having done that. Voices got louder and angrier. While standing face-to-face to the deceased, MR said, "dickhead, why would you say that? I thought we was boys". [5] The deceased smiled and blew cigarette smoke in MR's face. MR said, "have a crack". [6] The deceased pulled up the sides of his pants in a way that suggested to MR that he wanted to fight. MR punched the deceased to the face causing him to stumble backwards two steps. MR heard the deceased fall into the closed security screen door. When MR punched the deceased, he (MR) was feeling "a bit angry" about what the deceased had said. [7] 9. Around this time B came to the front of the house and saw MR punch the deceased. B ran from the front porch to his left across the property and onto Australis Drive. 10. After the deceased stumbled backwards into the security screen door, MR saw the deceased put his hand into the front of his pants and place his hand on the top part of what MR believed to be the handle of a knife. Believing the deceased was going to pull it out and scared he was going to be stabbed, MR pulled out his knife which he had earlier placed in the side of his pants. While looking at the deceased, MR swung his arm towards the deceased who was standing with his back to the closed security screen door and stabbed the deceased once to the right side of his chest, fatally wounding him. Save for MR, no one saw the deceased being stabbed. 11. MR intended to cause the deceased grievous bodily harm when he stabbed him. 12. The knife penetrated the deceased's right anterior chest. 13. Immediately after being stabbed, the deceased moved in the same direction that B had run. In the vicinity of the neighbouring house and close to the gutter line, the deceased collapsed face down onto Australis Drive. 14. MR initially ran after the deceased. He saw the deceased fall and he stopped running when he saw some blood on the ground. 15. Believing a fight was on foot but unaware the deceased had been stabbed, JB and CS chased the deceased a short distance before seeing him collapse and not get back up. CS thought the deceased had tripped over the gutter. 16. While the deceased lay face down on the roadway, JB kicked the deceased to the body and CS kicked the deceased twice to his body. 17. CS saw B up the roadway and went towards him. CS then saw both MR and JB entering bushes on the other side of Australis Drive. MR disposed of the knife he used to stab the deceased before he and JB exited from the other side of the bush area onto Wiseman Circuit. 18. Shortly thereafter MR was recorded by a CCTV camera to say to JB "told ya cuz, I told ya I was gonna stab him. I got him good". [8] 19. MR and JB were picked up by MR's mother and taken to the home of MR's aunt. 20. CS attempted to follow MR and JB into the bushes but got stuck in a muddy area. A called out to him and CS and A left the area together. They were picked up by JB's mother and taken to the home of MR's aunt. 21. S and J ran to where the deceased lay in the street. They turned him over and observed a pooling of blood and a wound to his chest. The deceased was unresponsive. Pressure was applied to the wound in an attempt to stop the bleeding and 000 was called. 22. Paramedics arrived and treated the deceased however shortly thereafter he was pronounced deceased. 23. On 7 June 2022 an autopsy was conducted. The cause of death was found to be the consequences of a stab wound to the chest. The path of the stab wound was from the front to the back of the deceased, towards the midline and downwards. The track of the wound penetrated to a depth of 15 to 20 centimetres traversing numerous organs including the deceased's right lung, aorta, heart sac or pericardium and lower left lung. Blunt force trauma in the form of abrasions were visible on the deceased's face and upper and lower limbs. 24. Toxicological analysis of the deceased's post-mortem blood detected cocaine, cannabinoids (being a metabolite of cannabis) and a blood alcohol reading of 0.125 milligrams per 100 millilitres of blood. 25. On 23 July 2022 CS presented at Mount Druitt police station with his sister. They asked to speak to the officer in charge of the investigation into the death of the deceased but left as he was not on duty. [9] CS wanted to turn himself in to police because he was scared and did not want to be blamed for the death of the deceased. [10] 26. On 28 July 2022 MR, JB and CS were arrested and placed in juvenile detention. Upon his arrest, CS said, "Hey boss. I didn't do anything. I was just there". [11] 27. Before moving to a consideration of the objective seriousness of the offences, I wish to make the following observations. 