New South Wales Supreme Court CITATION : R v O'GRADY [2001] NSWSC 617 FILE NUMBER(S) : SC 70013/00 HEARING DATE(S) : 23/10/00-06/12/00 JUDGMENT DATE : 21 December 2000 PARTIES : REGINA MATTHEW O'GRADY JUDGMENT OF : Hulme J at 1 COUNSEL : Crown: Mr M Tedeschi QC SOLICITORS : Crown: SE O'Connor Prisoner: Mr E Conditsis DECISION : See paragraphs 146-148 - 55 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION NO: 70013/00 21 December 2000 HULME J SENTENCE REGINA v Matthew O'GRADY HIS HONOUR: 1 On Wednesday, 6 December last, after a trial which extended for a period of some six weeks, the prisoner was convicted by a jury of the murder of Christopher Brown. It is now my duty to impose sentence. 2 Before proceeding to the detail, however, there is one thing I want to say: This case has attracted a great deal of media publicity. One can but hope that that publicity is translated, in some way, to all of the children in the State. For, whatever other factors there may have been, it is beyond doubt that the case demonstrates the damage to another two lives - one lost completely; another destined to spend many years in custody - in consequence of the effects of mind-damaging drugs: Marijuana, amphetamines and LSD, or one somewhat similar in effect to it. As a member of the community one cannot but be aware how common is the attitude, particularly among the young, that the use of these drugs is acceptable, smart or fun. As a judge, one cannot but be aware how many lives are badly damaged, if not ruined or destroyed, by them. 3 On 14 May 1999 the prisoner, Matthew O'Grady, and Christopher Brown, the deceased, were at a party. The prisoner was then sixteen years and nine months old, having been born on 6 August 1982. Christopher Brown was fourteen or fifteen. Sometime around 11pm, they and others left, walking in the direction of the Wentworth Falls train station. On the way, Christopher Brown and another boy interrupted their journey to jump on a caravan parked nearby. At that stage, the prisoner developed thoughts of killing Christopher Brown. Although there is some evidence that the prisoner developed these thoughts earlier or later, the preponderance of evidence is that the thoughts developed at the time I have stated, as indeed was submitted on the prisoner's behalf during the trial. 4 The prisoner manufactured and communicated to the deceased a story about going to steal some marijuana plants, and the deceased agreed to accompany him. The deceased invited a girl, who I shall call Miss E, to go with them and the three then turned from the direction they were heading and went into the bushland within the area of Wentworth Falls. They proceeded along a well-known track, known as the Charles Darwin Walk. 5 After a period, the prisoner asked Miss E to wait in the area of a concrete ramp, which appears to have been created by one of the public utilities. There the two boys left her and proceeded to the vicinity of the house where the prisoner and his sister lived with their parents. There, at the suggestion of the prisoner, the deceased waited and the prisoner walked on to his home. There he went inside and obtained keys to the garage or shed, where he knew his father kept rifles. 6 The prisoner obtained one of the rifles and fitted to it a silencer, apparently manufactured to assist in rabbit shooting, which was in an obvious position nearby. He also loaded the magazine of the rifle, placing another few bullets in his pocket. He rejoined the deceased. He gave the deceased some excuse for his possession of the weapon and the two re-entered the bush and walked further down the Charles Darwin Walk. They then turned off the walk and went up a narrow, steep and significantly overgrown track for something of the order of 30 to 50 metres. There each had a cigarette, the deceased seated on a rock and the prisoner holding the rifle at the hip, standing a little lower, about 1.5 metres away. The prisoner then fired, and repeated doing so, something in the order of five times, until the magazine was empty. The rifle had a bolt action and, accordingly, each shot required manipulation of the bolt and trigger. 7 During these actions of the prisoner, the deceased started screaming, and kept doing so. The prisoner then put his hand on the deceased's mouth and throat, as he said in his ERISP, to try and make him be quiet. The prisoner had some success in this regard, but then the deceased started making more noise. The prisoner then reloaded the magazine with bullets from his pocket and shot the deceased a few more times. In all, nine bullets entered the deceased, six into the head, but none penetrating the brain cavity. One of the bullets penetrated the deceased's heart. After discarding a shirt which had blood on it, the prisoner then left the deceased and returned to Miss E, discarding the rifle on the way. 8 On the pretence that the deceased was waiting for them, the prisoner induced Miss E to go with him further into the bush, past the area where the killing had occurred, and into a clearing. There, at the suggestion of Miss E, he called out for the deceased. He also commenced to kiss her and, ultimately, the two had sexual intercourse, although probably not to the extent of ejaculation. 9 There was other evidence by Miss E as to the prisoner's conduct with her but it is not, I think, necessary that I make any further findings as to what occurred between the two of them beyond these. 10 Firstly, while I do not hold against the prisoner anything that occurred between him and Miss E, I am of the view that nothing that did occur operates in his favour. Secondly, in case other Courts should have occasion to consider the matter, I believe Miss E in her evidence that the prisoner, on a number of occasions, went behind her with a shirt he had rolled up into the form of a rope. I should add that that is my summary of her evidence and motions in describing the prisoner's actions. 11 Miss E then expressed a desire to go home. The prisoner led her out of the bush into a section of road with which she was familiar. He then returned to the bush, retrieved the rifle, placed it back in the shed, throwing what was by now an empty cartridge box behind a fridge, and went into the house. There he observed the presence of blood on his shirt and arm, took his clothes off and washed the blood off his arm. He said that at home he realised what he had done, woke his sister, with whom he was close, told her he loved her and spent a deal of the night reflecting. Subject to the issue of the time when the prisoner first realised what he had done, I am disposed to accept this evidence. 12 On the following morning, the prisoner waited until his parents and sister had left, or were otherwise occupied, and then took himself to the Katoomba police station. Arriving at about 11am, he informed the police officer at the desk that he had something to tell him. Taken into an interview room, he then announced that he had killed someone. During the course of the day, he then, willingly, answered questions asked of him, both before and during a lengthy electronically recorded interview. 13 Because of his age, it was necessary that an adult be present during the prisoner's interview. He nominated a Mr Krook, saying that he did not wish to face his family at that time. It is appropriate to record my view that, at the time of the interview, the prisoner was, to a not inconsiderable degree, in shock and in a state of perplexity at what had occurred, and that he answered, at least the vast bulk of the questions asked, frankly. 14 At least some of his actions at home, in attending the police station as he did, and in what he said and did there, provides compelling evidence of both remorse and a sense of responsibility at those times. His desire not to face his family on 15 May also is indicative of a feeling of shame. I accept that this remorse continues and, given his youth and the medical evidence in his favour called at the trial, I do not regard the fact that he defended the charge against him as detracting from it. 15 There were some statements which would seem, having regard to what the prisoner has said since, not to be accurate. They include the explanation given to Sergeant Demmery and answers 64, 366 and 421 to 422 in the prisoner's ERISP, in which the prisoner said, inter alia, that his intention was to scare the deceased. However, given what I regard as an understandable state of perplexity, which the prisoner must have been going through at the time, I do not regard these as denying the conclusions expressed in the immediately preceding paragraph. 16 I have so far recounted what the prisoner did. Justice to the community, including the victim's family, and to the prisoner, and the principles of sentencing, require that I also address the question of why, and that is a far more complicated task. I will commence by referring to what he said to Sergeant Demmery at an early stage at the police station: "I went to a party last night and a few of us left and went down near Charles Darwin Walk. I don't know why but I said to Chris 'Let's go steal a plantation'. There was a girl there and Chris decided to come with me. I don't know why...I was out of my head, like I was watching it, not doing it. I got this gun from my father. I know where he keeps the keys and I think I just wanted to freak him out. Chris said 'What are you doing with that?' and, I don't know, I just shot him." 17 Some of the answers given by the prisoner in his ERISP also do or may bear on the question of how the shooting came about and the prisoner's mental state at the time. They include questions 64 to 66, 72 to 73, 231, 264, 286, 289, 365 to 368, 378 to 380, 407, 415, 421, 422, 426 to 428, 431 to 432, and 453. "Q64 What were your intentions in going to that spot? Why did you go there in the first place? A It's really not clear but I had the intention of scaring him. And just having it, a firearm with me at, and... Q65 OK A it wasn't like something I was clear on at the time, it was, it was I said before, it was like I was watching... Q66 So the spot... A myself. Q72 OK And what happened, did you hear any scream from him or any? A He kept thrashing about and he (sic) kept shooting. And... Q73 I'm sorry. Could I clarify that. You said something then? A I kept shooting. Q231 OK. Did you mean to shoot him? A Yes. Q264 Was it still? A No, I think it was windy but nothing like today. Q286 OK. All right, so what happened after you say that you fired two more shots out of the re-loaded magazine? A Chris was laying there, he was still breathing and I just got out of there. Just put the gun over my shoulder and ran back down the path and back up to where the girl was waiting. Just before I got to her, I threw the gun into the bushes and I got her and I said, quickly we have to go down here and meet Chris. And we went down, further past Chris. I was panicking, I just wanted to hide for a little bit in case someone came and we were about 500m maybe past the metal stairs. And we crossed the creek and we were waiting there. I said, Chris was here and he must have been chased or something like that. That's what I said to her. And we waited or ages and she kept calling out and going. Oh we'd better go, we'd better go. And I'm like, no, we've gotta wait for Chris because I kept hearing people and I thought someone could have heard and come down to the track to see what was happening. And while we were waiting, me and this girl started kissing and we had sex down there. Q289 OK, and what happened then? A And