R v AN; R v LM; R v WD

1. [1]

   AN and LM were committed for trial for the offence of murder on 20 October 2020 from Batemans Bay Children’s Court. They were charged that on 2 February 2020 at Broulee in the State of New South Wales, AN and LM did murder Peter Keeley (“the deceased”). No plea was entered by AN and LM in the Local Court.

2. [2]

   On 5 March 2021, AN and LM were arraigned on an indictment issued on 1 March 2021 in this Court for that charge of murder. A plea of not guilty was entered on 5 March 2021.

3. [3]

   On 8 November 2021, leave was granted to amend the indictment with respect to AN and LM. The indictment was amended to include an additional charge, Count 1, which charged each offender with an offence under s 86(3) of the Crimes Act 1900 (NSW) (“the Act”). The charge on the amended indictment was that AN and LM did, on 2 February 2020, detain the deceased without his consent and with intention of committing a serious indictable offence, namely, assault occasioning actual bodily harm, in circumstances of special aggravation, namely, AN, LM and WD, were in company of each other and, at the time of the detention, actual bodily harm was occasioned to the deceased.

4. [4]

   AN and LM were also charged, by, Count 2 on the amended indictment, with the charge of murder. They each pleaded not guilty to this charge.

5. [5]

   AN and LM pleaded guilty to the Count 1 offence on 8 November 2021.

6. [6]

   Senior counsel for AN and LM accepted that they had participated in a joint criminal enterprise to detain the deceased and inflict actual bodily harm to him during the detention of the deceased whilst in the company of each other and WD.

7. [7]

   Senior counsel for AN and LM also recognised that the offence charged in Count 1 was the foundational offence for the murder charge, which in substance, was a charge of constructive murder. That was the description given to the offence in the Statement of Agreed Facts which came before the Court in the trial of AN and LM pursuant to s 191 of the Evidence Act 1995 (NSW).

8. [8]

   The Statement of Agreed Facts was before the Court for the purposes of sentencing of AN, LM and WD (collectively, “the offenders”). The Statement of Agreed Facts was in identical terms save for minor variations in paragraphs 2,8 and 26 of the Statement of Agreed Facts for WD. I shall, therefore, use a common descriptor of the “Agreed Statement of Facts” for the sentencing of the offenders.

9. [9]

   AN and LM made an application for an order that they be tried jointly by a judge alone, pursuant s 132(1) of the Criminal Procedure Act 1986 (NSW) (“the Criminal Procedure Act”), which application was opposed by the Crown. On 16 December 2021, this Court ruled in favour of the application and, in the result, the trial before the Court proceeded as a judge alone trial: R v AN; R v LM [2021] NSWSC 1657 (“AN and LM (No 1)”).

10. [10]

    On 16 June 2022, after the trial before a Judge alone, in which the central issue was whether the Crown had proved beyond reasonable doubt that the deceased died from a combination of craniofacial trauma with airways obstruction, AN and LM were found not guilty of the charge of murder. On their pleas of guilty to the foundational offence the Court convicted each of them and made arrangements for sentencing.

11. [11]

    WD was committed for trial on 10 June 2021 from the Batemans Bay Children’s Court. No plea was entered by WD in the Local Court. He was arraigned in this Court on 2 July 2021 and entered a plea of not guilty.

12. [12]

    The Crown sought a separate trial for WD. That application was granted by Wilson J on 2 July 2021 and a trial date was fixed for 19 April 2022 with a 15 day estimate.

13. [13]

    On 3 March 2022, on application by the Crown, the trial of WD was vacated to allow AN and LM to be tried first. The trial for WD was relisted to commence on 7 November 2022 with a 15 day estimate.

14. [14]

    After the judgment in AN and LM (No 1), discussions between the Crown and counsel for WD resulted in the murder charge being withdrawn on 19 July 2022. In the result the indictment for WD was amended to bring in a single count under s 86(3) of the Act.

15. [15]

    The amended indictment in relation to WD is framed differently to the indictments for AN and LM. WD has pleaded guilty to detaining the deceased for the advantage of “the opportunity of assaulting, intimidating and humiliating Peter Keeley, in circumstances of special aggravation.” AN and LM pleaded guilty to detaining the deceased with the intention of assaulting him and causing him actual bodily harm, in circumstances of special aggravation.

16. [16]

    WD pleaded guilty to the amended charge on 19 July 2022.

17. [17]

    In the result, the offenders are to be sentenced for a single count of specially, aggravated detain contrary to s 86(3) of the Act (“the s 86(3) offences”), albeit with the difference in the indictment in relation to WD described above.

18. [18]

    Section 86(3) provides as follows:

19. [19]

    The s 86(3) offences have a maximum penalty of 25 years imprisonment and are a “serious children’s indictable offence” which requires sentencing according to law (ss 3 and 17 of the Children (Criminal Proceedings) Act 1987 (NSW)).

20. [20]

    Specially aggravated detain for advantage is at the top of the hierarchy of offences in s 86 of the Act. The circumstances of aggravation (infliction of actual bodily harm) and special aggravation (being in the company of each other) are the same for each offender.

21. [21]

    There is no standard non-parole period for the s 86(3) offences, although none would apply in any event due to the age of the offenders at the time of the offence (s 54D(2) Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Sentencing Act”)).

22. [22]

    Each of the offenders were 17 years of age on 2 February 2020. WD was 17 years and 3 months old at the time of the offence. AN was 17 years and 6 months at the time of the offence. LM was 17 years and 8 months at the time of the offence.

23. [23]

    The offenders were arrested on 13 February 2020 at their homes (there was a recording of the arrest played at the trial) and were taken into custody on that date. They have been in custody since that date. As at the date of the sentencing hearing, the offenders had been in custody for two years, six months, and 11 days.

24. [24]

    The offenders’ sentence must be determined having regard to the maximum penalty for the offence with which they have been convicted.

25. [25]

    The maximum sentence fixed defines the limits of sentence for the most serious class of case: R v Dodd (1991) 57 A Crim R 349 at [354], adopting the approach of Jordan CJ in R v Geddes (1936) 36 SR (NSW) 554 at [556].

26. [26]

    In Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 (“Markarian”), the High Court stated (per Gleeson CJ, Gummow, Hayne and Callinan JJ) as follows (at [31]):

27. [27]

    In SW v R [2013] NSWCCA 103, Hall and Davies JJ stated, relevantly, at [149]:

28. [28]

    (In The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48 at [18]-[20], reference was made to the term “so grave as to warrant the maximum prescribed penalty”).

29. [29]

    The maximum penalty is a factor which must be taken into account on sentencing, together with other relevant matters, in the way discussed by the High Court in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 and as is provided in s 54B of the Sentencing Act.

30. [30]

    In sentencing, the Court must also consider the aggravating and mitigating factors specified in s 21A of the Sentencing Act, as revealed by the evidence. Under s 21A, any other objective or subjective factors revealed by the evidence, which affect the relative seriousness of the offender’s offence, must also be taken into account.

31. [31]

    The offender’s moral culpability for his offence must also be taken into account.

32. [32]

    Questions of general and specific deterrence must also be considered.

33. [33]

    Further, all of the relevant factors must be taken into account by way of the instinctive synthesis which the High Court discussed in Markarian at [51]. That requires that all of the factors relevant in the offender’s case be considered, their significance discussed and a value judgment as to the appropriate sentence for the offender’s offence be made. The result arrived at must also ensure that there is a reasonable proportionality between the sentence imposed upon the offender and the circumstances of the crime he committed: R v Scott [2005] NSWCCA 152 at [15].

34. [34]

    The sentencing judge is required to find the facts material to the sentence which emerged during the trial or in the course of the sentencing proceedings: see Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 (“Cheung”) at [5] - [6] and [12] - [17]. In sentencing, it is for the Court to find the facts which are material to the exercise of the judicial discretion in sentencing (R v Isaacs (1997) 41 NSWLR 374 (“Isaacs”) at [378]) having regard to the provisions of s 21A of the Sentencing Act. The sentencing judge will determine the nature and gravity of the offending, including the facts which inform the offender's moral culpability: Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [70]. Any findings of fact that are adverse to the offender must be proved beyond reasonable doubt. Matters in mitigation must be proved on the balance of probabilities: The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 (“Olbrich”) at [27]

35. [35]

    Given some issues were raised during the sentencing hearing as to the facts and circumstances the Court may have regard to for the purposes of sentencing, it is useful to draw attention to some particular aspects of the paragraphs of the passages in Cheung to which reference is made above at [5], [6], [12] and [14].

36. [36]

    Those principles are to be applied in this matter in the context of a judge alone trial.

37. [37]

    As to the principles applicable to a judge alone trial, I repeat my observations in AN and LM (No 1) at [49] – [52]:

38. [38]

    As was stated in the directions in AN and LM (No 1) (and as stated in Markou v The Queen (2012) 221 A Crim R 48; [2012] NSWCCA 64 at [21] (“Markou v The Queen”)), the Court may, in a judge alone trial, draw inferences from direct evidence. So much was done in AN and LM (No 1).

39. [39]

    Neither AN or LM suggested that the findings of the Court in AN and LM (No 1) were other than appropriate to be considered in the sentencing of the offenders for the s 86(3) offences. That position is appropriate as those offences were foundational offences for the murder count and there was a common substratum of facts.

40. [40]

    As this was a judge alone trial it is unnecessary to delve into an inquiry into findings of fact implied in the judge’s verdict.

41. [41]

    The findings made as part of the Court’s reasons for decision were findings made pursuant to s 133(2) and are applicable on sentencing to assess the degree of criminality involved in AN and LM’s participation in the s 86 offences: see Cheung at [12]. WD’s position is only slightly different by virtue of the identification of “relevant facts” in addition to the Agreed Statement of Facts in his sentencing proceedings.

42. [42]

    In the context of written submissions directed to the question of parity, a number of propositions were advanced by senior counsel for AN which concern, more broadly, principles of sentencing applicable in the present matter:

    1. (1)

       In substance, it was submitted that, whilst the parity principle may depend upon findings of fact about the role of individual offenders in a crime, there was no basis to draw a distinction in assessing the objective seriousness of the offending as between the offenders for the purposes of sentencing in this matter.

    2. (2)

       A principal focus of that submission was a contention by the Crown that AN had played, an “organising role”, because he had lured the deceased to the crime scene.

    3. (3)

       I will turn to the actual question of planning or premeditation later in this judgment and turn at this juncture to consider the particular legal bases for this submission which are set out in the sub paragraphs following.

    4. (4)

       It was acknowledged by AN that it was appropriate to differentiate between the relative culpability amongst co-offenders by reference to the conduct of each in a joint criminal enterprise.

    5. (5)

       However, there were limits to undertaking such an exercise with respect to the objective seriousness of the offence because of the existence of the common purpose to commit the offence: R v Wright [2009] NSWCCA 3. Further, in assigning roles to the specific participants, the sentencing judge should be careful of the fact that the participants were all involved in the crime: R v JW (2010) 77 NSWLR 7; [2010] NSWCCA 49 at [213] (“R v JW”).

    6. (6)

       If the Court were to assign specific roles to specific participants adverse to an offender this must be proved beyond reasonable doubt.

    7. (7)

       The Crown cannot prove that AN played an organising role beyond reasonable doubt.

    8. (8)

       As the gravamen of the s 86(3) offence was to detain and inflict actual bodily harm whilst in company and is directed to the interference with a person’s liberty, the luring of the deceased by AN to the scene was subordinate to the gravamen of the actual offence committed by the offenders.

    9. (9)

       It is “implicit in the planning by the three offenders in luring [the deceased]” that it was agreed “beforehand” that AN would lure the deceased to the scene in order for the other offenders to take part in detaining the deceased and inflicting actual bodily harm on him during the detention whilst in company. Reference was made in this respect to paragraph [2] of the Agreed Statement of Facts. Hence, unless it was agreed beforehand amongst the three for AN to lure the deceased to the crime scene with promises of a sexual encounter, the offence could not have occurred.

    10. (10)

        Apart from AN actually luring the deceased to the scene, the evidence was silence as to when, how, and who formulated the plan. That is, the evidence was silent as to who instigated the plan.

    11. (11)

        A similar submission was made with respect to the deceased being struck on his forehead with an object by AN because, even though AN conducted a google search as to the use of such an object, it did not follow that AN alone initiated that search.

    12. (12)

        Submissions were also advanced in this respect regarding the receipt of Background Reports as to the offenders from Youth Justice of Communities and Justice, each dated 19 August 2022 (“the Background Reports”). I will return to particular issues regarding those Reports and confine myself at this point to broader aspects of the AN submissions.

    13. (13)

        A common submission was made, both with respect to the Crown submission that AN played an organising role (and lured the deceased), had struck the deceased with an object leaving a patterned injury and had attempted to knock out the deceased. It was contended that the Court was not entitled to make findings of fact for the purposes of sentencing in those terms because those facts did not form part of the Agreed Statement of Facts. It was submitted that the Court may not consider matters not contained in the Agreed Statement of Facts. That proposition was predicated upon the decision of the High Court in The Queen v De Simoni (1981) 174 CLR 383.

