R v ZT

1. [1]

   HIS HONOUR: On 23 February 2021, ZT, (“the offender”), was committed for trial to this Court. On 23 September 2021 the offender was arraigned on the following Indictment:

2. [2]

   The Indictment was amended during the trial to reflect an end date of 31 May 2010.

3. [3]

   Upon arraignment the offender entered a plea of not guilty and a trial date of 22 November 2021 was fixed.

4. [4]

   On 9 December 2021, following a 13 day trial before a jury of 12, the offender was found guilty of the murder of William Chaplin (“the deceased”). He was then formally convicted.

5. [5]

   The offender was born on 6 October 1993 and was 16 years old at the time of the offence. He was 28 at the time of the trial and is 29 as of the date of sentence.

6. [6]

   The offender was arrested on 5 September 2019, at Townsville in Queensland and was taken into custody on that date. He has been in custody since that date solely in regard this matter. As at the date of his sentencing hearing, 11 March 2022, the offender has been in custody for two years, six months and seven days.

7. [7]

   In arriving at the offender’s sentence, the purposes of sentencing specified in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Sentencing Act”) must be borne in mind.

8. [8]

   The offender’s sentence must be determined having regard to the maximum penalty for the offence with which he has been convicted. The maximum sentence for the crime of murder is imprisonment for life (s 19A of the Crimes Act 1900 (NSW)).

9. [9]

   The Court may nonetheless impose a sentence of imprisonment for a specified term pursuant to s 21(1) of the Sentencing Act. That course may not be taken if the Court is satisfied that the level of culpability in the circumstances of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can be only met through “a sentence of life imprisonment” (s 61(1) of the Sentencing Act).

10. [10]

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

11. [11]

    It is for the Crown to establish that an offence falls within s 61(1) of the Sentencing Act. It did not seek to do so in this case. In my view, it is appropriate, notwithstanding the objective seriousness of the offence, and having regard to the circumstances of the offence and the offender, to impose a finite term, and not, therefore, impose the maximum sentence.

12. [12]

    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].

13. [13]

    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]):

14. [14]

    Under Pt 4, Div 1A of the Sentencing Act, the standard non-parole period prescribed for the offence of murder is 20 years’ imprisonment: s 54A(2) and Pt 4 Div 1A Table of the Sentencing Act. However, Div 1A does not apply to the sentencing of an offender for the offence as the offender was under 18 years of age at the time the offence was committed (s 54D(3)). Accordingly, there is no standard non-parole period operating in the present case.

15. [15]

    The maximum penalty is a factors 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.

16. [16]

    In sentencing, the Court must also consider the aggravating and mitigating factor 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.

17. [17]

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

18. [18]

    Questions of general and specific deterrence must also be considered.

19. [19]

    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].

20. [20]

    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 [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 at [27].

21. [21]

    Before considering the circumstances of the offence and the offender, it is appropriate to make reference to the victim impact statement of the mother of the deceased, Ms Marlene Carter.

22. [22]

    The victim impact statement came before the Court on the application of the Crown, without objection by the offender, pursuant to ss 30A and 30B of the Sentencing Act (see also s 28(2) of the Sentencing Act).

23. [23]

    Victim impact statements "give texture to the undoubted proposition that every unlawful taking of a human life harms the community in some way" when the Court is taking into account one of the purposes of sentencing, "which is to recognise the harm done to the victim of the crime and the community": R v Halloun [2014] NSWSC 1705 at [46] (per McCallum J), cited with approval in Sumpton v R [2016] NSWCCA 162 at [153] (per Hoeben CJ at CL, with whom Hall and Bellew JJ agreed).

24. [24]

    When viewed in terms of the relevant principles, the Court is satisfied in this case that the effect on the immediate family is also an aspect of harm done to the community for the purposes of s 30E(3).

25. [25]

    The Court acknowledges the understandable statements of grief that have been expressed by the deceased’s mother and the continuing impact that the murder has had upon them.

26. [26]

    I do not propose to recite the entirety of Ms Carter’s statement and expressions of hurt. I will, however, refer to some parts of the statement.

27. [27]

    Ms Carter stated:

28. [28]

    The fundamental and guiding principle must be 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). The Court cannot try to put a value on an individual human life or what the loss of that life means to the loved ones of the deceased or the community in general and nor is that the purpose of punishment or the presentation of victim impact statements: see R v Barbetta [2008] NSWSC 688 at [18] (per Howie J).

29. [29]

    The fact finding role following a jury verdict is that described in Isaacs (see also Cheung at [12]-[17]). It is the duty of the sentencing judge to find the facts relevant to sentencing. Some will emerge from the evidence at the trial while others may emerge only in the course of sentence. However, the fact finding by the trial judge is subject to two important constraints.

30. [30]

    The first constraint on the exercise of the aforementioned decision making role was discussed in Isaacs at [378] as follows:

31. [31]

    The second constraint is that findings of fact made against the offender by a sentencing judge must be arrived at beyond reasonable doubt.

32. [32]

    The application of those principles in the exercise of the Court’s sentencing discretion in the present matter is accompanied by some complexity for reasons I will soon discuss including the heads of liability advanced by the Crown to the Jury, the absence of objective evidence as to the circumstances of the murder and the offenders accounts given in ERISP’s being unreliable..

33. [33]

    It was common ground that Paul Watson (“Mr Watson”) was the instigator of the murder of the deceased and, as the Crown submitted, “inflicted the fatal wounds” on the deceased or, as the offender put it, “actually killed the deceased”. That position may be accepted in the light of evidence given at the trial by Samone Watson (“Ms Watson”), the wife of Mr Watson whose evidence stands as a substantial basis for the conclusion as to the objective facts which I shall reach.