afterwards I said, we've, I said, we still should wait because I could still hear bushes moving and I thought I heard people but don't think it was. She said, I've really got to go and I said OK I'd better take you out. And she said, yeah, can you walk me? And I went sure. And I led her out and walked up the stairs at the end of Park Street and I was telling her where we were so she could get her bearings cause we'd been walking through the bush and she didn't know the area. And then I walked her to the end of Park Street, turned right and walked her to the top of Falls Road and she said, yeah, I'll go from here. And I pointed out where she had to go, she could see the highway clearly and she knew where to go from there. And she knew where she was because she knew where the public school was which was just about 30m down the road and we just said goodbye and I walked back down... Q365 OK So what was the reason for telling this person, Chris that story? ('the story' is that about stealing the marijuana.) A I dunno. I wanted to get him away down. Q366 And why did you want to get him away? A I dunno. Scare them and. Q367 Scare them? Did you want to scare both of them or just Chris? A Mainly just Chris. Q368 And why was that? A I dunno. Q378 Right. OK. All right Matthew. As I've said to you earlier, I've been out to that location that you described to me earlier and I have found the deceased body of a young male. At this stage I am uncertain what his name is but have reasonable cause to believe that it's the same young male that you're telling me that you shot. OK Now can you tell me why you shot him? A I don't know. It was, when I was standing there I just, he didn't like do anything to make me angry. I just, I didn't even say, anything, it just, I just did it. One minute I was just standing there and then the next I'd done it. Q379 Do you recall what you were talking about at the time that you shot him? A No, we were not really talking, we were just sitting there. Q380 When you first pulled the trigger, did you mean to pull the trigger and shoot this person, Chris? A It was really quick, but yeah. But it was pointing at him and I'm not, like if I've got a gun and unfamiliar with it. Q407 And once again, just to clarify you indicated that you then have placed two more bullets into the magazine of the, of the rifle? ('then' is after placing his hands on the deceased's mouth and throat.) A Yes. Q415 Did you know what you were doing was wrong? A Yes. Q421 When did you, when did you decide that you were going to shoot Chris? A When I was standing there having a cigarette with him. I just had it there and while I was getting the gun I was saying to myself like, what, why bother or what, I dunno. Q422 When you were getting the gun, had you thoughts of shooting Chris then? A Yeah, I think so, as well then. But it wasn't like a decision, it was more like thinking about like more if it was accidental or something because I'd bought it out and we were messin around and I was just peakin him out, tryin to freak him out and. Q426 And you put the silencer on the rifle? A I did. Q427 And what was your purpose of putting the silencer on it? A Pardon? Q428 What was the reason for putting the silencer on it? A Because you can't hear it. Q431 Before this incident, where Chris has been shot, have you ever had thoughts of shooting someone? A Yeah. I'm a fairly violent person. Not like right out but I've always had a thing with weapons and I dunno I, hunting and all that. Q432 And what were your thoughts that you've had previously about shooting a person? A Sometimes I just see it, kinda goin through my head, just like scenarios sort of things. I never thought I'd do it. I thought it was always kind of like a weird thing in my head. Q453 All right. Is there anything further you want to say about this? A I'm not clear on why I did it. It's not an excuse or anything like that, I'm just saying that, I can't see why I would of, even thought it's already happened, sort of thing." 18 A number of these answers provide clear evidence that at the time the prisoner was conscious of what he was doing, conscious of its wrongness and ramifications, and able to make rational decisions directed to concealing his offence or involvement. Although I appreciate that it is not part of my function to seek to deduce the reasons for the jury's decision, these answers provide a clear basis for a rejection of opinions of various of the doctors to the effect that the prisoner lacked control or an appreciation of what he was doing or was otherwise acting as an automaton. 19 Reference should be made also to parts of the statement taken from the prisoner by his solicitor on 1 June 1999 at a time when, according to the prisoner, he had never heard of "depersonalisation", "a defence of substantial impairment" or "a defence of involuntariness". The statement records: "It was at this time (i.e. The caravan incident) whilst I was thoughts began to come into my head to shoot Chris. I could see pictures in my head of me shooting him more or less in the way I did shoot shooting myself. These thoughts wouldn't go away. We walked down the track for a fair way and then turned off into the bushland. Chris was sitting on a rock and I was standing about 1.5 metres away from him. In my head I had what I would describe as these incredible thoughts, really loud' kill him, kill him, kill him'. From the time I had left Chris, gone home to get the rifle to this point in time I constantly see the pictures in my head that I had previously mentioned. When I got home I washed myself and put the bloody top I had been wearing beside the bed, I had already returned the rifle to the shed. Whilst I was washing myself I looked into the mirror and then it hit me for the very first time what I had done, that is, that I had just shot Chris. I decided that I would go to the police and confess what I had done. I was going mad because of the realisation of what I had done. From the time when I got the killing thoughts in my head it was as though I was feeling really, really different, really undazed (sic) as if I was watching myself doing everything that I was doing and listening to myself and yet I couldn't stop myself from shooting Chris. I remember telling the police during the interview of me that it was as if I was watching myself." 20 This evidence was admitted in response to a challenge by the Crown to the suggestion previously made by the prisoner to various doctors that he had heard voices saying "Kill him" or "Do it" and could not control himself. There is no mention of these matters in the prisoner's ERISP. 21 Under cross-examination, the prisoner had given evidence to the effect that there was no opportunity or occasion to refer to these matters in the ERISP, but I disagree. Questions or answers 64 to 65, 365, 368, 378 and 453 clearly inspired reference to them, although the significance of the prisoner's failure to mention the voices and lack of control must be assessed in light of all of the factors operating at that time. As I have said, I regard the prisoner as having been in a state of shock and perplexity at the time of his ERISP. 22 I had reservations during the time the prisoner gave evidence as to the truthfulness of all he said. At times I had the impression that he was giving answers which he thought would help his case rather than necessarily true ones. Although to some degree it must be a matter of impression, I am inclined to accept his evidence that on the night of 14 May he did hear voices, but I am not disposed to accept his statement that he had no control. 23 On the night in question the prisoner had attended the party with some of his friends. He had an argument with one of them and that probably left him somewhat angry or upset. The prisoner and the deceased did not know each other previously, but would seem to have had a short exchange at the party. 24 The deceased made, according to what the prisoner has said since, some "smart arse" words, but, as he said in his ERISP, the deceased had not done anything to upset him to any significant extent. That is how I interpret the prisoner's answers to questions 369 and 370: "Q. Did you have any argument with him? A. No. That's what I was tryin' to work out all night. Q. Did he upset new any way? A. No, not really." 25 There was a deal of other evidence as to the prisoner's actions and mood on the night of 14 May. The evidence that despite a lengthy history of drug-taking he had no drugs other than alcohol that night is compelling, and I accept it. There was some disagreement as to the amount of alcohol he consumed, but I am satisfied that it was or was about three full bottles of beer. Although the prisoner referred, in his interview, to consuming two and a half bottles, his then attitude to alcohol makes it unlikely that he did not drink all that he had. Three bottles accorded also with the evidence of Messieurs Slattery and Pilgrim. I am satisfied also that two of these bottles were consumed prior to the prisoner's arrival at the party somewhere about eight or nine o'clock and the third on the way or there. I am satisfied that the prisoner was at least mildly intoxicated during and after the incident involving the caravan. 26 A number of witnesses gave evidence as to the prisoner's conduct both before and at the party. Their evidence was not all consistent. One, a Mr Dale, said that the prisoner was talking about putting people in cages with animals, used the word "carnage" over and over, and was acting "very violent towards some of the people at the party". Having regard to the recency with which some of Mr Dale's evidence occurred to him, I regard him as a most unreliable witness. No other of the witnesses gave evidence of the prisoner talking in this way, and I am not prepared to find that he probably did. Even if there was some mention of these matters to Mr Dale, the absence of similar remarks to others suggests to me that any mention of the matter to Mr Dale was not of significant magnitude or indicative of some state of arousal on the part of the prisoner. 27 Mr Callan Quentenmeyer described the prisoner's conduct as weird. Such specificity as he provided is not a convincing example of such conduct and, in light of the evidence from a number of others to the effect that the prisoner was acting normally, I am not persuaded that his conduct did answer this description. 28 Although I accept that the prisoner was probably somewhat angry in consequence of an argument with his friend, Mr Pilgrim, I think the strong probabilities are that, at the party, the prisoner was acting in a reasonably normal fashion, albeit, in the words of Mr Slattery, more energetic and louder than usual, and generally laughing and joking and make himself the centre of attention. I am persuaded that neither before, nor at the party, was the prisoner violent. 29 Attention is also required to the prisoner's past. It figured large during the course of the trial as providing a foundation for a deal of psychiatric and other medical evidence which was adduced on the issues of voluntariness, substantial impairment by reason of abnormality of mind and mental illness. Although the jury's verdict means that all of these issues were resolved adversely to the prisoner, and any findings of mine must be consistent with the jury's verdict, many of the medical issues that arose for the jury's consideration I must also address. 