    14. (14)

        In oral submissions senior counsel modified AN’s submission to contend that any findings by the Court contrary to, or inconsistent with, the Agreed Statement of facts which is adverse to the accused may not be adopted by the Court. It was submitted that the Court may not draw inferences which were incompatible with the Agreed Statement of Facts.

    15. (15)

        When asked to identify whether any findings of fact made by the Court in AN and LM (No 1) were incompatible with the Agreed Statement of Facts, senior counsel responded: “I don’t know that there are, your Honour”. Later in submissions senior counsel emphasised that the evidence was silent as to whether the plan to lure the deceased was AN’s “idea”.

43. [43]

    It is true, as submitted by the Crown, that the offenders are each responsible in a legal sense for the acts of the others committed, that is, in this case in the course of a joint criminal enterprise. As Spigelman CJ observed in R v JW at [161] it may be the case that “the particular role of a person engaged in a joint criminal enterprise does not always need to be identified with ‘precision’, because of the responsibility of each participant in such a joint criminal enterprise must bear for the acts of any other participant in carrying out that enterprise.”

44. [44]

    Further, as was identified by McClellan CJ at CL, Howie and Johnson JJ, in the same judgment, in assigning roles to specific participants, “the sentencing judge should not lose sight of the fact that they were all participants in the crime” at [213].

45. [45]

    Their Honours did not accept a submission advanced on appeal that the possession of a knife by one of the co-accused in a robbery would necessarily diminish the respondent’s culpability because there was no suggestion that the co-offenders overbore the respondent in anyway or “that his culpability in being a participant in such a serious offence was diminished”. In such circumstances, the fact that an offender might not be more culpable than another offender was of limited significance.

46. [46]

    It may be noted in that respect that the three co-offenders in R v JW were sitting together when the deceased walked past, in the first offence, after which one of the offenders kicked the deceased. A robbery then ensued. The first offender put a knife to the deceased’s throat and kneed the deceased in the right side. The second offender put a knife to the throat of the deceased and the deceased’s hand was cut. The third offender demanded money.

47. [47]

    As the Chief Justice observed in R v JW, it is relevant to refer to the particular conduct of each participant with a view to identifying the level of culpability for which each must be sentenced (at [161]) although, plainly the Court may not have regard to conduct which itself constitutes an element of the offence. In that respectthe conduct cannot aggravate the objective seriousness of the offence.

48. [48]

    Having regard to these considerations and the discussion of principle applicable to the s 86(3) offence below, I am of the view that it is appropriate to have regard to the respective roles of the offenders, subject to the caveat to which I refer at the end of the preceding paragraph.

49. [49]

    There are various factors which may, therefore, bear upon the objective seriousness of the offence under s 86(3) of the Act, noting that the gravamen of the offence for the purpose of sentencing is the unlawful detaining of a person and s 86(3) brings in elements of special aggravation to which I have earlier referred.

50. [50]

    In Newell, Howie J (with whom Bell J and Hislop J agreed) discussed factors that may be relevant in making an assessment of the seriousness of an offence under s 86 of the Act at [32]. Whilst His Honour was concerned with an offence under then s 86(2)(b) of the Act (now s 86(1)(b)), the observations nonetheless hold good in my view, for an offence under s 86(3).

51. [51]

    His Honour referred to “the period of detention, the circumstances of detention, the person being detained and the purpose of detention” at [32]. The mere absence of one specific type of advantage, that is ransom, was not decisive of the determination of the seriousness of a particular offence.

52. [52]

    Later, in Allen v R [2010] NSWCCA 47 (“Allen”), Latham J (with whom McClellan CJ at CL and Schmidt J agreed), dealt with a s 86(1)(b) offence. His Honour described factors relevant to objective gravity for the offence as including “the duration of the detention, the extent of fear or terror occasioned, the manner of treatment and what is demanded of the deceased by the offender, the purpose of the detention, and the extent (if any) to which third parties were subject to ordeal or anguish by reason of fear for the welfare of the victim” at [20].

53. [53]

    Counsel for AN placed reliance on the seminal decision of the High Court in R v De Simoni (1981) 147 CLR 383. The circumstances in that case related to whether, in dealing with a robbery, where the indictment charged the use of actual violence, a sentencing judge was entitled to take into account the wounding that was occasioned by the violence, in circumstances where robbery with wounding was a more serious offence.

54. [54]

    Gibbs CJ (with whom Mason and Murphy JJ, as Mason CJ then was, agreed) said (at 389):

55. [55]

    De Simoni thus established the principle that where an indictment does not refer to particular circumstances of aggravation, a judge in imposing a sentence may have regard to those circumstances only if they would not render the accused liable for an offence that involves a greater punishment: Nykolyn v R [2021] NSWCCA 312 at [20] (Rothman J with whom Bathurst CJ and Dhanji J agreed).

56. [56]

    Counsel for AN submitted that De Simoni is authority for the proposition that a fact adverse to an offender cannot be considered in sentencing if the fact did not form part of the agreed facts in the Crown case.

57. [57]

    This submission is misconceived. De Simoni does not stand for the proposition that adverse facts not included in the agreed facts cannot be considered by the sentencing court. Indeed, the submission by counsel for AN is contrary to the “general principle” that sentences should take account of “all the circumstances of the offence”, subject to the more “fundamental and important principle” that “no one should be punished for an offence of which the person has not been convicted”.

58. [58]

    It is clear that the application of this latter principle, however, directs attention to what is in the indictment that the offender has been convicted, not, as counsel for AN submits, what is in the agreed facts between the parties.

59. [59]

    Indeed, Brennan J (albeit in dissent but not on this point) stated (at 407):

60. [60]

    Three matters should be made clear about the adverse facts that are sought to be relied on by the Crown (and are resisted by counsel for AN) – including that AN had played an “organising role” for the offences; assaulted or struck the deceased with an attempt to knock him out; and, in committing the assault or strike, used an object. First, none of these facts are “circumstances of aggravation which would have warranted a conviction for a more serious offence”. They thus do not contravene the De Simoni principle. Secondly, none of these facts are inconsistent with the evidence consisting of the Agreed Statement of Facts, the findings made in the trial or the Background Report concerning AN. Save for the proposition that AN used an object to strike the deceased, I am satisfied that these facts have been proven beyond a reasonable doubt. Lastly, I do not consider that the matter sought to be brought to bear by the Crown with respect to AN offend the principles in R v JW, Newell and Allen.

Victim Impact Statements

1. [61]

   In a directions hearing on 19 July 2022, the Crown raised the potential of victim impact statements from the family of the deceased being served in the Crown material.

2. [62]

   The Crown made an application that Kerrie Keeley, the former wife of the deceased and the mother of his three children, and his brother Mark Keeley ought to be permitted to read their victim impact statements to the Court in the sentence hearing.

3. [63]

   The Crown relied upon the provisions of s 30 of the Sentencing Act to support the application. This was opposed by the offenders.

4. [64]

   I determined to reject the application and gave short reasons at the time. They were as follows:

5. [65]

   I indicated at the time that the Court may provide further reasons in its sentencing judgment. These are those reasons.

6. [66]

   The provisions of ss 26, 27 and 30 of the Sentencing Act are as follows:

7. [67]

   The Crown made written submissions in support of the application dated 18 August 2022. A summary of those submissions is as follows:

   1. (1)

      Each of the three offenders are to be sentenced for s 86. This is an offence involving actual violence where the Act provides for the Supreme Court to receive a victim impact statement: s 27(2)(b).

   2. (2)

      In the circumstances of this case, the offence is not an offence where the deceased died as a direct result of the offence and the family of the deceased are not family victims as defined: s 26.

   3. (3)

      The deceased died soon after a serious crime was perpetrated on him. As he is dead, he is incapable of providing a victim impact statement. Incapacity can be established by “age, impairment or otherwise:” s 30(1).

   4. (4)

      Section 30(2) provides –

   5. (5)

      The regulations provide a broad definition of who is a representative of a victim. It includes a member of the victim’s immediate family or a person who is important in the victim’s life: Reg 9.

8. [68]

   Counsel for WD made written submissions dated 23 August 2022, which senior counsel for AN and LM adopted. A summary of those submissions is as follows:

   1. (1)

      As unfortunate as it is for the family of the deceased, this is not a homicide case and neither of them is a “primary victim” or a “family victim” under s 26 of the Act. Given the definition of “family victim” and the requirement that the death of the primary victim is a direct result of the offence, it is clear that the provisions of a victim impact statement by a family victim is a direct result of the offence. It is also clear that the provision of a victim impact statement by a family victim is the only mechanism for family members of a deceased victim to provide a victim impact statement.

   2. (2)

      Section 30 relates to the incapacity of a primary victim, not unavailability. There is no analogy with, for example, s 65 of the Evidence Act 1995 which, in certain circumstances, permits the adducing of evidence of prior representations made by a deceased person when they were alive. The unfortunate reality is that the victim is deceased, not incapacitated, and nothing can be done on his behalf, only on behalf of his estate.

   3. (3)

      Further, the two documents which the Crown wishes to tender are almost solely about the impact of the death of the deceased. As tragic and painful as it undoubtedly is for the authors of the documents, this is not relevant to the offence for which the offenders face sentence.

   4. (4)

      Unfortunately for the family, who naturally wish publicly to express their grief and anger at the death of the deceased and their mistaken but understandable belief (contrary to the verdict) that the offenders are legally responsible for causing it, this is the inevitable consequence of the verdicts in the trial of AN and LM and the Crown’s principled acceptance of WD’s plea in the light of those verdicts.

9. [69]

   Section 30 of the Act uses the language, “a representative of a primary victim may (subject to the regulations) do any of the following on behalf of the victim, but only if the primary victim is incapable of doing so because of age, impairment or otherwise”.

10. [70]

    The Crown submitted that that s 30 must exist to provide a mechanism whereby victims who are unable to attend proceedings can be represented and spoken on their behalf as the primary victim of the s 86(3) offence. The deceased is incapable of attending because he is deceased and so his representatives can speak on his behalf.

11. [71]

    However, as counsel for WD correctly submitted, if s 30 of the Act was intended to provide such a mechanism, then Parliament would not have included the family victim definition in s 26. Parliament has chosen to very clearly differentiate between a situation where somebody has been killed as a result of an offence, and, therefore, those left behind are specifically defined as family victims whether or not they witnessed in any way anything to do with that or saw the person in a grievous state.

12. [72]

    The legislation provides for families to read a victim impact statement only where the deceased person is deceased as a result of the offence. Section 26 specifically provides for family victims and, as such, it is straining s 30 beyond what it could possibly have been intended so as, in essence, to embody a reference to a family victim in that provision.

13. [73]

    Nonetheless, as foreshadowed in my earlier remarks, something more should be said regarding the deceased’s family members.

14. [74]

    After reading the victim impact statements, the Court expresses its sympathy to Kerrie Keeley and Mark Keeley for their loss and the despair they are experiencing. Those observations cannot contribute to the sentencing of the offenders. The Court would wish to emphasise the fundamental and guiding principle that all life is sacred and of equal value and that equality before the law means that courts should not put a value on one life that is greater than another: see R v Hines (No 3) [2014] NSWSC 1273 at [78]-[84] (per Hamill J).

Objective Facts

1. [75]

   The starting point for findings as to the objective factors, is the Agreed Statement of Facts between paragraphs 1 to 23. Those paragraphs are extracted below and converted to a form consistent with the style used in the body of this judgment, (absent reference to tender material and with times rounded).

2. [76]

   On Saturday 1 and Sunday 2 February 2020, AN used the social networking application Grindr to engage in messaging the deceased and thereby lured the deceased from Canberra, ACT, to Broulee on the NSW south coast, with the promise of a sexual encounter.

3. [77]

   AN and LM and co-offender WD (known by the nickname “Grimbo”) then participated in a joint criminal enterprise to detain the deceased and inflict actual bodily harm to him during that detention, whilst in the company of each other (s 86(3) offence or “the foundational offence”).

4. [78]

   The Grindr messaging commenced with a picture message (detail unknown) sent by the deceased using the Grindr profile name “OLDA4YOUNGER” (with profile ID xxxxxxxxx) to the profile name “Kodo” (the Grindr profile name used by AN, with profile ID xxxxxxxxx) at 1.00pm on Saturday 1 February 2020. At 2.00pm on the same day “Kodo” replied with a picture message (detail unknown). At 3.43pm the deceased sent a message to AN saying, “I’m in Canberra and where you located? Do u host? Drive?”. At 3.45pm AN replied saying, “Hi I’m at Batemans Bay here I can’t drive would you e (sic) able to travel here”. The deceased replied at 3.46pm saying, “Can you host or can you share the cost of a hotel” and “I could travel”. At 4.20pm the deceased enquired of AN “Gay or bi?” and at 4.23pm “You 18 or younger”. At 4.24pm AN responded “Im gay and 18”.

5. [79]

   The Grindr chat, including the arrangement to meet in Broulee, continued throughout the night on Saturday 1 February and into Sunday 2 February 2020.