34. [34]

    There is no proper basis in these proceedings to reject Ms Watson’s evidence. Ms Watson was challenged as to her presence on the evening of the murder of the deceased although as to little else in her evidence. However, I do not accept the proposition contained in that challenge for a number of reasons. First, the account comes from the unreliable statements of the accused in his interview with Police. Secondly, Ms Watson’s evidence that she did not witness the murder of the deceased as she left the home after an argument with Mr Watson. However, she returned home the next morning and was shown the body of the deceased, from the waist upwards. Thirdly, in a telephone conversation with the offender, the offender did not challenge her as to the truth of a statement made by Ms Watson that she was neither involved in the events leading to nor in the acts causing the death of the deceased (although she was involved in dealing with the body the next day).

35. [35]

    Ms Watson appeared to give her evidence in in a candid and modest manner and to make appropriate concessions.

36. [36]

    Ms Watson stated that Mr Watson said to her in 2005 that he had killed the deceased because he had found the deceased in a room with their daughter with the child’s nappy half off. (Ms Watson informed Johanna Watson, Mr Watson’s mother, what he had told her in that respect).

37. [37]

    I accept Ms Watson’s evidence that Mr Watson was directing all actions dealing with the deceased the next day and that she was genuinely afraid of him, particularly in the light of a long history of abusive, threatening and manipulative behaviour by Mr Watson (including, in the latter case, while he was incarcerated). Further, I accept her evidence that she complied with Mr Watson’s instructions with respect to the deceased out of fear for her life at the hands of Mr Watson and that such implied threats had been extended to ZT who also took instructions from Mr Watson.

38. [38]

    The offender was present when she arrived home on the morning she saw the deceased, had been living at her home, accompanied her in her observations of the deceased and in preparation for the burial and burning of the body (she was convicted of being an accessory after the fact).

39. [39]

    Those findings are permissive of the following conclusions:

    1. (1)

       The common position of the parties that Mr Watson killed the deceased may be accepted on the evidence at trial and in these sentencing proceedings.

    2. (2)

       Ms Watson did not observe the murder but did observe the deceased on the morning after the murder.

    3. (3)

       The offender was present at the time of the murder. Even though, as I will discuss, both parties considered his accounts of the murder or his involvement in the murder to be unreliable, most accounts by the offender had him present at the time of the murder and he was present upon Ms Watson’s return to the home when various statements made by Mr Watson commenting upon the situation of the deceased in the round yard of the premises before he then took Ms Watson to the body with the offender.

40. [40]

    There were no objective facts in these proceedings bearing directly upon the actual circumstances of the murder or the offender’s involvement in it. There was evidence from a forensic anthropologist, Dr Denise Donlon, who examined the skeleton of the deceased and found a circular defect having the appearance of a puncture mark on the posterior surface of the rib which may have been caused by a stabbing motion, consistent with a version given by the offender as to Mr Watson stabbing the deceased. However, Dr Donlon was unable to opine as to whether the defect was perimortem or post-mortem. Additionally, as I have already mentioned, both parties raised significant issues as to the reliability of the offender’s various accounts given in two ERISP (Exhibits 6 and 7) and in conversations recorded in telephone intercepts (Exhibit 2).

41. [41]

    It is in that context that I turn to the jury’s verdict. Counsel for both the Crown and the offender properly acknowledged that the specific basis upon which the jury determined the guilt of the offender for the murder of the deceased was not known and would require exploration by a consideration of the context in which the jury reached its verdict. It is to that topic I will now turn.

42. [42]

    In closing submissions, the Crown submitted that the offender may be found criminally liable for the death of the deceased in three separate ways:

    1. (1)

       The offender and Mr Watson engaged in a joint criminal enterprise whereby the offender and Mr Watson agreed, verbally or by conduct, to murder the deceased, either by killing him or inflicting grievous bodily harm upon him.

    2. (2)

       The offender and Mr Watson entered into an extended joint criminal enterprise whereby they reached an agreement, verbally or by conduct, to assault the deceased and, in carrying out the agreement, the offender foresaw the possibility that death would result.

    3. (3)

       The offender was guilty of manslaughter based upon him engaging in a joint criminal enterprise with Mr Watson to assault the deceased which was a dangerous and unlawful act risking serious injury to the deceased and that the deceased’s death was caused by Mr Watson.

43. [43]

    The jury found the offender guilty of murder rather than manslaughter and hence the third of those considerations may be put aside. As to joint criminal enterprise and extended joint criminal enterprise, the Crown advanced submissions as to the nature of each head of liability and the facts and circumstances which may give rise to a finding under either head of liability. The Crown also submitted that the jury should reject duress with respect to extended joint criminal enterprise.

44. [44]

    The directions given to the jury by the Court in that context may be briefly stated as follows.

45. [45]

    In relation to the charge of murder the jury was directed:

46. [46]

    In relation to joint criminal enterprise the jury was directed:

47. [47]

    In relation to the elements of joint criminal enterprise the jury were instructed:

48. [48]

    The jury were then directed as to extended joint criminal enterprise:

49. [49]

    The jury were first instructed in relation to extended joint criminal enterprise to the elements assault:

50. [50]

    The jury were then instructed in relation to the elements of extended joint criminal enterprise, as follows:

51. [51]

    In relation to duress the jury was directed:

52. [52]

    The jury was then directed to the elements of duress:

53. [53]

    The jury was then given written directions as to a suggested approach to the charges or murder:

54. [54]

    The Court directed the jury that they may reach their verdict in any order that they considered appropriate by reference to these heads of liability.

