R v KL

1. [1]

   On 28 April 2025, the offender (to whom the pseudonym KL has been given) was arraigned in this Court for trial before a jury. He was charged with the murder of Uati Faletolu on 11 April 2022. He pleaded not guilty to murder, but guilty to manslaughter.

2. [2]

   A trial of these proceedings took place before a jury from that day, until 22 May 2025. The jury was discharged at that time, as it was unable to reach a verdict.

3. [3]

   On 10 November 2025, the offender was again arraigned before me, sitting without a jury, on the charge of murder. He pleaded not guilty to murder, but guilty to manslaughter.

4. [4]

   A trial ensued. On 27 November 2025, I returned a verdict of not guilty of murder, but guilty of manslaughter: see R v KL [2025] NSWSC 1414 (“my earlier judgment”). It is now time for the offender to be sentenced for his crime.

5. [5]

   The maximum penalty for the offence of manslaughter is 25 years. No standard non-parole period is applicable.

The Statutory Regime

1. [6]

   The Parliament of NSW has fixed in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“Sentencing Procedure Act”), the purposes for which a Court may impose a sentence on an offender. Those purposes are: to ensure adequate punishment of an offender; to prevent crime by deterring others and the offender from committing similar offences; to protect the community from an offender; to promote an offender’s rehabilitation; to make an offender accountable for his or her actions; to recognise the harm done to the victims of the crime and the community; and to denounce publicly the conduct of an offender.

2. [7]

   These purposes obviously overlap and are often in tension: Muldrock v R [2011] HCA 39; (2011) 244 CLR 120 (“Muldrock”) at [20]. The purposes of ensuring adequate punishment of an offender and promoting an offender’s rehabilitation, for example, are not always compatible. None of the purposes of sentencing can be considered in isolation.

3. [8]

   Section 21A of the Sentencing Procedure Act also requires the Court to take into account, where relevant, a number of aggravating and mitigating factors in determining an appropriate sentence. The legislation does not require a Court to increase or decrease a sentence because of the presence, or absence, of these factors: s 21A(5).

4. [9]

   Because the offender was a juvenile at the time he killed Uati Faletolu, I am obliged to exercise my sentencing functions having regard to some further principles, determined by the Parliament of NSW, which are to be found in s 6 of the Children (Criminal Proceedings) Act 1987 (NSW). Those principles include the following:

Common Law Principles

1. [10]

   Over time, Courts have developed legal principles to guide the exercise of sentencing discretion by Judges. These common law principles are to be found in decided cases.

2. [11]

   The common law principles have continuing relevance because s 21A(1) of the Sentencing Procedure Act preserves the entire body of judicially developed sentencing principles: Muldrock at [18]. As well, factors established by the common law as being relevant to sentence, such as whether incarceration may be particularly burdensome, are also to be taken into account: Muldrock at [19].

3. [12]

   What the sentencing task requires of a Judge is that they have regard to the relevant legislation, including the purposes of sentencing, the statutory guidepost of the maximum penalty, the aggravating and mitigating factors and the principles of the common law. Against that legal framework, the sentencing Judge has to identify the significance of all the relevant factual circumstances of the offending and the offender. The sentencing Judge is then able to undertake an “instinctive synthesis”, whereby he or she “makes a value judgment as to what is the appropriate sentence given all the factors of the case”: Markarian v R [2005] HCA 25; (2005) 228 CLR 357 at [51]; Muldrock at [26].

4. [13]

   As the instinctive synthesis approach to sentencing embodies a value judgment, there is no such thing as a single correct sentence. I will bear in mind the legislation by which I am bound, and the common law principles developed by the Courts, when proceeding on the task of sentencing this offender.

5. [14]

   In my earlier judgment, I made extensive findings of fact. However, it is necessary to make further findings of fact that are relevant to sentencing. Contextual and other background facts referred to here are from my earlier judgment, and I use the same terms as in that judgment.

6. [15]

   The Courts have recognised for many years that sentencing for the crime of manslaughter is a difficult task. That is because the range of conduct which can result in the death of an individual is very great. In all cases of manslaughter, matters of fact and degree arise. Views as to the relative importance of particular facts and matters will undoubtedly differ.