6. [80]

   Shortly before 3:00am on Sunday 2 February 2020, the deceased left the apartment in Canberra he was temporarily residing in. Later that morning, precise time unknown, he commenced his journey to Broulee. At approximately 9:30am the deceased arrived at Braidwood where he stopped for some time (CCTV footage captured him at the Braidwood Bakery between 9:37-10:18). At 11:24am the deceased sent a message via Grindr to AN saying, “I’m leaving Braidwood now”. At 11:26am AN responded saying, “Okay cook (sic) see you soon”. Immediately after this, at 11:26am, AN attempted to call WD on his mobile phone, but there was no answer.

7. [81]

   The deceased travelled from Braidwood to Batemans Bay (approximately 50 mins drive). At 12:46pm he messaged AN “i’m in the bay now I'll be about 10 minutes before I leave”. There were no further messages sent by the deceased to AN until 2:30pm. In the meantime, the deceased communicated with a friend in Canberra about borrowing some money to book a motel. Whilst the deceased was in Batemans Bay making these arrangements, AN continued to send the deceased Grindr messages to ascertain his whereabouts between 12:49pm and 2:25pm (see Grindr message log).

8. [82]

   Meanwhile, at 12:35pm, WD sent a text to LM asking him whether he wanted to “pop by for a training session”. A short time later LM went to WD’s house on Massey Street, Broulee. After the deceased sent the message to AN at 12:46pm saying he was “in the bay” and would “be about 10 minutes”, AN replied at 12:49pm saying, “Okay cool”. At 1.02pm AN performed an internet search for “Does holding a metal object in your hand make a difference to your punch”. At 1.04pm, AN again called WD on his mobile phone. This conversation lasted 1 minute and 13 seconds. AN then went to join LM and WD at Massey Street, Broulee.

9. [83]

   At some stage during these interactions, the offender’s discussed the plan for the three of them to tie up (detain) and “bash” (inflict actual bodily harm to) the deceased along a powerline easement south of the Broulee township.

10. [84]

    The offenders discussed meeting at the “3rd or 4th power pole” along the powerline easement. AN was to meet with the deceased at the Imlay Street tennis courts and bring him down to the “3rd or 4th power pole”. There LM and WD would join AN in carrying out the agreed enterprise.

11. [85]

    In addition to mobile phone contact, the offenders exchanged messages on Snapchat. This was the main application accessed by the offenders to communicate on this date. The data indicates that there were several communications sent from LM’s phone, including to AN at 3.16pm and 3.27pm. The contents of Snapchat messages were not available. There was no further communication after 3:27pm, which was the time that the deceased arrived in Imlay Street Broulee (see paragraph [19]).

12. [86]

    At 2:30pm the deceased sent a message to AN on Grindr that said, inter alia, “...I am on the way to pick you up…”. AN responded at 2:34pm saying, “Okay cook (sic - cool) sounds good when you come to Broulee and meet me on Grant Street”.

13. [87]

    At an estimated time of 2:40pm, the offenders were witnessed leaving the vicinity of Massey Street, Broulee. At the intersection with Grant Street, two males (LM and WD) turned southwest along Grant Street towards the McNee Street intersection and the powerline easement. One of these males was seen carrying a bag. LM had his mobile phone on him. AN walked in the opposite direction, northeast along Grant Street towards the Imlay Street intersection. (Witnesses Owen Keane, Melinda Keane and Kiara Keane).

14. [88]

    At 2:41pm AN sent a message to the deceased on Grindr saying, “Actually no meet me at Imlay Street”.

15. [89]

    Between 2:43pm and 2:44pm a CCTV camera attached to The Lodge at 18 Imlay Street, Broulee (“The Lodge CCTV”) captured AN walking northeast along the eastern side of Grant Street before crossing Grant Street at the intersection and walking west along Imlay Street in the direction of the tennis courts. At 2:45pm, AN sent a message to the deceased on Grindr saying, “I’m waiting at a bench next to the tennis courts that are on Imlay Street Broulee”.

16. [90]

    At 2:51pm, the deceased sent a message to “Kodo” on Grindr saying, “Leaving now” and AN responded “Okay see you soon”.

17. [91]

    At 2.51pm and 2:52pm, AN phoned telephone number XXXXXX0894 (missed call). This was an attempt to call LM, but the wrong number was dialed. At 2:53pm AN called XXXXXX0094 (WD’s number) but the call went unanswered.

18. [92]

    Between 2:53pm and 3:11pm, the deceased and AN continued to exchange messages over Grindr. The deceased suggested going straight to a hotel, but AN pleaded with him to instead go to a location where he had “a little stash hidden”. At 3:04pm AN sent a message to the deceased saying, “but pleaaaasee I wanna do it here and then suck you off I’ve always wanted to in this spot”. At 3:10pm the deceased agreed.

19. [93]

    At 3:25pm, the deceased’s purple-coloured Honda Jazz was captured on The Lodge CCTV. The Honda was turning into Imlay Street from Grant Street and travelling west towards the tennis courts.

20. [94]

    Further messages were exchanged between AN and the deceased. At 3:26pm AN wrote, “did you just go past?” and at 3:27pm, “You went past me”. At 3:27pm the deceased responded, “yeah I thought you may want to avoid…..so if you’re cool to walk across this walk across now”. AN got into the deceased’s car.

21. [95]

    At 3:29pm, the deceased’s car was captured again on The Lodge CCTV leaving Imlay Street and turning south onto Grant Street (in the direction of the crime scene).

22. [96]

    A subsequent drive through performed by investigating police via George Bass Drive demonstrates the route travelled by the deceased and AN in the deceased’s car from their meeting point at the tennis courts in Imlay Street to the crime scene (via Grant Street, Broulee Road and then George Bass Drive and a fire trail off George Bass Drive leading to the powerline easement “the fire trail”), a total distance of 1.85km, driven at an average speed of approximately 28 km/h, takes approximately 4 minutes (4 minutes, 2 seconds).

23. [97]

    At about 3:33pm, the deceased and AN arrived at a location on the powerline easement running off Grant Street, Broulee, near to the third power pole from the Grant Street end. The location is approximately 300 metres southwest from the Grant Street intersection and approximately 220 metres northeast of the fire trail intersection (“the crime scene”).

24. [98]

    Meanwhile, after leaving WD’s home at around 2:40pm, LM and WD walked from WD’s home at Massey Street, Broulee, turned left onto Grant Street and continued in the direction of the powerline easement. The movements of LM (and WD) were recorded by an application and GPS location data on LM’s mobile phone.

25. [99]

    As earlier mentioned, findings of fact were made in AN and LM (No 1) which are applicable to the sentencing of AN and LM. Substantial aspects of those findings are derived from the Agreed Statement of Facts. However, the Court also made findings based upon the evidence called at the trial including inferences drawn by the Crown from that evidence and the Agreed Statement of Facts. Those findings only apply to AN and LM, but some, as I will later describe, were incorporated, in substantial part, into the objective facts applicable to WD.

26. [100]

    Relevant aspects of the findings of the Court in AN and LM (No 1) in that respect appear below together with some further assessments deriving from submissions by the parties.

27. [101]

    Sergeant Adam Catto-Pitkin in the Digital Forensics Unit High Tech Crime Branch with NSW Police gave evidence on 9 May 2022. He has specialist training in relation to electronic evidence and examined the handset that was seized from LM. He extracted information contained on LM’s handset via the Cellebrite program, in particular, the information from an Apple health application (“Health App”) installed on LM’s mobile phone.

28. [102]

    The Health App tracks information relating to the physical activity of a user (“activities”) including steps taken (walked or run), flights of stairs climbed, distance in metres and the length of time the activity took. When data was downloaded by investigating police from the phone following its seizure, there was data from the Health App (eight activations) as well as GPS location data (three activations) relating to movements of the handset on 2 February 2020 between 1.21pm and 4.30pm.

29. [103]

    Locations of the handset at three different times as indicated by the three GPS location activations were:

    1. (1)

       The first GPS location activation at 1.21pm places LM’s phone handset in Massey Street, Broulee at a location close to WD’s home.

    2. (2)

       The second GPS location activation at 3.03pm places the handset approximately 8m into the bush to the northern side of the powerline easement, approximately 130m southwest of the crime scene.

    3. (3)

       The third GPS location activation at 4.30pm was on the driveway of the property adjacent to WD’s home.

30. [104]

    Between 2.34pm and 2.53pm (that is, during the time when the offenders were seen by the Keane Family on Massey Street), the Health App on LM’s phone recorded 992 steps (589.41m) of movement and then a further 12 steps (5.44m) taken at 2.55pm. As mentioned, the GPS location data at 3.03pm has the phone located on the powerline easement around the area of the 4th power pole in the bush off to the side. This distance of 594.85m (589.41 + 5.44m) together with the GPS location, records LM and WD walking from the vicinity of WD’s home to the area of the 4th power pole on the powerline easement. Further, having regard to the submissions of the parties in the sentencing hearing, a further finding of fact may be made. When AN arrived at the crime scene he was separated from LM and WD as the deceased’s car was parked, as mentioned, at the third power pole. There is about 130 metres between these power poles.

31. [105]

    Returning to An and LM (No 1), movement recorded by the Health App at 3.33pm (which is the time the deceased and AN arrived at the crime scene) until 4.24pm involved a total 3123 steps/2141.77m (with a further 359 steps/252.21m between 4.24pm and 4.30pm). This cessation of activity corresponds with the time of the third GPS location activation at 4.30pm, which placed the handset back at Massey Street. As the Crown submitted, the tracker shows LM in a long period of continuous activity from 3.33pm until 4.30pm.

32. [106]

    During this period, LM and WD left their location in the bush off to the side of the easement around the 4th power pole and joined AN at the crime scene, where together the three offenders carried out the agreed foundational crime by detaining the deceased, tying his wrists and ankles, taping his head/face/mouth with brown coloured packaging tape, and inflicting actual bodily harm upon him. (I will return to this question of the tape covering the deceased’s mouth.)

33. [107]

    The body worn video by Senior Constable Harries shows a disturbed circular patch of dirt near the driver’s door of the deceased’s car. As I will discuss, Senior Sergeant Moon described multiple partial shoe prints in that area.

34. [108]

    Given that LM and WD had moved from their concealed position in the bush to confront the deceased and the deceased had driven his car to the location where these marks were found (AN had driven to the location with the deceased), I agree with the Crown that an inference is available that an assault occurred at or about the circular area. It may be expected that the assault commenced shortly after the deceased’s arrival – it was plain the offenders were motivated to assault the deceased, his keys were in the ignition of the car and his phone remained also inside.

35. [109]

    The offenders then departed the crime scene and returned to WD’s home via the bush and the beach. The Court was played a recording (Tender 7 in Exhibit 4) of police officers conversing with Kenneth Norman Chapman, (“Mr Chapman”) who contacted the police in relation to seeing three young men (the offenders) walking along Bengello track on the afternoon of 2 February 2020. The recording showed Mr Chapman talking to police at the gate to the start of the fire trail (Bengello track), approximately 100m east of the powerline easement. The police officers placed two markers on the fire trail between where Mr Chapman indicated the youths entered, crossed, and exited the fire trail.

36. [110]

    The Bengello track runs from the beach carpark “Sand Mines” (just beyond the commencement of the powerline easement) to the Northern end of the Moruya airport, is 3.4km long (6.8km return) and takes an average of 15 minutes to ride one way (average 30 minutes return).

37. [111]

    On 2 February 2020, Mr Chapman had ridden to the start of the track via Grant Street and had seen the deceased’s car parked on the right-hand side of the powerline easement at the crime scene. Mr Chapman had then ridden the Bengello Track to the airport and returned to the commencement where he was waiting for his son at the gates at the commencement of the track. While he was waiting there, he saw three young males (the offenders) come out of the bush on the powerline side of the Bengello track about 50m away from him.

38. [112]

    In the Agreed Facts, it was stated that that the males turned to walk along the track in a northerly direction towards Mr Chapman, they saw him and stopped, looked startled, and immediately turned and began to walk quickly in the opposite direction for a short distance and then they left the track and headed through the bush on the other side of the track towards the beach.

39. [113]

    In the walkthrough video, Mr Chapman stated that the three youths looked toward him. He stated:

40. [114]

    Mr Chapman gave a statement in which he identified the approximate locations where he saw the three males emerge from the bush on the easement side of the track and where they re-entered the bush on the beach side of the track.

41. [115]

    After seeing Mr Chapman and re-entering the bush, the offenders walked through the bush to the beach, then along the beach before walking up the sand dunes to the Massey Street beach access path and returned to WD’s house. As I will mention, this route was filmed by police on 30 April 2021.

42. [116]

    During tests conducted by Sergeant Catto-Pitkin on 7 and 8 April 2021, the above-mentioned route (“Route 5”) was walked from the 4th power pole in the powerline easement southwest of Massey Street, to the crime scene and then across the easement, through the bush to the Bengello Track, through the bush to the beach, north along the beach to Massey Street beach access path and back to WD’s home. This route is depicted in figure 1.5 in Annexure D to the statement of Sergeant Catto-Pitkin dated 7 June 2021. The total distance is 2.144km (2,144m). It took Sergeant Catto-Pitkin between 35 minutes 30 seconds and 40 minutes 30 seconds to walk this route.

43. [117]

    Crime Scene officers Detective Senior Sergeant Moon and Senior Constable Cajna attended the scene.