55. [55]

    It follows that as the jury found the offender guilty of murder and the Crown accepted both here and before the jury, as I have mentioned, that Mr Watson was the instigator of the murder of the deceased and actually inflicted the fatal wound, there are only two alternative heads of liability available upon which the jury reached its verdict namely, joint criminal enterprise or extended joint criminal enterprise.

56. [56]

    The Crown submitted that the Court should reach a conclusion in sentencing the offender that he was involved in a joint criminal enterprise and specifically, that the offender knew that the deceased was going to be killed, or that grievous bodily harm was going to be inflicted upon him, when he agreed, verbally or by his conduct, to assist Mr Watson to punish the deceased for in the molestation of Mr Watson’s daughter.

57. [57]

    It was further submitted by the Crown that such a finding should result in the Court finding that the offence was more objectively serious than, as contended for the offender, liability based upon an extended joint enterprise having elements as specified in the directions given to the jury.

58. [58]

    It may be noted in that respect that Mr Dalton SC submitted that “while your Honour’s findings regarding liability has to be consistent with the jury’s finding of guilt, it is submitted that the appropriate head of liability in all the circumstances is the second limb, being that Mr Watson and the offender had an agreement, verbally or by conduct, to assault the deceased and in carrying out that agreement, the offender foresaw the possibility that the deceased’s death would result”.

59. [59]

    Before embarking upon the resolution of those issues, it may be noted that, in response to a question from the Court, the Crown Prosecutor and Senior Counsel for the offender submitted that they were unable to ascertain any authority bearing directly upon circumstances, such as the present, where the Crown has relied in closing submissions upon a number of different heads of liability or there is an absence of objective or reliable evidence to assist in determining the appropriate head of liability.

60. [60]

    The Crown Prosecutor had suggested the Court may receive some assistance from the judgment of the NSW Court of Criminal Appeal in R v Cramp [1999] NSWCCA 324. However, on closer consideration, it was submitted that this judgment did not assist in the resolution of the issue. The Crown submitted that, in the absence of clear authority, the Crown accepted that, if the Court could not find beyond reasonable doubt, based on the evidence, the offender was a “principal in the first degree” then “the sentence imposed must be based on him being a principal in the second degree”.

61. [61]

    Senior Counsel for the offender indicated that there was no authority regarding fact finding with respect to heads of liability where the primary focus was upon statements made by the offender in an ERISP or in conversations recorded in telephone intercepts. Ultimately, senior counsel for the offender placed reliance upon the general authorities in Isaacs, Cheung and Olbrich to which I have earlier referred.

62. [62]

    I should note two matters of principle at this juncture. First, where an offender’s liability for murder arises from a joint criminal enterprise, the perpetrator responsible for the actual killing will generally be treated as having demonstrated greater objective criminality than an offender who is not physically responsible for the death (see R v Taufahema [2004] NSWSC 833 at [49] and R v Safarjalani (No 2) [2019] NSWSC 105 at [215]).

63. [63]

    Secondly, the state of mind in which a murder is committed is directly relevant to the assessment of the objective seriousness of the crime: Charbaji v R [2019] NSWCCA 28 (“Charbaji”) at [180] (per Beazley P, Price and Wilson JJ); Apps v R [2006] NSWCCA 290 at [5] (per Hunt J) and [49] (per Simpson J). A finding that the offender was involved in an extended joint criminal enterprise may, as a general proposition, indicate that the offender’s role in the death of the deceased was less objectively serious than engagement of a joint criminal enterprise but nature of the intention involved as reflected in the directions given to the jury in this case. However, that the offender’s involvement in an extended joint criminal enterprise does not necessarily mean that the murder is less serious: Charbaji at [180].

64. [64]

    In this matter, I shall conclude that the jury verdict was predicated on the head of liability of extended joint criminal enterprise and that in the circumstances of the offending warrants a conclusion that the offence is less serious than if the counterpart head of liability of extended joint criminal enterprise was found.

65. [65]

    I turn then to consider, in that light, and in the light of the earlier stated principles, the findings of fact that may be properly available.

66. [66]

    The starting point for that analysis is to again turn to the Crown’s final submissions at trial as to the different versions given by the offender as to his involvement in the murder (or lack thereof) in ERISPs or in conversations recorded in telephone intercepts.

67. [67]

    The Crown submitted that there were at least seven different versions of the circumstances surrounding the murder given by the offender. That contention was put in a context in which the Crown had submitted to the jury that the offender’s assertions as to what Mr Watson did to him over time should not be accepted as there was no independent evidence and “you would be hard pressed believing anything at all said by [the offender] that is not corroborated by other evidence or by someone”. (The Officer in Charge of the investigation of the murder, Detective Sergeant Christopher Wallace, agreed in cross-examination that the offender’s accounts in the ERISPs were, on the whole, totally unreliable unless corroborated by independent material.)

68. [68]

    Prominent in the versions addressed in the Crown’s final submissions at trial (and in the sentencing proceedings) was what the Crown described as versions 4 and 7.

69. [69]

    Version 4 centred around question 82 of the first ERISP of 5 September 2019 (“the first ERISP”) although reliance was also placed on an earlier discussion involving the use of fishing line extending from question 42 of the second ERISP of 6 September 2019 (“the second ERISP”).