7. [16]

   However, one principle which is important for a sentencing Judge to always keep in mind when considering the crime of manslaughter is that the starting point of a consideration of the appropriate penalty, and a key element in assessing the gravity of the objective circumstances of the case is that what is involved in this case, and in every other manslaughter, is the felonious taking of a human life: see R v Blacklidge (NSWCCA, 12 December 1995, unreported) per Gleeson CJ.

8. [17]

   Manslaughter, as an unlawful homicide, however it occurs, has always been regarded by the law as a most serious crime. That is because the protection of human life and personal safety is a primary objective of the system of criminal justice: see R v Edwards (1996) 90 A Crim R 510, per Gleeson CJ (James and Ireland JJ agreeing).

9. [18]

   But the offender is not the first juvenile to commit manslaughter. The Courts have, in many cases, examined the principles involved in sentencing juveniles on manslaughter and other charges: see R v AJC [2010] NSWCCA 168; (2010) 207 A Crim R 307; APT v R [2009] NSWCCA 230 at [19] per Grove J (Macfarlan JA and Hoeben J agreeing); R v Carroll [2008] NSWCCA 218; (2008) 188 A Crim R 253 at [8] per McClellan CJ at CL (Hislop J agreeing); KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571 at 577-578 per McClellan CJ at CL; R v Adamson [2002] NSWCCA 349; (2002) 132 A Crim R 511 at [29]-[32] per Beazley JA (Bell J agreeing); R v Pham and Ly (1991) 55 A Crim R 128 at 135 per Lee CJ at CL (Gleeson CJ and Hunt J agreeing); R v GDP (1991) 53 A Crim R 112 at 115-116 per Matthews J (Gleeson CJ and Samuels JA agreeing).

10. [19]

    Those principles include, and I recognise that my sentencing task must include, these matters:

The Facts

1. [20]

   In setting out the findings of fact which I have made, it is important to note that I am not entitled to make a finding of fact against the offender for the purpose of sentencing unless I am satisfied beyond reasonable doubt of that fact. Any finding in favour of the offender needs only to be established on the balance of probabilities: The Queen v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at 27.

2. [21]

   I am not constrained by my earlier findings of fact, which were made in a different context and for a different purpose, so long as any finding of fact on sentence is consistent with the verdict which has been reached, and the reasons I gave for that verdict. In other words, if I determined a matter of fact on the balance of probabilities for the purpose of reaching the verdict that I did, but did not find that I could not be satisfied of that fact beyond reasonable doubt, I am not now precluded from being satisfied of that fact beyond reasonable doubt: cf Philippou v R [2015] HCA 29; (2015) 256 CLR 47 at 68.

3. [22]

   This is entirely appropriate given, as I have said, the different context and purpose for which facts are found on sentence. In this regard, the parties have tendered other evidence for the purpose of sentence, and I have had the benefit of further submissions by both parties.

4. [23]

   Many of the facts are drawn directly from my earlier judgment.

5. [24]

   The deceased, who was 17 years old at the time, was employed to work as a ride attendant on the Breakdance ride at the Sydney Royal Easter Show (“the Easter Show”) in April 2022. He attended work on the afternoon of 11 April 2022. At around 7pm, he had an evening break from his work and arranged to meet his younger brother, Maselino, and some friends. He was due to recommence work at 8pm.

6. [25]

   At that time, the deceased was associated with a youth gang called “67” which was a gang associated with the suburb (and postcode) of Doonside.

7. [26]

   The offender was born in September 2007, and, at the time he stabbed the deceased, he was 14 years and 6 months old.

8. [27]

   He was a member of a gang called “Ready for Anything” (or “RFA”). The gang RFA consisted of individuals who lived in, or were otherwise associated with, Mt Druitt.

9. [28]

   Prior to April 2022, there had been a number of incidents between members of the gang 67 and members of the gang RFA. There was a history of antagonism between those two gangs.

10. [29]

    The evening before he died, the deceased was involved in an incident of violence, as he made his way home after working at the Easter Show. The incident took place at the Olympic Park Train Station. Whilst there, the deceased had a physical altercation with a number of males, whom he identified to others as being “from Mounty”. This was the expression ordinarily used by the deceased to refer to members of the RFA gang.