44. [118]

    I will deal firstly with some observations made by Detective Senior Sergeant Moon:

    1. (1)

       On the ground in front of and to the right-hand side (offside) of the deceased’s vehicle was disturbance of the soil substrate (represented by Markers R and S and depicted in Detective Senior Sergeant Moon’s photographs 7, 8, 20, 21, 25-28). From this area of disturbance were two linear impressions in the dirt leading in the direction of the body of the deceased.

    2. (2)

       The deceased was lying partially on his back and left side. His head was turned with the left side facing down and right cheek exposed. There was a large amount of sand and soil adhering to the front part of his face. Further sand was evident within the nostrils and mouth. Body fluids were leaching from the nose.

    3. (3)

       Located around the deceased’s head was brown coloured packaging tape. The tape had been wrapped multiple times around the head. The arrangement of the tape had separated at a point near the right side of the face or right ear. The section of tape originally positioned over the face was lying on the ground on the left side of the head. This tape was collected as an exhibit.

    4. (4)

       The deceased was wearing jeans which were folded at the ankles and torn around the knees. The jeans were dirt stained, mostly on the front and upper thigh areas.

    5. (5)

       The deceased’s legs were secured at the ankles with brown coloured tape. It was examined and found to consist of several pieces of overlapped brown tape. There were areas of sand and grass material on the adhesive side of the tape. The tape was tightly secured and had been wrapped numerous times around the ankles with the end section showing evidence of extreme stretching, creating a skinny thread-like piece of the tape, consistent with the tape being pulled to break.

    6. (6)

       The deceased’s wrists were located across each other and positioned behind his back. Brown packaging tape secured the wrists tightly with many returns of the tape wrapped around his lower arms. His hands were extremely dirty. A small amount of sand and a substantial amount of dried grass was located on the adhesive section of the tape. Many sections of the tape showed evidence of stretching. The tape was cut off prior to collection as an exhibit.

45. [119]

    The forensic examination of various aspects of the tape and the deceased’s car and clothing undertaken by Detective Senior Sergeant Moon was summarised in the Agreed Facts as follows:

    1. (1)

       The tape from the deceased’s head/face was examined.

    2. (2)

       An examination for fingerprints was conducted on this tape, but no suitable prints were developed. Confirmatory tests conducted on areas of apparent blood staining were all positive for human blood.

    3. (3)

       An examination for fingerprints was conducted on the tape around the deceased’s ankles. Several fingerprints were developed that were compared with a set of record fingerprints of LM. A fingerprint developed from the adhesive side of the tape around the deceased’s ankles matched the left ring finger of LM. Two other fingerprints developed from that same section of tape could not be ruled out as being the fingerprints of LM’s left ring and left little fingers. Another fingerprint was developed from the adhesive side of the tape around the deceased’s ankles that also matched the fingerprint of LM’s left little finger.

    4. (4)

       An examination for fingerprints was conducted on this tape. Several fingerprints were developed that were compared with a set of record fingerprints of LM. A fingerprint developed from the non-adhesive side of the tape around the deceased’s wrists matched the left palm of LM.

    5. (5)

       Tape lifts and swabs were collected from various parts of the deceased’s car identified as likely DNA targets. No results of interest were identified.

    6. (6)

       Tape lifts were collected from various areas of the deceased’s jeans, Nike branded (wrist) sweat band, light blue singlet, socks, and shoes.

    7. (7)

       A tape lift collected from the external front left side of the deceased’s singlet contained DNA with a mixed profile originating from at least three individuals. The major contributor to the mixture has the same profile as the deceased and AN could not be excluded as a minor contributor. Assuming there were three contributors, and that the deceased was one, it is greater than 100 billion times more likely to obtain this mixed profile if it originated from the deceased, AN and an unknown, unrelated individual, rather than if it originated from the deceased and two unknown, unrelated individuals in the Australian population. The DNA from the additional minor contributor/s was not suitable for comparison due to low level.

    8. (8)

       A tape lift taken from the top front of the deceased’s right shoe was found to contain a mixed DNA profile originating from at least two individuals. The major contributor to the mixture has the same DNA profile as AN. It is greater than 100 billion times more likely to obtain this major DNA profile from AN, rather than if it originated from an unknown, unrelated individual in the Australian population. The DNA from the minor contributor was not suitable for comparison due to the low level.

46. [120]

    A tape lift taken from the top outer side of the deceased’s left shoe was found to have a mixed DNA profile with the major contributor having a DNA profile matching WD. It is greater than 100 billion times more likely to obtain this major profile if it originates from WD, rather than if it originates from an unknown, unrelated individual in the Australian population. The deceased cannot be excluded as a minor contributor to this mixture. The DNA from the additional minor contributor/s is not suitable for comparison due to the low level.

47. [121]

    Other DNA results (swabs and samples) were taken from the deceased at autopsy. They were as follows:

    1. (1)

       DNA swabs were taken from fingernail clippings of the deceased’s right hand at autopsy. These swabs were taken from the upper edge of the right fingernail clipping and the inside lower surface of the right fingernail clipping. Both swabs returned a positive screening for blood.

48. [122]

    In each swab the DNA recovered was a mixture originating from at least two individuals. The deceased and AN could not be excluded as contributors to each mixture. Assuming there are two contributors and that the deceased is one of the contributors, it is greater than 100 billion times more likely to obtain this mixed profile if it originates from the deceased and AN, rather than if it originates from the deceased and an unknown, unrelated individual in the Australian population.Following AN’s arrest, police seized a computer from his bedroom which was forensically analysed and the following searches were identified:

    1. (1)

       At 13.02 on Sunday 2 February 2020, “Does holding a metal object in your hand make a difference to your punch”. This search was conducted a short time before AN attended WD’s home;

49. [123]

    The evidence of Mr Blake Motbey, a classmate of AN, was that in English class with AN “a couple of days after hearing about the (deceased’s) death”. AN was talking about his knuckles and fist hurting and was rubbing his knuckles of one hand into the palm of the other hand.

50. [124]

    On 5 February 2020 at 2.02pm-2.10pm, police attended WD’s home where they spoke to WD and his father. Shortly after they left, at 2.15pm, WD attempted to call LM three times (at 2.15, 2.20 and 2.56pm), but there was no answer. WD then attempted to call AN twice at 2.25pm but there was no answer. The next morning at 11.47am, LM called WD (duration 1 minute, 57 seconds).

51. [125]

    AN was arrested at 6.05am on 13 February 2020. AN made the following admissions at the time of his arrest: “Dad, I’m sorry Dad … I didn’t do it on purpose, it was an accident, I didn’t mean it to happen, I didn’t mean to Dad … I didn’t want it to happen”.

52. [126]

    Police attended LM’s home at 6.55am on 13 February 2020. Admissions by LM after caution and in the presence of his father as a support person (recorded on BWV) were as follows:

53. [127]

    Admissions by LM in a record of interview conducted by Detective Senior Constable Brendan Gunn and Detective Senior Constable Andrew Tyler on 13 February 2020, included:

54. [128]

    In an intercepted phone call on 9 June 2020 at 3.30pm between LM (in custody) and his parents about only having two days to receive the Autopsy Report, LM said:

55. [129]

    Further findings were made by the Court under the heading “Deliberations”, as follows:

56. [130]

    Further to the extract of [476] from the judgment of AN and LM (No 1) above, an autopsy report prepared by Dr Bernard I’Ons dated 4 May 2020 determined that the deceased sustained multiple and significant blunt force craniofacial injuries, including widespread abrasions, contusions, lacerations and a fractured nose. The distribution indicated multiple blunt force injuries to the sides of the head, forehead, cheeks, nose, mouth, eyes and left ear. There were horizontal lacerations below each eye associated with contusions and longitudinal scrape abrasions of the forehead which were also present on the left shoulder and left knee.

57. [131]

    As mentioned, there was an Agreed Statement of Facts for the sentencing of WD which was, save for minor differences, the Agreed Statement of Facts for AN and LM. The particular findings of fact relevant to AN and LM which were adopted by the Crown and WD from AN and LM (No 1) are as follows:

58. [132]

    The Background Reports record various accounts of the circumstances of the offending by the respective case workers (Mr M Lammers with respect to AN; Mr P Davis with respect to LM and Mr J Hankinson with respect to WD) and Ms E Morris, Assistant Manager.

59. [133]

    Some aspects of the Background Reports attracted particular attention in relation to the objective seriousness of the offending.

60. [134]

    The following passage is from AN’s Background Report:

61. [135]

    In regard to his involvement in the offence, LM stated that:

62. [136]

    WD’s attitude and beliefs towards the offence are summarized in his Background Report as follows:

63. [137]

    Senior counsel for AN submitted the above extracted admissions from the Background Reports cannot be used to draw adverse conclusions with respect to AN because:

    1. (1)

       The Crown had conceded that the role of each offender remains “largely unknown”.

    2. (2)

       The facts in the Background Reports do not form part of the Agreed Statement of Facts in the Crown case: relying in this respect upon: The Queen v De Simoni (1981) CLR 383. The Background Report was produced after the Agreed Statement of Facts: The principle in De Simoni is offended because the further fact was never agreed to either by the Crown or by the parties. The De Simoni principle is not just “uncharged offences” but also where there are further facts not proved beyond reasonable doubt.

    3. (3)

       The information was provided for the Background Report. There was no record of what else was said during the interview which was not fully recorded. The record was incomplete. Whilst AN will rely upon the Background Report in his subjective case, it cannot be used by the Court to make adverse findings to the requisite standard, namely, beyond reasonable doubt. Similarly, it was unknown whether, in the interview with AN, the involvement of LM or WD was discussed.

    4. (4)

       In written submissions, it was submitted, in the alternative, that this adverse material should be excluded in the exercise of the Court’s discretion under s 137 of the Evidence Act.

64. [138]

    Some preliminary observations should be made in dealing with this issue:

    1. (1)

       As earlier noted, AN contended in written submissions that the fact the Background Report for AN did not form part of the Agreed Statement of Facts in the Crown case against the offenders meant that the admissions by AN could not be used to make adverse findings against him having regard to the principles in De Simoni. Further, the Background Report, it was submitted, prove the admissions contained within it adverse to AN beyond reasonable doubt.

    2. (2)

       Notwithstanding this submission, the Background Report was received as part of the Crown’s sentencing bundle in the sentencing proceedings with respect to AN (and sentencing LM and WD) without objection or any condition or limitation. Nor was the evidence as to facts and circumstances of the offending confined to the Agreed Statement of Facts in the tender of the Agreed Statement of Facts (it was not so confined during the trial).

    3. (3)

       At the conclusion of the proceedings, Mr Steirn SC submitted that the Background Report for each offender was only evidence against the maker. As to the Background Report for AN, senior counsel effectively returned to his earlier written submissions contending that the statements in the Report adverse to the accused need to be proved beyond reasonable doubt and that this was not available on the case presented by the Crown. Alternatively, the evidence adverse to AN should be excluded under s 137 of the Evidence Act. Whilst not entirely clear, in that latter respect, there appeared to be an objection to the admission of AN’s Background Report but only in so far as it contained matters adverse to him in the sentencing proceedings.

    4. (4)

       The Background Report for AN referred to the source material for the Report including two interviews with AN and the Agreed Statement of Facts. The language employed in the Report for AN varied between the provision of a summary or the making of observations as to events, statements or attitudes attributed to AN. An example is: “Notwithstanding a brief 6 week transfer to Riverina Youth Justice Centre in Wagga Wagga, [AN] has been consistently remanded to Cobham Youth Justice” (p.2), Similarly, there are interpretative passages in the Background Report (p.2) such as, “[AN] summarizes his time in custody”. However, the narrative in this portion of the Report contains admissions which are referred to by more direct language. For example, the author notes: “AN described, “AN further explained”, “he maintains”, and “AN accepts”.

    5. (5)

       It is true that the Crown said in [13] of its written submissions “the evidence of what role each young man took in the assault remains largely unknown” and the reports to the authors of the Background Reports and psychiatrists [were] “incomplete”. Nonetheless, the Crown made submissions as to particular roles of the offenders and, in particular, that AN played a primary role in bringing the deceased to the easement. The Crown submitted he was the organiser who lured the deceased to Broulee and began assaulting him before LM and WD arrived from the 4th power pole. In [13] of its submissions, the Crown refers to AN telling the author of the Background Report that “as the deceased was defending himself and his co-offenders hadn’t yet arrived, he had to continue to strike the deceased in an attempt to knock him out.”

    6. (6)

       The Crown submitted that the Background Report corroborated the role assigned to AN in the evidence.

65. [139]

    The Background Report for AN is, in my view, evidence available in the sentencing of AN both with respect to admissions adverse to AN and matters relevant to mitigation and should not be limited or “excluded” with respect to admissions adverse to AN for the following reasons:

    1. (1)

       The Background Reports were ordered by the Court on the application of the parties;

    2. (2)

       No objection was taken to the Background Report with respect to AN upon its reception. The issues raised as to the use of the Report in sentencing AN were raised in the context of issues as to whether the Background Reports for LM and WD may be admitted against AN. Senior Counsel for LM and WD contended that all Background Reports were available with respect to each offender.

