Supreme Court New South Wales Medium Neutral Citation: R v JK [2012] NSWSC 710 Hearing dates: 18 May 2012 Decision date: 29 June 2012 Before: Harrison J Decision: For the offence of attempted aggravated break, enter and steal with intent the offender is sentenced to a term of imprisonment of 2 years commencing on 15 January 2012 and expiring on 14 January 2014. For the murder of Colin Ferrier the offender is sentenced to a term of imprisonment of 15 years with a non-parole period of 10 years commencing on 15 October 2012 and expiring on 14 October 2022 and a balance of term of 5 years commencing on 15 October 2022 and expiring on 14 October 2027. Catchwords: SENTENCE - murder - constructive murder - deceased killed when struck by car driven by offender in course of fleeing scene of attempted break and enter - no intention to kill or inflict grievous bodily harm Legislation Cited: Children (Criminal Proceedings) Act 1987 Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Cases Cited: BP v R [2010] NSWCCA 159; (2010) 201 A Crim R 379 KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571 McDonald v R (Unreported, NSWCCA, 18 August 1994) R v Bollen (1998) 99 A Crim R 510 R v Borokowski [2009] NSWCCA 102 R v Engert (1995) 84 A Crim R 67 R v Fernando (1992) 76 A Crim R 58 R v Hooker [1999] NSWSC 896 R v Jacobs and Mehajer [2004] NSWCCA 462 R v JB [1999] NSWCCA 93 R v Newman [2004] NSWCCA 102; (2004) 145 A Crim R 361 R v Previtera (1997) 94 A Crim R 76 R v Wright (1997) 93 A Crim R 48 Category: Sentence Parties: Crown JK (Offender) Representation: Counsel: P Barnett SC (Crown) D Yehia SC (Offender) S Kavanagh, Solicitor for Public Prosecutions (Crown) Legal Aid NSW (Offender) File Number(s): 2010/151791 Publication restriction: Offender only to be identified by pseudonym REMARKS ON SENTENCE 1HIS HONOUR: The offender JK was committed for trial on 20 September 2011. Upon arraignment on 3 February 2012 the offender pleaded guilty to the murder of Colin Ferrier on 16 June 2010 at Buronga in the State of New South Wales contrary to s 18 of the Crimes Act 1900. He appears before me to be sentenced for that offence for which the maximum penalty is life imprisonment. He has also pleaded guilty to one count of attempted aggravated break, enter and steal with intent contrary to s 113(2) of that Act. He also appears before me to be sentenced for that offence for which the maximum penalty is 14 years imprisonment. 2I am also asked to take into account the following matters relevant to these offences on two Forms 1: (a) Larceny of personal property contrary to s 117 of the Act. (b) Three counts of destroying property by fire whilst in company contrary to s 195(1A)(b) of the Act. (c) One count of taking and driving a motor vehicle contrary to s 154A/s 117 of the Act. (d) Robbery armed with an offensive weapon causing wounding contrary to s 98 of the Act. 3The offender has been in custody since the date of his arrest on 17 June 2010. On 16 July 2010 the offender was dealt with at Broken Hill Children's Court for a number of offences by way of control orders pursuant to s 33(1)(g) of the Children (Criminal Proceedings) Act 1987. On a charge of use weapon to avoid apprehension he was sentenced to a total term of imprisonment of 9 months to date from 15 October 2011 with a non-parole period of 3 months. The non-parole period expired on 14 January 2012. 4At the time of the offending for which I am required to sentence the offender, he was on parole. That parole was revoked on 16 June 2010 for failure to comply with residential terms. He was immediately taken into custody. It is therefore common ground that thereafter, and up until 14 January 2012, the offender was serving either the balance of a previously imposed sentence or the non-parole periods of other sentences imposed upon him. 5It is accordingly conceded by the Crown that it would be appropriate for me to regard 14 January 2012, being the date upon which the offender became eligible for release on parole, as the date following which he has been in custody in circumstances wholly referrable to the offences for which he is now to be sentenced. Background 6Upon the basis of the agreed facts and other evidence not the subject of contest, including a recorded police interview with the offender, the following matters are accepted for sentencing purposes. 7On the afternoon of 15 June 2010 the offender and four other young people stole a number of motor vehicles or their contents from locations within the general region of Wentworth, Buronga and Dareton in far southwestern New South Wales. Their activities extended into the early hours of the following morning. Some of the offences took place in Mildura in Victoria. One offence in Victoria involved the breaking and entering of a convenience store known as "Cappy's" in Mildura from which stock was stolen. The group also attacked a vehicle parked nearby with two female occupants before they drove to New South Wales in a stolen Holden Commodore. 8At about 3.00am on 16 June 2010, the deceased and his son Michael Ferrier arrived at the 24-hour Shell service station in Buronga. They had driven during the night from Port Augusta in South Australia en route to their home, having attended a motorcycle event in Central Australia. They parked their white Ford Ranger king cab utility in a dark area of the car park located behind the service station. There was a motorcycle located in the back of the vehicle. 