28. Firstly, the parties agree that MR should be sentenced on the basis of excessive self-defence in that he had an intention to inflict at least grievous bodily harm upon the deceased (or the Crown contends, an intention to kill the deceased) and not on the basis of manslaughter by an unlawful and dangerous act. Given MR used a large hunting knife to stab the deceased in the chest where vital organs are located, I consider that MR should be sentenced on the basis he had an intention to at least cause grievous bodily harm. However, I am not satisfied the Crown has established beyond reasonable doubt that MR intended to kill the deceased. The fact he inflicted only the one stab wound to the deceased and did not engage in any further physical assault upon him satisfies me that he intended to cause the deceased really serious bodily injury but not to kill him. 29. Secondly, I do not accept on balance MR's evidence that he was not looking at the deceased when he stabbed him. MR was fearful for his life and believed the deceased was armed with a knife which he was reaching for to use to stab him. To suggest that in those circumstances MR was not keeping his eyes on the deceased but was looking at the ground defies logic and common sense and I reject MR's evidence in that regard. 30. Thirdly, there are some disputed factual matters I find I am unable to determine to either requisite standard. This includes whether the deceased told MR that A had tried to touch his genital area when they were in the laneway and whether that assertion was a truthful one and whether the deceased was in fact in possession of a knife immediately prior to his death (and in turn, whether B ever took hold of that knife). 31. While matters such as these would provide a fuller context to the events that led to the death of the deceased, the central issue in dispute that was determined against MR related not to his belief in the need to act in defence of himself but rather, the reasonableness of his conduct. In such circumstances, the factual matters I am unable to determine one way or the other assume less importance. Objective seriousness 1. I move now to a consideration of the objective seriousness of the offence for which each young person is to be sentenced. There cannot be any realistic assessment of the objective seriousness of each offence without taking into account the circumstances in which the offence was committed. [12] 2. Common considerations relevant to the context and circumstances of each offence is that it was not premeditated or planned. Neither MR, JB nor CS went out that night intending to inflict violence upon any person. Furthermore, each offence was of limited duration. The violence on the part of each young person was a spontaneous reaction to events that unfolded very quickly, over seconds in a chaotic and charged atmosphere. 3. In relation to the offence committed by MR, the starting point in identifying factors relevant to the objective seriousness of the offence he committed is that it involved the unlawful taking of a human life. That said, the facts and circumstances vary markedly from one case of manslaughter to another and contemplate a wide range of criminality and conduct (or omission) beyond that of accident but falling short of murder. Accordingly, the penalties imposed in other cases are of little assistance. [13] 4. The focus must be on the circumstances as MR perceived them to be at the time of his conduct (and not with the benefit that hindsight or calm reflection might offer). What precisely was the conduct MR believed was necessary in order to defend himself? How disproportionate or excessive was his response? What motivated MR to act as he did? [14] 5. At the time MR swung his knife towards the deceased he did so believing the deceased was armed with a knife and was pulling it out with the intention of stabbing him. That act did not happen in isolation. The deceased had been acting provocatively at least from the time he walked out the front of T's house and accused A of trying to indecently touch him. 6. The stabbing occurred after MR believed the deceased wanted to engage in a fistfight and then escalated the fight, at least in the mind of MR, by reaching for what MR believed to be a knife. MR's perception of the threat he faced was exacerbated by his own experience of being the victim of knife crime some years earlier. While it is true that MR saw the deceased stumble backwards after punching him and heard the deceased make contact with the closed screen door, MR had very little time to consider other options to try to avoid the perceived threat such as moving backwards and away from the deceased. 7. Balanced against that is the fact that MR only saw the deceased put his hand in the front of his pants and pull out "like a handle" [15] which MR thought was a knife because of the way he (the deceased) "just did it". [16] MR did not in fact see a knife nor did MR simply produce his knife and attempt to defend himself by threatening the deceased with it. Rather MR pulled his knife secreted in the side of his pants and stabbed the deceased. 8. The use of the knife is an important factor bearing upon the objective seriousness of the offence committed by MR. While I accept that he carried it only for his own protection and did not use it to initiate violence, carrying knives for whatever reason is a very dangerous practice. 