Perkins v R

1. [1]

   HOEBEN CJ at CL:

2. [2]

   On 11 July 2016, the day before he was due to be arraigned before a jury, the applicant pleaded guilty to the offence. Sentence proceedings were conducted on 3 August 2016 and on 5 August 2016 Button J (the sentencing judge) imposed a sentence of imprisonment with a non-parole period of 15 years, commencing 13 February 2014 and expiring on 12 February 2029, and a balance of term of 5 years and 6 months expiring on 12 August 2034.

3. [3]

   The applicant seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the sentence imposed upon him on the following grounds:

4. [4]

   At about 6.30pm on Wednesday, 12 February 2014 Ashleigh Cornish arrived at the residence of the applicant. She was driven there by her boyfriend, the deceased. Ms Cornish went to the applicant’s residence to have a few drinks with him and his girlfriend, Rachel Manevski. The applicant’s mother and his six year old brother were also home at the time.

5. [5]

   The deceased and Ms Cornish had been in a relationship for about 18 months. Although they still lived together at the deceased’s parents’ home, the couple had broken up a couple of weeks before. The deceased was not happy about Ms Cornish visiting the applicant because he did not like him.

6. [6]

   After arriving at the house Ms Cornish, the applicant and Ms Manevski went into the applicant’s bedroom, talked and drank vodka and cask wine. Throughout the night the group drank a 700ml bottle of vodka and a two litre cask of red wine. Over the course of the evening Ms Cornish told the applicant and Ms Manevski about her relationship with the deceased. She told them about recent arguments between her and the deceased and that he was verbally abusive towards her.

7. [7]

   After leaving Ms Cornish at the applicant’s house, the deceased noticed that she had logged onto her Facebook account on his phone but did not log out when she had finished using the account. The deceased viewed Ms Cornish’s Facebook page and learned that she was romantically involved with another male.

8. [8]

   At about 10pm that night the deceased returned to the applicant’s home to confront Ms Cornish and parked in front of the premises. He was accompanied by a number of his male friends who arrived in another car. The deceased walked to the front of the house and called out to the applicant, asking if Ms Cornish was there. Ms Cornish went outside and a heated argument ensued between her and the deceased.

9. [9]

   Ms Cornish asked the deceased to return cigarettes and other items belonging to her which he had in his car. When the deceased refused, Ms Cornish kicked the passenger door of his car which angered him further. He walked up the driveway to where the applicant’s mother’s car was parked and threatened to damage the car. The applicant shouted to the deceased to leave his mother’s car alone. The deceased returned to his car and he and his friends drove away with the deceased “doing burnouts” down the end of the street as he left. The whole incident lasted approximately 20 minutes.

10. [10]

    At 10.34pm a message was sent from the applicant’s Facebook account to the deceased’s phone which read “Threaten to hit my property again and you’ll be dead c - - t. Any beef you have with Ash is with her not me.”

11. [11]

    After the deceased and his friends left, Ms Cornish sat outside the house crying and upset. The applicant and Ms Manevski brought her back into the house where they consoled her. Ms Cornish, the applicant and Ms Manevski continued to talk. All three smoked cannabis from a “bong” which Ms Cornish had brought with her.

12. [12]

    The applicant, Ms Cornish and Ms Manevski continued to drink. Both the applicant and Ms Cornish were very drunk. The applicant was having trouble standing. Several hours after the argument with the deceased, and despite their earlier argument, Ms Cornish was “missing” the deceased. Although it had been arranged for her to spend the night at the applicant’s house, Ms Cornish rang the deceased using the applicant’s phone and asked him to pick her up. The deceased initially refused but after a time Ms Cornish convinced him to come and get her.

13. [13]

    Ms Cornish told the applicant and Ms Manevski that the deceased was coming to get her. Shortly thereafter, the headlights of the deceased’s car were seen coming down the road. (The deceased had distinctive purple lights on the front of his car.)

14. [14]

    At that time the following conversation took place:

15. [15]

    The deceased did a U-turn and parked at the front of the applicant’s house. As he drove past, the applicant went into the kitchen and armed himself with a large kitchen knife. He left the house and walked to where the deceased was sitting in his car waiting for Ms Cornish. The deceased was in the driver’s seat with the engine of his car running and he was still wearing his seatbelt. The applicant stabbed the deceased at least six times with the knife. There were three very deep wounds to the upper torso of the deceased, one of which was delivered with such force that the knife almost protruded from his back. Separately there were a number of cuts to his hands which were defensive in nature.

16. [16]

    Ms Cornish rang 000 and attempted to provide first aid to the deceased. At approximately 1.55am police arrived at the scene. Shortly afterwards an ambulance arrived. Attempts to revive the deceased were unsuccessful. He was taken to Gosford Hospital where despite resuscitation attempts, he was declared deceased.

17. [17]

    The applicant was found in the backyard of his house and was arrested. He was taken into custody and has remained in custody ever since.

18. [18]

    At the time of these events, the applicant was aged 18 years and 9 months. He was in a relationship with Ms Manevski who was of a similar age. The deceased was aged 18 years and 3 months at the time of his death. It was common ground that the applicant was very intoxicated at the time of the offence.

19. [19]

    The applicant and his mother gave evidence in the sentence proceedings. Having reviewed the facts, his Honour identified an issue in dispute as whether the intention of the applicant was to inflict grievous bodily harm or kill the deceased. When reviewing the facts, his Honour noted that three of the wounds were very deep and that at the time of their infliction, the deceased was unarmed, confined and restrained by the seatbelt in the front seat of his car and in no position to defend himself. While his Honour was not satisfied that there was any premeditation or settled intention to kill on the part of the applicant, he was satisfied beyond reasonable doubt that at the time the applicant went to the kitchen and obtained the knife, he had decided to kill the deceased. His Honour accepted that the applicant had little or no memory of what he did or an understanding of why he did it.

20. [20]

    His Honour assessed the objective seriousness of the offending as “extremely grave”. His reasons for that conclusion were:

21. [21]

    His Honour assessed the utilitarian value of the applicant’s plea of guilty at 10 per cent. He was satisfied that the applicant was remorseful and that he had accepted responsibility for his actions.

22. [22]

    His Honour then considered the applicant’s subjective case. He noted his youth and regarded that as an important mitigating feature. His Honour also accepted the truth of the background matters contained in the report of a psychologist, Dr Gilligan, dated 1 August 2016 which was before him. An important feature of the applicant’s subjective case was that he had never come into contact with the criminal justice system until this offence.

23. [23]

    His Honour then summarised the applicant’s background, as disclosed in that report, as follows. This summary was attacked in submissions as inaccurate and as indicating that his Honour had not taken into account relevant matters.

24. [24]

    His Honour indicated that he was “perplexed” as to the applicant’s motivation for the offence. His Honour did, however, accept that the applicant was disinhibited by the combined effect of alcohol and a prohibited drug and very intoxicated. His Honour was not satisfied that the applicant’s consciousness was reduced or compromised at the time of the offending. His Honour did not accept the suggestion made by the applicant in the witness box and to the psychologist that he was so affected. His Honour regarded those claims as inconsistent with his plea of guilty. His Honour also noted that self-induced intoxication could provide an explanation for the offending but it could not mitigate the crime (s 21A(5AA) of the Crimes (Sentencing Procedure) Act 1999 (NSW)).