9At about 4.00am the deceased awoke and said to his son, "Michael, Michael, we have got to get out of here, we've got to go". Michael Ferrier then saw a group of four or five people near the compressed gas tanks at the rear of the service station. Some members of the group had their faces covered. Michael Ferrier alighted from the vehicle to secure a bag in the rear. The Commodore's engine was revved and drove slowly past him. He returned to his vehicle and drove it to the illuminated undercover area adjacent to the petrol bowsers at the front of the service station. The Commodore then loudly returned to a position close to the Ferriers' utility with its lights off. 10One member of the group threw a yellow object at a Ford Falcon parked in a carport near the service station. Michael Ferrier entered the shop at the service station and said to the console operator, "They're smashing up your Falcon out there. Ring the fuckin' cops". The deceased alighted from the passenger side of the utility but had to jump out of the way of the Commodore, which was being driven quickly in his direction. The young men in the group began shouting aggressively at the deceased and Michael Ferrier ran from the shop to assist him. The console operator locked the doors when Michael Ferrier left the shop. He also activated an alarm that notified the police. One of the five youths ran to the door and said, "Get the money". 11The offender and one of his companions attacked and damaged the front doors of the shop in an attempt to gain entry. They remained closed, despite being damaged extensively. Those acts relevantly constitute the attempt break, enter and steal offence. 12The deceased returned to the passenger seat of the utility. He was approached by the offender who punched him several times. Another member of the group chased Michael Ferrier, throwing an object at him and yelling out threats. When the offender moved from the door of the utility, the deceased alighted once again and stood at the back of the vehicle between it and the offender's companion. The offender then ran past the utility on the passenger's side, and around the front to the driver's door. The deceased followed him. The offender entered the vehicle and sat in the driver's seat. He drove the vehicle forward. It struck the deceased and continued out onto the street. 13The deceased then made his way towards the street where Michael Ferrier was by now standing. Together they began to flee, onto the street and across the median strip in the direction of houses on the opposite side of the road. The offender at this point revved the engine of the utility at a distance only some metres from where the deceased and his son were standing on the westbound side of the street. The offender then drove the vehicle suddenly and quickly forward, striking the deceased, knocking him to the ground and running him over. He sustained injuries as a result of this from which he later died. 14Two versions of precisely what happened at this time have emerged. Michael Ferrier described the utility hitting the median strip as it approached the deceased for the last time, propelling it about one metre off the ground when it struck the deceased. Michael Ferrier said that he was standing with the deceased in front of the utility as it moved forward towards them. Michael Ferrier said that he did not know how the vehicle missed him. 15Karl Gaulke was an eyewitness who observed what occurred from the opposite side of the street to the service station, and from a distance of approximately 30 metres from the incident. He was of the view that the utility came out of the service station and mounted the median strip when it came to a stop just short of the deceased and his son. He said it was "bunny hopping" and then stopped. He said that he heard the engine revving and then saw the utility lunge forward and pass over the deceased. He saw Michael Ferrier assist the deceased to get up from the roadway immediately before it commenced to move forward when it struck him. 16After the vehicle driven by the offender struck the deceased it came to a stop on the road a short distance away. The Commodore was then driven out of the service station to a point near the deceased where it stopped. One of the youths got out of the Commodore and stood over the deceased. One of them took something from the deceased's pocket. Both vehicles then drove off in the direction of the Namatjira Mission at Dareton. Members of the group later set the vehicles alight. 17Michael Ferrier was hysterical. He sought assistance from nearby houses. The police attended shortly thereafter. Investigations commenced into the death of the deceased. 18The offender was arrested in relation to other matters on 17 June 2010 at about 2.30pm when he presented himself to Dareton Police. He has remained in custody since that time. The offender later participated in an electronically recorded interview with the police during the course of which he ultimately admitted to the theft of several motor vehicles and the break and enter at the convenience store in Mildura. He told police that he and his companions had committed those offences before travelling to the service station with the intention of committing an armed robbery. The offender admitted that he tried to rob the driver of the utility before leaving in the Commodore with the others. He denied being the driver of the utility that struck and killed the deceased but said that he was aware that it was taken by one of the others in the group. 19Later, an electronically recorded walk-through took place at a number of locations in the presence of the offender and his mother. Stolen property was found secreted in some of these locations. The offender told police that he had taken possession of the motorcycle that had been in the Ferriers' utility. 20The offender then accompanied the police to the service station. He participated in a walk-through there as well. He retraced and described his movements there on the morning in question. He denied that he was the driver of the utility and insisted that it was driven by two of his companions who came from Mildura. He described how the utility had been driven from the service station. He said that he left in the rear seat of the Commodore. He denied that that vehicle stopped after leaving the service station or that he had seen anyone lying on the roadway. When he was asked more questions about the deceased, the offender terminated the interview. 