11. [30]

    In discussions later that evening and on the following morning, the deceased expressed derogatory views about the individuals who had attacked him at Olympic Park Train Station, and the deceased was alert to the possibility of a further encounter, which might become violent, on the next day at the Easter Show.

12. [31]

    The offender, together with his brother, his cousin and four other friends, arrived at a carpark near the Showground at about 7.15pm on 11 April 2022. They accessed the Showground. and are seen walking through the Easter Show, travelling to and from a number of different locations within the Showground. There was nothing aggressive or out of the ordinary about their behaviour.

13. [32]

    It is clear that there was no planned or arranged meeting between the respective groups, being, on one hand, the deceased and other associates of 67, and on the other hand, the offender and other associates of RFA.

14. [33]

    Shortly prior to 8pm, on Australia Avenue near the intersection with Grand Parade, and about 3 metres away from the front of a sideshow called Circus Clowns, the offender and his group met up with the deceased and his group. They stopped in close proximity to each other, and generally remained stationary.

15. [34]

    It was a short confrontation, something in the order of 10 seconds. Two members of the offender’s group, both wearing black, stopped about 1 metre or less from the deceased. Two members of the deceased’s group stopped slightly behind the deceased. The offender, who by that time had pulled up the hood of his white sweater, stopped immediately behind his two associates, who were dressed in black.

16. [35]

    Some words were spoken between the two groups, although it is not clear precisely what was said. There was no physical interaction between the males. None of them raised their fists or attempted to strike each other. At that time in the confrontation, the offender was standing behind and between his two associates, with his hands in his pocket, or else by his side. There was some movement between the groups. The offender, in a sudden and quick movement with his right arm, reached from where he was standing behind his associates, through such space as existed between them, and stabbed the deceased in a single movement.

17. [36]

    The offender then fled along Australia Avenue in a southerly direction. A scuffle ensued after the stabbing and after the deceased had fallen to the ground. Bystanders came to the aid of the deceased whilst he was on the ground, and began to provide first aid. Additional help was summoned. Officers of NSW Ambulance attended the scene, and significant attempts were made to stem the bleeding and save the deceased’s life.

18. [37]

    The deceased, having had some further significant treatment and care administered whilst he was on the ground at the Easter Show, was taken to Westmead Hospital shortly before 9pm. He was pronounced dead that evening at about 9.30pm at Westmead Hospital.

19. [38]

    The direct cause of death was the single stab wound inflicted to the right upper abdominal area by the offender. The blade of the weapon travelled into, and pierced, the right posterior ventricle of the heart of the deceased.

20. [39]

    The offender fled from the scene of the stabbing and made a number of attempts to leave the Showground via an exit which was not for public use. In order to make good that attempt, he or his brother, with whom he had met up, told a completely false story to a security guard about the supposed fact that their mother had been admitted urgently to hospital and that they needed to get there quickly.

21. [40]

    Ultimately, after being unsuccessful in the goal of convincing the security guard to let them exit the Showground in that area, the offender left through the public exit, returned to the carpark and left the scene at Olympic Park with his friends.

22. [41]

    The offender was first arrested on 15 July 2022 and has remained in juvenile detention since that time.

23. [42]

    After the sentencing and whilst he was still at the Showground, the offender recorded a short video of himself saying:

24. [43]

    He also composed a number of lyrics in a drill rap style, which were boastful about the success of his endeavour, and which were disrespectful to the deceased and his family.

Specific Sentencing Consideration

1. [44]

   Section 21A of the Sentencing Procedure Act identifies a number of matters as aggravating factors, to which regard must be had in determining the appropriate sentence to be imposed.

2. [45]

   One such aggravating factor is that the offence involved the actual use of violence: s 21A(2)(b). However, given the nature of the crime of manslaughter, I am satisfied that this aggravating factor is accounted for as being part of offence itself and, accordingly, it is inappropriate to have additional regard to it.

3. [46]

   The second aggravating factor which is applicable in the circumstances of this case, is that a weapon was used. The weapon in this case was a knife, and it was the principal instrument by which the death of the deceased was caused. I will have regard to that as an aggravating factor.

4. [47]

   The offence was committed in the presence of a number of people under the age of 18, and that is a further aggravating factor: s 21A(2)(ea). The offence was committed in a public place, in the presence of other juveniles, and placed members of the public at risk: R v Salieb [2005] NSWCCA 85 at [51]‑[57].