25. [25]

    On the issue of rehabilitation, his Honour expressed a “guarded optimism” that the applicant would be able to successfully rehabilitate himself. He noted that he had adapted to his incarceration reasonably well and had taken advantage of the few educational opportunities that were available to him while on remand. His Honour was concerned that the applicant maintained his continuing love for Ms Manevski in that his Honour was of the opinion that any continuation of that relationship would be seriously detrimental to his rehabilitation. On the positive side, his Honour noted that for over 18 years he had shown no sign of criminality or dangerousness and was fully supported by his mother, who impressed his Honour as a sincere person. No challenge was made to that finding as to rehabilitation by his Honour.

26. [26]

    His Honour declined to find special circumstances because the inevitable length of the parole period would be sufficient for rehabilitative and supervisory purposes upon the applicant’s release from custody.

27. [27]

    In order to understand this ground of appeal, it is necessary to set out in some detail the report of Dr Gilligan which was before his Honour. That report was based on a one and a half hour consultation which took place on 29 July 2016 by AVL between the psychologist and the applicant. Under the heading “Background and Relevant History” the following was set out:

28. [28]

    The applicant submitted that his Honour had failed to properly take into account the inferences to be drawn from the report of Dr Gilligan. These inferences were to be drawn from the violence inflicted upon him and his mother by her partner over a period of nine years and that during that nine year period, the relationship between his mother and her partner was marred by alcohol abuse. The applicant submitted that his Honour should have taken into account, but failed to do so, a relevant consideration namely that the applicant had a childhood which for nine years was marred by domestic violence and the abuse of alcohol and drugs by those around him.

29. [29]

    The applicant submitted that the fact that he had a supportive stepfather did not diminish the weight to be afforded to his early background of disadvantage. The applicant submitted that the deprived background in his early years should have been taken into account and given full weight as a mitigating feature and that his Honour’s failure to take this matter into account amounted to an error which caused the exercise of his sentencing discretion to miscarry. The applicant relied upon the decisions of Bugmy v The Queen [2013] HCA 37; 249 CLR 571, Buxton v R [2017] NSWCCA 169 at [12]-[15], [99] and Ingrey v R [2016] NSWCCA 31 as supporting that submission.

30. [30]

    In relation to Ground 1(b) the applicant submitted that his Honour had failed to properly take into account that he had developed cancer at the age of 12 and suffered a relapse at the age of 16. Specifically his Honour had failed to give proper weight to the evidence that the relapse at age 16 had brought about depression and anxiety and had caused him to start to drink and use “chronic” synthetic cannabis. Moreover, his Honour had failed to take into account that the relapse of his cancer at the age of 16 was a traumatic event for him, not only because he had to go through chemotherapy again, but also having to consider the possibility of his death. This was an important factor and provided a causal connection between the recurrence of his cancer and the consumption of alcohol and synthetic cannabis which led to the commission of this offence. The applicant submitted that his Honour should have taken into account the reason for his substance abuse as a mitigatory factor.

31. [31]

    The applicant relied upon the observation of Simpson J in R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [338] where her Honour said:

32. [32]

    The applicant submitted that his circumstances called for an examination of why he had commenced drug and alcohol use and become addicted as part of the background to the offending. In dismissing these facts and failing to have regard to evidence that the applicant did develop an addiction to alcohol and synthetic cannabis in the years leading up to the offence as a result of his cancer relapse, his Honour erred. The applicant further submitted that his Honour was not precluded from taking this matter into account by s 21A(5AA) of the Crimes (Sentencing and Procedure) Act because that section referred to self-induced intoxication “at the time of the offence” not the circumstances leading up to that intoxication. The applicant submitted that his background, including his descent into alcohol and drug addiction, was relevant to the sentence to be imposed and should have been taken into account by his Honour.

33. [33]

    In summary, the applicant submitted that it was not correct for his Honour to characterise his life up to the offence as a life that had been “unremarkable and one shared by countless other young men growing up in Australian suburbs”. The applicant submitted that his disadvantaged background mitigated the sentence that would otherwise have been appropriate. The applicant submitted that this was so even though the applicant’s background was not of the kind where alcohol abuse and alcohol fuelled violence was endemic throughout. On that issue, the applicant relied upon the decision of this Court in Ingrey v R. The applicant submitted that the impulsivity of the offence, his childhood traumas and his youth and immaturity were all matters to be taken into account as part of the intuitive synthesis required for the fixing of an appropriate sentence.

34. [34]

    The applicant submitted that his prior good character was a factor which should have been given full effect by way of mitigation. The applicant submitted that his Honour’s failure to refer to his prior good character suggested that he had not taken it into account. The applicant submitted that his prior good character, together with his lack of previous convictions, and his fortitude through the hardships which he had endured as a young person should have been taken into account by way of mitigation.

35. [35]

    The applicant submitted that his Honour’s failure to take relevant matters into consideration constituted an error of the kind that was identified in Kentwell v The Queen [2014] HCA 37; 252 CLR 601. Accordingly, since his Honour’s sentencing discretion had miscarried in relation to discrete components of the sentencing process, the sentencing discretion should be re-exercised as a whole by this Court rather than by way of adjustment to take account of the error (Lehn v R [2016] NSWCCA 255 at [60]).

36. [36]

    The applicant submitted that in all of the relevant circumstances when those matters were properly taken into account, together with his youth, a lesser sentence than that imposed by his Honour was warranted in law.

37. [37]

    Before dealing with the specific matter raised in Ground 1(a), it is useful to set out what the plurality (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ) said in Bugmy v The Queen. As a start point, the circumstances of the appellant in that case are relevant:

38. [38]

    It was against that background that the plurality said:

39. [39]

    Those statements of principle should also be read with the decision of Munda v Western Australia [2013] HCA 38; 249 CLR 600 which was handed down at the same time as Bugmy v The Queen and raised similar issues. There, the plurality (French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ) said:

40. [40]

    It can be accepted that his Honour’s summary of the evidence relating to the applicant’s early years, as set out in [42] of the sentence judgment, is somewhat benign when one looks at the detail in Dr Gilligan’s report. That having been said, the question arises as to whether a more accurate description should have led to any change in his Honour’s conclusion. This is because there was no evidence before the court of any adverse effects which that period of the applicant’s life had upon him. There was no evidence connecting that experience of the applicant to the offending.