21Sometime later in June and August 2010 the offender was lawfully recorded having a conversation in the cells at Broken Hill police station. During the course of these conversations the offender spoke of the death of the deceased and referred to himself as being the killer of the deceased and as the driver of the utility. On each occasion the offender said that it was an accident and that he did not mean to do it. 22The offender denies that he had any intention to kill the deceased or to inflict grievous bodily harm upon him or any other person. His plea of guilty to the murder of the deceased was entered upon the basis of constructive murder and accepted as such by the Crown. The Crown accepts that the offender had no intention either to kill the deceased or to inflict grievous bodily harm upon him. Objective seriousness 23The offender was in company. He stole the deceased's vehicle and during the deceased's attempt to flee the scene the offender ran him down and killed him. I accept that the offender did not intend either to run the deceased over or to cause him serious injury. The manner of his driving was highly dangerous and would appear to have been reckless in the extreme. The consequences of this behaviour were serious and tragic. I infer that they would have been as terrifying for the deceased as they were for his son. It is difficult to imagine what must have been the state of mind of the deceased as he was confronted with the final moments of these violently unfolding events. The vehicle that struck the deceased was launched into the air as it struck the median strip before fatally colliding with the deceased. 24It has been submitted on behalf of the offender that this is a case that falls at the lower end of the scale of objective seriousness for cases of constructive murder. For example, it is not a case involving the use of a firearm or a knife with an intrinsic and appreciable risk of injury or death. It is conceded that constructive murder is not to be regarded as less serious than other categories of murder but that there are degrees of seriousness within the category itself. The determination of the appropriate sentence depends upon the nature of the offender's conduct: see R v JB [1999] NSWCCA 93; R v Jacobs and Mehajer [2004] NSWCCA 462. 25The offender was affected by alcohol at the time. This fact is also not controversial. Indeed, it is difficult to comprehend the offender's actions in this case if it were not for the existence of some significant extraneous factor to explain how or why he acted in the way that he did. It may be that there is truly no explanation. It was submitted on behalf of the offender that he should be sentenced upon the basis that his manner of driving was dangerous, causing him to lose control of the vehicle, thereby striking the deceased. The fact that the grievous bodily harm was occasioned immediately after the robbery in company satisfies the requirements of the s 98 foundational offence. For the purposes of that offence, the word "immediately" is not restricted to an event occurring within seconds or even minutes of the actions constituting the robbery: R v Jacobs and Mehajer at [311]. 26The Crown contended that I should consider the following factors. The deceased was subjected to corporal violence, being struck whilst seated in the vehicle, when an unsuccessful demand was made for his mobile phone. The offender was in the immediate company of another. Each of the co-offenders was masked and at least one of them was armed. Threats were being shouted at the deceased's son in the presence of the deceased. These threats caused the deceased to abandon his vehicle, which the offender immediately entered. The offender ignored the deceased's attempts to stop him as he drove off. The vehicle struck the deceased as he did so. The offender then drove recklessly out of the service station and onto the street. 27The Crown contended that, having stopped the vehicle on the street, the offender must have been aware that the deceased and his son were nearby. He then revved the engine in a way that must have heightened the fear of both men. The offender chose to drive towards the deceased without any regard for the position of the deceased or his son in front of the vehicle. He was completely reckless as to whether or not either of them might be struck as a result. The Crown submitted that this was a complete abrogation and abandonment of any responsibility for the safety of both men. 28The offender was aware that he had struck at least one of the men. This follows from the description given by the witnesses as to the noise coming from the vehicle and the manner in which it rose up as it passed over the body of the deceased. Finally, the offender left the scene, when the deceased was lying upon the roadway and presumptively injured, without rendering assistance of any sort in any way. 29I find it difficult to accept a submission that this offence of constructive murder was at the lower end of the scale of offences of this type. I consider that the absence of a knife or a gun, so often present and inculpated in the "usual case", does not, with one exception referred to below, relevantly distinguish the present circumstances, where a large motor vehicle is the instrument occasioning the fatality. 