30 There were problems within the prisoner's home life from the time he was young. His father was not infrequently drunk and verbally abusive. There were arguments between the parents, which the prisoner and his sister found distressing. His mother left home on a number of occasions, taking the children with her, and this imposed stress on the prisoner. 31 The prisoner had many of the symptoms of attention deficit disorder, otherwise known as attention deficit hyperactivity disorder. Whether these symptoms were sufficiently serious to justify a clinical diagnosis was the subject of considerable dispute during the trial, Drs Skinner and Waters taking the view that the prisoner did not have the disorder; Dr Anderson taking the view that he did. Dr Quadrio seemed unable to make up her mind, giving conflicting evidence on the topic. I think the probability - I use that term advisedly for I would not be prepared to so find beyond reasonable doubt - is that he did not. In that regard, I am influenced by the extent of good or satisfactory reports as to the prisoner's academic results and behaviour at school, considered in the light of Dr Skinner's statement of some of the criteria of the disorder. Nevertheless, as I have said, the prisoner had many of the symptoms. These included disruptive conduct at school, some hyperactivity and impulsiveness. 32 The prisoner also indulged in a deal of risk-taking activity, which gave him a "high" or a "rush". These terms were used on numerous occasions during the trial, perhaps not always with the same meaning, but, for the moment, I am referring to an adrenalin high. These activities included climbing cliffs without ropes, abseiling and skateboarding near the edge of cliffs where there was a risk of serious injury or worse. A week before the shooting, the prisoner and one of his friends climbed a radio tower. I am satisfied that the prisoner's conduct in the respects dealt with in this paragraph went far beyond that of the vast majority of teenage boys. 33 Despite his youth, the prisoner indulged heavily in alcohol. His attitude might be summed up in evidence that in year 7 he did not drink heavily, becoming blind only once a month. On occasions he and a friend would drink, between them, a bottle of spirits or a case of beer. A few of them would drink a litre of wine each. Year 7 was 1995, the year in which the prisoner turned thirteen. 34 He was also a heavy user of many drugs. He first used marijuana when he was about eight or nine, taking it from the top of the piano, where his father kept it. He used it a few more times in primary school. By year 9, 1997, the prisoner was using marijuana daily. It was hydroponic, which the evidence in the case established to be much stronger than that cultivated in the ground. In year 8 the prisoner had his first acid or LSD, trip. There was a couple more in that year, fifteen or more in year 9, and in year 10 a trip only now and then. 35 In the winter of 1997 he had his first magic mushrooms. In 1998 he had them maybe a couple of times a month, including one occasion when he had nine handfuls, leading to the most intense drug experience the prisoner had. On this occasion, according to the prisoner, the wind was howling and the experience really scary. Magic mushrooms grow wild in the area where the prisoner lived. They contain a chemical, mescaline, and are similar in their effect to, and have many of the hallucinogenic properties of, LSD. 36 The prisoner first tried amphetamines, speed, at the end of 1997 or the start of 1998. Initially he snorted this about once every month or two, but then, no later than March 1999, started to inject it. Its use increased in the months leading up to the shooting. 37 The prisoner has inhaled deodorant air freshener and butane. On occasions he took tablets of friends in substantial doses. He commonly mixed his drugs. He said that there were no periods from year 7 on when he was completely free of drugs. Certainly I accept that this was so in the year or so before May 1999. He tried to cut down in early 1998 and succeeded during that year and until early 1999, to some extent, from, say, three times a week to once a week or a fortnight for cannabis and the other drugs once every two to three months, although during winter he would still have magic mushrooms quite a bit. This may well understate the extent of his use. 38 There was a deal of evidence, which I accept, to the effect that the prisoner would commonly, at drug-taking sessions, use far more of the drugs I have referred to than his friends. On the other hand, the evidence is clear that two weeks before the shooting the prisoner's mother had a discussion with him about giving up drugs. He had asserted to her that pot was all he indulged in, and I am satisfied that that was the only drug the discussion related to. 39 With a view to improving his school performance, the prisoner promised her that he would stop smoking or cut down on its use, and see a counsellor. In fact, he did cut down. I accept that his drug-taking in the fortnight prior to the shooting was as follows: On the weekend a fortnight before, he had a small amount of speed and some marijuana. On the Friday night, a week before, he had a large quantity of speed and what he regarded as a normal quantity of marijuana, about four cones. On the Saturday night he had a similar quantity of both. On the Tuesday before the shooting, he had some, not a large quantity of, speed. 40 It is also clear that violence played a large part in the prisoner's thoughts. It is mentioned in answers 431 and 432 of his ERISP. At an early stage he developed or imagined, with some frequency, what were referred to as scenarios or fantasies, wherein he would do violent things to persons who did bad things to his family. These scenarios gave him a rush, although not as high a one as speed did. Both Drs Quadrio and Waters gave evidence to the effect that during these scenarios the prisoner had in his head killed many times before the scenarios occurred, both when the prisoner was affected by drugs and when he was not, and before and after he experienced the videos referred to in the next paragraph. 41 He also enjoyed snuff movies, films centred around the actual death, generally deliberate, of human beings. It was Mr Krook who provided the prisoner with access to a number of these, entitled "Traces of Death". There seemed to have been four different films in the series, and the evidence varied as to which the prisoner saw. He himself said he saw I, III and IV, but there was other evidence that he saw II. Having regard to the similarity of theme, it is not necessary to decide who is right. 42 The Court was shown a compilation of extracts from the four. It included detailed scenes of animals being killed and their blood or other bodily fluids being drunk, though I would infer from the scenes that this was by persons of races where such conduct is normal; of a person being caught and eaten by lions; of, in slow motion, a man committing suicide; of autopsies in progress; of men on the ground being chased and shot by persons in helicopters; of other men being executed, generally by shooting; and of men being mutilated, whilst still alive. 43 I am also satisfied that Mr Krook, who the prisoner saw frequently, sought to inculpate the prisoner with ideas of violence, inter alia, advocating and seeking the prisoner's participation in attacks on some racial groups. 44 Despite the above, it must also be recognised that prior to the shooting, and apart from two incidents I shall specifically refer to, the prisoner displayed no signs of being violent. There was a wealth of evidence from his friends, and to a lesser degree from school teachers, to this effect. He was involved in some school boy fights, but there is nothing in the evidence as to these to merit further consideration. There were hunting trips with his father, but in light of his father's interest in this respect, I do not regard the prisoner's participation in the trips as indicating any violent tendency. Hunting may well be far less frequent now than it was, and many people find the idea distasteful, but many teenage boys, particularly, but not exclusively, from the country, have enjoyed it, and I am not prepared to draw any inference adverse to the prisoner from his participation in or enjoyment of such activity. The prisoner's likening the cutting off of a pig's head to cutting off of the head of a fish also argues in the direction of the conclusion at which, in this respect, I have arrived. To put the prisoner's conduct in context, it is appropriate to record Mr Jones' evidence that the pigs they shot were regarded by those on the trips as having a trophy value. 45 The two incidents which merit consideration both involved the prisoner's sister. In one she called him names, on many occasions suggesting he was homosexual. He took offence, became really angry, chased his sister around the camping area where they were, pinned her up against a tree, and held a stick up against her throat from behind and forcefully, so as to create difficulty in breathing. 46 In the second incident, in the presence of his sister and a friend, the prisoner was cutting his arms with a knife and, for a time, resisted their attempts to stop him doing so. The prisoner was drunk at the time and, although there was some evidence suggesting that he was more drunk on other occasions yet remembered more afterwards, I can see no justification for concluding that this incident is a pointer to anything. The prisoner's actions on that occasion are, it seems to me, quite consistent with a tendency to attention-seek, copy Mr Krook or indulge in risks or, under the effects of alcohol, test limits or explore his pain threshold. 47 I should add that I do not see, in the incident where he held a stick up against his sister's throat, anything of significance either. Anger and physical response from children is sufficiently common to not make it possible to draw any significant adverse inference from that incident. 48 I turn to the medical opinions in the case. Undoubtedly, the jury's verdict means that some of the evidence cannot be accepted for present purposes, but I must address those views. 49 Dr Teychenne advanced the proposition that the prisoner had, on the night of the shooting, an epileptic seizure, manifesting itself in rage. I do not see how Dr Teychenne's conclusions can stand with the verdict, but, in any event, I found Drs Spira and Brew more impressive and their evidence to the contrary far more convincing. However, I need not lengthen these remarks with a detailed analysis of why I was led to these conclusions. 50 Another issue which can be disposed of quickly is the topic of brain damage. There was some evidence, particularly from Dr Reid and from Dr Teychenne, to the effect that the prisoner did have some, albeit limited, brain damage. There was evidence from other specialists that the prisoner did not. In my view, the probability is that the prisoner did not have any such damage, but I am persuaded, beyond reasonable doubt, that there was no brain damage which contributed to the shooting. 51 Dr Skinner, called by the Crown, was of the view that the most likely explanation for the prisoner's actions is that he had been desensitised to violence and killing, and he sought a rush or a high as he had experienced from watching the snuff videos while taking drugs. She thought that altered sensory experiences of apparent detachment and heightened auditory sensation of wind sounds described by the prisoner might have been flashbacks to a previous drug-related experience and thus may have reminded him of the rush he felt and heightening his experience on the night of the alleged offences. The fact that he had sex so soon afterwards suggested to her that he was still experiencing a rush from the killing. 