41. [41]

    The applicant’s circumstances can be contrasted with those where the Court has decided that a disadvantaged background may be taken into account by way of mitigation. Regrettably, the circumstances in which many aboriginals who come before the courts have been raised, allow an inference to be drawn that “growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life” (Bugmy at [43]). Ingrey v R provides perhaps the closest example to this case where the offender’s immediate family were law abiding but the extended family and community in which he lived were, in effect, professional thieves and where criminal activity was regarded as the norm. When the offender became involved in precisely that kind of activity, the connection between his upbringing and the offending could be readily inferred. That is not the case here. In the absence of any evidence of such a connection, given the extreme circumstances of the offending, to find such a connection would involve speculation not inference. That is particularly so when for at least part of the nine year period the applicant would have been a child of tender years with little recollection of what was happening. In any event the effect on him, to the extent that there is any evidence on the subject, was to cause him to avoid excessive alcohol consumption because of the adverse effects he had observed in Brett and his mother (Dr Gilligan at [16]).

42. [42]

    It follows, therefore, that while I accept the applicant’s submission that his Honour’s summary of the applicant’s childhood was not complete, even if his Honour had set out in detail the history recorded by Dr Gilligan, it was not a matter which he could properly take into account by way of mitigation. On my reading of Bugmy v R it is not sufficient to simply establish some elements of a deprived upbringing and/or the presence of domestic violence unless there is evidence or it can be properly inferred that such exposure “may explain the offender’s recourse to violence when frustrated such that the offender’s moral culpability for the inability to control that impulse may be substantially reduced.” (Bugmy at [44]).

43. [43]

    It is correct, as the applicant submitted, that his Honour when referring to the recurrence of cancer when the applicant was aged 16 made no mention of this causing him to “drink and use “chronic” synthetic cannabis”. There is, however, no evidence to suggest that the recurrence of the cancer caused the applicant to become addicted either to alcohol or synthetic cannabis. On the contrary, his heavy use of those substances only commenced after he met Ms Manevski. When that relationship started “his use of substances increased to every week … progressing to every couple of days” (Dr Gilligan at [16]). One can infer from that history that his use of alcohol and cannabis before he met Ms Manevski took place less frequently than once per week. That is inconsistent with the applicant being addicted to either alcohol or synthetic cannabis as a result of the recurrence of his cancer.

44. [44]

    What is significant is that the recurrence of his cancer was adequately treated and it was only the introduction of Ms Manevski into his life which led to him initially increasing his consumption of these substances to once a week and then to every couple of days. On the only evidence available, it could not be said that the recurrence of his cancer caused him to become addicted to these substances, or even if not addicted, to use these substances frequently. In that regard, his circumstances were far different to those described by Simpson J in her observations in R v Henry on which the applicant relied. In any event, the consensus of all five judges in R v Henry was that drug addiction is a circumstance relevant to the sentencing exercise but it is not of itself a mitigating factor. In this case for the reasons set out above there was no evidence of addiction. If it be thought that the frequency with which the applicant was consuming alcohol and cannabis at the time of the offending was such as to indicate an addiction which the applicant was not prepared to acknowledge, that addiction (if it be such) was clearly due to the influence of Ms Manevski and not the recurrence of cancer at the age of 16. Importantly, Dr Gilligan, who recorded the history, at no time expressed the opinion that he was so addicted.

45. [45]

    The observations of Simpson J were restricted to the particular circumstances to which she referred. Later cases have significantly qualified those remarks. In R v SY [2003] NSWCCA 291 Whealy J (Ipp JA and Howie J agreeing) said:

46. [46]

    Observations to similar effect were made by Howie J (Basten JA and Hall J agreeing) in Bichar v Regina [2006] NSWCCA 1 where his Honour said:

47. [47]

    There is another difficulty which affects the applicant’s reliance upon Grounds of Appeal 1(a) and (b). This is that no submissions were made before the sentencing judge in relation to those grounds of appeal. No mention was made of the possible application of the principles set out in Bugmy v The Queen. When the applicant and his mother gave evidence nothing was said concerning either ground of appeal. These grounds and the way in which they have been presented on the appeal amount to a revision and reformulation of the case put before the sentencing judge. Moreover, the issues raised by these grounds are not such that the failure of counsel to bring them to the attention of the trial judge would involve a miscarriage of justice insofar as the applicant is concerned. The requirement that parties except in special circumstances will be bound by the way in which they put their case in the sentence proceedings, was clearly stated by this Court in Zreika v R [2012] NSWCCA 44 at [79]-[81]; 223 A Crim R 460.

48. [48]

    The history of taking an anti-depressant Avanza at 45mg per day goes nowhere. This was only prescribed for the applicant in about August 2015 when he had been in custody for over 18 months. The fact of being in custody and the prospect of being sentenced for such a serious crime would be enough to make anyone depressed. There was no evidence of the applicant being depressed at the time of the offending.

49. [49]

    It is correct that his Honour made no specific reference to the applicant’s good character. It is, however, clear when his Honour summarised the applicant’s background and in particular stressed his youth and the absence of any criminal record that his Honour was taking into account the applicant’s good character before the offending. It is for this reason that his Honour was so perplexed by the offending which was, in effect, entirely out of character.

50. [50]

    Ground of Appeal 1 has not been made out.

51. [51]

    The applicant submitted that the sentence imposed upon him was manifestly excessive because insufficient weight was given to his age, his immaturity and the subjective matters in his background to which reference was made in Ground 1. The applicant submitted that a sentence is manifestly excessive where it is “unreasonable or plainly unjust” (Dinsdale v The Queen [2000] HCA 54 at [6]; 202 CLR 321). The applicant submitted that intervention by this Court is justified where the difference between the sentence imposed and other sentences is such that in all the circumstances there must have been some misapplication of principle, even though where and how is not apparent (Hili v The Queen; Jones v The Queen [2010] HCA 45 at [59]; 242 CLR 520).

52. [52]

    The applicant referred the Court to the following quotation from The Queen v Pham [2015] HCA 39 at [28]; 256 CLR 550 where French CJ, Keane and Nettle JJ said:

53. [53]

    The applicant accepted that individual cases cannot establish that a particular sentence is unjust but submitted that previous cases should be taken into account so that consistency in sentencing can be achieved (Hili v The Queen at [49], [53]). The applicant accepted that while previous sentences do not establish the outer bounds of the permissible discretion allowed to sentencing judges, it is important to consider the “unifying principles which those sentences both reveal and reflect” (Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2 at [41]; 253 CLR 58).

54. [54]

    The applicant submitted that the application of those principles establishes that the sentence imposed on the applicant was manifestly excessive having regard to the objective seriousness of the matter, intent to kill and the age and circumstances of the victim at the time of his death but also taking into account that the applicant was 18 years old, pleaded guilty, had no prior criminal record, was of prior good character, had a history of trauma in childhood, was not involved in a joint criminal enterprise and committed an unpremeditated killing for which he was remorseful.

55. [55]

    The applicant submitted that the young age of an offender may be relevant to the objective criminality of an offence because the criminal act is impulsive not premeditated or pre-planned and may have resulted from a lack of self control or self regulation owing to cognitive, emotional or psychological immaturity. The applicant submitted that there was no bright line crossed at the age of 18 and that allowance should be made for an offender’s youth and not just their biological age. Applying those considerations to the facts of this case the applicant submitted that the offending did not involve the indicia of mature decision making. The use of a knife was impulsive and irrational and the antithesis of mature decision making. The applicant submitted that this had to be seen in the context of an offender with no prior criminal history and of prior good character.