30In the present case it seems to me to be not without significance that the offender drove the vehicle from a position on the apron of the service station in between the petrol bowsers and out onto the street to another position of confrontation with the deceased and his son. The deceased had by this time already been struck a glancing blow by the vehicle driven by the offender. The offender could there and then have made good an otherwise uneventful departure from this scene of mayhem had he only chosen to do so. Instead, for reasons that are not obvious, the offender reapproached the deceased and his son in what amounted to a second engagement. 31The offender and his companions were apparently by this time all in vehicles, or with unimpeded access to one, and the deceased and his son offered neither an actual nor a potential threat of any hindrance or obstruction to the group had it chosen immediately to flee. Indeed, the deceased and his son were themselves in the course of attempting to make good their own escape from further violence, fatefully across the route of departure that the offender proposed to take and which he ultimately took. However, before this occurred, the vehicle driven by the offender had come to a complete stop. It would then appear suddenly and inexplicably to have been driven by the offender towards the deceased and his son before they could get out of the way. The description of how the vehicle was driven by the offender is consistent with him not being able to drive it properly or only with difficulty. It was in this fashion, by a series of wholly unnecessary and deliberate actions by the offender, that the disastrous consequences that followed were precipitated. 32The exception to which I earlier referred is this. I accept that the absence of a gun or a knife, or any other such implement, is wholly consistent with the absence of any intention to kill or to inflict grievous bodily harm, which the Crown has explicitly acknowledged. Knives and guns have no benign uses in the hands of a group of youths intending to rob and to steal. The vehicles in which they travel for that purpose, even if stolen, fall into another category. Whatever plan the offender may have formulated that night, it did not include a plan to kill or injure anyone and the death of the deceased by the misuse, or more probably mismanagement, of a motor vehicle is wholly consistent with that being so. 33In addition, the doors to the service station were smashed. The console operator was able to lock them and remained inside. No doubt the attack upon the premises was distressing and frightening for him, being in a vulnerable position as a lone employee late at night confronted by a group of armed and aggressive youths. However, this offence was not obviously the product of anything more than the most fundamental and haphazard degree of planning, and was clearly ill-considered and opportunistic. Subjective features Guilty plea 34The offender did not enter his plea of guilty in the Local Court. Counsel for the offender submitted nevertheless that he should be taken to have done so at the earliest opportunity. It was necessary in the light of the offender's mental health to obtain a psychiatric assessment of him in order to determine his fitness to stand trial. The report from Dr Westmore was dated 24 January 2011. 35The offender's very limited cognitive functioning meant that more than the usual time and special care were required to explain to the offender the somewhat complex legal concept of constructive murder. The extent to which the offender has been able entirely to accommodate that explanation must remain in the realm of some doubt. It was contended on behalf of the offender that the plea was in fact entered at the earliest opportunity, that being a time when the offender first became aware, in terms that he could comprehend and appreciate, of the precise nature and extent of the charges that he faced and the likely consequences for him of either defending the proceedings or pleading guilty. 36That contention was not uncontroversial. The offender was arrested on 17 June 2010 and entered his plea of guilty to the indictment on arraignment in this Court on 3 February 2012. The Crown referred to what was said by Howie J in R v Borokowski [2009] NSWCCA 102 at [32] that it was "difficult to see how, in the usual case, a plea of guilty on arraignment could justify a discount of more than about 15 percent". 37In this case the delay was predominantly associated with the need to assess the offender and then explain the legal ramifications of the charge and the plea. It was not unreasonable for some care, and hence time, to be taken with this. I consider that a discount of 17.5 percent in the circumstances of this case is appropriate. Mental health 38Dr Westmore examined the offender on 21 January 2011. The offender reported that he had started drinking and smoking cannabis at the age of 14. He was not taking any prescribed medication but had previously been on Fluoextine, Olanzapine and Seroquel. When he was nine or ten he had seen a baby murdered and said "I was having flashbacks so I go on the meds". He was living on a mission and had seen people being stabbed and other violence. He has experienced hearing voices in his head. He had had these experiences before he was placed in custody. He did not know whether he had them on the night of the incident. He denied receiving messages from the radio or from television. 39The offender's father died when he was nine or ten. His mother is alive and lives in Wentworth. He got on with his parents. He has three living siblings. The elder two are in prison and the youngest was recently released from a juvenile justice facility. He was born in Mildura and raised in the country. He lived with his parents initially but he accidentally burned their house down. They moved to a nearby town. There was no violence or sexual abuse in the home but he had witnessed violence on the mission. He left school in year 7 or 8 and became involved in crime. He cannot read or write. He has never been employed. He has been assessed as being of dull to dull average intelligence. He did not appear to Dr Westmore to be suffering from a significant psychiatric illness. 