9. In all the circumstances I find that MR's use of his knife to stab the deceased once, whilst excessive, was not a significant departure from what would be a reasonable response to the threat as perceived by him and find that the offence he committed falls toward the lower end of objective seriousness. 10. The offence committed by both JB and CS involved each of them chasing the deceased and taking advantage of his vulnerability after he had collapsed face down on the roadway. Each offence involved actual as opposed to threatened violence upon the deceased. In the case of JB that consisted of kicking the deceased to his body and in the case of CS that consisted of kicking the deceased twice to his body. 11. I am unable to be satisfied beyond reasonable doubt that JB or CS knew the deceased had been stabbed by MR at the time each engaged in the unlawful violence amounting to the affray nor knew that he was bleeding, given the pooling of blood was apparent only when the deceased was later turned over. 12. There is no evidence that JB or CS caused any injury to the deceased by their conduct nor is there any evidence regarding the force of any kick. There is no evidence as to precisely which part of the deceased's body any kick connected. While the pathologist observed abrasions and bruises to the deceased's face, it was accepted they could have been caused by MR's punch and/or when the deceased collapsed and fell face down onto the roadway. 13. In all the circumstances, the offence committed by JB and that committed by CS (separately considered), falls toward the lower end of objective seriousness. 14. I move now to a consideration of the personal circumstances of each young person. A significant factor common to each is his youth. The law has long recognised that young people may not reach emotional maturity or impulse control until many years after the age of legal maturity. [17] That observation is particularly apt in the present circumstances. 15. Secondly, it will be apparent when I outline the circumstances of each young person, that to varying extents and in different ways each has experienced dysfunction and deprivation in his childhood with the consequence that each had fewer resources to guide and control his behaviour. This coupled with their youth reduces the moral culpability of each young person for his offending and is a factor to be taken into account when determining the appropriate sentence. [18] MR's personal circumstances 1. I commence firstly with MR's personal circumstances. Information in that regard is before the Court through various documents including a Youth Justice Background Report as well as through evidence given by MR at the sentence hearing. 2. He was born in 2005 and is presently aged 18 and 3 months. He is an Aboriginal man from Wiradjuri and Kamilaroi people and is the eldest of three siblings. 3. Although MR informed Dr Wearne, Clinical Neuropsychologist that he enjoyed positive and loving relationships with his parents, his mother referred to a family history of violence when spoken to by the author of the Background Report. In that regard, in his evidence before me, MR described that his father abused drugs and alcohol when he was a boy which led to violence against his mother. MR said that when that occurred, he left the family home and stayed with his paternal grandmother where he felt safe. MR also referred to the fact his father went to jail (for two years when MR was aged 4) for stabbing a stranger. When he was aged 16, MR also saw his neighbour get stabbed (not fatally) after a fight between the neighbour and some other persons. 4. MR stated in his evidence that at the time of the index offending, his father was not drinking or taking drugs and was improving. His mother has also pleaded guilty to her role in hindering the police investigation into the death of the deceased and is yet to be sentenced. 5. MR's education prior to his arrest was poor. He was regularly absent from school and was suspended twice - once for aggressive behaviour and once for physical violence. He reported experimentation with different substances from the age of 15, primarily alcohol and cannabis. His excessive use of alcohol led to engagement in physical fighting and interfered with his attendance at school and participation in pro-social activities such as football and training. MR denied binge drinking or substance abuse at the time of the offence. 6. MR reports that he became affiliated with a Western Sydney gang in around Year 8 when he was becoming further disconnected from school and experiencing a challenging home life. It led to participation in street fights based on postcodes. He reports that he withdrew from gang affiliations in Year 9 or 10 and did not identify as a gang member at the time of the offence. 7. In Dr Wearne's opinion, MR's exposure to substance use, domestic violence and crime created a normalisation of such behaviour and potentially a gravitation towards street gang affiliations. 8. Since being in juvenile detention MR has re-engaged with his education and is benefiting from a small teacher to student ratio. He is currently enrolled in Year 11 studies and reports state that he completes all set tasks and is respectful and polite. Upon completing Year 11, he can choose to progress to Year 12. 