    3. (3)

       No application was made by AN for the laws of evidence to apply with respect to the sentencing proceedings pursuant to s 4(2) of the Evidence Act. No application was made to call the author of the Background Report. Nor was AN called with respect to his Background Report.

    4. (4)

       I do not consider that the alternative submission relying on s 137 of the Evidence Act advanced on behalf of AN constituted an application under s 4(2) of the Evidence Act or was sufficient to establish that leave for such an order should be granted, particularly in the absence of any submission as to the implications of s 137 in any objection to the receipt of the parts of the Background Report for AN. In any event, I do not consider that the provisions of s 137 of the Evidence Act per se provide any basis to exclude the admissions which have significant probative value in the sentencing proceedings and is not outweighed by a danger of unfair prejudice to the offender.

    5. (5)

       The Background Report for AN clearly contains admissions which have been earlier extracted in this judgment as well as matters going to mitigation .

    6. (6)

       In any event, and as I will discuss below, the admissions in the Background Report are consistent with and corroborate the evidence as found by the Court in AN and LM (No 1) such that they may be found to be proved beyond reasonable doubt.

    7. (7)

       It was submitted by AN that, unless it was agreed beforehand amongst the offenders to “lure” the deceased to the scene with promises of a sexual encounter, the offence “could not have occurred”. That submission is not entirely clear, but plainly, the findings made by the Court from the offender’s attendance upon WD’s home, until they leave the crime scene, as described in AN and LM (No 1), establish, with the plea, beyond reasonable doubt, the elements of the s 86(3) offence with respect to AN.

    8. (8)

       I have earlier dealt with AN’s contention as to De Simoni which applies with equal force in this respect.

Particular Matters Relevant to the Determination of Objective Seriousness

1. [140]

   In GG v R [2018] NSWCCA 280, Schmidt J (with whom Fagan J agreed) made the following remarks regarding the assessment of the objective seriousness of an offence (at [60]):

2. [141]

   In BM v R [2019] NSWCCA 223, the Court (Payne JA, Fullerton and Bellew JJ) stated (at [15]):

3. [142]

   The Crown sought a number of findings bearing upon the objective seriousness of the offence in its written submissions. The first three of those concerned planning and were in the following terms:

4. [143]

   The second and third of those contentions are plainly correct having regard to the findings made in AN and LM (No 1).

5. [144]

   There is substance to the first proposition advanced by the Crown in that respect, but some refinement is required which I shall discuss in the context of consideration of the roles of the offenders vis-à-vis planning.

6. [145]

   In the Crown written submissions a further group of findings were sought in 9 (iv) – (xviii).

7. [146]

   I accept those contentions by the Crown and make findings in that respect to the requisite standard, in the case of AN and LM, having regard to the findings of fact by this Court in AN and LM (No 1), save as to numbers 6 and 11 below.

8. [147]

   For convenience I set out the findings sought in that respect with a corresponding paragraph reference to this judgment, save for references that correspond to the larger quotation from the judgment in AN and LM (No 1) which is extracted paragraph [129] above (and references which are derived entirely from AN and LM (No 1)).

9. [148]

   The findings adopted in that respect with corresponding references to the judgment I have published are as follows:

   1. (1)

      The assault on the deceased started very soon after his arrival at the 3rd power pole. At that stage he was with AN only ([98], [105], [107], [109] and [474] of AN and LM (No 1) (at [129] of this judgment)).

   2. (2)

      LM & WD, who walked or ran from their hiding spot near the 4th power pole, joined soon after ([99], [105], [107], [109], and [474] of AN and LM (No 1) at [129] of the judgment).

   3. (3)

      The assault on the deceased occurred in the circular patch of disturbed soil near the driver’s side of the deceased’s vehicle ([109] and [474] (at [129] of this judgment)).

   4. (4)

      The assault on the deceased was sustained and brutal. The blows were concentrated on his face and head. The deceased was probably on his hands and knees at some stage. His face went into the dirt after he was struck to the face ([130], [161] and [280] in AN and LM (No 1) and [480], [484] in AN and LM (No 1) (at [129] of this judgment)).

   5. (5)

      The deceased was confronted by three young men who were acting in concert. He fought back, suffering a defensive injury to his arm before he was bound. It was undoubtedly a frightening experience for the deceased ([281] and [478] of AN and LM (No 1) (the latter appearing in [1] of this judgment).

   6. (6)

      The Crown submitted that the deceased was struck to his forehead twice with an object such as a stick or a shoe. In this regard it is noted that shortly before the assault (at 1.02pm) AN searched via google “Does holding a metal object in your hand make a difference to your punch” ([140], [476] of AN and LM (No 1) (at [129] of this judgment)). While it would appear the deceased was hit with an object, I will find that the Crown has not proved beyond a reasonable doubt that AN did strike the deceased with a stick or a shoe.

   7. (7)

      DNA matching the DNA of AN was located under the fingernails of the deceased and on the front of his singlet. AN was observed to have injuries to his chest and a swollen right hand after the assault ([475] of AN and LM (No 1) (at [129] of this judgment)).

   8. (8)

      Sometime after the assault commenced, the deceased was bound while in a prone position: his hands were bound together behind his back and his ankles were taped together ([10], [486], [501] of AN and LM (No 1) (at [129] of this judgment)).

   9. (9)

      Forensic evidence establishes that the three men were involved in the binding of the deceased. LM was involved in the taping of his hands and feet, leaving fingerprints on both binds ([38] (xii) & (xiii)). DNA matching AN’s DNA was located on the top front of the right shoe of the deceased and DNA matching WDs DNA was located from the top outer side of the left shoe [120].

   10. (10)

       Tape was used to gag the deceased around his mouth, restricting his ability to breathe ([529] of AN and LM (No 1)).

   11. (11)

       The assault and detention of the deceased lasted for about 30 minutes, a significant period of time. I will return to that question.

   12. (12)

       The deceased was dragged into the position where he was later found with his feet and hands bound ([494] and [505] of AN and LM (No 1) (at [129] of this judgment).

   13. (13)

       The gag on his face was detached by one of the offenders. LM told police he had a reduced state of consciousness at this time. This is consistent with the medical evidence of his mild axonal injury ([501], [504], [505] and [506] in AN and LM (No 1) (at [129] of this judgment)).

   14. (14)

       When the offenders left the deceased, he was in a very vulnerable position. Having been seriously assaulted, he was left unable to move or call for assistance. He was left alone in a remote area ([504] – [507] of AN and LM (No 1) (at [129] of this judgment)).

   15. (15)

       No attempt was made by any of the offenders to obtain medical assistance for the deceased.

10. [149]

    These findings are also available in the case of WD having regard to the Agreed Statement of Facts in his case and the further relevant facts incorporated within those Agreed Statement of Facts.

11. [150]

    The Crown also made a submission as to the question of motive in the following terms:

12. [151]

    The Crown submitted that there are three aspects of the offending which differentiated the roles of the offenders: the planning for the offence; the assault on the deceased and the detention of the deceased. I shall deal with these considerations after considering other matters relevant to the objective seriousness of the offence.

13. [152]

    The Crown submitted that the length of time of the commission of the offence was substantial and involved an ongoing and moving event consistent with the evidence of the crime scene officer. It was submitted that it was known when the deceased arrived at the crime scene and the period of time to walk from the crime scene to WD’s house leaving a period of about half an hour during which the Crown submitted the offence was committed. This is more than a few minutes.

14. [153]

    This submission was supported by the evidence of LM’s tracker showing that he was constantly moving during the offence, the finding that at some point the deceased was face down on the ground after he had been tied and detained and him being dragged into position.

15. [154]

    AN submitted that the period of detention cannot be determined with any precision particularly due to the death of the deceased being through unrelated causes.

16. [155]

    Mr Wilson SC made the following submission as to the period of detention for WD:

17. [156]

    The difficulty with Mr Wilson SC’s submission in this respect is that it appears to be predicated, in part, upon propositions which were rejected, on the evidence, in AN and LM (No 1), and with respect to the police experiment as to the time to walk from the crime scene to WD’s house and as to the time of arrival at WD’s home. Without extracting all of the relevant passages of the judgment, it is suffice to refer to paragraphs [508] (in [129] of this judgment) and [514] of AN and LM (No 1) which is extracted below:

18. [157]

    What may be accepted in Mr Wilson SC’s submission, on the basis of those findings, is that the commission of the crime would have been certainly less than 30 minutes as suggested by the Crown and on the above findings most likely less than 20 minutes.

19. [158]

    It was further submitted by Mr Wilson SC that the Court could not be satisfied beyond reasonable doubt that the offenders detained the deceased for more than a few minutes.

20. [159]

    Whilst I agree with the proposition advanced for WD that there was no suggestion on the evidence that there was an intention of the offenders to detain the deceased for a long time, the difficulty with the submission by Mr Wilson SC that the offence lasted no more than a few minutes (whatever that time period may imply) is the sequence of events at the crime scene found on the evidence which included AN arriving with the deceased, an altercation then occurring between the deceased and AN before LM and WD joined in, the dealing with the deceased to the point where he may be restrained, him then being tied and placed in a prone position, the deceased ending up face down on the ground, then dragged from the circular area to the final position where his body was discovered and, on the balance of the evidence, LM then moving him and the gag.

21. [160]

    If the implication in the submissions for AN and LM and WD is that the period of the offence was momentary or for a very short period of time of say 3 to 5 minutes, I do not consider that it may be accepted. The precise period of time is of course unknown except that the findings permit a conclusion that it is less than 20 minutes.

22. [161]

    The submission of the Crown with respect to motive has been set out in AN and LM (No 1). AN accepted that the purpose and the motive of the kidnapping was to derive “some sort of attempt to humiliate the [deceased] and to dissuade him from sexually exploiting underage young men in the future”. There was no attempt to hold the deceased for ransom and it was submitted that the expectation was that the deceased would eventually free himself (although it is not at all clear given the binding of the deceased how that expectation may have been held by the offenders).

23. [162]

    I consider there is considerable force in the submission advanced on behalf of WD in this respect. The purpose of the detention was to facilitate, in the case of AN and LM, to assault, intimidate and humiliate the deceased. In the case of WD it was the opportunity of assaulting, intimidating and humiliating the deceased. I agree that that purpose is less serious than to torture, or sexually assault the deceased or to hold him for ransom but it nonetheless reflects at the offending’s serious.

24. [163]

    As to the question of motive, I accept the submission of the Crown and WD that the motive for the offence and the acts of intimidation, humiliation and assault was the perception that the deceased was a paedophile.

25. [164]

    This is not a mitigating motive. Nor is it an aggravating one. This is vigilante conduct, but it should not be taken into account as an aggravating factor, particularly since intimidation, humiliation and assault are integral to the offence as charged: Sorensen v R [2016] NSWCCA 54 at [128] - [129]. Whilst the motive does not elevate the objective seriousness of the offence, it is relevant, in my view, as to the question of general deterrence, although counterbalanced with other factors I will discuss. This is particularly so, because, as the Crown submitted, the offenders were each of the distorted view, at the time, that their behaviour was justified. This Court should actively discourage the type of vigilante justice which lays at the centre of the offenders’ motive.

26. [165]

    An additional motive for AN was to rob the deceased of drugs he expected him to bring.

27. [166]

    This factor is an element of the offence and cannot aggravate the objective seriousness. having already been factored into the increased maximum penalty for the specially aggravated offence (see R v Speechly (2012) 221 A Crim R 175; [2012] NSWCCA 130 at [58]­ [64]).

28. [167]

    It should be acknowledged that the deceased was a healthy adult male and the question of vulnerability needs to be seen in that context. However, he was by himself and was lured to a quiet and moderately secluded location. He may be expected to have experienced in addition to humiliation and hurt, considerable fear. When the offenders left the crime scene he was very vulnerable being unable to move or call for assistance after being severely assaulted. No attempt was made to render medical assistance.

29. [168]

    Although there is some evidence as to the existence of a weapon in the form of medical evidence as to the nature of an injury suffered by the deceased and google searches undertaken by AN, I am not satisfied beyond reasonable doubt that a weapon was used in the assault by him.

30. [169]

    This consideration arises consistently with the earlier stated principles bearing upon both generally and as to the s 86(3) offence and under s 21A(2) of the Sentencing Act. I shall deal with this consideration in considering the respective roles of the offenders below.

31. [170]

    The Crown submitted that there was a substantial degree of planning between the offenders which involved luring the deceased to Broulee with the promise of a sexual encounter. The planning, it was submitted, extended at least from 1.00pm on 1 February 2020 when AN started chatting with the deceased on Grindr.

32. [171]

    The Crown submitted that the evidence established that AN played an organising role in the offence. While it is unknown when AN and his co-offenders agreed to commit the offence, it was AN who lured the deceased to Broulee via Grindr and AN who brought the deceased to the powerline easement. In his Background Report, AN admitted taking a lead role in the offending.