40Dr Emma Collins, a psychologist, also examined the offender on 8 January 2011. She reported on 28 January 2011 in terms that included the following: "[The offender's] history highlights an externalisation of distress and trauma experienced, as marked by his poor school behaviour, delinquency and likely self-medicative substance use. Whilst he does not report current symptoms of significant psychopathology, there is a suggested history of posttraumatic stress that required medication. Overall, the combination of anti-social behaviour and trauma reveal a vulnerable young man who has not made a positive transition into early adulthood. Juvenile Justice reports state that [he] has responded well to prior supervision, although once away from such monitoring and with old associates, he quickly relapses back into anti-social conduct. Any future prospects for supervision, such as a longer period of parole, should incorporate intensive monitoring and involvement in services that would potentially help him disassociate from anti-social influences... He displays low IQ, memory, executive functioning and attention skills." 41Dr Kasinathan examined the offender on 19 April 2012. Dr Kasinathan is a psychiatrist. He diagnosed the offender to be suffering from paranoid schizophrenia, cannabis dependence and conduct disorder. He considered that it was not appropriate to diagnose him with a personality disorder, as he was still young and may mature in his behaviour and personality in the coming years. He recommended ongoing management and psychiatric treatment. He said that the offender's schizophrenia and antipsychotic medication required continued monitoring as well. He also recommended counselling. Significantly for present purposes, Dr Kasinathan expressed the opinion that the offender's psychotic symptoms in addition to his substance use may have generated his disinhibition, paranoia and increased impulsivity at the time of the commission of the offence with a potentially contributing effect. 42I find that the offender has an identifiable mental illness. In view of this mental illness, and his intellectual impairment, I consider that he is not an appropriate vehicle for general deterrence: R v Engert (1995) 84 A Crim R 67; R v Wright (1997) 93 A Crim R 48 at 50-51. I consider the offender to be a good candidate for rehabilitation in both custodial and post-release settings provided his particular mental and intellectual characteristics are understood and addressed. In particular I trust that, in the administration of such educational and vocational programs to which he might in the near future be given assisted access, these matters are taken into account. His chances of successfully rehabilitating himself will also improve with his age and maturity and professional guidance of the type to which I have referred. Fernando principles 43There is no dispute that the offender grew up in an Aboriginal community where he was exposed to alcohol and substance abuse and violence even though he was not exposed to these in his own home. He prays in aid the matters discussed at length by Wood CJ at CL in R v Fernando (1992) 76 A Crim R 58. The Crown submitted that the offender's background offered some explanation for his offending in general terms, but that he was not entitled to consideration of his upbringing in an indigenous community as a matter that mitigated the seriousness of the offending or that otherwise helped to explain it. 44The offences in question here are alcohol and substance related. The offender comes from an isolated or remote community. However, the offender's Aboriginality and his particular circumstances do not appear to present a combination of factors that would not otherwise be relevant in a sentencing exercise for any offender as subjective circumstances, and which ought to be taken into account in his favour. There is undoubtedly present an entrenched pattern of disadvantage. I am mindful that not every case of deprivation and disadvantage suffered by an offender of Aboriginal race or ancestry requires, or even justifies, the special approach adopted in Fernando: see R v Newman [2004] NSWCCA 102; (2004) 145 A Crim R 361 per Howie J at [57] -[58]. Youth 45The principles that are relevant to sentencing juvenile offenders have been extensively considered and explained in the authorities. In KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571 at [22] - [26], Johnson J said this: "[22] The principles relevant to the sentencing of children have been discussed on many occasions. Both considerations of general deterrence and principles of retribution are, in most cases, of less significance than they would be when sentencing an adult for the same offence. In recognition of the capacity for young people to reform and mould their character to conform to society's norms, considerable emphasis is placed on the need to provide an opportunity for rehabilitation... [23] The law recognises the potential for the cognitive, emotional and/or psychological immaturity of a young person to contribute to their breach of the law. Accordingly, allowance will be made for an offender's youth and not just their biological age... The weight to be given to the fact of the offender's youth does not vary depending upon the seriousness of the offence... Where the immaturity of the offender is a significant factor in the commission of the offence, the criminality involved will be less than if the same offence was committed by an adult... [24] Although accepted to be of less significance than when sentencing adults, considerations of general deterrence and retribution cannot be completely ignored when sentencing young offenders. There remains a significant public