5. [48]

   A further aggravating factor is when the offender has a record of previous convictions – particularly if those previous convictions are for serious personal violence offences: s 21A(2)(d).

6. [49]

   At the time when the offence was committed, the offender was the subject of three separately imposed bonds pursuant to s 33(1)(b) of the Children (Criminal Proceedings) Act 1987 (NSW). The first of those bonds was imposed on 14 January 2022 at the Parramatta Children’s Court, for convictions of assault occasioning actual bodily harm and common assault. On the same day, the offender was also the subject of a bond, pursuant to s 33(1)(b) of the Children (Criminal Proceedings) Act 1987 (NSW) for reckless wounding in company.

7. [50]

   The previous convictions fulfil the criteria for regarding a previous record as an aggravating factor: s 21A(2)(d). That does not mean that the offender is to be sentenced again for those offences. As well, the offender was on conditional liberty in relation to each of those offences at the time he stabbed the deceased. That also is an aggravating factor: s 21A(2)(j).

8. [51]

   The Sentencing Procedure Act also identifies a number of matters which are to be taken into account as mitigating factors on sentencing. Leaving aside the plea of guilty by the offender, to which I will come in due course, mitigating factors include that the offender was not fully aware of the consequences of his or her actions because of the offender’s age or any disability: s 21A(3)(j). It will become apparent, when reference is made to the offender’s mental health, that this is a mitigating factor to be considered.

9. [52]

   One mitigating factor is whether an offender has shown remorse. But this can only be considered if an offender has accepted responsibility for his actions, and has acknowledged any injury, loss or damage which he has caused: s 21A(3)(i).

10. [53]

    A plea of guilty was entered in relation to the offence with which the offender was ultimately convicted. This functions as some evidence that the offender has accepted responsibility for his actions. However, I am not satisfied that he has shown any real remorse. He has not apologised for his crime. He has not acknowledged any injury, loss or damage caused by his actions, nor has he sought, in any way, to make any reparation for any loss.

11. [54]

    It is also a mitigating factor if the offender has good prospects of rehabilitation, whether by reason of his age or otherwise: s 21A(3)(h), and whether the offender is unlikely to reoffend: s 21A(3)(g).

12. [55]

    One matter which affects his favourable prospects of rehabilitation is that, to a limited extent, the offender has continued with gang affiliations whilst in detention and has incurred some custodial punishment. But on the other hand, the offender has reached Stage 3 of the Centre-based incentive scheme, which requires him to demonstrate positive behaviour.

13. [56]

    Having regard to the post-offence diagnosis of Post Traumatic Stress Disorder (“PTSD”), and the fact that the offender has received some treatment towards this disorder whilst he has been in detention, I am satisfied that he has some realistic prospects of rehabilitation. Much will depend upon the steps he takes once released back into the community. This factor mitigates any sentence which may be imposed.

14. [57]

    I am unable to form any view as to the likelihood of the offender re-offending. Whilst he has significantly matured since the offence, and has shown generally reasonably good behaviour whilst in detention, he clearly still has the capacity to involve himself in fights. He has not yet fully matured, and I am quite unable to form any confident view as to the likelihood of the possibility of his reoffending.

Objective Seriousness

1. [58]

   The offender did not attend the Easter Show looking for a violent encounter with the deceased, or other members of 67. He had no such purpose. The confrontation which occurred did so without planning and by chance. The offender carried a knife with him, but he did so as a form of protective “security blanket”, which was one of the consequences of the PTSD from which he was suffering.

2. [59]

   In my earlier judgment, I found that the Crown had not satisfied me that the offender had formed the necessary intention to kill the deceased or to cause him grievous bodily harm. In short, the reason for that conclusion included the following integers – the age of the offender at the time, the fact of his PTSD and the symptoms of it (which included impulsivity and anger responses which caused him to lose control), the very brief period of time (in the order of 10 seconds) involved in the encounter and the general circumstances surrounding the encounter to which I have referred. I was satisfied that the offender’s actions in stabbing the deceased were an impulsive reaction, engaged in as a response to the confrontation in the very short period of time involved.