70. [70]

    Version 4 relied upon by the Crown at the trial involved the offender giving a version of events in which Mr Watson entered his room and advised him that the deceased had molested his daughter. He stated that “he’d grab a knife”. He stated that Mr Watson gave him three choices: “You leave my house right now, never speak a word of it, you help with a job or I put you where I’m, in the same spot”. The offender stated that when he was told this his “heart dropped”, he rang his mother, packed his bags and left three or four days later.

71. [71]

    The offender also stated that he did not know exactly what had happened although he had his suspicions and that he was scared.

72. [72]

    The Crown also placed reliance on questions and answers at 85 to 88 of the first ERISP as follows:

73. [73]

    The Crown submitted that the offender knew what a “job” was when Mr Watson used the term and his reference to his “heart dropping” implied that he knew what Mr Watson was going to do and that, according to the submission of the Crown Prosecutor, the offender had stated he knew what Mr Watson had planned which was, in the second and third options, to have him assist in the killing of the deceased. Further, contrary to what he stated about leaving, in the Crown’s case, the offender, in fact, stayed until much later.

74. [74]

    It may be noted, in this last respect, that I accept the Crown’s submission that the deceased was murdered no later than May 2010 whereas the offender stayed until at least August of that year. The last sightings of the deceased and his last bank and Centrelink transactions were within the period stated in the indictment.

75. [75]

    The Crown also placed reliance in its submissions in the sentencing proceedings upon two other passages in the first ERISP:

76. [76]

    The Crown submitted that the reference to the deceased “moving to Western Australia” is a clear indication that the deceased was going to disappear, and the lie concerning him moving interstate was intended to cover for his disappearance. It was submitted that the offender could not have misconstrued what Paul Watson was telling him. If there is any doubt about that proposition, it was extinguished by statements made by the offender in his second ERISP:

77. [77]

    In the sentencing proceedings, the Crown also relied upon other versions or parts of versions such as the offender being given an ultimatum that it was either him or the deceased who would survive. Reliance was placed upon the questions and answers in the second ERISP at question 46, 57, 58 and 60.

78. [78]

    On the Crown case, the answer to question 46 involved Mr Watson informing the offender that Ms Watson had told Mr Watson to get rid of the deceased and that when the offender and the deceased were in the round yard, Mr Watson said that one of them was going to die. It was stated that, if he lost to the deceased, he would have been “dead anyway”.

79. [79]

    That answer was preceded by questions 42 to 45 in which the offender stated that he was asked to get fishing line from a shed at the rear of the property and instructed to go with the deceased. He was forced by Mr Watson at knife point to strangle the deceased on the basis that either the offender or the deceased would die that night. As the strangling was taking too long “instead of the knife going into my back Paul plunged the knife into [the deceased’s] chest”. On this version of the offender’s account, after Mr Watson “rammed the knife into the deceased chest”, the offender ran inside and two days later he and Mr Watson burned the deceased’s body.

80. [80]

    Subsequently the offender referred to Mr Watson and Ms Watson talking about the fact there was “going to be a body” and that they had to get “rid of [it] fast”. The offender stated that he was “certain they were talking about” himself. When asked why that was the case, he gave the answer at question 58 extracted above.

81. [81]

    Those last mentioned answers were a forerunner to the accounts given by the offender in his second ERISP described by the Crown as the seventh version.

82. [82]

    The seventh version extended variously from question 92 to question 287 and 331. In closing submissions, the Crown described this version as an extension beyond the earlier discussion of the use of a fishing line. The Crown submitted at the trial that, on this version, the offender was instructed by Mr Watson to go to the round yard after getting the fishing line, to get up on the tyres that formed the wall of the round yard and wait until “we” meet you there. While the offender was sitting on the tyres Mr Watson and the deceased entered the yard. Mr Watson yelled to the offender to jump onto the deceased to “drop him to the ground”. The Crown submitted that the offender did this knowing what Mr Watson was going to do to the deceased because he had already told him what he intended to do. This was because Mr Watson had given the offender the three options which were described as part of version 4. On the Crown case the offender took the course, notwithstanding him having the option to leave. After the offender had taken the deceased to the ground Mr Watson stabbed him.

83. [83]

    In the beginning of this account the offender stated that Mr Watson said to him that he was either in or out and that he thought that he and the deceased were going to have a fight. He assumed that Mr Watson was “gonna jump in”. He also said that Mr Watson had stated that “something’s happening tonight” in the round yard, that he was to get fishing line on his way to the yard and he didn’t know exactly what was happening until Mr Watson walked in “with his gun”. The offender then gave an account that he never used the fishing line and that after Mr Watson yelled at him to get the deceased and he dropped down off the tyres, he grabbed the deceased with his hands or his arms around his throat, pulling him backwards.

84. [84]

    It was in the context of this account that the following questions and answers appeared in the second ERISP:

85. [85]

    On this account Ms Watson was said to come into the yard and yelled at Mr Watson to “just do it” and that “it’s taking too long”.

86. [86]

    On this account, it is unclear just when the offender knew that Mr Watson had a knife. He stated that after he had the deceased “in a head lock until he dropped to the ground”, Mr Watson “basically threw the knife, plunged the knife into his chest and twisted, and that’s when I heard the crunch sound and I ran”. He stated that he was unsure whether he used the fishing line but, as mentioned, he thought he had the deceased in a head lock. He stated that, after he got out from behind the deceased, Mr Watson inserted the knife into the deceased’s chest. As to his knowledge of the knife, the following exchange took place at question 183:

87. [87]

    He stated that Mr Watson was holding down the deceased by sitting on him. He then said that the knife was thrown into the dam although he was not entirely sure whether that was the case and did not know where the knife was. (No knife was recovered from the dam by police.) He stated that he saw Mr Watson stab the deceased and then ran.