56. [56]

    In support of those propositions the applicant referred the Court to 20 sentencing decisions involving young offenders where the sentences imposed were significantly less than that imposed in this matter. The cases relied upon by the applicant are set out in summary form.

57. [57]

    The applicant submitted that the unifying feature in most of those case was the age of the offender and some similarity in the circumstances of the offending. The applicant submitted that the sentences imposed in those cases establish that his Honour’s starting point of imprisonment for 23 years was unreasonable and plainly unjust.

58. [58]

    In Hughes v R [2018] NSWCCA 2 at [86] the Court (Payne JA, R A Hulme and Garling JJ) summarised the principles relevant to a finding of manifest excess as follows:

59. [59]

    In support of the submission that the sentence is manifestly excessive the applicant relied upon summaries of sentencing decisions in other cases. The cases referred to can do no more than provide a yardstick against which to consider a proposed sentence and do not establish an upper or lower limit to the range of sentences to be imposed. Moreover, as the summaries make clear, there were particular factual issues in relation to each case which impacted directly on the exercise of the sentencing discretion and which adversely affects the utility of such cases when compared to the facts of this matter.

60. [60]

    The utility of referring to previous sentencing judgments was considered by the High Court in Hili v The Queen; Jones v The Queen at [53]-[54] and Barbaro v The Queen; Zirilli v The Queen at [40]-[41] where French CJ, Hayne, Kiefel and Bell JJ stated:

61. [61]

    In Pham v R [2014] NSWCCA 115 Hoeben CJ at CL (Adams and Hall JJ agreeing) observed at [57]:

62. [62]

    Adamson J (with whom McClellan CJ at CL and Rothman J agreed) made a similar observation in Vandeventer v R [2013] NSWCCA 33 at [45] where her Honour said:

63. [63]

    The difficulty with relying upon a series of cases which appear to be generally comparable by reference either to the age of the offender or the circumstances of the offending are that even with such similarities the factors and considerations which are relevant to the sentencing exercise can still be considerably different to those under consideration in the instant case. The circumstances in which the crime of murder can be committed cover an extremely wide spectrum. Similarly, there is a large range over which the sentencing discretion can be exercised (R v Slater [2001] NSWCCA 65 at [52]; 121 A Crim R 369). This was recognised in King v R [2015] NSWCCA 99 where Hoeben CJ at CL (Hidden and Beech-Jones JJ) agreeing said:

64. [64]

    As is clear from the decisions summarised in the applicant’s written submissions, the offending covers a wide variety of circumstances with the subjective case of each offender being significantly different. None of the cases involve murder committed in circumstances directly comparable to the circumstances of the present case. In any event, sentencing does not involve a quest for numerical parity. Significantly, in most of the cases referred to by the applicant the intention was to inflict grievous bodily harm not to kill. That of itself is an important distinction between those cases and this case in that an intention to kill has generally been accepted as involving more serious offending. In Versluys v R [2014] NSWCCA 98 at [21] Hamill J (with whom Simpson and Hidden JJ agreed) said:

65. [65]

    Of all the cases summarised in the applicant’s written submissions, only the cases of R v Cotterill (sentence of 22 years with a non-parole period of 16 years), Zaro v R (sentence of 22 years with a non-parole of 16 years), R v Towney (No 2) v R (sentence of 24 years with a non-parole period of 18 years) and R v Shiels (sentence of 20 years with a non-parole period of 13 years) involved an intention to kill. Contrary to the submissions of the applicant, the cases relied upon by him do not provide any unifying principle that dictates that the subject sentence was manifestly excessive.

66. [66]

    In sentencing the applicant his Honour properly had regard to the following important factors:

67. [67]

    As the cases referred to by the applicant make clear, matters of weight are very much in the province of the sentencing judge and the circumstances in which matters of weight will justify appellate intervention are narrowly confined: Yang v R [2012] NSWCCA 49 at [25]. As Button J observed in Hanania v R [2012] NSWCCA 220 at [33]:

68. [68]

    When one takes into account the legislative guideposts, the objective seriousness of the offence and the applicant’s subjective case it has not been demonstrated that a sentence of 20 years and 6 months, with a non-parole period of 15 years, is unreasonable or plainly unjust so as to satisfy the requirements for a ground of appeal based upon manifest excess. Moreover, when one has regard to the cases referred to by the applicant with only a couple of exceptions (particularly where the offender was aged 16) the sentences imposed are within a relatively narrow range within which the sentence imposed in this case comfortably fits. I am of the opinion that the sentence imposed by his Honour lies within the appropriate range for an offence of this kind.

69. [69]

    This ground of appeal has not been made out.

70. [70]

    The orders which I propose are:

    1. (1)

       Leave to appeal against sentence be granted.

    2. (2)

       The appeal be dismissed.

71. [71]

    WHITE JA: I have had the advantage of reading in draft the reasons for judgment of Hoeben CJ at CL. Those reasons enable me to go directly to the main points in issue. I have concluded that the sentencing judge’s description of the offender’s background drawn from the report of Dr Gilligan was in some respects erroneous. Nonetheless, having regard to the seriousness of the offence no lesser sentence than that imposed would be appropriate.

72. [72]

    Ms Bashir SC, who appeared with Ms Khalilizadeh for the applicant, submitted that the applicant’s childhood experiences of having been exposed to early childhood domestic violence and abuse and having suffered cancer amounted to significant deprivation that should be taken into account as a mitigating factor, irrespective of whether or not any causal link could be identified between that background and the offending. She submitted that there was nothing in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 that required demonstration of any such causal link.

73. [73]

    Bugmy does not provide a clear answer as to whether such a causal link must be established before circumstances of social disadvantage or deprivation can be considered as a mitigating factor. There the plurality (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ) said (referring to R v Fernando (1992) 76 A Crim R 58 at 62-63) (at [40]):

74. [74]

    This language is inconsistent with its always being the case that a background of serious social deprivation will be a factor in mitigation of sentence. The focus rather is on whether such a background lessens the moral culpability of the offender. Clearly it could do so if there is a causal link between the background of social deprivation and the offending. But the High Court did not say that that was the only circumstance in which the background of profound social deprivation could be relevant.

75. [75]

    The error identified by the High Court in Bugmy was the conclusion of the Court of Criminal Appeal that the extent to which social deprivation in a person’s youth and background can be taken into account must diminish with the passage of time, particularly when the passage of time has included substantial offending (at [25]). The plurality noted (at [42]) that on appeal to the High Court the Director of Public Prosecutions acknowledged that the effects of profound deprivation did not diminish over time and submitted that they were to be given full weight in the determination of the appropriate sentence in every case (at [42]). The plurality continued:

76. [76]

    The finding in [44] that the effects of profound childhood deprivation do not diminish with the passage of time and repeat offending, was a finding of fact. That fact was not in issue at the hearing in the High Court because of the concession made by the Director of Public Prosecutions. Being a conclusion of fact it is not a binding precedent, although doubtless is entitled to considerable weight (Teubner v Humble (1963) 108 CLR 491 at 503 per Windeyer J; [1963] HCA 11; Bus v Sydney County Council (1989) 167 CLR 78 at 89; [1989] HCA 29). The plurality’s statement that it is right in every sentencing decision to give “full weight” to an offender’s deprived background must be applied. The question left open is what is meant by “full weight” and whether a deprived background is a matter of any weight by way of mitigation if there is no causal link to the offending.