9. As a result of concerns observed with his communication, MR has recently been assessed by a speech pathologist who has diagnosed a severe receptive and expressive language disorder that has led to secondary impairments in comprehension and communication including poor impulse control, impaired decision making and problems comprehending consequences. The combination of his language disorder and impairments in adaptive behaviour reflect a cognitive impairment. MR has also been assessed as having a general intellectual functioning in the extremely low range. 10. I accept that MR's learning disorder and cognitive impairments reduce the weight to be given to deterrence, denunciation and retribution with greater weight to be given to his rehabilitation and reintegration back into the community. 11. While it is evident that MR does not have an unblemished record in detention, noting the many misbehaviour reports and his involvement in several incidents including verbal abuse, issuing threats, physical assaults of other detainees, property damage and a security breach in which he (and another detainee) attempted to grab an officer's keys, MR has engaged positively in education and counselling programmes. This includes an understanding anger program, an alcohol and other drug education program and an Aboriginal specific program addressing relationships and violence. He has also completed the Confit fitness program which aims to reduce the rate of re-incarceration through positive attitude and mindset around education, employment and community. 12. At the time of the offence, MR was on an unsupervised nine-month good behaviour bond for robbery whilst armed with an offensive weapon. That offence was committed in September 2021 and the bond was imposed on 22 February 2022. MR has no other recorded criminal history. 13. MR has acknowledged that his actions resulted in the death of the deceased. He has expressed that he wishes the incident never occurred and he has expressed his sadness at the death of the deceased. He recognises that the deceased's traumatic death has caused significant grief for the deceased's family. In so far as the Crown tendered on sentence against MR a transcript of a telephone call between he and an unidentified male and female that took place on 9 July 2022 which the Crown submits has a bearing on MR's remorse and prospects of rehabilitation, I do not accept that an exchange of threats to another person made some two years ago have any meaningful bearing on a claim to genuine remorse and/or prospects of rehabilitation now. 14. In all the circumstances, I accept on balance that MR has demonstrated insight into his offending and that he is genuinely remorseful. Further, I am satisfied his prospects of rehabilitation are reasonable. While there remains some risk of reoffending, he is young and has the capacity to reform. His prospects will be enhanced, and his risk of reoffending reduced if he takes up the opportunities that are being offered to him to continue to educate himself and to address issues connected to his offending. JB's personal circumstances 1. I turn next to JB's personal circumstances. Information in that regard is before the Court through a Youth Justice Background Report. 2. He was born in 2006 and is presently aged 18 and 4 months. He is of Aboriginal background and is the only child of his parents. He grew up with his mother and has half-siblings. 3. JB has been subject to approximately 65 Department of Communities and Justice reports which concerned school attendance, exposure to domestic family violence and concerns regarding neglect and exposure to substance abuse. Department of Communities and Justice records suggest he was placed into the care of his maternal grandmother at the age of 10 as his mother was in custody and that thereafter, his placement depended upon whether his mother was in the community or not. 4. JB reports positive relationships with his mother and grandmother but a strained relationship with his father. That said, he visits his father's residence each week to see his half siblings in order to maintain a connection and relationship with them. 5. In Year 8, JB was referred to an alternative education setting because of violent and defiant behaviour. However, he did not return after he was suspended for violent behaviour. 6. In 2018 JB was diagnosed by a paediatrician with attention-deficit hyperactivity disorder and oppositional defiant disorder. It is not clear whether he then received treatment for that condition. 7. At the time of the offence JB had been employed in scaffolding for approximately 3 months. That employment ceased when he was placed in juvenile detention. 8. JB reports that he began smoking marijuana at the age of 12. At the age of 14 he began experimenting with other substances including cocaine and Xanax and believes he was drug dependent from the age of 14. 9. At the time of the offence, JB reports that he was consuming marijuana, cocaine and Xanax each day and drinking a significant amount of alcohol. While in detention, JB reports that he did not use substances. 