52 Dr Skinner did, however, agree that it was difficult to understand what might have motivated the prisoner and she had found it difficult in trying to provide a psychiatric explanation for his actions. She agreed that the terms in which she had expressed herself meant that there may be explanations other than the ones that she had advanced. She agreed that what she had asserted to be a strong, motivating factor meant that the prisoner was looking for some pleasure or joy out of killing the deceased. She accepted that if the prisoner was looking for a high, he could have just gone and procured a hit of speed or magic mushrooms or LSD or some other form of drug to get his high. 53 She agreed that the prisoner exhibited a significant degree of impulsiveness. She said that the alcohol consumed by the prisoner would have made him more inclined to act impulsively and would have caused disinhibition. 54 She also agreed that the prisoner, during the night, may have experienced a transient state of depersonalisation. That concept figured large during the trial. It is also relevant to the question of sentence, so some explanation of it is necessary. A textbook explanation of the concept which was given in evidence included the following: "Depersonalisation refers to an alteration in one's experience and awareness of the self, leading to feelings of being unreal or detached from one's own body, of feeling like an automaton. It is often accompanied by the complaint that the individual lacks all feelings and sensory experiences.... Mild sensory distortions, but not hallucinations, are commonly associated with the experience. Depersonalisation is seen in a variety of neurological and psychiatric disorders and is common in complex partial seizures. It may occur in the context of depression, anxiety disorders, or certain personality disorders or as an entity by itself (depersonalisation disorder). Transient episodes of depersonalisation and derealisation occur frequently in normal persons, particularly during states of fatigue, sleep deprivation, or stressful situations such as bereavement, learning of a terminal diagnosis, or sudden awareness that one is about to be in an inescapable vehicle accident." 55 A diagnosis of a depersonalisation disorder requires repetition of symptoms of depersonalisation or a depersonalised state on a number of occasions. There was general, though not universal, agreement, among the doctors who were called, that somewhere between fifty and seventy per cent of the population experience depersonalisation at some time in their lives. However, there was significant disagreement as to the consequences of such a state. 56 Dr Skinner agreed with the passage from DSM-IV, which the evidence showed was an authoritative work in the field of psychiatry, that: "The individual with depersonalisation disorder maintains in fact reality testing, eg awareness that it is only a feeling and that he or she is not really an automaton", saying that it was an important criteria for the disorder. She agreed also that another criteria referred to was that during the depersonalisation experience reality testing remains intact. 57 Drs Anderson, Quadrio and Waters also agreed with that proposition. Unfortunately, although it is a statement contained in the Manual, there was not agreement as to what it meant. 58 In Dr Skinner's view, depersonalisation is a subjective experience of feeling unreal or strange. The expression that reality testing is intact means that a person undergoing depersonalisation is aware of his or her actions and that the abnormal perception is not real. She said that in her view, on 14 May, the prisoner's actions were the product of his conscious mind. He had control over his actions and he knew that what he was doing was wrong. Even if he had a transient feeling of depersonalisation, that would not have affected awareness of his reactions or capacity to know that what he was doing was wrong. 59 Dr Skinner gave, as a reason for her conclusion that the prisoner was not acting as an automaton, her understanding of the prisoner's conduct as purposeful and well-coordinated, and that he had a good memory for events, although she conceded, under cross-examination, that people in a state of automatism, including sleep walking, have carried out coordinated activities, including running and frantic attempts to escape some apparent threat, unlocked doors and even operated machinery. She would not accept that the degree of planning and coordination exhibited by the prisoner was consistent with such a state. 60 Dr Skinner was also of the view that the prisoner was not suffering from drug withdrawal at the time of the shooting. Insofar as she relied for this view on an understanding of the prisoner's drug use, the foundation for her opinion was erroneous. She also said that persons undergoing drug withdrawal are very agitated and jumpy, often tremulous and sweating, and feel very uncomfortable and perhaps unable to hold a coherent conversation. They become preoccupied with their own internal experiences and usually have a craving or anxiety manifested by physical agitation. She said that it was not consistent with drug withdrawal if the prisoner, on the night of the party, was acting as a clown, was the centre of attention, was telling jokes, was conversing with lots of people, was talking about picking up girls, and was slowly drinking a 750mls bottle of beer. She said the description "bouncier" did not suggest a drug withdrawal state. 61 Taken to a counsellor's notes of 7 May, Dr Skinner conceded that the prisoner may have been anxious at that time. The description contained in the preceding paragraph of the prisoner's actions on the night of the party is substantially in accordance with evidence I accept. 62 Dr Anderson. Dr Anderson was of the view that the prisoner's actions resulted from four matters: Attention deficit/hyperactivity disorder; substance abuse anxiety disorder; a depersonalisation disorder; and a set of circumstances that triggered the series of events, and that, in consequence, he did not have control of his actions. 63 I have expressed my view as to the first of these matters. So far as the second is concerned, Dr Anderson said that the prisoner's description of his behaviour on the night suggested cannabis substance abuse anxiety disorder and possibly amphetamine substance abuse anxiety disorder. He said that: "A feature of the disorder is evidence of prominent anxiety, panic attacks or, as was indicated by the accused, obsessions or compulsions that predominate the clinical picture." 64 In this connection, Dr Anderson gave a graphic example of a person who became obsessed with the thought of cutting off his penis and did so. 65 In this case Dr Anderson relied, in significant measure, on statements by the prisoner that he had heard loud thoughts of "Kill him, kill him, kill him", saying that these were more consistent with compulsive and obsessional ideas associated with substance-induced anxiety disorder rather than anything associated with flashbacks related to previous LSD use. In Dr Anderson's view it was highly likely that if the prisoner had given up marijuana use two weeks or, a fortiori, one week before the shooting, he would have been experiencing withdrawal effects of increased anxiety, aggression, anger, hostility and paranoid ideation. 66 Dr Anderson did not rule out flashbacks, but suggested that if flashbacks through LSD use were involved it might have been the environmental circumstances that the prisoner experienced at the time of the caravan, with the wind, et cetera, that may have precipitated and triggered the anxiety response that he subsequently developed. He did not believe prior LSD use or flashbacks had anything to do with the prisoner's obsessional thinking. 67 Dr Anderson recounted that the prisoner had said to him that: "I was pissed but I knew exactly what I was doing." 68 The doctor opined that alcohol would have perhaps contributed to the prisoner becoming disinhibited in his actions and this may have impinged upon his lack of impulse control. However, the presence or absence of alcohol was irrelevant to the doctor's opinions in relation to cannabis or amphetamine withdrawal. 69 Dr Anderson said that there was no indication from Matthew's account of the events to suggest psychotic experiences. 70 Dr Anderson recounted that the prisoner had described to him similar experiences of depersonalisation, both pre and post the offence, in which, in a state of being free of substance abuse, he had had similar feelings of being outside of his body. The prisoner had not given such a history to other doctors, and I am not persuaded that what he told Dr Anderson was accurate. 71 Dr Quadrio. Dr Quadrio observed that the prisoner had a background of intense polydrug and alcohol abuse, leading over a period of months or years to recurrent paranoid states, personality changes and organic brain impairment. Without the prior drug abuse, the prisoner would not have shot the deceased. On the basis of her understanding that the prisoner had ceased to use marijuana some two weeks earlier, she said that he would have been feeling the effects of drug withdrawal, such effects involving a craving for the drug. In response to the suggestion that on the night of the shooting the prisoner would have been craving a high, she said that that was not the history he had given her. 72 Dr Quadrio said that the prisoner was suffering from three linked phenomena at the time of the shooting: The impulsivity part of ADD, depersonalisation and a drug flashback. She also agreed that ADD had but a small role in the impulsivity that night. 73 In chronological order, some of the events or factors seen as significant by Dr Quadrio were as follows: There was the conglomerate of circumstances, including the argument with his friend which left the prisoner feeling depressed and paranoid. These feelings, seeing the victim jumping on the caravan, the wind which precipitated events from the past, and some alcohol, triggered a flashback, a drug-related phenomenon that includes perceptual distortions and intensifications. The prisoner also heard voices but it is not clear to me whether Dr Quadrio regarded these as manifestations of a flashback or separate incidents which contributed to it. She described them as flashback phenomena caused by his past use of hallucinogens. The flashback caused the prisoner to be in an extraordinary state of psychological arousal to the extent that he was overloaded. The arousal triggered the depersonalisation, which is like a circuit breaker. 74 Dr Quadrio said that flashbacks do not represent or reflect intoxication on the night of the shooting, but were due to the long term effects of severe drug-taking. They were liable to occur months after drug-taking. Once in a state of depersonalisation, the prisoner was not able to control his actions, although aware of them in a distorted way. Expanding on the significance of alcohol, Dr Quadrio said that the prisoner was drunk and that the alcohol would have added an element of disinhibition but would not have been a critical factor. 