77. [77]

    In Bugmy the High Court neither endorsed Mr Bugmy’s submission (at 581) that no causal connection between the offender’s aboriginality and the commission of the offence was needed, nor the submission of the Crown (at 579) that for systemic factors establishing profound social deprivation to diminish the moral blameworthiness of a particular offence, they must be causally linked. The plurality (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ) said that if an offender seeks to rely on his or her background of deprivation in mitigation of sentence, he or she needs to point to material tending to establish that background (at [41]), but did not say that if such background of deprivation is established it will (as distinct from may) be a mitigating factor. Nor did the plurality say that if such a background of deprivation is established it will only be a mitigating factor if a causal link between the background of deprivation and the offence is established. Gageler J said (at [56]) that “The weight to be afforded to the effects of social deprivation in an offender’s youth and background is in each case a matter for individual assessment.”

78. [78]

    The plurality’s reference to the decision in R v Engert (1995) 84 A Crim R 67 is consistent with their Honours’ also declining to lay down a prescriptive rule to govern the exercise of the sentencing discretion. In Engert Gleeson CJ said (at 68):

79. [79]

    In Engert the offender’s mental illness was not shown to be causative of his offending, but it was not on that account necessarily excluded as a mitigating factor. Allen J, with whom Sully J agreed, said (at 72) that to sentence an offender with a mental disability unrelated to the commission of a crime giving full weight to general deterrence might have no impact at all upon others and that human sympathy would say “Well you would not expect him to get the same sentence as someone else” (at 72). His Honour went on to say “In that respect there is no difference at all between mental disability and other personal characteristics or personal conditions which would attract sympathy.” The same is true of a background of serious social deprivation.

80. [80]

    Establishing a connection between a background of social deprivation or profound social deprivation and the offending is likely to reduce the offender’s moral culpability. In some cases that causal link may be inferred (R v Millwood [2012] NSWCCA 2 at [69]).

81. [81]

    On the other hand if a causal link between the offending and the background of deprivation is established, as the High Court pointed out in Bugmy and as Gleeson CJ said in Engert, that may give additional weight to a conflicting purpose of punishment such as the need for protection of the community.

82. [82]

    I agree with Hoeben CJ at CL that the applicant’s exposure to the domestic violence committed on his mother and possibly on him [1] has been shown not to have been causally connected to his offending. The applicant reported to Dr Gilligan that he adjusted to most aspects of his childhood development without problems. He got along well with his fellow students. He was never involved in fights. He did not report any expulsions or suspensions. He was never diagnosed with a learning disorder or attention deficit disorder or other conduct problems. He was a good student. He was sociable and had a lot of friends and was never involved in substance abuse, criminal activity or juvenile delinquency.

83. [83]

    It does not follow that the applicant’s exposure to the domestic violence suffered at least by his mother is irrelevant. But it does not lessen his moral culpability.

84. [84]

    I would infer that there was a link between the applicant’s childhood cancer and his offending. He had Hodgkins lymphoma when he was about 12 that was treated with chemotherapy. He had a relapse at 16 that resulted in the removal of a lymph node. He reported that the relapse caused him to become depressed and anxious and he started to drink more and took “chronic” (sic) cannabis to cope. (This was presumably a reference to a cannabis known as Kronic, a trade name for a type of synthetic cannabis.) Dr Gilligan was of the opinion that the relapse of his cancer at the age of 16 was a significant source of stress and that he took up substance abuse to cope with that distress and depression he experienced following his relapse (at [33]). She said that his substance abuse increased further in the context of his relationship with a girl known as Rachel when he was about 17. Their pattern of using alcohol and taking synthetic cannabis progressed to their doing so every couple of days. This pattern occurred for a year prior to the events of the offence. The applicant reported that he started using drugs and alcohol “a lot more” when he was with Rachel. Dr Gilligan said that the applicant reported symptoms of dissociation that were consistent with heavy alcohol and cannabis use and that his description was consistent with depersonalisation, a phenomenon associated with dissociative experience. I infer that the applicant’s response to the relapse of his cancer when he was 16 was a cause, although not the sole cause, or even the principal cause, of his increasing use of alcohol and synthetic cannabis in the two years before the offending.

85. [85]

    In my view the primary judge erred in his description of the applicant’s subjective circumstances. In my view the evidence did not support the primary judge’s finding that the applicant’s life up to the time of the offence was one shared by countless other young men growing up in the Australian suburbs. It was not right to say that there was “nothing to suggest that he had some sort of long standing dependence upon … alcohol or prohibited drugs.” Dr Gilligan’s unchallenged opinion was that from around the time he was 16 the applicant “took up substance abuse to cope with the distress and depression he experienced following his relapse”. This suggests a two-year dependence (not amounting to an addiction) on alcohol and synthetic cannabis, which was a prohibited drug. (I agree with the primary judge and with Hoeben CJ at CL that the evidence does not suggest that the recurrence of the cancer caused the applicant to become addicted to alcohol or to synthetic cannabis.)

86. [86]

    In any event, as Hoeben CJ at CL observes (at [44]) in R v Henry it was held that drug addiction is a circumstance relevant to the sentencing exercise but is not of itself a mitigating factor (per Spigelman CJ at [174]-[178], [193], per Wood CJ at CL at [259], [273]-[274]; per Newman J at [278], per Hulme J at [331], per Simpson J at [345]). As Wood CJ at CL and Simpson J said in R v Henry, it does not follow that it is inappropriate to take into account the circumstances that gave rise to the drug addiction.

87. [87]

    The self-induced intoxication of the applicant at the time of the offence is not to be taken into account as a mitigating factor (Crimes (Sentencing Procedure) Act 1999, s 21A(5AA)). This is not a case of addiction where it might be said the intoxication was not self-induced (cp. Kelly v R [2016] NSWCCA 246 at [50]).

88. [88]

    Although I do not accept that it is only where an offender’s background of social deprivation can explain the offender’s recourse to violence such that his or her moral culpability is reduced that that background is relevant to the exercise of the sentencing discretion, and although I consider that the primary judge did not adequately describe the applicant’s background, I do not consider that giving full weight to those circumstances should result in any lesser sentence than that imposed. This was a crime of the utmost seriousness. The victim, whilst restrained by his seatbelt and unable to protect himself, was stabbed repeatedly with great violence. The applicant’s intention was to kill.