88. [88]

    As to this version the police returned to the question of what he knew would happen to the deceased. The following exchange took place at questions 286 and 287:

89. [89]

    Finally, at question 331 “Did [Mr Watson] make you kill [the deceased]?” he responded:

90. [90]

    At trial the Crown submitted that there was evidence as to an agreement between Mr Watson and the offender to kill the deceased for the following reasons:

    1. (1)

       Mr Watson had told the offender that he had caught the deceased sexually interfering with his daughter;

    2. (2)

       Mr Watson had told the offender that the deceased “had to go”.

    3. (3)

       Mr Watson must have told the offender what he was going to do to the deceased because, although the offender told police he had nothing to do with the deceased’s murder, he said “I knew what was going to happen”. [Thus] he knew that the deceased was going to be killed.

    4. (4)

       Mr Watson offered the offender three choices. After hearing Mr Watson and the deceased arguing in the house, he chose to take part by going to the shed, getting fishing line, waiting for the deceased and Mr Watson in the round yard, sitting on the tyres, waiting and when told to jump, jumping on the deceased and bringing him to the ground.

    5. (5)

       It was irrelevant whether the offender knew Mr Watson had a knife at the time.

91. [91]

    It follows from version 7 relied upon by the Crown, when analysed in terms of the passages of the second ERISP from which that version sprung, that one of the versions left by the Crown to the jury involved statements by the offender that he did not know what was to occur when he was directed to the round yard or waiting in the round yard or that he thought the deceased would be “bashed” by Mr Watson. Further, on that account it was open to the jury to find that the offender did not know whether the Mr Watson had a knife. In any event, the Crown did not invite the jury to consider that fact.

92. [92]

    Thus, I agree with the submission advanced by Mr Dalton that version 7 in the Crown’s case was consistent with liability for an extended joint criminal enterprise involving an agreement to assault the deceased and the offender knowing or foreseeing that Mr Watson might have an intention to cause grievous bodily harm given the offender’s stated knowledge of Mr Watson’s violent proclivities including assaults upon his wife, the attack upon Mr Devos and other assertions made by Mr Watson such as “bashing someone to a coma” and raping a young woman.

93. [93]

    The further difficulty with the Crown’s position in this respect is that there is no proper basis to find that greater weight should be attached to one version given by the offender than another in his two ERISPs. The Crown case for a finding there was an agreement for the purposes of a joint criminal enterprise, as put to the jury, and in these sentencing proceedings involved an admixture of various versions given by the offender in an overall unreliable account. As the offender submitted, the Crown’s case was that the jury accepted what the offender said as to version 4, together with parts of the second ERISP (see questions and answers 46, 57, 58 and 60 and the answer to question 331 deriving from version 7.

94. [94]

    Furthermore, version 7 is consistent with Ms Watson’s account of the accused being overborne by Mr Watson in the immediate aftermath of the offender and the skeleton of the deceased being found in the round yard, after burial, where the offender asserted the killing of the deceased had occurred.

95. [95]

    There is, in my view, no proper basis to find that the Crown has established beyond reasonable doubt the more serious common purpose to kill (or cause grievous bodily harm) basis for murder than the alternative position put by the Crown that the offender was party to an agreement to assault the deceased, knowing or foreseeing the risk of the victim suffering grievous bodily harm or death (although the argument put by the Crown to the jury was only consistent with an intention to kill) and foreseeing Mr Watson might have the intention to kill or cause grievous bodily harm to the deceased and with that knowledge, he continued to participate in the enterprise.

96. [96]

    The Crown submitted that the Court should reach a conclusion that the jury found the existence of a joint criminal enterprise because it took less than one hour to complete its deliberations. It was submitted that this was a strong indication that the defence of duress was not considered as it would have to have been if the jury had determined that the offender was not a principal in the first degree and had then turned their consideration to whether he was a principal in the second degree.

97. [97]

    I accept that the jury did not find exculpatory duress, having regard to their verdict, but it does not follow that the length of time the jury took to return its verdict (approximately 50 minutes) objectively indicated on what basis the jury found liability. Nor was the jury required to consider the various heads of liability in any particular order.

98. [98]

    As was earlier mentioned, the Crown submitted that if the Court found liability on the basis of an extended joint criminal enterprise that the Court would nonetheless find there was not a significant difference in the objective seriousness as between the two levels of offending. Based upon the knowledge that the offender had that Mr Watson was a very violent man according to what he had been told or believed, he knew that Mr Watson was capable of killing, raping and engaging in violent behaviour towards others, including his wife.

99. [99]

    There is some substance in the Crown’s submission in this respect. However, it needs to be significantly counterbalanced when regard is had to three further considerations:

    1. (1)

       the relative age of the offender (16 years) to that of Mr Watson (39 years);

    2. (2)

       Mr Watson was the principal offender who was the one motivated to kill the deceased and actually committed the act of killing the deceased; and

    3. (3)

       Mr Watson had a history of violence and other criminal and abusive conduct as opposed to the offender who had no criminal convictions.