interest in deterring antisocial conduct. In R v Pham & Ly (1991) 55 A Crim R 128 Lee CJ at CL said (at 135): 'It is true that courts must refrain from sending young persons to prison, unless that course is necessary, but the gravity of the crime and the fact that it is a crime of violence frequently committed by persons even in their teens must be kept steadfastly in mind otherwise the protective aspect of the criminal court's function will cease to operate. In short, deterrence and retribution do not cease to be significant merely because persons in their late teens are the persons committing grave crimes, particularly crimes involving physical violence to persons in their own homes...notwithstanding the enlightened approach that is now made to sentencing compared to earlier days, the concept of punishment i.e. coercive action is fundamental to correctional treatment in our society.' [25] The emphasis given to rehabilitation rather than general deterrence and retribution when sentencing young offenders, may be moderated when the young person has conducted him or herself in the way an adult might conduct him or herself and has committed a crime of violence or considerable gravity... In determining whether a young offender has engaged in "adult behaviour"...the court will look to various matters including the use of weapons, planning or pre-meditation, the existence of an extensive criminal history and the nature and circumstances of the offence... Where some or all of these factors are present the need for rehabilitation of the offender may be diminished by the need to protect society. [26] The weight to be given to considerations relevant to a person's youth diminishes the closer the offender approaches the age of maturity... A 'child-offender' of almost eighteen years of age cannot expect to be treated substantially differently from an offender who is just over eighteen years of age...However, the younger the offender, the greater the weight to be afforded to the element of youth..." [Citations omitted] 46Hodgson JA in BP v R [2010] NSWCCA 159; (2010) 201 A Crim R 379 referred to these principles at [3] - [6] as follows: "[3] The relevance of the youth of an offender to sentencing has been extensively discussed in many cases, including KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571 (referred to by Johnson J) and cases referred to in that case. I accept the principles stated in KT at [22] - [26] (quoted by Johnson J at par [74] of his judgment). However, I wish to make three points concerning these principles. [4] First, statements that, in relation to young offenders, principles of retribution may be of less significance and considerations of rehabilitation may be of more significance, may tend to obscure the point that even in relation to retribution the youth of an offender may be a mitigating circumstance. In my understanding, considerations of retribution direct attention to what the offender deserves; and in my opinion, where emotional immaturity or a young person's less-than-fully-developed capacity to control impulsive behaviour contributes to the offending, this may be seen as mitigating culpability and thus as reducing what is suggested by considerations of retribution: see TM v R [2008] NSWCCA 158 at [33] - [36]. [5] Second, while I agree with the statements in KT at [26] that the weight to be given to considerations relevant to a person's youth diminishes the closer the offender approaches the age of maturity, and that a "child offender" of almost 18 years cannot expect to be treated substantially differently from an offender who is just over 18 years of age, it does not follow that the age of maturity is 18 (albeit that for certain purposes the law does draw a line there: Children (Criminal Proceedings) Act 1987). In my understanding, emotional maturity and impulse control develop progressively during adolescence and early adulthood, and may not be fully developed until the early to mid twenties: see R v Slade [2005] 2 NZLR 526 at [43], quoted by Kirby J in R v Elliott [2006] NSWCCA 305; (2006) 68 NSWLR 1 at 27 [127]. As shown by R v Hearne [2001] NSWCCA 37; (2001) 124 A Crim R 451, youth may be a material factor in sentencing even a 19 year old for a most serious crime. [6] Third, I do not think courts should be over-ready to discount the relevance of an offender's youth on the basis that the offender has engaged in adult behaviour or acted as an adult. In the present case, the offence is a very serious one; but it did not involve significant planning or reflection, or any other indicia of mature decision-making. The applicant was 16 years old, and in my opinion the circumstances of the offence suggest rather that emotional immaturity and less-than-fully-developed capacity to control impulses were likely to be contributing factors." 47In this particular case it is somewhat difficult, as with his indigenous background, to isolate the offender's youth as a significant factor that is separate and distinct from the other significant factors also at play here, such as his low intelligence and limited education. He has a low level of intellectual functioning that would appear to be a combination of his impoverished education and his endogenous mental capacity. He does however appear to have had little or no concept of, or appreciation for, the potential consequences of his involvement in the events of the evening in question or the seriousness of the ramifications for him or the victims. That must to some extent be related to his youth and immaturity. It is apparent that his cognitive, emotional and/or psychological immaturity has contributed to his breach of the law. Contrition and remorse 48I have remarked elsewhere on several occasions that it is very difficult to form a view or draw accurate conclusions about the existence or genuineness