10. JB plans to remain abstinent moving forward and believes the programs he undertook in detention have given him tools to assist in managing his previous substance abuse issues and to abstain in the future. 11. JB has not previously offended and prior to being admitted to juvenile detention upon his arrest on 28 July 2022, was not known to youth justice. 12. While in detention JB was the subject of a number of reports of misbehaviour and was involved in several incidents including verbal abuse and physical assaults. However, in all other respects his conduct and attitude was exemplary. He completed his Higher School Certificate, he participated in several programs including a number of TAFE courses and a cognitive-based program addressing offending attitudes and thinking. He consistently demonstrated pro-social behaviour reaching the maximum score a young person can obtain on the justice centre incentive scheme. He participated in cultural programs in custody showing a strong interest in connecting to his Aboriginal culture. The facilitator described him as being the most improved young person he has worked with. 13. Since being released from detention on 5 April 2024, JB has taken several steps to find employment including registering with an employment service, being allocated a mentor and attending an interview. He has expressed hopes of completing a forklift licence via this employment service. He has also applied for employment positions and attended interviews in relation to a landscaping apprenticeship. 14. At the time the Background Report was prepared JB had received positive feedback in relation to his interview and had been successful in progressing to the next stage of recruitment. Further motivation to remain abstinent from substances is that the landscaping apprenticeship requires ongoing drug testing to maintain that position. He has also registered as a member of a local gym and has been attending daily to achieve his personal fitness goals. He intends to apply for his learner driver's licence and is revising the knowledge test to prepare him to apply for that licence. 15. JB has acknowledged his conduct in the offence of affray and discussed how he could have better managed his behaviour to prevent the offence. He has expressed remorse which I accept is genuine and reports now having a better understanding of how to manage conflict and regulate his emotions, as opposed to turning to violence. His youth coupled with his consistent improvements in detention establish that he has very good prospects of rehabilitation and that as things presently stand, he is unlikely to reoffend. CS's personal circumstances 1. Finally, CS' personal circumstances. Information in this regard is before the Court through documents including a Youth Justice Background Report and a report of Dr Sally McSwiggan, Consultant Neuropsychologist. 2. He was born in 2004 and is presently aged 19 and 7 months. He is of Aboriginal background and is the youngest of six children with a large age gap between he and his older siblings. 3. He has lived with his mother in Mt Druitt for most of his life, his father being absent since he was six years old. His mother advised that CS' father was violent towards her. She battled with alcoholism for most of her life and CS' homelife was chaotic as he often took on the responsibility of supporting her. CS' mother has reportedly sustained liver failure and no longer drinks but requires treatment for physical conditions. 4. CS attended several primary schools and was placed in learning support. He left school at the beginning of Year 10 as he struggled to read and write and did not enjoy attending. As his mother was often unwell, he also often stayed home to help care for her. 5. CS reported that he has never been employed and is finding it challenging to find employment. However, he has completed his white card course and is linked with a job service provider. He is hoping to obtain work as a labourer. 6. Around the time of the offence, CS consumed alcohol socially but not to excess. 7. CS has been diagnosed with borderline intellectual functioning which although not within a range where he would be considered to have a mild intellectual disability, his intellectual functioning is within the criteria for a cognitive impairment. 8. CS has not previously offended and prior to being admitted to juvenile detention, was not known to youth justice. During the period he was remanded in detention he had no misbehaviour reports. 9. After being released on bail on 6 September 2022, CS moved into the home of his older sister and her family. He reported that this was because of threats being made to him and fear his mother or her home would be targeted. His bail conditions were onerous and included house arrest and thereafter an overnight curfew and daily reporting. He has support from both his mother and his older sister. 