75 Dr Waters. In Dr Waters' view there were three critical, predisposing factors which preceded the shooting: (1) The prisoner had become desensitised to death and killing. (2) The prisoner had developed a heightened sense of injustice from observing his father's conduct to his mother which, because the prisoner was close to his father, he had had to suppress and deal with in his imagination by shifting the focus of his indignation to imagined and real situations in which his father was not to blame. These included or consisted of scenarios wherein he appeared in an heroic role, rescuing or seeking vengeance on the family's behalf. (3) The prisoner had a lifelong history of significant inattention and impulsiveness, more so than average. 76 There were then a series of events which occurred on 14 May 1999: (i) The consumption of alcohol had probably left the prisoner mildly intoxicated and disinhibited. (ii) The fight with his friend had probably left the prisoner feeling a little disgruntled. (iii) The prisoner seems to have had a brief but negative interaction with the victim. Seeing the victim jump on the caravan seems to have aroused in the prisoner a feeling of righteous indignation. (iv) The prisoner then evolved one of his scenarios, in which he was going to exact punishment for a perceived wrong by killing the victim. (v) The prisoner's inhibitions about acting out the killing fantasy were lifted by a combination of his impulsiveness, desensitisation and mild intoxication. (vi) However, his knowledge of right and wrong was not entirely overwhelmed, as he could not go through with the killing until he had detached his mind from his actions. (vii) Thus it was he entered into a clinical state of depersonalisation or psychological detachment. 77 This state of depersonalisation was evidenced by: (a) The prisoner's early reports of detachment and observing the events, while knowing where they were leading, because a disembodied voice was commanding him to "Kill him" or "Do it". (b) Hyperacusis, a condition wherein sounds, including the wind, seem to be amplified. (c) The sense of snapping out of it when he saw himself in the mirror. 78 Factors which led Dr Waters to think the prisoner was in a depersonalised state were Constable Demmery's statement, ERISP answers 65-66, 72-3, 171, 297, 365-370, 378, 453 (although earlier Dr Waters had pointed to only answers 65 to 66, and 72 to 73), and the appearance of perplexity in the interview. 79 Other matters about which Dr Waters expressed opinions included the following: He said that alcohol was a significant factor, although he could not say whether it was an essential one. The prisoner's account was highly consistent with depersonalisation and not consistent with a drug flashback. He also said that drug flashbacks can be quite prolonged. Based on the history Dr Waters was given, and the description of the prisoner's conduct at the party, Dr Waters opined that the prisoner was not suffering from drug withdrawal at the time of the shooting. The counsellor's notes of 7 May, arising from an interview with the prisoner, could indicate withdrawal or simple anxiety. The prisoner did suffer from substance abuse disorder, which may have been in remission. 80 Dr Waters was of the view that the prisoner knew, at the time of firing the rifle, that it was wrong. In another part of his evidence, Dr Waters said that the prisoner's mind knew what he was doing. At least subconsciously he knew his actions were wrong, but he could not control these apparently purposeful actions. Although his evidence was not entirely clear, Dr Waters seemed also of the view that the depersonalised state he diagnosed significantly impaired the capacity of the prisoner as someone carrying out his actions to understand them, although he could understand them in his role as spectator. 81 Dr Waters' opinion as to the extent of depersonalisation the prisoner experienced should be recorded. At one stage he described it as a moderate, rather than of mild or severe, degree. Later he retreated from this somewhat and said that only a tiny percentage of people, probably less than one per cent, would experience depersonalisation to the extent the prisoner did. 82 On another topic, Dr Waters said the prisoner's desensitisation to violence is not transitory. 83 What conclusions should be drawn from this evidence with all its conflicts? In that regard I acknowledge the principle that before I can find any facts adverse to the prisoner beyond those necessarily implicit in the jury's verdict, I must be persuaded of them beyond reasonable doubt (Isaacs 90 A Crim R 587). It is sufficient to find matters in mitigation on the balance of probabilities. 84 In the first place, I am not satisfied that the prisoner committed his offence for a "high" or a thrill. Indeed, I am satisfied that the probabilities are strongly against this. In this regard I rely on the other options for a "high" which he had, that he had not previously manifested his liking for thrills by intruding on others, and the absence of any statements by him suggesting such a motivation. 85 Secondly, once that hypothesis is rejected, there is no complete, normal explanation for the prisoner's conduct, of which it is possible to be satisfied beyond reasonable doubt. There is nothing in his past conduct to indicate any tendency to practice violence, and there were elements of the bizarre in what he did. 86 Thirdly, his lie to induce the deceased into the bush, his asking Miss E to wait, his obtaining of the rifle and the fitting of the silencer, his choice of location, his attempts to silence the deceased, his discarding of the weapon before returning to Miss E, and his concern while with her about detection, were, given his intent, in themselves purposeful, rational, and indicate some awareness of what he was about to do or had done. I would add, particularly as the transcript does not record it, that the track off the Charles Darwin Walk, which the two boys took, is, though short, so steep and uneven that it also argues in favour of awareness, purpose, and against automatism. I find it impossible to think that it could be negotiated by a sleep walker. The jury and I had a view of this track during the trial. 87 However, there seems to have been an almost unbelievable lack of thought given to the inevitability of detection arising from the fact that he was seen to go off with the deceased and then used his father's rifle. I have no doubt that the prisoner's prior interest in guns made him aware of the science of ballistics. Nor would there seem to have been any rational reflection, prior to entering into the bush and perhaps later, on the consequences to himself of what he was about to do. 88 I put aside any consideration of his conduct vis-a-vis Miss E, primarily because it is difficult, if not impossible, to determine the motivation behind much of it. The sexual act may have been largely opportunistic. It may have reflected a high state of arousal of which some of the doctors spoke. 89 Miss E was allowed to go, although she could give evidence against the prisoner. On the other hand, some of the prisoner's conduct, twisting the shirt into a rope and going behind her, on one view was very threatening. However, it was not suggested by the Crown that the prisoner had thoughts of killing Miss E, and the significance of those actions was not the subject of debate. 90 Fourthly, I am satisfied, beyond reasonable doubt, of some matters. These are: (a) Impulsiveness, to an uncommon degree, was an element of the prisoner's make up. (b) The fact that over an extended period prior to May 1999 the prisoner experienced or imagined scenarios wherein he killed. (c) The prisoner had used drugs in the way, and to the extent, I have described above. (d) The drugs he used are known to lead from time to time to irrational thoughts and actions, including compulsive, obsessional thoughts, paranoia and hallucinations. (e) The fact the prisoner was desensitised to violence. (f) The prisoner was intoxicated, to a degree, by alcohol, and disinhibition is a common consequence of the ingestion of alcohol. (g) The prisoner experienced some degree of depersonalisation during at least some of the time he was in the bush. 91 Furthermore, the evidence satisfies me, beyond reasonable doubt, that, with the exception of the last, all of the above factors contributed to the shooting. 92 So far as depersonalisation is concerned, I am of the view that the prisoner's actions were too purposeful for depersonalisation, if it has the attributes that the doctors other than Dr Skinner attributed to it, to be a factor which contributed to the shooting, as distinct from one which flowed from the decision to do it or the implementation of that decision. 93 As Dr Skinner pointed out, depersonalisation can arise from stress, and the decision and the offence were both likely to have occasioned stress. I also do not see how the opinion of those other doctors as to the consequences of depersonalisation can be reconciled with some of the statements from the textbooks which I have quoted, which statements were not challenged as wrong. On the topic of the consequences of depersonalisation, I prefer the evidence of Dr Skinner and take that view beyond reasonable doubt. 94 It may be also that the opinions I have rejected cannot be reconciled with the jury's verdict, but, given my views just expressed, that is a matter I need not pursue. 95 Similar considerations lead me to the view that it was not at the time when the prisoner saw his face in the mirror that he first realised what he had done. I accept that it may be that he then realised it to a greater degree or with more clarity than earlier. The prisoner's actions after the shooting and prior to his separating from Miss E in my view argue convincingly against the suggestion that it was only when he saw himself in the mirror that he first realised what he had done. 96 There may well have been other factors also operating. Not one of the doctors in the case suggested that the matters to which I have referred were enough, on their own, to explain the prisoner's conduct. However, the conflict between the doctors as to what the remaining factor was or factors were does not make easy the task of determining what they were. 97 Dr Waters' opinion that the sight of the deceased aroused in the prisoner a feeling of righteous indignation, and that he then evolved one of his scenarios in which he was going to exact punishment for a perceived wrong by killing the victim, seems to me to be, to a degree, speculative and unsupported by other evidence. I acknowledge that the deceased's actions and the prisoner's response may be consistent with indignation and a desire to punish, but I am not conscious of any direct evidence from the prisoner which would justify positive inferences or conclusions to that effect. Furthermore, the scenarios in the prisoner's mind, about which there was evidence of his doing violence, seem to have been confined largely, if not exclusively, to ones where there was an assault to his family. 98 Dr Quadrio's view that a drug flashback was the explanation for much of what occurred is opposed by Dr Skinner, although she did not rule it out as part of the night's events, and Dr Waters. Dr Anderson did not rule it out totally, but he did not regard it as an explanation for the obsessional thinking which, as I understand it, was regarded by him as an important component of what occurred. Furthermore, Dr Quadrio's evidence that a person experiencing a flashback knows or perhaps generally knows that it is a re-experience does not readily explain the prisoner's actions on the night of 14 May. Her further evidence that, in terms of his, the prisoner's, mental processes, it was implicit in what she was saying that everything the prisoner did that night, from the time of deciding to shoot the deceased to the mirror, accords, more or less, to something he had experienced previously, derived limited support from the prisoner as to his prior experiences. 