of an offender's suggested contrition and remorse when no expression of those sentiments or feelings is to be heard coming from the offender in Court at the sentencing hearing, or in some cases from anywhere else for that matter. I have also expressed the view that an offender's limited verbal and social skills, or compromised intellectual capacity, ought never to be permitted to stand between the offender and an opportunity to articulate his or her authentic feelings about the commission of an offence and its consequences and ramifications for others, however unsophisticated or basic its form may appear to be. The artificial and intimidating setting of the courtroom might also be expected to threaten and often overwhelm those whose ability to communicate and converse within their normal and usual social and peer groups does not easily translate into an ability to speak convincingly to a wider and potentially hostile audience. A young indigenous man from a rural community afflicted with problems of violence and substance abuse, with little education or direction from authority figures, could be expected to be saddled with just such difficulties when appearing in this Court and such difficulties as may be created by these circumstances should never be mistaken for a lack of contrition or remorse. 49Having said that, it remains in my view quite unsatisfactory for a submission to be proffered that an offender is contrite and remorseful when at the same time maintaining complete silence on that, or any other matter, at the sentencing hearing. The present offender did not give evidence before me, and I am left with no way of observing the genuineness of any feelings or emotions that the offender now wishes to suggest he has and which can be comprehended to his advantage. 50The offender did dictate a letter to his lawyer that was taken down and recorded in the following terms: "I would like to start off by saying that I am deeply sorry for my actions and did not mean to hurt anyone on the night that Colin Ferrier had passed away. I would also like to say sorry to the family and loved one's [sic] of Colin Ferrier. I know it won't be easy for the family to put this behind them. And I do not expect the family to accept my apology. I didn't know that by doing something so immature could turn out this bad and its affected so many people, most of all the family of Colin Ferrier. Words can't explain how sorry I am that's why it's important that everyone understands that I am sorry and accept the consequences of my actions. I do not know how to read or write so my solicitor has written this for me, but these are my thoughts and feelings. I just needed help to write it out as I can't spell at all." 51I am prepared to accept this letter as a genuine statement by the offender and I will take it into account in his favour as far as possible having regard to the matters to which I have just referred. 52I also observe that the offender has pleaded guilty to a serious offence, which may be taken to be, or to be consistent with, an expression of remorse and contrition by him to some extent. However, this is to be contrasted with his reticence when interviewed at the scene in the course of a videotaped visit there with police to admit in full the extent of his involvement, particularly his role as the driver of the vehicle that struck the deceased. When he had earlier handed himself in to police, the offender at first maintained that he knew nothing of the events in question until late in his interview when shown footage of what occurred on the service station forecourt. He also denied any knowledge of anyone having been knocked down by the motor vehicle or of his companions rifling through the pockets of the deceased as he lay on the road. Only after he was recorded in a cell making statements to another inmate that he was the driver and the killer did the offender fully and finally acknowledge the extent of his involvement in the events on the night. 53Doing the best I can it seems to me that the offender undoubtedly regrets what he has done as much as the resulting predicament in which he now finds himself. His letter at face value is evidence of how he feels, but is in my view a somewhat unsatisfactory substitute for a verbal expression of his feelings before an audience of those who might be considered to be most intimately interested to hear what he had to say. The power and persuasive effect of evidence in a courtroom should never be underestimated in this context, whatever might be thought forensically to be the pitfalls or disadvantages of taking such a course. Mitigating factors 54I have referred elsewhere to the offender's plea of guilty and his youth. The mitigating factors are otherwise effectively co-extensive with the offender's subjective features. Aggravating factors 55The offender has a criminal record for matters of dishonesty such as break, enter and steal and the illegal use of a conveyance. He has only two prior matters that involved the use of violence, being the use of a weapon to avoid apprehension and assault police. It was submitted on his behalf that while the offender's record did not entitle him to any particular leniency, his criminal record did not lead to the need to impose a sentence that was disproportionate to the gravity of the subject offences. Special circumstances 56There is an obvious and pressing need for this offender to be supervised in the community upon his eventual release on parole. His age at the time of the commission of the offence and his consequent limited exposure to life as an adult beyond prison renders this offender particularly vulnerable to a range of influences and difficulties with which he has never had to cope alone and which it is probable he will have had no realistic opportunity to anticipate. It cannot in my view be overstated that the artificial environment of long to medium-term incarceration, and the associated insidious and destructive influences upon an intellectually and socially vulnerable individual that flow from it, leave an offender such as the present offender dangerously exposed to the prospect of a chronically failing life. The prevention and, if possible, the avoidance of this result must necessarily inform the way in which a sentence for someone such as the present offender is to be structured. 