89. [89]

    I do not think that the cases to which counsel for the applicant referred suggest that the sentence imposed in the present case was manifestly excessive or inconsistent with sentencing practice for similar offences. In most of the cases to which reference was made the offender intended not to kill but to cause grievous bodily harm. In the present case the applicant intended to kill his victim. In R v Cotterill [2012] NSWSC 89, Zaro v The Queen [2009] NSWCCA 219, R v Shiels [2011] NSWSC 1177 and R v Towney (No 2) [2016] NSWSC 97; where there was an intention to kill, the offenders had stronger subjective cases. Thus in R v Cotterill there was a 15 per cent discount for the plea of guilty and the offender was raised in a highly dysfunctional family. In Zaro v The Queen the offender had been exposed to trauma as a refugee and had mental health issues. In R v Shiels the offender suffered from schizophrenia at the time of the offence and had a history of drug and alcohol abuse from an early age. In R v Towney (No 2) the offender was raised in an atmosphere of domestic violence and drug and alcohol abuse. In my view, the objective seriousness of the offence, and consideration of the cases to which the applicant referred indicates that the sentence imposed was well within an accepted range. It was not manifestly excessive.

90. [90]

    Although I have rejected the ground of appeal that the sentence was manifestly excessive, I have accepted the applicant’s submission that the primary judge erred in his description of the applicant’s subjective circumstances. That was a material error in the sense that it may have affected the primary judge’s sentencing decision (Baxter v The Queen [2007] NSWCCA 237; (2007) A Crim R 284 at [60]). It becomes necessary to re-exercise the sentencing discretion (Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42]-[43]).

91. [91]

    It is unnecessary to repeat the seriousness of the offending or the applicant’s subjective circumstances. In her Honour’s reasons for judgment, Fullerton J has summarised the evidence given by the applicant and by others before this Court that are relevant to the exercise of the resentencing discretion.

92. [92]

    The primary judge did not give reasons for deciding that there were special circumstances for fixing the balance of the term of the sentence at more than one-third of the non-parole period. The applicant’s prior good character, the conditions of his imprisonment and his prospects for rehabilitation indicated by his remorse are special circumstances that in my view warrant the fixing of a parole period that exceeds the standard.

93. [93]

    For these reasons I agree with Hoeben CJ at CL that leave to appeal against sentence should be granted, but the appeal should be dismissed.

94. [94]

    FULLERTON J: I have had the advantage of reading the judgments of Hoeben CJ at CL and White JA.

95. [95]

    I agree with White JA that the sentencing judge’s approach to, and assessment of, the applicant’s subjective circumstances discloses error. However, in contrast to his Honour’s view that no lesser sentence is warranted in law, I would impose a lesser sentence than that imposed by the sentencing judge.

96. [96]

    In my view, the errors in the sentencing approach identified by White JA are not limited to the description of the applicant’s life in the years prior to his offending as “unremarkable, and one shared by countless other young men growing up in the Australian suburbs”, or that there was “nothing to suggest that [the applicant] had some sort of longstanding dependence upon … alcohol or prohibited drugs”. It was also inapposite for the sentencing judge to describe the applicant's mother’s relationship with a previous partner as having “its distressing aspects”, when the uncontested evidence led on sentence was that the applicant's mother had been in volatile relationship with her partner for nine years when the applicant was a child living in the family home. This man not only drank alcohol to excess but frequently assaulted the applicant’s mother in the applicant's presence. The applicant described the severity of the assaults in graphic terms when he told Dr Gilligan that the man “nearly killed” his mother three or four times.

97. [97]

    As White JA has found, a finding with which I respectfully agree, the sentencing judge’s description of an unremarkable childhood and adolescence was contradicted by the uncontested evidence of his treatment with chemotherapy for Hodgkin lymphoma at age 12 and his relapse at age 16 which required surgical intervention. For my part, I am also unable to see how the applicant’s exposure to sustained, and at times extreme violence inflicted on his mother in the family home over a period of nine years could be fairly be described as “unremarkable”, even less a normal incident of suburban life.

98. [98]

    For the sentencing judge to then disregard what the evidence revealed about the applicant’s exposure to family violence as having no impact on him because it was not shown to have caused any psychological damage was an error for two interrelated reasons.

99. [99]

    First, the insidious effects of exposure to family and domestic violence on children in their formative years, and the potential for that exposure to play out in unforeseen ways as a young child develops from adolescence into adulthood, are well researched and documented. Recognition of these effects and their potential for lasting harm has found expression and application in a range of academic and forensic disciplines. In curial contexts, where the safety and welfare of a child is the court's primary concern, in particular where placement outside the family home is under consideration, the need to give full weight to the harm associated with family and domestic violence and the direct and indirect impact of that harm on a child is obvious. The potential impact of exposure to family and domestic violence is no less obvious when the subjective circumstances of an offender are assessed for sentencing purposes, irrespective of the age of the offender. The decision of the High Court in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 is authority for that approach. Other decisions of this Court exemplify it (see Daniels v R [2016] NSWCCA 35; Crowley v R [2017] NSWCCA 99; Linden v R [2017] NSWCCA 321).

100. [100]

     In these cases exposure to family violence was recognised as one of the systemic factors which evidenced a level of social deprivation with the potential to sound in mitigation of sentence. As White JA noted at [77], the plurality in Bugmy did not say that deprivation will only be a mitigating factor lessening the moral culpability of the offender if it is causally linked to the offending but, rather, to adopt the approach of Gageler J at [56], the effects of social deprivation and its weight in the sentencing exercise is a matter for individual assessment.

101. [101]

     Second, the error in the sentencing judge’s approach to the evidence of family violence resonates in his Honour’s finding that the applicant's life as a young child was not “marred” by the abuse of alcohol by those around him since, at least by inference, neither was it marred by his exposure to violence inflicted upon his mother when her partner was drunk. The evidence is that for nine years of his 19 years, the applicant was exposed to that stark reality, irrespective of whether it caused him clinically discernible psychological damage.

102. [102]

     While the weight of the applicant’s life experience in a violent household with a drunk man in the overall assessment of his subjective circumstances might not ultimately be significant in the sentencing result, for the reasons outlined above, it was an error for the sentencing judge to discount it as irrelevant because there was no evidence of it being causally related to his offending.

103. [103]

     I also agree with White JA that in making no reference to Dr Gilligan’s report that the diagnosis of cancer at age 12 had a “profound effect” on the applicant; that his relapse at age 16 was a source of depression, trauma and anxiety associated with the fear of his death; and that those stressors, and the applicant’s attempts to cope with them, were coincident with an increase in his consumption of alcohol and use of cannabis, the sentencing judge failed to make an informed assessment of the potential impact of this body of evidence in the assessment of the applicant’s subjective circumstances.

104. [104]

     Notably, as Dr Gilligan reported:

105. [105]

     I agree with White JA that Dr Gilligan did not express the opinion that the applicant was addicted to drugs and/or alcohol at the time of the offending. What he did report, however, was that the applicant had developed a pattern of sustained substance abuse, a concept which I consider is commensurate with what is commonly understood in the sentencing context as a form of drug and/or alcohol dependence. I also note that the applicant reported to Dr Gilligan that he believed that his girlfriend contributed to his increased use of drugs and alcohol. That said, in the passage extracted above Dr Gilligan did draw a causal link between the applicant's substance abuse and his attempts to cope with the depression, anxiety and trauma associated with a recurrence of cancer at age 16 and the understandable fears that must have surfaced at that time. The fact that this experience was not the sole, or even the principal cause of his substance abuse does not render it irrelevant for sentencing purposes, although, again, it may have only marginal weight as part of the intuitive synthesis engaged by the sentencing discretion. The error is in disregarding it altogether.