10. It is submitted that a causal relationship can be inferred from the evidence given by CS at trial between his borderline intellectual functioning and the commission of the offence which would reduce his moral culpability. The particular aspect of CS' evidence that is relied upon in this regard was not identified. While I do not accept that submission, I accept that CS' borderline intellectual functioning reduces the weight to be given to deterrence, denunciation and retribution with greater weight being given to his ongoing rehabilitation. 11. Although there is no direct evidence before me regarding remorse, CS took steps to turn himself into police and offered to plead guilty to affray at an early stage and I am prepared to accept that he is genuinely remorseful. CS has excellent prospects of rehabilitation and is unlikely to reoffend. Parity 1. It is accepted that parity considerations do not arise in relation to MR. To the extent they arise as between JB and CS, while I am of the opinion there are some differences regarding aspects of their subjective cases, the circumstances since their arrest which have seen them both placed in juvenile detention, which was lengthy for JB and for CS involved onerous bail conditions following his release on bail, coupled with the benefit each is entitled pursuant to s 25E of the CSPA and the rehabilitation each has achieved to date, have overtaken parity considerations. Each will ultimately receive the same sentence. 2. It is accepted that a sentence involving full-time custody is the only available sentence for MR. I propose to order that he serve the custodial component of his sentence as a juvenile offender. As manslaughter is a "serious children's indictable offence" pursuant to s 19(3) of the CCPA, a court sentencing a young person for such an offence cannot order that the sentence be served as a juvenile offender after the person has turned 18 unless there are special circumstances justifying that course. Special circumstances for that purpose are limited to the matters set out in s 19(4) of the CCPA. Given MR's learning disorder, I am satisfied he is a vulnerable person for the purpose of s 19(4)(a) and further, that the only available educational, vocational training or therapeutic programs suitable for him are those available in juvenile detention centres. 3. I have found special circumstances pursuant to s 44(2) of the CSPA justifying a variation to the statutory ratio. These include the fact this is MR's first time in custody and importantly, both he and the community will be benefitted by an extended period on parole to assist with his reintegration and to further his rehabilitation. Sentence 1. Having regard to the circumstances of the offending and MR's personal circumstances and paying due regard to the principles of sentencing young offenders, but for his offer to plead guilty to manslaughter, the sentence I would have imposed on MR would have been one of imprisonment for 6 years. 2. A reduction of that sentence by 25% on account of his offer to plead guilty to manslaughter, results in a term of imprisonment of 4 years and 6 months. 3. Accordingly, for the manslaughter of the deceased, MR is convicted and sentenced to term of imprisonment of 4 years and 6 months to commence on the date he was taken into custody, namely 28 July 2022 and to expire on 27 January 2027 with a non-parole period of 2 years and 6 months to commence on 28 July 2022 and to expire on 27 January 2025. MR will become eligible for release on parole on 27 January 2025 and if released that day, he will serve the remaining 2 years of his sentence in the community on parole. 4. I order that MR serve the whole of his sentence prior to his release on parole as a juvenile offender. 5. The sentence I have imposed on MR gives effect to my finding of special circumstances. 6. In relation to offence of affray charged against JB and CS, having regard to the circumstances in which that offence was committed by each of them, their personal circumstances (considered separately), the benefit to be afforded pursuant to s 25E of the CSPA and paying due regard to the principles of sentencing young offenders, I find the offence proven against both JB and CS and without recording a conviction, make an order directing that the charge be dismissed pursuant to s 33(1)(a) of the CCPA. 7. The offence of wielding a knife in a public place has not been proved beyond reasonable doubt against JB or CS and is dismissed. ************************** Endnotes 1. R v GDP (1991) 53 A Crim R 112. 2. Markarian v R (2005) 228 CLR 357; [2005] HCA 25 at [51]. 3. Trial TS 647.30. 4. Trial TS 652.34. 5. Trial TS 663.27-28. 6. Trial TS 664.8. 7. Trial TS 665.9-12. 8. Trial Exhibit 15. 9. Trial TS 593.49-594.11. 10. Trial TS 748.46-749.8. 11. Trial TS 594.24. 12. Williams v R [2012] NSWCCA 172 at [42]. 13. R v Blacklidge (Court of Criminal Appeal (NSW), Gleeson CJ, 12 December 1995, unrep); R v Loveridge [2014] NSWCCA 120 at [193]. 14. Tepania v R [2018] NSWCCA 247 at 112 per Johnson J. 15. Trial TS 665.45. 16. Trial TS 666.1. 17. BP v R (2010) A Crim R 379. 18. R v Millwood [2012] NSWCCA 2. 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: 26 July 2024