33. [172]

    Senior counsel for WD submitted that there was no evidence of any communication between AN and WD (or between AN and LM) on the Saturday afternoon, Saturday night or Sunday morning. The first communication between AN and WD was at 1.04 pm on Sunday afternoon, after which AN went to WD’s house. Counsel for WD submitted that:

34. [173]

    WD submitted that, on the Crown case, there is no evidence that WD became aware of the idea of doing anything to the deceased until after the arrival of the co-offender AN at WD’s house some time after 1.04pm on the day of the offence. The three offenders then agreed upon an unsophisticated plan, it was submitted, for AN to take the deceased to a moderately isolated location, with the other two to lie in wait. This is consistent with WD’s account of events to the author of his Background Report.

35. [174]

    Further elements of the plan involved the use of adhesive tape and apparent attempts to disguise appearances by wearing the hooded jumpers (the latter, it being February, had the effect of drawing attention to the offenders). Any planning involving WD took place no more than a few hours before the offence.

36. [175]

    Mr Wilson SC submitted that there was nothing “sinister” in the text message sent by WD to LM asking LM to “pop over for a training session”. Senior counsel submitted that, prior to that text, there was no evidence of any communication or connection between AN, LM and WD who were childhood friends. A conclusion to that effect would require some other contact between AN and WD before the time of that communication. I accept that submission.

37. [176]

    However, it was submitted there is no doubt that not long after AN’s arrival at WD’s home there was a discussion and planning regarding the deceased by which time the deceased was already in Bateman’s Bay. Thus, the first time there is evidence that LM and WD became aware of the deceased was after 1.04pm when AN rang WD (after an unsuccessful contact). The first contact between the three offenders was at 1.04pm at WD’s house. The planning commenced from the time of AN attending at WD’s house.

38. [177]

    One of LM or WD was carrying the bag from WD’s home to the 4th power pole on the easement, after a frank discussion as to what was going to happen; namely, that WD and LM would lie in wait at the 3rd power pole. AN recruited LM and WD into their roles to get support for his plan.

39. [178]

    WD accepted that carrying a bag with adhesive tape in it could signify planning but not before AN arrived at WD’s home.

40. [179]

    In dealing with the contentions advanced by AN in this respect, it will be convenient to repeat, in short form, some of the arguments for AN which have been earlier summarised in this judgment.

41. [180]

    Mr Steirn SC for AN submitted that, in assigning roles to specific participants, any fact adverse to the offender must be proved beyond a reasonable doubt. With respect to the objective seriousness of the offence because of the existence of a common purpose to commit the offence, the Court must be mindful that they were all participants in the crime. Accordingly, the Crown submission that AN played an “organising” role in the offence cannot be proved beyond reasonable doubt. The gravamen of the offence is detaining and the actual infliction of harm whilst in company with each other and that the luring of the deceased by AN to the scene was “subordinate” to the elements of the actual offence itself to which all three had to agree to be committed. The luring must have been part of the overall planning.

42. [181]

    It was submitted that it was implicit that the planning involved the three offenders luring the deceased to Broulee and that “it was agreed beforehand that AN would lure the deceased to the scene in order for the other two offenders to take part in detaining the deceased and to inflict actual bodily harm during the detention whilst in company with each other (See Agreed Statement of Facts, paragraph [2]).

43. [182]

    Given the overall plan, there is “no way AN would have committed himself, logically, to inviting this man from Canberra and meeting him himself”. The plan to assault the deceased involved all three. “The plan must have been hatched before AN contacted the deceased.”

44. [183]

    Unless it was agreed beforehand amongst “the three” for AN to lure the deceased to the scene with the promise of a sexual encounter, the offence could not have occurred.

45. [184]

    It was submitted that, if AN lured the deceased to the scene, the evidence is silent as to when, how or who “formulated” the plan. The evidence is silent as to who initiated the plan.

46. [185]

    The planning and premeditation commenced at least the day before the incident by the offenders. It was unsophisticated and made in haste with AN’s role to lure the deceased (a healthy adult male) to the crime scene with WD and LM bringing the masking tape to bind and gag. The objective seriousness was equal for the offenders.

47. [186]

    Further, it was submitted that the fact the deceased was struck by an object that AN searched for via Google in relation to a metal object does not prove beyond a reasonable doubt that AN “alone initiated” the google search without prior discussion or agreement with the other offenders or that it was AN who struck alone.

48. [187]

    Ms Davenport SC for LM submitted there was no evidence of LM’s involvement before 12.35pm on the day of the offence. This is consistent with the report of Dr Furst, a forensic psychiatrist called in LM’s case which states that LM is not a leader.

49. [188]

    The question of planning and premeditation may be looked to in two parts. First, the planning at WD’s home on the day of the offence, and secondly, planning and premeditation earlier in time which exposes different roles for the offenders in this respect.

50. [189]

    The evidence established that, upon the arrival of AN at WD’s home, at about 1pm on the day of the offence, a plan was developed between the offenders to have AN take the deceased to an isolated location where LM and WD would lie in wait for the purposes earlier described in this judgment. WD and LM were willing participants and took part in the development of the plan at WD’s home and participated in the joint criminal enterprise.

51. [190]

    A further element of the plan involved the use of adhesive tape which was taken to the crime scene by either LM or WD in a bag whilst the two of them walked together to that location.

52. [191]

    It was submitted that the plan, so described, was unsophisticated with Mr Wilson SC drawing attention to the apparently ineffective disguise adopted by the offenders. I agree that the planning at WD’s house may not have been terribly sophisticated, but it did plainly involve a conscious plan with premeditation to give effect to the purpose and motive of the detention. This plan involved connecting with the deceased who was already in Broulee and convincing him to go to the remote location where the other offenders would lay in wait. The planning was, by and large, executed as formulated.

53. [192]

    However, it is necessary to look at the role of the offenders beyond the plan formulated at WD’s home. I accept the submission of the Crown that the evidence also established that AN played a leading and organising role in the offending.

54. [193]

    The evidence is that AN commenced engaging in communication with the deceased via Grindr at 14:49 on Saturday I February 2020. From the deceased's profile name "OLDA4YOUNGER" and from messages sent by him to AN over the course of the Saturday afternoon and evening, the deceased was expressing to AN a keen interest in sexual activity with "young guys" and "young girls" (children under 18) and claimed to have had sex with a 14 year old (albeit saying he had been told the child was 16). The deceased was also expressing an interest in supplying drugs to children.

55. [194]

    The communication between AN and the deceased continued overnight, into the early hours of the morning and throughout the next day. The content of the communication unambiguously demonstrated an intention of the two to meet for the stated purpose (in retrospect probably untrue from AN's point of view) of engaging in drug-taking and sexual activity.

56. [195]

    Even though it was the deceased that sent the first message on Grindr, it was AN by himself (at his home) that communicated with the deceased, lured the deceased from Canberra to Broulee with the promise of a sexual encounter and then brought the deceased to the powerline easement.

57. [196]

    There was no evidence that LM or WD had any knowledge of the plan until the offenders met at WD’s house on the day of the offence. As mentioned, by the time AN met with LM and WD, the deceased was already in Broulee.

58. [197]

    There is no evidence of any communication between AN and WD (or between AN and LM) on the Saturday afternoon, Saturday night or Sunday morning. The only exception is a failed attempt by AN to telephone WD at 11 :26am on the Sunday. The evidence of first communication between AN and WD was at 1:04pm on Sunday afternoon. after which AN went to WD's house.

59. [198]

    There is no evidence capable of supporting a finding that the plan to intimidate, humiliate and "bash" the deceased was discussed before the arrival of AN at WD's house. I do not consider an inference to that effect may be drawn. Further, the idea of and motivation behind doing so could not have come from anyone except AN.

60. [199]

    I find that, on the evidence, which is supplied by the Background Report of AN (and LM and WD) (and the report of Dr Furst, in LM’s case), AN was the instigator of the offence to lure and assault the deceased. He recruited WD and LM into that plan who were willing participants, as I have noted. In my view, the plan was well under way before AN went to WD’s house, on the afternoon of 2 February 2020.

61. [200]

    Further, but less significantly, WD did not join an agreement, the purpose of which was to inflict actual bodily harm. He was, however, aware that actual bodily harm may be inflicted. To that extent, this is a small but not insignificant difference between WD and LM and a further difference between WD and AN.

62. [201]

    The deceased was struck repeatedly and with some force and was bound and gagged. The assault was extensive, and the extent of the violence was significant. I do not repeat my earlier detailed findings in that respect.

63. [202]

    The Crown submitted that the Court would find that all three offenders were involved in the assault on the deceased in the circular area of disturbed soil near the deceased’s car. AN was the initiator.

64. [203]

    It is true there is no evidence of any injuries to WD or LM or any forensic connection to the attack as opposed to the binding of the deceased, but there is evidence, in my view, that warrants a finding they were included in the assault at some point after they left their hiding place. The fact that the activity tracker on LM’s iPhone recorded constant activity during the period of the assault suggests that LM was also playing an active role in the assault.

65. [204]

    In respect of WD, he told the author of his background report that he accepted that all three of them were responsible for the offence. Neither of AN’s co-offenders assert that they stood back or did not strike the deceased. Nonetheless, I do not consider that the violence engaged by any of the offenders is such that it would fall within the most serious examples of this offence.

66. [205]

    All three offenders were involved in the taping and gagging of the deceased. LM or WD was observed carrying a bag when they left WD’s home. The taping was planned between the three men, as the packing tape was brought to the powerline easement. In this last respect the Crown correctly submitted there is no discernible difference in the role of each offender. However, AN was the primary actor.

67. [206]

    The Court has found that the assault commenced very soon after the arrival of AN and the deceased to the third power pole. It would have taken time for LM and WD to travel from the bush area near the fourth pole by foot which was approximately 130 metres away.

68. [207]

    AN was seen, heard and photographed with injuries consistent with having punched the deceased and being scratched by him, including a swollen right hand. AN’s DNA was found under the deceased’s fingernails. In the statement made by AN to the police, he referred to bashing the deceased.

69. [208]

    This conclusion is supported by what AN stated in his Background Report. He said “as the deceased was defending himself and his co-offenders had not yet arrived, he had to continue to strike the victim in an attempt to knock him out.”

70. [209]

    The Crown submitted that the Court would find that it was AN who struck the deceased with an object leaving the patterned injury to either side of his forehead. AN assaulted the deceased with a “degree of ferocity” before being joined by the co-offenders. I have earlier rejected that contention.

71. [210]

    Further, as to the extent of the injuries, it must be noted that the injuries to the deceased did not go beyond actual bodily harm and the infliction of actual bodily harm is an element of the offence which has already been factored into the maximum penalty.

72. [211]

    In Lawson v R [2018] NSWCCA 215, the Court of Criminal Appeal opined at [34]-[37]:

73. [212]

    WD relied upon the Report of Dr Olav Nielssen of 18 August 2022 in support of his submission on sentencing.

74. [213]

    That report shows that, at the time of the offence, WD was suffering from a combination of mental conditions, including depressive illness and, significantly, emerging psychotic illness (Dr Nielssen Report, pp 9-1 I). This condition "is likely to have affected his perception of the events, his ability to judge right from wrong, and his ability to exercise proper control over his actions. in the sense of understanding how he should behave'' (Dr Nielssen Report, p 10, p 11 Q2(a)). His ability to appreciate the seriousness and/or consequences of his actions was "affected by his immaturity and impaired capacity for logical thinking compared with his peers" (Dr Nielssen, p 11, Q2(b)). Further, he "was more susceptible to the influence of peers than a person not affected by mental illness" (Dr Nielssen Report, p 11, Q2(c)).

75. [214]

    Each of these factors had a causal connection to WD's involvement in the offence and significantly reduced his moral culpability. Dr Nielssen's opinion was (at p. 10):

76. [215]

    In this case, WD's mental illness reduces, in my view, the objective seriousness of the offence, the offender's moral culpability and the need for retribution and denunciation.

77. [216]

    Given the impacts upon him of his mental illnesses, including his susceptibility to peer influences, he is not an appropriate vehicle for the full weight of general deterrence. It was submitted that his mental conditions more than offset what might otherwise have been an increased need for general deterrence because of the aspect of vigilantism in the offence: see Speechly at [110] - [122].

78. [217]

    WD is more vulnerable to assault than many other inmates because of his mental illness has suffered significant deterioration of his mental health in custody and is likely to experience difficulties because of impaired appreciation of social cues (Dr Nielssen Report, p 13 Q6, 7 and 8).

79. [218]

    In this case, because of his good character, the unlikelihood of reoffending, his insight into the offending and his remorse. there is limited need for specific deterrence in any event.

80. [219]

    Senior Counsel for WD correctly submitted that the offender’s mental illness, specifically his emerging psychotic illness, is a significant factor in sentencing WD and calls for mitigation of his sentence.

81. [220]

    Overall, I consider the offences to be objectively serious.

82. [221]

    There was planning and premeditation, the infliction of serious injuries and the detaining of the deceased over a not insignificant period and the deceased experienced, as intended by the offenders, hurt and humiliation. He was vulnerable at the time of the attack in a relatively secluded location and was very vulnerable when the offenders left him without assistance.

83. [222]

    AN was the instigator and organiser of the offence who recruited LM and WD and played an active and primary part in inflicting the injuries on the deceased. That conclusion is available upon the evidence in the Crown case and having regard to the account given by AN in his Background Report. AN's criminality is, therefore, significantly greater than that of WD and LM.