99 Dr Anderson's view that the voices or thoughts of "Kill him" of which the prisoner spoke were indicative of substance abuse anxiety disorder derived no support from others, although, in part, their views seem to me to reflect some misunderstanding of the prisoner's use of drugs at the time and in the weeks before. 100 Also, there was limited evidence of anxiety on the part of the prisoner, which was not readily explicable on other grounds. I am not persuaded, particularly to the standard of beyond reasonable doubt, of the correctness of the diagnosis of any one of the doctors. On the other hand, while they do not agree as to the category of psychiatric or psychological condition which the prisoner experienced on the night of 14 May, there is common ground between Dr Anderson and Dr Quadrio in attributing a deal of his experiences and behaviour to the consequences of his past drug-taking. That accords with my own, non medical view that the mind-affecting drugs were one of the causes of the prisoner's irrational behaviour on that night. Again, I hold that view beyond reasonable doubt. 101 In one sense, I think the prisoner did have an abnormality of mind on the night of his offence. The circumstances of it, in many respects, defy logical explanation. I think it probable that there was some impairment of his capacity to control himself, but I would not go so far as to describe it as substantial. There were too many apparently rational and purposeful actions. I think it probable, also, that his actions were influenced by the scenarios to which I have referred. 102 The evidence does not enable me to make any findings additional to those contained in the preceding paragraphs as to contributing factors. 103 Lest it be thought that I have not given sufficient recognition to them, let me refer, perhaps again, to a number of features which I must bear in mind in sentencing. There was no prior history of actual violence and the offence is, thus, out of character. It has not been suggested that the prisoner has any other significant record. Some minor stealing was mentioned during the trial but, in the circumstances, it is of no consequence. The prisoner is of above average intelligence. He does not qualify for the discount commonly given by the utilitarian value of a plea of guilty. He was sixteen years and nine months at the time of the offence. Within hours of committing it, he showed remorse for, and responsibility in admitting, what he had done. That remorse continues. 104 There was also evidence bearing on the prisoner's prospects of rehabilitation. A report under s 25 of the Children (Criminal Proceedings) Act recorded that the prisoner's behaviour while in custody has been, although not perfect, good. He is pursuing studies and the coordinator of the studies says that he has the capacity to complete his higher school certificate by the end of 2002. Not surprisingly, there has been some disruption of his studies. 105 That report also observed that the prisoner reported that his aggressive and violence fantasies no longer troubled him, but that he "seemed to accept little responsibility for the antecedents of his offence (and) seemed overly optimistic about the re-emergence of these difficulties in the future." 106 It was said that he both needed and was amenable to counselling. 107 Dr Quadrio was called in the proceedings on sentence. She expressed the view that the prisoner had done very well in terms of rehabilitation at the detention centre where he has been. He is, in her view," enormously different now from the way he was at the time of the crime." 108 I should refer also to evidence given during the trial. It was given there as incidental to the issue of whether the prisoner had a mental illness. Summarised, it was to the effect that the risks of the prisoner re-offending depended very much on whether he returned to some of the habits to which I have referred above, particularly drugs. 109 It is appropriate also that I record that a number of the medical witnesses opined that the prisoner was not a psychopath. There was no contrary evidence. 110 I turn then to the principles to which I must have regard. An appropriate starting point is the statement of the High Court in Veen v Regina (No 2) (1987-1988) 164 CLR 465 at 476-7: "...Sentencing is not a purely logical exercise, and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions. And so a mental abnormality which makes an offender a danger to society when he is at large but which diminishes his moral culpability for a particular crime is a factor which has two countervailing effects: one which tends towards a longer custodial sentence, the other towards a shorter. These effects may balance out, but consideration of the danger to society cannot lead to the imposition of a more severe penalty than would have been imposed if the offender had not been suffering from a mental abnormality." 111 In that case (at 478) there was also reaffirmation of the principle that: "The maximum penalty prescribed for an offence is intended for cases falling within the worst category of cases for which that penalty is prescribed." 112 While there is a temptation to say that because of its final impact on the victim each case of murder must fall into a worst category, it is a long time ago now since our society, as manifested by the Governments of the day, has regarded a life sentence, either in the form of capital punishment, or in actual imprisonment for life, as the norm for cases of murder. I must apply the law as I understand it to be. Matters such as premeditation, motive, number of victims, character and past record of an offender, and degree of cruelty to a victim must be taken into account. I do not wish, for one moment, to minimise the horror which Christopher Brown, the victim in this case, must have experienced, but, regrettably, this Court has seen far worse instances. 113 The youth of the prisoner brings in some other principles. In GDP (1991) 53 A Crim R 112 at 116, Matthews J, with the concurrence of the other members of the Court, said: "Rehabilitation must be the primary aim in relation to an offender as young as this." 114 The applicant in that case was fourteen and three-quarters at the time of his offences - involvement in property destruction to the extent of over $1 million - and nearly seventeen at the time of the judgment of the Court of Criminal Appeal. 115 Earlier, again with the concurrence of the other judges, Matthews J had said: "The approach to be adopted in the sentencing of young offenders has been discussed in a number of cases. In Wilcox (unreported, Supreme Court, NSW, 15 August 1979), Yeldham J remarked during the course of sentencing of a young offender that 'in the case of a youthful offender" considerations of punishment and general deterrence of others may properly be largely discarded in favour of individualised treatment of the offender, directed to his rehabilitation'. His Honour relied upon Smith [1964] Crim LR 70, where it was said: 'In the case of a young offender there can rarely be any conflict between his interest and the public's. The public has no greater interest than that he should become a good citizen.'" 116 In C S & T (unreported, Court of Criminal Appeal, NSW, Gleeson CJ, Allen and Studdert JJ, 12 October 1989), Gleeson CJ accepted a submission that: "In sentencing young people...the consideration of general deterrence is not as important as it would be in the case of sentencing an adult and considerations of rehabilitation should always be regarded as very important indeed." 117 Subsequent decisions of this Court, however, suggest that considerations of general deterrence should not be ignored completely when sentencing young offenders. In Regina v XYJ (unreported, Court of Criminal Appeal, 15 June 1992), a differently constituted Bench also quoted, with approval, the passage of Regina v Smith, adding the next two sentences: "The difficult task of the Court is to determine what treatment gives the best chance of realising that object. That realisation is the first and by far the most important consideration." 118 Their Honours went to on to observe that the statement of principle contained in Regina v Smith had been applied in many cases, citing, by way of example, five where that had occurred. They went on to say: "This is not to say that considerations of general deterrence should be ignored completely when sentencing young offenders. They should not. But they do not have the same importance as they do in the sentencing of adults (see R v GDP )..." 119 See also R v Pham (unreported, CCA, 17 July 1991). 120 Youth brings in some other factors beside considerations of rehabilitation and general deterrence. The immaturity incidental to it tends to make an offender's conduct less serious on a moral scale than that of someone of mature years. Thus, by way of example - and I regard the proposition just stated as applying more widely - although drug addiction is not generally regarded as a matter of mitigation, this may not be so where it occurs at a young age (see Regina v Henry (1999) 46 NSWLR 398 at [273]). 121 On the other hand, the seriousness of the crime of murder would seem to have placed some limit on the application of this approach favouring young offenders. Although Judicial Commission statistics have their limitations, those for "Murder - all offenders", covering 173 offenders in the period January 1993 to December 1999, show that the median full and minimum or fixed terms of imprisonment imposed were eighteen years and fourteen years respectively. Those for "Murder - individual, one count, no priors, plea guilty, less than 21 years" - a series of relatively favourable features - show corresponding figures of eighteen and twelve years. It must be acknowledged that these last statistics cover about fifteen offenders. Four had minimum terms of ten years, four of twelve years, none of fourteen years, and three had minimum terms of sixteen years. 122 I return to the facts of this case. Given his youth and the closeness of his symptoms to those of attention deficit disorder, some allowance must be made in the prisoner's favour for his impulsivity. It is to be inferred, from the presence of his father's marijuana on the piano, that the use of that drug was regarded, at least by his father, as acceptable. Given his age, recognition of this also operates in the prisoner's favour. The fact that his mother sought the prisoner's cessation of use in the circumstances she did says nothing about her general attitude to it. 123 On the other hand, the fact that the prisoner seems to have sought to conceal from his parents his use of other drugs argues in favour of the view that he believed they disapproved. There is no reason to think he was unaware of general community attitudes both for and against the use of all of the drugs ingested, and that at least LSD, marijuana and amphetamines were illegal. I see no reason to regard his use of these in the same way as I see some explanation for his use of marijuana. 