57The offender's low intelligence and mental health problems also suggest the need for close and well organised post-release supervision. I acknowledge that the offender has an indifferent history concerning completion of parole. This is probably as much a function of the very things that point in the direction of an extended supervised period on parole as anything else. In other words, it seems to me that the risks for the offender upon his release from custody will be quantitatively and qualitatively different from those risks that fell in during his previous periods on parole. 58My view is both influenced and supported by the opinions of Dr Collins and the authors of a Juvenile Justice and Specialist Services report dated 10 May 2012. The latter recommends a lengthy period of community supervision and support associated with counselling specifically targeting the offender's violence to assist him to reintegrate into society following his release. 59I make a finding of special circumstances for the purposes of s 44(2) of the Crimes (Sentencing Procedure) Act 1999. Victim impact statement 60A victim impact statement from the son of the deceased was read aloud by him to the Court. He spoke of his own reaction to the death, as well as that of the extended family. All of these people would appear to be labouring with the burden of grief in various and personal ways. The death of the deceased is undoubtedly a terrible and unending fact of life for them and the rest of the family. Nothing that I have said in the course of delivering these remarks should be taken as in any way derogating from, or diminishing the importance of, the life of the deceased in the eyes of his family and friends who remember him. I am, however, mindful of the principles referred to in R v Previtera (1997) 94 A Crim R 76 and R v Bollen (1998) 99 A Crim R 510, and I must conform to them. Comparable sentences 61Counsel for the offender provided me with a table of cases in which sentences have been imposed for the offence of constructive murder where the offender was a juvenile or less than 21 years of age. The sentences in the cases referred to ranged from a non-parole period of 7 years in the case of R v Hooker [1999] NSWSC 896 to a non-parole period of 15 years in the case of McDonald v R (Unreported, NSWCCA, 18 August 1994). All of these cases involved a killing using a gun or a knife or in one case a rock used to strike the victim over the head causing death. None of the cases involved circumstances in which a death had been caused by the use of a motor vehicle as in the present case. 62Those cases to which I have been referred were concerned with an intention at least to inflict grievous bodily harm upon the victim. No such intention was in existence here. 63In R v Jacobs and Mehajer, Wood CJ at CL said this: "Constructive murder is not to be regarded as less serious, and thereby attracting a lighter total sentence or non-parole period than that which is appropriate for other categories of murder: R v Mills ... Just as is the case for the other categories, there are degrees of seriousness of constructive murder, and the determination of the appropriate sentence for any individual offence depends upon the nature of the offender's conduct and the part which he or she played in the events giving rise to the death: R v JB..." 64In approaching the task of sentencing the offender, I must have regard to the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act. I must also pay due regard to the various aggravating and mitigating factors identified in s 21A of the Act which have particular relevance to the case. I have also considered and taken into account the terms of s 6 of the Children (Criminal Proceedings) Act. I note that it is the offender's preference to spend his term of imprisonment in an adult gaol. 65The life of an entirely innocent and blameless man has been taken as a result of the offender's actions. Very significantly his death was not intended and I am satisfied that it was not even contemplated. It was not caused by the use of a weapon that the offender took with him on the night, which could only have had one purpose. By way of contrast, the offender intentionally drove the vehicle to a position on the road that was directly related to the fateful outcome, even if no more than reckless mismanagement of the vehicle was what ultimately led to the death of the deceased. In this way the death was caused by highly aggressive and violent actions that were completely unnecessary and wholly avoidable. The death was nothing if not tragically senseless. It also occurred against the background of other violent and frightening behaviour carried out by the offender and his companions towards the deceased and his son or in their presence. Determination of sentence 66JK, for the offence of attempted aggravated break, enter and steal with intent you are sentenced to a term of imprisonment of 2 years commencing on 15 January 2012 and expiring on 14 January 2014. For the murder of Colin Ferrier you are sentenced to a term of imprisonment of 15 years. I set a non-parole period of 10 years commencing on 15 October 2012 and expiring on 14 October 2022 with a balance of term of 5 years commencing on 15 October 2022 and expiring on 14 October 2027. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 June 2012