84. [223]

    Further, there is a significant mitigating factor in WD’s case visa via has mental illness, as described above, which I have also taken into account in reducing the objective seriousness of the offending and his moral culpability.

85. [224]

    Section 6 Children (Criminal Proceedings) Act 1987 (NSW) provides principles relevant to the sentencing of young offenders. The extent that s 6 applies will depend on the facts and circumstances of the offending (YS [2014] NSWCCA 226 at [71]):

86. [225]

    The principles relating to the sentencing of juveniles was summarised by McClellan CJ at CL (with whom Hall and Price JJ agreed) in R v KT [2008] NSWCCA 51 (“KT”) at [20]-[26]:

87. [226]

    I accept the submission of the Crown that evidence before the Court does not suggest that any of the offenders are more or less immature for their age.

88. [227]

    Although the offence involved considerable violence and, as I have found, elements of vigilantism, it was not an “adult-like” offence. As was submitted by senior counsel for WD, it was not committed by hardened, young offenders but by three youths who were friends and apart from some illicit drug use, were law abiding and of good character.

89. [228]

    I also accept the submission that the criminal behaviour stemmed from a dangerous and misguided idea which according to WD “all went terribly wrong”.

90. [229]

    Whilst I have made some observations about general deterrence in this particular matter, I consider that for reasons of youth alone, there ought to be less emphasis on retribution and general deterrence than might otherwise be the case and more emphasis on rehabilitation.

91. [230]

    Some particular considerations arise in the case of WD. I have earlier mentioned WD’s mental illness and its causative relationship to the offence. I shall shortly turn to his deprived background. Those two factors give greater emphasis to rehabilitation and in his case more significantly reduce the need for general deterrence. In other words, in the case of WD, the increased emphasis on general deterrence which would arise from findings of vigilantism are more significantly offset than if he had been an offender who was an adult not suffering from mental illness.

Subjective Considerations

1. [231]

   AN was a Year 12 student at the time of the offence.

2. [232]

   AN has been raised by his supportive parents in a stable family environment. He has a brother with a significant disability who he has felt very protective of.

3. [233]

   He has never come to the attention of the police and there is nothing in his upbringing which could suggest a background of disadvantage.

4. [234]

   AN and his friends were using drugs recreationally around the time of the offence. It is apparent that they had a strong friendship bond around the time of the offence.

5. [235]

   AN has made good progress in his rehabilitation in custody and should complete his HSC this year.

6. [236]

   AN has been candid and honest in his admissions in his Background Report. I agree with the submission from Mr Steirn SC that this demonstrates a strength of character in owning up to his part in the offence, particularly as he made concessions adverse to his own interest.

7. [237]

   In terms of remorse, AN has in my view acknowledged responsibility for his actions and their harmful consequences: see s 21A(3)(i) of the Sentencing Act.

8. [238]

   AN expressed his immediate remorse to his parents when first spoken to by the police and arrested at his home exclaiming [Agreed Statement of Facts, para. 54]:

9. [239]

   AN believed he was responsible for the death of the deceased, the more serious offence. However, the immediacy of the admission in such circumstances amounts to tangible evidence of remorse and contrition.

10. [240]

    Since AN’s arrest and incarceration, according to his parents he has expressed genuine remorse and contrition for his part in the offence.

11. [241]

    According to the Background Report, AN has also expressed his sorrow towards the deceased’s family and how they have all suffered a great deal because of his actions.

12. [242]

    The Background Report reflects the level of maturity as to his discussion of his reintegration into the community. This is also reflected in the various character references tendered on his behalf. Both his parents acknowledge his protective nature towards his younger brother and his older brother who has Down Syndrome.

13. [243]

    He has demonstrated a strong sense of civic duty based on his assistance he gave during the bushfires which engulfed the area he lived in prior to his arrest. In my view, the prospects of rehabilitation are good, and the likelihood of reoffending is low.

14. [244]

    LM has also had a supportive and unremarkable childhood.

15. [245]

    LM is the eldest of three children. He turns 21 on 6 May 2023. Ms Davenport SC submitted that any non-parole period should expire before that time because once LM turns 21 there is no provision by which he can be kept in juvenile detention. He should not go to an adult jail because he is vulnerable due to his mental health issues and because he has thrived in juvenile custody.

16. [246]

    In a report from Doctor Richard Furst, forensic psychiatrist, dated 22 August 2022, LM was diagnosed with major depressive disorder and alcohol/ substance abuse. LM was described as being somewhat of a social misfit with low self-esteem and strong tendencies to depression and anxiety. He appears to have used alcohol and drugs in a habitual manner. He has a strong desire for greater social acceptance. Dr Furst opined that these factors played a role in LM beings involved in the crime, as peer associations, peer influence and drug use were prominent factors in the offence.

17. [247]

    Nonetheless, like his co-offenders, LM accepted the distorted thinking he engaged in at the time of the offence. He also acknowledged that it was his decision to participate in the offence.

18. [248]

    Dr Furst opined that there is no evidence from his home environment, school reports or criminal record of being conduct disorientated or a persistent juvenile offender. He stated that this bodes well in terms of his future prognosis and prospects of rehabilitation, notwithstanding the seriousness of the crime.

19. [249]

    LM has no prior criminal offences.

20. [250]

    I agree with Ms Davenport SC that LM’s approach to rehabilitation has been exemplary. The Background Report reveals that he has become a mentor to other offenders whilst he has been in custody and has only “four marks against his name in two and a half years”. He is perceived as someone who is good for other offenders in the detention centre. He should be released to attend University next year.

21. [251]

    I consider that LM has good prospects of rehabilitation. Significantly, LM has made the most of his time in custody, taking advantage of the opportunity to return to his studies, achieving his HSC and gaining a University place.

22. [252]

    The author of the Background Report says he engaged in appropriate remorse in relation to the deceased and his involvement in this offence. Dr Furst reports similar sentiments.

23. [253]

    As to placement in an adult custodial environment, Dr Furst opined that in the event that LM was transferred to an adult jail, “his current educational, vocational and psychological supports would be severed and [LM] would have to establish new contacts and supports within the programs available to him in whichever adult jail he ends up in”. Dr Furst also opined his primary concern with respect to LM being transferred to an adult jail at this stage for LM would be the loss of continuity of care and real potential for him to “lose interest / motivation again” and “disengage and ‘fall between the cracks’”. Hence, from a psychiatric and rehabilitation perspective and to maintain current therapeutic gains, Dr Furst opined that it would be advantageous for LM to remain in a juvenile detention.

24. [254]

    Ms Davenport SC submitted that LM should have the opportunity of a fresh start in a community where he is not known (as he will move out of the South Coast area) and to further his education in a way that is going to be important to avoid any re-offending.

25. [255]

    It was submitted that the offending was out of character. She made a similar submission to senior counsel for WD that, if any one of the offenders had tried to dissuade the others from carrying out the offence, it may never have occurred.

26. [256]

    The Crown accepted that WD’s early childhood was marred by neglect, disfunction, maternal mental illness and ill health. His early education was significantly interrupted. His experience of neglect and trauma, it was accepted, should be given full weight, irrespective of any causal link between it and the offending.

27. [257]

    The Crown also accepted, without contradiction, the report tendered in WD’s case of Dr Nielssen. It was accepted that WD was diagnosed with depression, substance abuse disorder (in remission) and an emerging psychotic disorder. WD has been treated in hospital and is currently being treated with medication.

28. [258]

    More generally, the Crown did not dispute WD’s submission regarding his deprived background and earlier introduction to substance abuse which I accept. It forms the basis of that which follows:

29. [259]

    The offender's formative years were marred by significant deprivation and disadvantage. in particular involving the following factors:

    1. (1)

       neglect (parental absenteeism, failure to provide adequate food);

    2. (2)

       disrupted schooling;

    3. (3)

       exposure to domestic violence;

    4. (4)

       exposure to parental substance abuse;

    5. (5)

       early introduction to substance abuse:

    6. (6)

       exposure to serious parental and family mental illness.

30. [260]

    Each of these is likely to have impacted upon his moral development, particularly in relation to his recourse to substance abuse and with following along and being influenced by his peers with the purpose of seeking acceptance from them.

31. [261]

    The Court has been provided with summaries of the research into impacts of childhood exposure to domestic and family violence; early exposure to alcohol and other drug use and interrupted school attendance derived from the “Bugmy Bar Book”.

32. [262]

    In combination, the various types of disadvantages suffered by WD during his childhood and adolescence amounts to a background of profound deprivation. However, it is not necessary for the Court to make this finding in order for his background to be taken into account in mitigation: Newman v R [2021] NSWCCA 101.

33. [263]

    Given the nature of this offence, senior counsel for WD did not submit that WD lacked the moral resources to avoid "recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced" (Bugmy v The Queen (2013) 249 CLR 571 at [44]).

34. [264]

    There are a significant number of cases in which a deprived background has been found to reduce an offender's moral culpability, or at least to significantly mitigate the sentence, for an offence involving planning. Some examples are:

    1. (1)

       R v Jennar [2014] NSWCCA 331 - Armed Robberies and Shoot with intent to murder: see [50] and [70].

    2. (2)

       R v NK (No.3) [2015] NSWSC 1257 - Contract killing murder: see [96]-[98].

    3. (3)

       R v Zanker (No.2) [2017] NSWSC 1254 - Accessory before the fact to a planned murder: see [57].

    4. (4)

       R v Primmer [2020] NSWCCA 50 - Specially Aggravated Break and Enter - Attempted Robbery - "serious and planned home invasion": see [31]-[33]: [35]; [37].

35. [265]

    In this case, WD's background involved lack of appropriate parental role models and guidance. I infer that, due to the instability of his home life, the offender turned to the company of peers and felt a particular loyalty to the co-offenders whom he had known since pre-school. This would have compounded his vulnerability to peer influence due to his mental illness.

36. [266]

    I agree with the submission of WD’s counsel that WD’s history of childhood abuse and neglect are crucial features of his case on sentence and that it was appropriate he receive a sentence well below the range that would ordinarily be expected for a case of this kind. In my view, these considerations concern WD’s moral responsibility of the offence, namely, that he does not bear equal responsibility for one that has a normal or advantaged upbringing.

37. [267]

    Further, the offender's abuse of substances commenced at a very young age and in the context of his deprived background. I accept that his rehabilitation from substances should be given significant weight in the sentencing exercise (See Fernando (1992) 76 A Crim R 58 and Wood CJ in Henry & Ors (1999) 46 NSWLR 346 at [373]). WD has sought appropriate help in custody and now has an understanding of his need for treatment.

38. [268]

    WD has expressed and has remorse. He expressed remorse to his mother and has acknowledged his problematic thinking in participating in the offence in the Background Report.

39. [269]

    I agree that the reluctance demonstrated by WD in describing in detail the actions of each offender (as was demonstrated by AN) is consistent with loyalty to his friend, AN, and full acceptance of responsibility for what happened rather than attempting to shift blame.

40. [270]

    WD is of prior good character and well behaved in custody. This is to his credit in the face of his disadvantaged childhood and the difficulties he has experienced in detention, including social isolation, being assaulted and having a severe episode of mental illness requiring hospitalisation.

41. [271]

    Further, despite these disadvantages and difficulties, he has managed to achieve a reasonable level of education, to improve upon that in detention, and has mapped out a realistic career path. He has work available as an arborist with Kelvin Wright's business upon release.

42. [272]

    He has insight into how he came to offend and appears to have been deeply affected by being involved in it.

43. [273]

    I consider that WD has good prospects of rehabilitation and is unlikely to reoffend.

Discount for Guilty Plea

1. [274]

   The mandatory limits on discounts for the utilitarian discounts under the Early Appropriate Guilty Plea scheme ("EAGP") do not apply to an offence committed by an offender who was under 18 at the time of the offence and when charged: s 25A(l)(b) Sentencing Act. The applicable law is, therefore, s 22 of the Sentencing Act, as interpreted by the authorities summarised in R v Borkowski [2009] NSWCCA 102 (“Borkowski”) at [32].

2. [275]

   The primary determinate for the amount of discount for the utilitarian value of the plea in the common law environment was the timing of the plea. Howie J stated in Borkowski at [31] and [32] as follows:

3. [276]

   Having made those observations, I should turn to each offender’s case in turn.

4. [277]

   Senior counsel for AN submitted that AN was entitled to the full discount of 25% because “there was always an intention to plead guilty to the present charge and accordingly the matter was not set down for trial”.

5. [278]

   The submission advanced by AN in this respect was as follows:

6. [279]

   The Crown submitted that all of the evidence relevant to the commission of the s 86(3) offence was served on the offenders in the Local Court. The Crown’s case was constructive murder, namely, that the deceased died during or immediately after the commission of an offence under s 86(3) as a result of acts of the offenders. Neither AN or WD offered to plead guilty to the foundational offence when the matter was in the Local Court.

7. [280]

   As was made clear in Borkowski, the primary consideration in assessing the utilitarian discount is the timing of the plea. The effects of the plea bargaining or where there are delays in pleading, whether an accused waits for the ultimate form of charge do not substantially mitigate the effect of a delayed plea on the utilitarian value: Bae v R [2020] NSWCCA 35 at [58] ( Johnson J with whom Bell P and Walton J agreed) (Bae concerned Commonwealth offences but the principles there discussed were found to be applicable to State and Federal offences).