124 In light of the psychiatric evidence, and the fact that the scenarios which the prisoner experienced involving his family and his rescuing them with violence seem to have been experienced independently of his drug-taking and snuff video watching, some allowance must also be made for these. He can hardly be blamed for what the medical evidence indicated was a normal, psychological reaction occurring at a young age. 125 Despite his age, I see no reason to regard his use of alcohol on the night as a mitigating factor. He clearly had a significant quantity and past experience must have taught him that he was liable to do stupid things under its influence. 126 Nor do I regard his desensitisation to violence as a mitigating factor. Although only sixteen, he was old enough to recognise the sanctity of life and to reject the thrills or other experiences he derived from seeing, time after time, the death of others. 127 Despite the psychiatric evidence, I do not see, in his father's conduct in the course of family disharmony or his interest in guns or in hunting an excuse or explanation - or, more precisely, one which operates in the prisoner's favour here - for pursuing those videos. Nor, except insofar as it led to the scenarios, do I see that conduct of his father to which I have just referred as itself a mitigating factor. Common experience indicates that the prisoner must have had, in addition to his father, many other sources of instruction and example. 128 I was also asked to make an order under s 19 of the Children (Criminal Proceedings) Act that the prisoner serve the whole of his sentence in a detention centre. That section provides: "If a court sentences a person to whom this Division applies to a term of imprisonment in respect of an indictable offence, the court may, in respect of a person who is under the age of 21 years, make an order directing that the whole or any part of that term be served in a detention centre." 129 The Division containing s 19 applies to the prisoner and, thus, I clearly have the power to make the order sought (Regina v SMP [1999] NSW CCA 318). Evidence was called in support of, and in opposition to, this application. 130 On the prisoner's behalf, evidence was given by Dr Quadrio. In this connection it is appropriate to point out that she is the Director of Mental Services in the Department of Corrective Services. In that capacity she has had cause to assess and examine cases of young persons making the transition from a juvenile centre to an adult prison, and becomes acquainted with numerous reports dealing with sexual assaults on prisoners. She said that the rehabilitation services in adult prisons were not as adequate as those in detention centres, where the prisoner has been, and, given the environment of them, she could not see an adult prison as having a positive effect on the prisoner. In this connection Dr Quadrio drew a distinction between the prisoner, whom she said was not a hardened criminal and who had excellent rehabilitation potential and other young persons who are hardened offenders by the time they go into an adult prison. 131 Dr Quadrio was also asked about the incidence of violence in prisons. She said that she could not speak for all prisons but a recent survey at the Silverwater Remand Centre, where there are 900 odd beds, disclosed that there were 1,000 major assaults there per annum, of which approximately half were of a sexual nature. She went on to indicate that other prisons had considerably higher levels of violence. 132 I cannot but observe that Dr Quadrio's evidence, to which I have just referred, is a damming indictment of the prison system. Persons must be sent to gaol. It is appalling that they must be sent into that sort of conduct in a State which calls itself civilised. 133 It was submitted that the prospect of the prisoner, young and, if I might say so, obviously young in appearance, being raped in an adult prison was very high and this also argued for detention at Juvenile Justice institutions rather than adult gaols. I am entitled to take such matters into account (see Regina v C (1994) 75 A Crim R 309 and Regina v Burchell (1987) 34 A Crim R 148 at 151). 134 In opposition to the application, there was also called a Mr Peter Muir, who was the Director of Operations of the Department of Juvenile Justice. He gave evidence that the Department did not support the idea of young persons over the age of twenty-one remaining within the Department's system. The Department is established primarily for the care of younger people and the presence of persons over twenty-one years, among a group of age fifteen and upwards, creates complications. He said that the Department had found that persons staying within the detention centre programmes for very long cease to benefit and tend to stagnate. He mentioned also a problem with leave and accessing facilities off-site, but I am not persuaded that that is of significance in this case. 135 Mr Muir did acknowledge that within the 298 detainees under control of the Department, five were over the age of twenty-one years. One of those persons was approximately twenty-three, another approximately twenty-four, but Mr Muir did not know the ages of the others. 136 There are also some observations in the report prepared under s 25 of the Children (Criminal Proceedings) Act, which bear on the instant topic. It was said that "the juvenile system does not offer Matthew any form of psychological rehabilitation that could not be undertaken in the adult system" and that it was "undesirable to have adults convicted of a serious offence associating with 16 and 17 year old children". 137 I accept this evidence but in the limited way in which it is expressed the first of the passages I have quoted is not inconsistent with Dr Quadrio's evidence, which I also accept. It is not just a question of what form of psychological rehabilitation may be available in both types of institutions; it is also a question of the extent and availability of it in the two places. From the point of view of rehabilitation, I have no doubt that the prisoner is better off in a detention centre than a gaol. 138 In connection with the application, it is appropriate also to recognise the existence of s 28 of the Children (Detention Centres) Act. Subsection (1) of that section provides: "If - (a) a classified person is being detained in a detention centre; and (b) the Minister is satisfied that the person- (i) is not profiting from the discipline and instruction in the detention centre, or (ii) is not, for any reason, a suitable person for detention in a detention centre, the Minister may, by order in writing made with the consent of the Minister administering the Crimes (Administration of Sentences) Act 1999, direct the transfer of the person from the detention centre to a prison, there to be detained according to law." 139 In substance that section means that two Ministers of the Crown may direct the transfer of a person from a detention centre to a prison. 140 If I make an order under s 19, the prisoner will be a classified person within s 28. Thus it seems unlikely that, in the event I make the orders sought, it will be allowed to operate in a way disadvantageous, in significant measure, to the detention centre authorities or to other inmates under their control or to the prisoner. 141 It was also submitted that, in the event that I was not willing to make an order under s 19 covering the whole of the time the prisoner was in custody, I should make recommendations similar to those made by Sully J in Verney (unreported, CCA, 23 March 1993). I need not set these out at this stage but they are clearly directed to minimising those effects or consequences of a transfer to an adult gaol which are either unnecessary or of no benefit to anyone but arise largely out of the necessities of administration of gaol facilities. In light of observations in the background report, it may be that the recommendation asked for will prove unnecessary, but it is difficult to see that they can do harm. 142 I turn to the topic of the sentence itself. Both because of the circumstances of the offence, those peculiar combination of factors which operated on the prisoner, the authorities concerning the place of general deterrence in the case of young offenders, and the fact that offenders who might be inclined to commit offences in circumstances having a parallel with those here are unlikely to be deterred by the prospect of gaol, I regard general deterrence as having limited weight in this case. I am far from suggesting that it has none because the view that murder is or should be unthinkable among members of a civilised society must be reinforced. 143 In light of his record, remorse and prospects of rehabilitation, I regard no heavy sentence to be required by considerations of personal deterrence against repetition of his offence. Without any intention that it should relate to it, his sentence will be far greater than normally given as a deterrent against drug-taking. 144 Although the absence of rational motive and the factors which did operate must give rise to consideration of the need to protect society from the prisoner, there being no guarantee that he will not resort again to drugs and depictions of violence, there is really no evidence that that is a likelihood, except insofar as one may infer, because he was addicted in the past, he will return to old habits. One could not find that, even on the balance of probabilities. 145 Retribution does have a significant part to play and despite all of the factors which may be argued in the prisoner's favour, I am required to bear in mind the objective gravity of what he has done. For reasons given in Previtera (1997) 94 A Crim R 76 and Bollen (1998) 99 A Crim R 510, the place of victim impact statements in cases of homicide is limited. However, they do serve to keep in the forefront the dreadful consequences of all such offences. No-one can read the statements in this case without sympathy for Christopher's family and without recognising the loss that does occur. 146 For the purposes of sentence in this case, I have had regard not only to the Judicial Commission statistics, which, as I have indicated, I regard as of only limited assistance in an individual case, but also to a significant number of prior decisions in the Court. A summary of some of these will be included as a schedule to the final version of these reasons although I should also indicate that the summary does not purport to be representation of the full range of sentences for murder. 147 The prisoner's youth, and the fact that this is his first time in custody, constitute special circumstances. I take the view that in light of the matters to which I have referred, the prisoner should spend longer in a detention centre than merely the attainment of his twenty-first birthday. However, the period when he must remain in custody is too long to direct that he serve his full sentence in a detention centre. I direct that the part of the prisoner's sentence as precedes his twenty-third birthday be served there. 148 The conclusion at which I have arrived is that the prisoner should be sentenced to imprisonment for a period of fifteen years, including a non parole period of ten years. Both periods should date from when he went into custody, namely 15 May 1999. I so order. 