100. [100]

     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 the offence (at [60]):

101. [101]

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

102. [102]

     Upon the basis of a conviction for the second head of liability, the objective facts, consistent with the jury’s deliberations, are that the offender, under instruction from Mr Watson, went to the round yard with a fishing line, sat on the tyres forming the yard and then, after a signal or further instructions from Mr Watson, leapt onto the deceased grabbing him in a head lock and bringing him to the ground. (The offender gave various versions of obtaining or using the fishing line but Ms Watson observed no injury to the deceased’s neck.) The deceased was killed by Mr Watson at about the time the offender released the deceased an agreement to assault the deceased having known or foreseen the possibility of the infliction of grievous bodily harm by Mr Watson (who on the parties cases committed the offence charged on the indictment) and having foreseen that Mr Watson might have an intention to kill or cause grievous bodily harm to the deceased having regard to the evidence in the proceedings as to his violence proclivities..

103. [103]

     The offender was not the instigator of the murder. Nor did he inflict the fatal blow or have knowledge that Mr Watson had or intended to use a knife. He did not have a motive to kill the deceased. He was the subject of ongoing manipulation by Mr Watson. He was living with Mr Watson at the time. Nonetheless, the jury verdict is consistent with the offender having engaged in extended joint criminal enterprise.

104. [104]

     The Crown raised three aggravating factors pursuant to s 21A(2) of the Sentencing Act. As to each of those factors, my findings are as follows:

     1. (1)

        The purposes of s 21A(2)(e), the offence was committed in company. However, the fact of the offence being committed in company was intrinsically part of my findings as to the objective seriousness of the offence. In order to avoid double counting this factor has been taken into account in that assessment, including relevantly any non-exculpatory duress.

     2. (2)

        Pursuant to s 21(2)(eb), the offence was committed in the home of the deceased. I do not consider the fact that the deceased was only staying at a friend’s house for a few months significantly diminishes this aggravating factor. The deceased was living in the home occupied by the offender and the co-accused. Even though the actual offence occurred in the round yard, this does not diminish the operation of this provision as the home extends to the area on the same premises as the physical residence that is “at least adjacent to that building” (see R v Lulham [2016] NSWCCA 287 at [5] per Bathurst CJ with whom Beazley P agreed). This is particularly so in the rural setting where there is property adjacent to the home. Further, the deceased should not have expected to be attacked and killed by Mr Watson with the assistance of the offender. This is an aggravating factor.

     3. (3)

        The body of the deceased was placed in a makeshift grave, covered with tree branches and other combustible material and set on fire. The offender was intrinsically involved in that conduct. The destruction of the deceased’s body can be taken into account as an aggravating factor in assessing the seriousness of the offence (see R v Knight [2016] NSWCCA 292 at [28]-[29] per McClellan CJ at CL with whom Adams and Latham JJ agreed). However, I accept the submission for the offender that there is independent evidence of the offender acting under non-exculpatory duress in this regard. That evidence was given by Ms Watson. She stated that she and the offender helped the principal offender move and burn the body because, as previously mentioned, she was scared of what he might do to her and the offender had they not done what Mr Watson wanted. This factor reduces the weight to be given to this factor.

105. [105]

     There is no contest that the offender’s offending involved little or no planning. There is no aggravation for this factor under s 21A(2)(n): see Moore v R [2016] NSWCCA 185 at [74].

Youth

1. [106]

   Despite written submissions by the Crown to the effect that the offender had conducted himself in a way an adult might conduct himself and had committed a crime of violence or considerable gravity despite his biological age at the time of offending (the offender was not a child), the Crown ultimately accepted that the Court could have regard to the offender’s age (and background) but that the fact of him living independently and being in a relationship “speaks to his maturity”.

2. [107]

   Furthermore, the Crown accepted that the offender held Mr Watson “in some kind of regard as an adult” or was enthralled by Mr Watson’s status of being, as claimed, an assassin or in bikie gangs or considered himself to be in a friendship available with an older person, but did not accept the degree of influence exerted by Mr Watson as asserted by the offender. Further, there was nothing remarkable in the influence of an older person on one younger. It was submitted the offender could have just walked away – he willingly stayed with Mr Watson.

3. [108]

   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]:

4. [109]

   Having considered closely the Crown’s submissions in light of KT, I nonetheless consider the submissions for the offender in this respect are of considerable force.

5. [110]

   The principal offender, Mr Watson, did not mention this offender at any time when telling others that he killed the deceased. The principal offender was 39, while his offender was 16 at the time of the offence. The fact that the offender at a young age lived with the principal offender at that time was indicative of him being troubled and vulnerable. The principal offender’s profile as a violent and abusive man was uncontroverted and accepted by the Crown, while the offender had and has no criminal history.

6. [111]

   Nor do I consider the Crown’s reliance upon the offender willingly staying with Mr Watson significantly diminishes this consideration.

7. [112]

   Ms Watson gave evidence that the offender was nice young person interested in helping out with the horses when she first met him. Thereafter, there is independent corroboration of his account of him witnessing Mr Watson assaulting Ms Watson on a number of occasions and Mr Watson viciously attacking Mr Devos. Similarly, the offender was introduced to alcohol and drug use at a young age (this consisted of at least cannabis although Mr Devos also referred to the offender being given “special medicine”). Those factors do not magnify the objective seriousness of the offence as contended by the Crown on the basis that the offender knew what Mr Watson was capable of in terms of violence. Rather, they reflect the degradation of a young man at the hands of such a person and point to the pressure that young person would have been under in being inveigled into assisting Mr Watson attack and ultimately kill the deceased. I do not consider the offender being placed in the position to prevent the escape of Mr Devos was any less indicative by these considerations.