3. [60]

   Of the offender’s conduct, I said this at [335]:

4. [61]

   It is on the basis that the Crown had not proved the necessary specific intention, and the subsequent entry of a verdict of not guilty of murder, but guilty of manslaughter, that the offender now falls to be sentenced.

5. [62]

   He is to be sentenced on the basis that his conduct constituted an unlawful and dangerous act, a matter which he admitted by his plea.

6. [63]

   Full and proper allowance must be made for the fact that the offender was young. As earlier noted, he was 14 years and 6 months old. He was psycho‑socially immature. The objective seriousness of the offender’s criminality includes assessing the fact that the entirety of it was contained within a very short period of time, namely, 10 seconds or so between the commencement of the encounter, when the rivals became stationary, to when the stabbing occurred. It was a single stab. There were no repeated or ongoing incidents of violence.

7. [64]

   It is in that context that I am of the view that the objective seriousness of the criminality of the offending fell below the mid-range for the offence of manslaughter.

Subjective Features

1. [65]

   The offender’s family is of Tongan descent. He has four siblings. He is the middle sibling. He has an older brother and three sisters. From the age of about 7 years, whilst living at home with his parents and siblings, he was a witness to, and a victim of, domestic violence. His parents separated on account of his father’s violence towards his mother. On occasions, he would be physically assaulted by his father.

2. [66]

   His attendance at High School was poor. He regularly truanted. Over the course of his schooling, he was involved in, or keenly aware of, three significant incidents involving violence, prior to the Easter Show. The details of those incidents are set out in my earlier judgment. What is, however, significant, was that in February 2021, when he was 13 years old and whilst on the way to football training, the offender was accosted by a group of other boys. He was stabbed. His wound required stitches. As explained in my earlier judgment, it was this significant violent episode which led to him becoming involved with the gang RFA.

3. [67]

   In that same month, the offender was involved in an incident at Shalvey where he was part of a group that was attacked by members of another gang in southwest Sydney called “Brothers for Life”. He was physically assaulted and stabbed in the left upper thigh, the left forearm and right forearm. He required treatment at hospital.

4. [68]

   About seven months later, in September 2021, the offender was present at the home of the Moore family. A group of five males arrived at that home armed with knives, some of whom were wearing balaclavas or face coverings. A physical fight ensued, in the course of which the offender sustained a laceration to his head, for which he required hospital treatment. However, of more significance, was that his close friend, Darcy Moore, was stabbed by one of the attackers and died. That stabbing, and death, was witnessed by the offender.

5. [69]

   The exposure to domestic violence at an early age, together with the three events to which I have just made reference, each involving the infliction of violence on the offender, notwithstanding that he actively participated in a fight, were the cause of the offender suffering from the PTSD which two expert psychiatrists, Dr Kerry Eagle and Dr Andrew Ellis, diagnosed. They both thought that the PTSD was clinically significant. That is an expression which embraces the extent of the diagnosis, that is, that the offender needed treatment for it. He received no such treatment prior to killing the deceased.

6. [70]

   The features of the offender’s PTSD, that is to say his mental state at the time he stabbed the deceased, included a combination of factors, such as his entrenched antisocial and pro-violent attitudes arising from a dysfunctional childhood during which he had limited pro-social role models, the fact that violence was normalised by his dysfunctional childhood, his emotional and cognitive immaturity due to his age and the symptoms of PTSD.

7. [71]

   Those symptoms were, I am satisfied, a susceptibility to feeling angry, and a heightened emotional response which could reduce inhibitions and reduce his level of control.

8. [72]

   He was hypervigilant, something that can be described as being akin to a person “walking on eggshells”. His behaviour is characterised by impulsive aggression.

9. [73]

   The PTSD symptoms, being a condition of anxiety, a heightened threat perception and hypervigilance, led to his carrying a knife which lowered his anxiety, and, as I have earlier mentioned, operated as if it were a security blanket.

10. [74]

    There is no doubt in my mind that the PTSD from which the offender suffered, and the consequences of it, was affecting his conduct, and that it was a material cause of his conduct in stabbing the deceased.

11. [75]

    In light of these factors, I am satisfied that the offender’s moral culpability for this offence is significantly reduced.

12. [76]

    The offender has now been in custody for about 3 years and 5 months.