106. [106]

     Given the prohibition in s 21A(5AA) of the Crimes (Sentencing) Procedure Act 1999 (NSW), it was not suggested before the sentencing judge or on appeal that the applicant's self-induced intoxication on the day of the killing operated in mitigation of sentence. Neither was it suggested that the applicant’s description to Dr Gilligan of being aware of using the knife to stab the deceased whilst not feeling “in control of his actions” (a description which in Dr Gilligan’s opinion was consistent with "depersonalisation, a phenomenon associated with dissociative experience” and consistent with heavy alcohol and drug use) was a factor which, of itself, mitigated the objective seriousness of the offending.

107. [107]

     In my view, however, the applicant’s accelerated use of alcohol, coupled with his use of a potent form of cannabis over the two years leading to the commission of the offence, initially, as Dr Gilligan determined, as a means of coping with a life-threatening medical condition before becoming entrenched through episodic overuse and abuse with his girlfriend, was capable of providing some insight into the circumstances in which a young man, without any criminal record, formed the intention to kill a person with whom he had been socialising earlier in the evening, before carrying through with his intentions minutes later. I do not regard that approach to the evidence of the applicant’s drug and alcohol use or abuse as contrary to settled sentencing principle.

108. [108]

     The fact that the applicant was not said to be “addicted” to drugs or alcohol in a clinically diagnostic sense (cf Dr Gilligan’s use of the term “substance abuse” in [33] of his report extracted above) does not discount the significance of his sustained and increasingly heavy use of drugs and alcohol over a two year period before the offending. That evidence, taken as a whole, was capable of providing some insight into what was, on any view of the objective facts, a wholly unprecedented and seemingly impulsive act of extreme violence by a young man with no criminal record and no history of violent behaviour of any kind.

109. [109]

     I do not regard the approach taken by senior counsel for the applicant on the appeal as an attempt to remodel or reformulate the case advanced on his behalf by other counsel contrary to Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460 at [79]-[81]. I regard it as inexplicable that counsel who appeared on sentence did not bring to the sentencing judge's attention the salient passages of Dr Gilligan’s report or, for that matter, refer to the report at all. The very circumstances surrounding the commission of the offence called for an enquiry, at the very least, into what led the applicant to regularly abuse drugs and alcohol given that it was common ground that he was heavily intoxicated at the time of the stabbing by a combination of drugs and alcohol to the extent of being in a “dissociative state”. The failure on the part of the applicant’s counsel to refer the sentencing judge to those passages of Dr Gilligan's report that address that issue or, for that matter, to adduce evidence supportive of Dr Gilligan’s findings from either the applicant or his mother, has resulted in the sentencing process miscarrying.

110. [110]

     In any event, I have concluded that the error the subject of the first ground of appeal is constituted by the sentencing judge misidentifying and then understating the interrelationship of a number of factors revealed by the evidence to have had an adverse impact upon the applicant in his formative years or the potential to do so. In my view, those factors, in combination, were relevant to the question whether the applicant’s moral culpability for the murder of the deceased was reduced. Neither the applicant's counsel nor the sentencing judge took an informed approach to that question.

111. [111]

     Although the sentencing judge’s discretion essentially miscarried because of his approach to the assessment of the applicant's subjective circumstances, the sentencing discretion must be re-exercised rather than an adjustment made to the sentence to take account of the error (see Lehn v R [2016] NSWCCA 255; (2016) 93 NSWLR 205 at [60] applying Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42]-[43]). It is only after that exercise has been undertaken that the question arises as to whether any other sentence than that imposed by the sentencing judge is warranted at law.

Re-sentence

1. [112]

   The applicant read three affidavits in the event of re-sentence: his affidavit affirmed on 8 February 2018, and two affidavits from his solicitor, Janet Witmer, affirmed 12 February 2018 and 14 February 2018.

2. [113]

   The Crown read three affidavits in the event of re-sentence: an affidavit of Guy Sim, the Manager of Security at Lithgow Correctional Centre, sworn 14 February 2018; an affidavit of Carolyn Griffiths, a solicitor in the employ of the Office of the Director of Public Prosecutions, sworn 16 February 2018; and an affidavit of Julian Andersen, Manager of Offender Services and Programs at Lithgow Correctional Centre, sworn 16 February 2018.

3. [114]

   In his affidavit the applicant deposes to having been verbally abused and physically assaulted in August 2017 (twelve months after he was sentenced) by an inmate at Lithgow Correctional Centre while he was in protective custody after having been placed on limited protection on the recommendation of a psychologist.

4. [115]

   In respect of the physical assault, the applicant described trying to cover his face rather than attempting to defend himself. The applicant said he received an internal charge of fighting but states that, “the inmate who assaulted me was put into segregation for a month or six weeks”.

5. [116]

   Following the assault, the applicant was placed in strict protection in the Protection Limited Association Area (PRLA) which he says is in a wing of the prison which houses only six people. He says that inmates within the area are locked in their cells almost 24 hours a day on most days. He says he does not associate with anyone and likens his incarceration in PRLA to “solitary confinement”. He says he feels safe in PRLA but is bored as the activities available to inmates are limited. He fears that were he returned to the main wing he may be assaulted again.

6. [117]

   Prior to his transfer to PRLA, the applicant was studying a “full time intensive certificate III” to prepare him for university where he hopes to study journalism. He says that he had almost finished the course when he was moved to PRLA, but that he has been unable to complete the course as it is not available in PRLA. The applicant had completed a visual arts course prior to his transfer to PRLA, and is currently studying a correspondence course through “Crossroads Bible Studies” which he commenced while in PRLA. He hopes to study journalism next year through correspondence, contingent upon the availability of funding.

7. [118]

   In respect of courses directed towards the applicant’s offending, he says he was told he cannot participate in the Violent Offenders Therapeutic Program (VOTP) as a result of the assault when it appears he was also charged with “fighting” (his evidence in this respect is contradicted by Ms Griffiths). The applicant is eligible to participate in the Explore, Question, Understand, Investigate, Practise to Succeed (EQUIPS) course, but is unable to do so while in PRLA.

8. [119]

   The applicant says he has participated in counselling sessions for assistance with anxiety and that he is finding the sessions helpful in managing his anxiety.

9. [120]

   Unsurprisingly, the applicant deposes to “finding it very difficult in custody”, despite having regular visits from his mother, stepfather, brother and sister. He also talks regularly to other relatives by telephone.

10. [121]

    Finally, the applicant confirms his desire to abstain indefinitely from drugs and alcohol upon his release from prison. He expresses his horror and regret at having taken a life, and the deeper understanding he has gained into his offending as a result of his participation in the Bible studies course.