8. [113]

   Further, I accept that the enthralment of the offender with Mr Watson was, in fact, remarkable given Mr Watson’s history of brutality and, as I will discuss with respect to the psychological evidence, the history of abusive relationships.

9. [114]

   I consider that weight should be given to the youth of the offender both in terms of the criminality involved in his offending (as being less than an adult) and the question of deterrence and retribution, although the gravity and violence involved in the offending means that those latter factors must be given some weight.

10. [115]

    I do not sentence the offender upon the basis that he inflicted a fatal wound to the deceased or undertook the act resulting in the death of the deceased. He was involved in an extended joint criminal enterprise which involved a violent assault during the course of which the deceased was murdered. The offender was under the direction or influence of Mr Watson when undertaking the assault. There was little or no planning that involved the offender. The enterprise was engaged in by the offender was, with that context, objectively serious.

11. [116]

    However, I apply the principles in KT and find for reasons earlier given in this judgment, the youth of the offender reduced the criminality involvement in his offending. I also consider that the offender was manipulated by the much older co-offender, visa via, allegations the deceased had engaged in sexual interference with the child of the co-accused and the other circumstances of the offender coming under Mr Watson’s influence.

Psychological evidence

1. [117]

   The offender relied upon the psychological Risk Assessment Report (“the Report”) of Jennifer Howell dated 4 Mach 2022.

2. [118]

   Ms Howell has been a consultant psychologist in private practice since 1997 and has provided professional and expert psychological reports for a range of legal purposes in this Court, the ACT Supreme Court, the District Court of NSW and the Children’s Court of NSW as well as the Family and Federal Magistrates Courts. She provides clinical supervision for psychologists in government and non-government agencies working with victims and families where there has been violence, sexual abuse, child protection concerns or family reunification following child protection concerns. She also works in her clinical practice in providing therapy to young people and adults with sexual abusive or violent backgrounds as well as complex trauma histories.

3. [119]

   Ms Howell reported on the family and developmental history of the offender as follows:

   1. (1)

      He was born in Albury where he remained until he was approximately 16 years of age. He is the middle child of three children from his parents’ relationship, having an older sister and a younger brother.

   2. (2)

      He grew up in an intact family. However, his parents separated when he was 6 or 7 years of age. There were shared care arrangements for the children as between the parents.

   3. (3)

      His parents were always employed but there were regular arguments between them and they were “big drinkers”. He found it hard to care for himself at a young age. He described his childhood as “very hard” because the children substantially cared for themselves.

   4. (4)

      The offender reported that he had a learning difficulty and he was “slow”. It was further reported that he struggled as a child at school to learn through “spoken” instructions.

4. [120]

   I pause at this juncture to note that the Crown overall submitted that the Court should take a cautious approach to any findings made by Ms Howell that relies solely on information given to her by the offender.

5. [121]

   The Crown submitted that the courts have held that statements to doctors, psychologists, psychiatrists, the authors of pre-sentence reports and others, or assertions contained in letters written by an offender and tendered to the court, should all be treated with considerable circumspection. Such evidence is untested and may be deserving of little or no weight: R v Palu [2002] NSWCCA 381; (2002) 134 A Crim R 174 at [185], [40]-[41]; R v Elfar [2003] NSWCCA 358 at [25]; R v McGourty [2002] NSWCCA 335 at [24]-[25].

6. [122]

   Further, the Crown submitted that the Court is entitled, in assessing the weight to be given to such statements to have regard to the fact that an offender did not give evidence and was not subject to cross-examination: Butters v R [2010] NSWCCA 1 at [18]. It is one matter for an offender to express remorse to a psychologist or other third party and quite another to give sworn evidence and be cross-examined on the issue: Pfitzner v R [2010] NSWCCA 314 at [33].

7. [123]

   The Crown submitted that if an offender appearing for sentence wishes to place evidence before the court which is designed to minimise his or her criminality, or otherwise mitigate penalty, then it should be done directly and in a form which can be tested: Munro v R [2006] NSWCCA 350 at [17]-[19]. Whilst I accept the general principles referred to by the Crown, they have less force in a case where the self-reporting by the offender is corroborated by the evidence given at the trial or sentencing proceedings or they are uncontroverted or uncontroversial.

8. [124]

   Senior counsel for the offender was correct to submit that there was independent evidence which corroborated the reports given to Ms Howell. I will proceed on that basis unless it is indicated that an aspect of the self-reporting or conclusions from the self-reporting cannot be sustained in that way.

9. [125]

   Returning to the passage of Ms Howell’s report referring to family and developmental history, the Crown submitted that the Court had the opportunity to observe the offender in his interviews with police and that it may be concluded that he was manipulative and exhibited no clear signs of intellectual disability.

10. [126]

    There can be no doubt that the offender told many lies in the first and second ERISP and sought actively to engage with the police in various accounts given of the circumstances leading to the murder, in addition to pure denial. Many of the accounts were plainly fanciful, if not preposterous, and were generally recognised to be so by Detective Sergeant Wallace. The Crown essentially invited the Court to give little weight to Ms Howell’s assessment of developmental disability in his childhood based upon its assessment of the offender in the ERISPs and the telephone intercepts, including he did not suffer an intellectual disability. In essence, the Court was invited to find that the offender’s lies were a simple exercise in manipulation.