Plea of Guilty

1. [77]

   The offender offered to enter a plea of guilty to manslaughter on 1 June 2023, and again on 7 August 2023, when he was arraigned. In April 2025, he maintained that plea.

2. [78]

   Both parties are agreed that the appropriate discount to be applied is 25%. I will apply that discount, which I regard as appropriate.

Victim Impact Statements

1. [79]

   The effect of the offender’s conduct on the Faletolu family generally, and on particular members of it, has been expressed in a number of statements made to the Court.

2. [80]

   As well as Ms Piliae, the deceased’s partner (who was pregnant with their child at the time the deceased died), made a Victim Impact Statement.

3. [81]

   Those statements, individually and together, made clear that the death of the deceased has caused significant harm and distress to them. I note that after the deceased died, his son was born. He too will be affected by never knowing his father.

4. [82]

   I take into account each of the Victim Impact Statements in connection with the sentencing task upon which I am presently engaged, on the basis that the harmful impact of the death of the deceased on his family is an aspect of harm done to the community.

Sentencing

1. [83]

   In considering the appropriate sentence to be imposed on the offender, I commence with the reminder that the offence of manslaughter involves the unlawful taking of a human life – that is, conduct which offends a civilised community.

2. [84]

   In the offender’s case, as I have discussed, the manslaughter is below a mid-level of objective seriousness for offences of this kind. Having regard to his age and his mental health conditions, the moral culpability of the offender is significantly reduced. The offence occurred in circumstances of thoughtless and impulsive conduct and occurred over a very short space of time. The offender’s mental illness had a significant causal role to play in his conduct.

3. [85]

   In those circumstances, and in accordance with the principles of sentencing for children, general deterrence and retribution are to be given less weight. More weight is to be given to rehabilitation, and emphasising that the offender is to be assisted with his re-integration into the community so as to sustain his family and community ties.

4. [86]

   There still needs, however, to be some allowance for specific deterrence, in light of the offender’s immaturity and conduct before and after the offence.

5. [87]

   Having regard to the offender’s youth at the time of the offence and his present age, I am satisfied that I should make a finding of special circumstances in the way permitted by the law: s 44(2) of the Sentencing Procedure Act. In my view, the offender will need a longer than usual period of parole to assist him to re‑integrate into the community on the completion of his non-parole period.

6. [88]

   I have now discussed all of the facts relevant to sentence, including the highly relevant and significant subjective circumstances of the offender. It is now necessary to make a value judgment as to the appropriate sentence to be imposed for the offence.

7. [89]

   I indicate that, before any allowance for the discount of 25% for the early plea of guilty, the appropriate sentence of imprisonment would be in the order of 9 to 10 years.

8. [90]

   But, in light of the offender’s early plea of manslaughter entitling him to the discount to which I have referred, I determine that the appropriate total sentence for the offender is 7 years.

9. [91]

   After allowing for special circumstances, and a reduction in the statutory ratio, I determine that the appropriate non-parole period is 4 years and 3 months. That sentence will commence on 15 July 2022.

10. [92]

    Accordingly, the offender will first be eligible for release on parole on 14 October 2026.

11. [93]

    The offender has just turned 18 years of age. However, having regard to the material contained in the pre-sentence report put before the Court, the offender’s age and general immaturity, together with his mental illness, which he has not yet learned to manage, I am satisfied that there are special circumstances which justify his detention as a juvenile offender – although he has turned 18. At the least, it is desirable that he continue with such interventions as have been implemented so far.

12. [94]

    Accordingly, I order pursuant to s 19(1) of the Children (Criminal Proceedings) Act 1987 (NSW) that the offender is to serve the whole of his term of imprisonment as a juvenile offender.

Sentence

1. [95]

   KL, I impose the following sentence upon you:

   1. (1)

      For the offence of manslaughter of Uati Faletolu, I impose a sentence of imprisonment comprising a non-parole period of 4 years and 3 months with a balance of term of 2 years and 9 months to commence on 15 July 2022.

   2. (2)

      The first date upon which the offender will be eligible to be released on parole is 14 October 2026.

   3. (3)

      Order, pursuant to s 19(1) of the Children (Criminal Proceedings) Act 1987 (NSW), that the whole of the term of imprisonment is to be served as a juvenile offender.