8. [281]

   It is true that the s 86(3) offence was withdrawn at one stage by the Crown. However, as was contended by the Crown, all the evidence relevant to the commission of the s 86(3) offence was served on the offenders in the Local Court. The Crown’s case had been constructive murder, namely that the deceased died during or immediately after the commission of the offence under s 86(3) as a result of the acts of the offenders. The s 86(3) offence was a foundational offence.

9. [282]

   AN did not offer a plea of guilty to the foundational offence in the Local Court. That AN may have intended to do so, in my view does not warrant a different approach to the discount then stated in the decision in Borkowski. I agree with the submission of the Crown that the plea to the foundational offence could have been made in the Local Court to form a basis for the maximum discount for the utilitarian value of the plea. It was not.

10. [283]

    In my view, the discount for the plea of guilty in the case of AN should be 12.5%.

11. [284]

    A different factual background needs to be taken into account in the case of WD.

12. [285]

    There is no evidence that WD was unfit during the committal proceedings and, with the Crown, was engaged in genuine negotiations which ultimately did not lead to any agreement. Contrary to the submission of senior counsel for WD, I consider is a detriment to WD necessary a more substantial discount.

13. [286]

    WD submitted that the delay in the Local Court ought not be held against him and, under current committal scheme, was understandable.

14. [287]

    It is conceded that WD did not plead guilty until after arraignment and after one trial date had passed. However, I agree that relevant to the assessment of the utilitarian discount for the plea was the fact the April trial was vacated well in advance, and on the application of the Crown. and there is no suggestion that this caused any difficulties to the Crown, the police, witnesses or the court. I accept that agreeing to the Crown's application to vacate the April trial date permitted the trial of the co-offenders to proceed expeditiously.

15. [288]

    Further, WD's plea of guilty was entered many months before the November trial date and has utilitarian value. Had the trial proceeded before a jury on a broader basis than that of the co-offenders, it would likely have occupied three weeks.

16. [289]

    There is a further consideration. In the opinion of Dr Nielssen, WD would have been unfit for trial ''especially in the period leading up to his admission to the adolescent ward of Long Bay Hospital and the initiation of treatment of anti-psychotic medication".

17. [290]

    WD was admitted to that ward on 20 September 2021 but the referral had been made on 26 August2021. It is therefore, likely that WD became unfit not long after his arraignment on 2 July 2021 and may even have been unfit at that time. By 24 November 2021 Dr Neilssen considered that WD had become fit and, on 14 December 2021, WD was returned to Cobham Youth Justice Centre. It was correctly submitted that he should be considered unfit for at least the four months from referral on 26 August2021 to Dr Neilssen’s advice on 24 November2021. and probably for some period of time before the referral.

18. [291]

    In May 2022, WD's solicitor sought confirmation that WD was fit to plead and be tried, and confirmation was received on 13 June 2022. The plea was entered within weeks of this confirmation, following the acquittal of the co-offenders of murder.

19. [292]

    Given the utilitarian value, in the context of the Crown having WD being tried separately from the others, WD’s mental health issues and the period of unfitness to plea and the circumstances in which he came to plea, after the verdicts in the trial of the co-offenders, the appropriate discount to the utilitarian value of his plea should be 15%.

20. [293]

    LM offered to plead guilty to an offence of manslaughter in the Local Court. This offer was not accepted by the Crown. The Crown acknowledged that manslaughter is as serious offence as s 86(3).

21. [294]

    The offer to plead to that offence broadly encompassed an admission to LM’s involvement in the foundational offence. The Crown accepts that in these circumstances LM is entitled to a greater discount: Borkowski at [32].

22. [295]

    The appropriate discount for the utilitarian value of the plea in the case of LM should be 20%.

COVID-19

1. [296]

   AN made the following submissions in this respect:

2. [297]

   It appears to me that a factor that should be taken into account in sentencing the offenders is the impact of COVID-19 as a mitigating factor, but varied over time depending upon the restrictions and health risks produced by the pandemic.

3. [298]

   I will also have regard to COVID-19 in my finding of special circumstances.

General Deterrence

1. [299]

   General deterrence must still feature in this matter given the vigilantism of the offenders who suspected the deceased to be a paedophile. The weight to be given to general deterrence is, however, significantly reduced for WD having regard to factors of mental illness and the Bugmy considerations discussed in the judgment.

2. [300]

   A good deal of attention was paid to issues of parity in the submissions advanced for AN.

Parity

1. [301]

   The parity principle is well established (Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46). Whilst like should be treated as like, due allowance should also be made for differences (Postiglione v The Queen (1997) 189 CLR 295 at 301; [1997] HCA 26). As was observed in Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 (“Green”) at [28]:

2. [302]

   I have taken into account these principle in sentencing the offenders and in particular, the differing roles of AN from LM and WD in the offending and greater objective seriousness of AN’s offending.

3. [303]

   I have also taken account of the different charge faced by WD and the significance of WD’s mental illness in reducing the objective seriousness of his offending and his moral culpability.

4. [304]

   I have also taken into account the differing subjective circumstances of the offenders and the different discounts for the pleas of guilty.

Comparable cases and JIRS Statistics

1. [305]

   It was correctly submitted for the Crown that all of the purposes of sentencing, including the objective seriousness of the offence and the subjective factors, should be reflected in the non-parole period which is the minimum period of actual imprisonment that justice requires.

2. [306]

   I also note the submission of the Crown as follows:

3. [307]

   Notwithstanding the availability of favourable findings for each offender, the Crown submits that justice requires a substantial sentence in each case.

4. [308]

   Senior counsel for WD provided sentencing tables prepared by the Public Defenders for the offences contrary to ss 86(2) and 86(3) which provided an overview of the types of sentences which have been found to be appropriate in a variety of different circumstances but not a range. Senior counsel made reference to a number of authorities: R v JNN [2004] NSWCCA 426; R v VL [2005] NSWCCA 301; Al Saidi (2017) NSWCCA 110; R v AR [2022] NSWCCA 5; Jackson v R [2022] NSWCCA 148.

5. [309]

   It was properly accepted by senior counsel for WD that the circumstances in which this type of offence can occur are manifold and statistics will only provide a limited guidance to the Court.

6. [310]

   Nonetheless, it was submitted that the principle of reasonable consistency supported the submission, that in the circumstances of this case for WD, a discounted starting point of no more than 3-4 years should be appropriate.

7. [311]

   It was suggested that an appropriate sentence of imprisonment, after discounts, might be in the order of about 2 years 6 months to 3 years 6 months with a non-parole period of about 18 months to 2 years (and, in any case, no longer than the time already served) commencing on 13 February 2020.

8. [312]

   Should the term of the sentence imposed be 3 years or less, the Court should order immediate release to parole. If greater than 3 years, it is submitted that the Court should order that the sentence be served as a juvenile offender.

9. [313]

   AN adopted the same submission as WD submitting that an appropriate period of imprisonment, after discount “might amount to about 2.5 to 3.5 years with a non-parole period of 18 months to 2 years”. Any sentence imposed should be no longer than the time already served commencing 13 February 2020. Should the term sentenced by the Court be 3 years or less, the Court should order the immediate release to parole. If greater than 3 years, it was submitted that the Court should order that the sentence be served as a juvenile offender.

10. [314]

    As was previously mentioned, Ms Davenport SC who appeared on behalf of LM, submitted that the non-parole period should end before LM turns 21 otherwise, he will have to attend an adult prison.

Commencement Date for Sentence

1. [315]

   The offenders have been in custody, referable to allegations concerning the deceased, since their arrest on 13 February 2020. Any sentence should commence from that date. No party suggested that the offenders should not receive a full-time custodial sentence: a position which is in my view, on the circumstances of the offence and the offending, is correct.

Special Circumstances

1. [316]

   The Crown submitted that in terms of non-parole period, the Court can vary the ratio between the total sentence and the minimum period of custody, if there are special circumstances: s 44(2) of the Sentencing Act.

2. [317]

   There are factors which warrant a finding of special circumstances for the offenders as follows:

   1. (1)

      The age of the offenders;

   2. (2)

      Their otherwise good character and demonstrated remorse;

   3. (3)

      The prospects of rehabilitation as found above;

   4. (4)

      The historic and continuing impact of COVID-19 on limiting face to face visits: see R v Macdonald; RI v Edward Obeid; RI v Moses Obeid (No 18) [2021] NSWSC 1343 at [148]-[150]; Toller v R [2021] NSWCCA 204 at [25].

3. [318]

   In the case of WD, there are additional factors warranting a finding of special circumstances.

   1. (1)

      The hardship the offender has suffered, and will likely continue to suffer, in custody as a result of assaults upon him and ongoing fear of further assaults;

   2. (2)

      The particular vulnerability of the offender as a result of his mental conditions.

4. [319]

   I find there are special circumstances in the case of all offenders.

Order for serving the sentence of Juvenile Detention

1. [320]

   The Crown submitted that, in terms of in which facility each is to serve the remainder of their sentence, the Court is required to consider s 19 of the Children (Criminal Procedure) Act 1987 (NSW). That provision is in the following terms:

2. [321]

   As the offenders have been convicted of a serious child indictable offence and are over 18 years of age the provisions of s 19(3) of the Children (Criminal Procedure Act 1986 (NSW) apply.

3. [322]

   The offenders cannot serve the remainder of their sentence in juvenile detention unless the Court finds there are special circumstances justifying such an order (s 19(3)(a)), and the non-parole period expires within 6 months of their 21st birthday (s 19(3)(b)). Special circumstances must be more than the offender’s youth (s 19(4A)). The Court is required to note its reasons for a finding of special circumstances (s 19(4B)).

4. [323]

   Each of the offenders submitted that they should serve the remainder of their sentence in a juvenile facility.

5. [324]

   Section 19(4) relevantly provides:

6. [325]

   WD correctly submitted that each of the grounds in s 19(4) were applicable to WD and would support an order under s 19(1) as follows:

7. [326]

   I find special circumstances in the case of WD based upon each of these grounds.

8. [327]

   Special circumstances should be found in the case of LM and AN essentially upon the same bases relied upon by WD under Ground 2. I note particularly the evidence of Dr Furst as to LM’s need for educational, vocational, and psychological supports specifically available in a juvenile correctional setting. AN is completing his HSC and requires face to face study.

9. [328]

   Senior counsel for WD also submitted that if the Court were to make the order sought, WD would be eligible to continue to serve his sentence as a juvenile offender after his 21st birthday if any non-parole period set by the court expires within 6 months after that birthday (i.e., before 20 April 2024). Otherwise, if he is still in custody, he will be transferred to a correctional centre upon attaining the age of 21: see s 19(2) Children (Criminal Procedure) Act 1987 (NSW).

10. [329]

    If the sentence imposed by the Court exceeds three years, the offender cannot be released to parole except by the State Parole Authority: see Div 2 Part 6 of the Crimes (Administration of Sentences) Act 1999 (NSW).

CONCLUSION

1. [330]

   In all the circumstances, the only appropriate penalty is fulltime incarceration. In sentencing of the offenders, I have had regard to the statutory guidelines of the maximum sentence (Muldrock at [27]) together with the circumstances bearing upon the objective seriousness of the offence and subjective features. I have also taken into account general deterrence in the manner discussed in my judgment, but I have not found the need for specific deterrence.

ORDERS

1. [331]

   For the reasons I have given, I now make the following orders.

2. [332]

   AN, I sentence you to imprisonment for a non-parole period of 3 years and 10 months commencing on 13 February 2020 and expiring on 12 December 2023 and the balance of the term of 1 year and 10 months commencing on 13 December 2023 and expiring on 12 October 2025.

3. [333]

   Thus, you will be eligible for release on parole at the expiry of the non-parole period on 12 December 2023.

4. [334]

   LM, I sentence you to imprisonment for a non-parole period of 2 years and 11 months commencing on 13 February 2020 and expiring on 12 January 2023 and the balance of the term of 1 year and 5 months commencing on 13 January 2023 and expiring on 12 June 2024.

5. [335]

   Thus, you will be eligible for release on parole at the expiry of the non-parole period on 12 January 2023.

6. [336]

   WD, I sentence you to imprisonment for a non-parole period of 2 years and 7 months commencing on 13 February 2020 and expiring on 12 September 2022 and the balance of the term of 1 year and 3 months commencing on 13 September 2022 and expiring on 12 December 2023.

7. [337]

   Thus, you will be eligible for release on parole at the expiry of the non-parole period on 12 September 2022.

8. [338]

   Pursuant to s 19 of the Children (Criminal Proceedings) Act 1987 (NSW), I direct that the whole of the term of the sentence of imprisonment for each of the offenders be served as a juvenile offender.

9. [339]

   In relation to WD, the sentence I have imposed is for greater than 3 years. Therefore, s 158 of the Crimes (Administration of Sentences) Act 1989 (NSW), which provides for a statutory parole order in certain circumstances, does not apply. The offender may be released by a parole order made by the Parole Authority. I recommend that the Parole Authority consider as soon as practicably possible whether to make a parole order in the case of WD.