149 I also recommend:- (i) that when the time comes for the Prisoner's transfer to an adult institution such advance arrangement should be made for his classification as will minimise, and if possible avoid, both his detention in maximum security conditions and his detention in the society of older and hardened criminals. (ii) Upon the Prisoner's eventual transfer to an adult prison, urgent consideration should be given to providing for his proper personal protection. Particular attention is directed to his youth. R v O'GRADY 70013/00 SCHEDULE of MURDER CASES In R v Baker (unreported, Wood J, 23 July 1993) the prisoner pleaded guilty to murder. The deceased had previously been in a 4 months relationship with the Prisoner's 15 year old niece. Her attempts to revive this relationship on the day in question led to an apparent attempt at suicide. A later attempt the same day led to the prisoner also attending the deceased's caravan in an attempt to exert some family control over the niece and remove her from what he perceived to be an unacceptable situation. There the Prisoner became agitated, an altercation developed and, while being held by the deceased, the prisoner stabbed him 3 times with a knife carried because of the Prisoner's interest in outdoor pursuits. Having done so the Prisoner sought the attendance of an ambulance and returned to the scene to await the police. Thereafter he co-operated fully. He was sentenced on the basis of an intent to do grievous bodily harm. At the time of the offence, the Prisoner was almost 25 with no prior criminal record. He had suffered from learning difficulties which he had sought to overcome but which had led to difficulties in relating to others. He was regarded as contrite and had made 3 attempts at suicide while in custody. Wood J imposed a sentence of 10 years penal servitude, including a minimum term of 5 years. An appeal by the Crown against this sentence was allowed - R v Baker (unreported, CCA, 24 May 1994) and the sentence increased to include minimum and additional terms of 8 and 4 years. R v Giri and Karki [1999] NSWSC 1269 - Studdert J. Following a jury trial, each of these persons was convicted of murder. The killing comprised a deliberate, joint attack upon the deceased by way of kicking and stomping although there was no suggestion of premeditation extending beyond a very short time. The intent found was the commission of grievous bodily harm. Both prisoners were 23 at the time of sentence, of previous good character with no prior convictions and were regarded as contrite. Allowance was made for the fact that they were to be imprisoned in a country which was to them foreign. Each was sentenced to imprisonment for 17 years including a minimum term of 12 years. In R v Haenga (unreported, Sully J, 2 July 1999) the prisoner pleaded not guilty but was convicted of murder. he also pleaded guilty to assault occasioning the same victim actual bodily harm. The deceased was the Prisoner's de facto wife who fell to her death from the balcony of their unit in circumstances where she was retreating from, or attempting to avoid, an assault upon her in the course of which the Prisoner was attempting to inflict grievous bodily harm. The prisoner was 23 at the time of sentence. He had an extensive criminal record including offences of violence and was on parole at the time. To reflect the sum of his criminality in the 2 offences, he was sentenced to imprisonment for 16 years including a minimum term of 12 years. In R v HAS (unreported, Studdert J, 14 November 1997) the prisoner pleaded guilty. The motivating factor behind the attack was derogatory comments made by the victim concerning the Prisoner's mother. In a response to such comments, the Prisoner inflicted upon the victim stab wounds to the chest and neck with an intent to kill. At the time, the Prisoner was 17 years old. The Prisoner came from a deprived background and an unstable childhood environment in which alcohol was freely abused. He too had a history of alcohol and drug abuse and some brain impairment possibly induced thereby. He was affected by alcohol at the time of the offence. The sentence imposed included minimum and additional terms of 12 and 5 years. An appeal against this sentence was allowed - R v HAS (unreported, CCA, 13 August 1998). The minimum term was reduced and the additional term increased by 18 months. The report contains useful references to the relevance of youth in sentencing for serious offences. In R v Kilmore (unreported, Hidden J, 18 July 1997) the prisoner pleaded guilty. The deceased was a stranger to the prisoner who it would seem had uttered to her what she took as an insult and reacted by stabbing the deceased in the chest with a knife she was carrying, penetrating his heart. The sentencing judge could only be satisfied of an intent by the prisoner to inflict grievous bodily harm and that such an intent was formed spontaneously. The prisoner had a history of drug abuse and was under the influence of both drugs and alcohol at the time of the offence. She suffered from a personality disorder, probably associated with her substance abuse. The sentence imposed was of penal servitude for 14 years, including a minimum term of 10 years. In R v Kingi (unreported, Hidden J, 18 December 1998) the prisoner pleaded guilty to the murder of his wife. Following a heated argument between them during which she threatened to sleep with his friends and to take their daughter, of whom he had custody and mistreat her the prisoner left his wife, drove to his own home and obtained an iron bar and a knife. On his return he attacked his wife with both. He promptly surrendered himself to police. He seems to have had limited coping skills to deal with the provocation by the deceased. The Prisoner was assessed to have good rehabilitation prospects and to pose no future danger to the society. He was sentenced to penal servitude for a total term of 14 years including a minimum term of 10 years. In R v Leonard (unreported, Sully J, 28 May 1999) the prisoner had pleaded not guilty. The deceased had been his partner for some 5 months but the relationship was emotionally brittle and overshadowed by continuous excessive drinking and drug abuse on the part of the deceased. On the night of her death she seems to have gone off with another man, returned home, tormented the prisoner about his sexual prowess and what she had been doing. By that time he had possession of a revolver with which he had intended to shoot himself. At the height of the exchanges between the two of them he pulled it out and shot her through the forehead. He then shot himself, albeit not very successfully and then called the ambulance and police. His defence of provocation was not accepted by the jury. The prisoner was 28 at the time of the offence and had no criminal antecedents. He was remorseful and, since his arrest, he had tried to commit suicide. At the time of sentence he was on protection. Personal deterrence and protection of the community were regarded as not playing a large part in the sentencing of him. He was sentenced to imprisonment for 16 years including a minimum term of 12 years. In R v Ngoc (unreported, Greg James J, 11 November 1999) the prisoner pleaded guilty to one count of murder and one of malicious wounding. Following an altercation between the prisoner and the deceased earlier in the evening, the prisoner deliberately shot the deceased 3 times, wounding someone else with a 4th shot. At the time the prisoner was moderately affected by alcohol. Aged 42 at the time of sentence, his actions were out of character and he was regarded as having a degree of contrition. He was an escapee from Vietnam and had led a blameless life in Australia. Some of the sentence was likely to be served in protective custody. The sentence imposed was imprisonment for 16 years including a minimum term of 12 years. In R v O'Hara (unreported, Sully J, 11 December 1996) the prisoner pleaded guilty to murder. The charge arose from a bungled attempt to rob a house at which the victim was employed as a private security guard. The victim, having seized one of the victim's accomplices, was warned by the prisoner to let the accomplice or go or be killed. A warning shot was fired. After some further struggle the accomplice managed to escape but the prisoner then fired in the direction of the victim. Sully J sentenced the prisoner upon the basis that he acted with reckless indifference to human life, albeit a high degree of recklessness. At the time of the offence he was 19 years old with a very extensive criminal history. He had suffered in his childhood and youth abuse of both a physical and emotional nature which Sully J described as appalling. His Honour sentenced the prisoner upon the basis that he was genuinely remorseful. At the time of sentence the prisoner was already serving a sentence which included a minimum term of 12 months. Sully J imposed an effective sentence of 14 years including a minimum term of 10 years, both periods including some pre-sentence custody referable to the murder offence. In R v Sefo (unreported, Simpson J, 13 May 1998) the prisoner pleaded guilty. In an attempt to rob he and an accomplice approached a victim. A scuffle erupted, eventually culminating in the prisoner stabbing the victim a number of times in the upper body with a butterfly knife. At the time of the offence the prisoner was 13½ years old. He had mild intellectual impairment and a significant personal history of social and familial dislocation. At the time of the offence he was well affected by alcohol, a circumstance which, in light of his age, was regarded as a mitigating factor. He was remorseful with suicidal ideation. The sentence imposed included minimum and additional terms of 7 and 4 years respectively. In R v Skinner (unreported, Sperling J, 17 December 1999) the prisoner pleaded guilty. The deceased was the prisoner's sister's partner who, on the night in question, was harassing her and another sister. After the deceased had sat down at the dining table Prisoner approached him and struck him on the head with a mattock handle a number of times. A little later, after one of the sisters had gone to the deceased and remarked that he was "all right", the Prisoner hit the deceased 3 more times with the handle, remarking "Fuck that, I'm not going back to gaol for no pissy assault". When interviewed by police he admitted his intention to kill. The Prisoner had deprived aboriginal background. He had never had a girlfriend and had a problem with men bullying women. He had a problem with his temper and had a history of violence. He had no feelings for his victim or remorse for his actions but that was in the context of an individual who appeared unable to feel emotion of any kind. He was sentenced to imprisonment for 18 years including a minimum term of 12 years. In R v Verney (unreported, CCA, 23 March 1993) the prisoner was convicted of 2 counts of murder. The victims were his mother and young step-sister both of whom were shot as they slept. At the time the prisoner was just 17 years old. He had no significant record. There was psychiatric evidence but the judge did not find any significant diminution in criminal culpability. The sentence imposed included minimum and additional terms of 13 and 7 years respectively. In R v Zafra (unreported, Badgery-Parker J, 27 February 1998) the prisoner pleaded guilty, albeit on the day of his trial. The motivation for the killing was unreasonable jealousy, the deceased being a man whom the prisoner believed was having a relationship with his wife. The deceased's death was caused by the prisoner deliberately stabbing him with an intention to kill, but there was found to be no premeditation in this regard. The prisoner had no prior criminal record and was remorseful. The sentence imposed was imprisonment for 14 years, including a minimum term of 12 years. **************************** Last Modified: 11/28/2007 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.