11. [122]

    Annexure “A” to Ms Witmer’s affidavit of 12 February 2018 is the Justice Health file in respect of the applicant’s presentation for treatment following the assault on 28 August 2017. That annexure, under the heading “consultation discussions” notes, inter alia:

12. [123]

    Annexure “B” to Ms Witmer’s affidavit of 12 February 2018 comprises various documents relating to the applicant’s request to be transferred to PRLA following the assault. Those documents confirm that the applicant considers himself to be “in danger” while in the general population, and that he feels anxious and worried about his safety.

13. [124]

    Annexure “C” to Ms Witmer’s affidavit of 12 February 2018 is a document titled “LCC Work Report for Classification Review Committee” which confirms that the applicant was enrolled in a Certificate III course, was a “capable student” and would “most likely have completed [the course] if he had remained in 6 unit”.

14. [125]

    Annexed to Ms Witmer’s affidavit of 14 February 2018 are the records of Lithgow Hospital which mirror those which comprise annexure A to her affidavit of 12 February 2018.

15. [126]

    In respect of the applicant’s placement in PRLA, Mr Sim deposes to the applicant being able to associate with other PRLA inmates if he requests to do so, and being free to spend time in the yard which adjoins his cell between 8.00am and 2.30pm.

16. [127]

    Finally, in respect of the applicant’s desire to study journalism if funding is available, Mr Sim states that Corrective Services NSW “does not fund external education courses”.

17. [128]

    Notwithstanding the applicant’s evidence (at [115] above), Mr Andersen states that the applicant “would not be excluded from participation in the VOTP, because he has only one charge of violence”. He confirms that the applicant’s PRLA status prevents him from participating in group program.

18. [129]

    Annexed to Ms Griffiths’ affidavit is the eligibility criteria for VOTP. The suggestion appears to be that the applicant meets the eligibility criteria for VOTP, though I note that it is a group program and such programs are currently unavailable because the applicant remains on protection.

Re-sentencing decision

1. [130]

   Other than correcting the error in the sentencing judge’s approach to an assessment of the applicant’s subjective circumstances and, in the process, inviting the Court in the course of the re-exercising the sentencing discretion to give greater weight to the applicant's youth, his relative immaturity, his lack of any criminal antecedents and the genuine expressions of remorse (the essential complaint underpinning the ground of appeal that asserted manifest excess), the applicant did not submit that this Court would make primary findings of fact any different from those of the primary judge. In particular, this Court was not invited to revisit the question whether the evidence supported a finding beyond reasonable doubt that the applicant formed the intention to kill the deceased within minutes of doing so.

2. [131]

   That being the case, it is unnecessary to reassess the objective seriousness of the offending in any detail, other than to express my own view that in all the circumstances, not the least being that the deceased was restrained and unable to defend himself in his motor vehicle, the offending was of a most serious kind. I do not discount the significance of the applicant's youth in forming that judgment. It has been said often enough that no “bright line” is crossed when a young person reaches the age of 18, and that biological age may not be a reflection of maturity even in those who have attained 18 years and even older.

3. [132]

   McClellan CJ at CL observed in KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571, at [23], “allowance will be made for an offender’s youth and not just their biological age”. In BP v R [2010] NSWCCA 159; 201 A Crim R 379, Hodgson JA, at [5], observed:

4. [133]

   The applicant had turned 18 and was approaching the age of 19 at the time of the offending. Despite apparently surviving the physical trauma and mental anguish associated with treatment with chemotherapy for cancer at age 12 and the resurgence of the cancer at age 16, the applicant’s attempts to address the emotional stressors at that time in his life with drugs and alcohol, followed by his continued abuse of both substances for a sustained period thereafter, do not signify maturity. This is borne out by the applicant’s evidence on sentence, as confirmed by his evidence in the affidavit read on re-sentence, that it is only with hindsight, now aged 22, that he realises the enormity and the horror of what he did under the influence of drugs and alcohol at age 19.

5. [134]

   It is not enough however to simply acknowledge that the applicant’s youth at the time of the offending, and even his relative youth at this time, is a matter to be taken into account as part of the assessment of the weight of his subjective circumstances, or to accept that his prior good character and lack of criminal antecedents is a statutory factor under s 21A(2) of the Crimes (Sentencing) Procedure Act that operates in mitigation of sentence. In my view, the applicant’s youth also has traction in assessing his moral culpability for the murder.

6. [135]

   Accepting that his Honour found the applicant formed the intention to kill the deceased within minutes of carrying through with that intention, and accepting that the applicant has no clear or reasoned recollection as to what actually motivated him to act as he did in those moments, I am satisfied that the probabilities favour a finding that his conduct in getting the knife and using it was a spur of the moment impulse, the antithesis of mature decision-making. I am fortified in that view by the positive finding of the sentencing judge, with which I agree, that the murderous assault was not premeditated and that it involved no planning. His Honour expressed some perplexity at what motivated the applicant to both form the intention and carry it through, as do I. Without qualifying in any way the seriousness of the applicant’s conduct in the deliberate infliction of multiple stab wounds, and at all times conscious of the need for sentence to soundly denounce the criminal behaviour that resulted in a young man's death and to adequately punish for it, it is clear to me that any capacity the applicant might have had for clear thinking, self-control or self-regulation (capacities which an older person might have, even if heavily intoxicated) were not in play on the night of the murder. I regard that state of affairs as, in part at least, a reflection of his youth and that his moral culpability for the murder is reduced for that reason.

7. [136]

   The evidence does not allow for a finding that the applicant’s childhood trauma, inclusive of his exposure to family and domestic violence, resulted in any retardation of his emotional or psychological development. This is in large part because Dr Gilligan's report simply does not address that issue and no further evidence directed to it was adduced on re-sentence. I do, however, take those features of the applicant’s subjective circumstances into account on re-sentence without affording them any particular weight in the sentencing result. In particular, I am unable to find that of themselves they operate to diminish the applicant’s moral culpability for the murder of the deceased.

8. [137]

   For a young man with no prior criminal antecedents I am satisfied that the applicant’s gathering insights into his offending and the precursors to it are at this time genuine, well-formed and well-founded. I am also satisfied that his remorse is genuine and that, despite his incarceration and the additional hardship that has been occasioned by his placement in protection, he will work hard to advance what are already established indicators of his rehabilitation. With the applicant’s creditable progress in custody over the past 18 months, I am optimistic that he will progressively settle into the regime that is ahead of him as a prisoner with a lengthy term to serve before being eligible to be considered for release to parole.

9. [138]

   After allowing for the plea of guilty entered on the first day of the trial I would impose a head sentence 18 years with a non-parole period of 13 years and 6 months. That is, I would have allowed a 10 per cent discount on a head sentence of 20 years. I fixed the non-parole period in accordance with the statutory ratio provided for in s 44 of the Crimes (Sentencing) Procedure Act. I have not found special circumstances such as might have warranted disturbing the statutory ratio because I have given weight to the applicant's youth, the conditions of custody as a first-time prisoner and his enhanced prospects of rehabilitation in the calculation of sentence.