11. [127]

    I do not consider that such a conclusion may be reached on the bare face of the electronic record of statements made by the offender. That is because the fabrications engaged in by the offender were so feeble and obvious that doubts may properly remain about the existence of an intellectual disability. Detective Sergeant Wallace was plainly concerned that the offender’s approach to the interviews may reflect a mental condition or some other malady and consistently reminded the offender that he was engaged in obvious lies which the offender then persisted in. I do not consider Ms Howell’s report can be given little weight upon the bases relied upon by the Crown.

12. [128]

    I continue with the report of Ms Howell.

13. [129]

    The offender referred to his meeting with the co-offenders as a young adolescent, that they were older than him and lived in the same town and they subsequently formed a relationship.

14. [130]

    The offender referred to his relationship with his ex-partner with whom he had children and the distress he felt at his separation from them.

15. [131]

    Ms Howell recorded that the offender had experienced good physical health throughout his life although he did experience pain from a back injury resulting from a motorcycle accident.

16. [132]

    The offender also reported that he had a history of mental health problems and had been diagnosed with Bipolar disorder as well as being treated for depression and anxiety. He denied he has any admissions to mental health facilities or referrals to community health centres for mental health concerns. He reported he had recurring nightmares which he experienced due to a reliving of what occurred during the offence.

17. [133]

    On the depression anxiety and stress scale (DASS-42) the offender was found to experience severe levels of depression and anxiety.

18. [134]

    The offender reported that he commenced using marijuana in Year 7 at school. He subsequently took speed and cocaine and ICE.

19. [135]

    He reported that in the last three years whilst in custody he had gone “cold turkey” which he explained as a period without drugs. He revealed that he is not completely drug free and was prescribed suboxone monthly injections to treat a dependence on opioid drugs and to manage the withdrawal symptoms from his long-term drug use.

20. [136]

    Using the Drug Use Disorders Identification Test (DUDIT), the offender received a score which indicated he had chronic substance use problems related to both harmful substance use and his dependence on drugs.

21. [137]

    Ms Howell recorded that “In discussion with [the offender] regarding effects of illicit substance use he stated whilst using illicit substances he used to ‘lie’, adding that he ‘lied a lot’ and did so for years. [The offender] stated lying had became (sic) a way of ‘covering’ his past. He added that he no longer lies or needs to lie, and his plans (sic) is to remain drug free”.

22. [138]

    Ms Howell dealt with sexual abuse involving the co-offenders but this aspect of the reporting was substantially disavowed by Mr Dalton.

23. [139]

    Ms Howell also referred to exposure to childhood sexual abuse.

24. [140]

    Ms Howell recorded that the offender had no criminal history and that he stated that his having been in custody for three years had “woken me up a lot”. He was not using illicit substances and had stopped smoking, adding his health had significantly improved. He said that, before coming into custody, he was a “mess”.

25. [141]

    Ms Howell recorded that the offender did not believe there is any chance of him reoffending. He spoke of several good things that have occurred in his life and, in particular, the regular contact he has with his sister, father and their families. He described these relationships as “positive” and “protective”.

26. [142]

    Ms Howell dealt with the application of a conceptual actuarial tool developed to assess risk of violence for forensic patients and those who are being considered for release from institutions into the community known as the Violent Risk Scale (VRS).

27. [143]

    The offender’s score on the VRS placed him in the low risk range for further offending relative to the general population underpinning the scale.

28. [144]

    As to dynamic risk factors, Ms Howell stated that the offender did not exemplify the prototype of criminal personality as defined in the VRS and that, whilst he has a long history of illicit substance use, he did not have a history of being charged with criminal offences and appeared anchored by prosocial values within the conventional social rules. She also noted that he has no criminal history of interpersonal aggression and appeared to meet the diagnostic criteria of Bipolar disorder although this had not yet been assessed by a psychiatrist. He met the diagnostic criteria for Major Depressive Disorder and Generalised Anxiety Disorder.

29. [145]

    Ms Howell was asked to respond to some particular questions posed by the offender’s solicitors.

30. [146]

    Question 1 concerned the offender’s antecedence and history of mental illness. That question and answer are in the following terms:

31. [147]

    The offender submitted that his mental health issues had a material impact on his offending conduct. Reliance was placed in that respect upon Ms Howell’s answer to question 2. That question and answer were as follows:

32. [148]

    The offender submitted that his current psychological condition will make his time in custody more difficult. Reliance was placed in that respect upon Ms Howell’s answer to question 3. That question and answer are extracted below:

33. [149]

    As to childhood trauma, the first paragraph of Ms Howell’s response to question 4 is as follows:

34. [150]

    The offender also relied upon the answers to question 6 and 7 as supporting contention that the offender’s psychological condition would make his time in custody more difficult. Questions 6 and 7 are extracted below:

35. [151]

    The offender relied upon his vulnerability at the time that he became involved in the offending and his level of duress (that is, non-exculpatory duress) as bearing upon his moral culpability as well as his subjective case.

36. [152]

    Reference may be made to some authority in that respect.

37. [153]

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

38. [154]

    In the judgment of White JA in Perkins v R [2018] NSWCCA 62 (with whom Fullerton J, relevantly, agreed) and the consideration of that judgment in R v Irwin [2019] NSWCCA 133 (“Irwin”) at [116] as follows:

39. [155]

    Further, as Simpson AJA stated in Irwin at [2] and [3]:

40. [156]

    I accept the submission that a cautious approach needs to be taken to the findings of Ms Howell insofar as they derive solely from information given to her by the offender, particularly with regard to the unreliability of his accounts in the ERISPs.

41. [157]

    However, I am prepared to accept her assessment because a good deal of the offender’s reporting was corroborated by other evidence in the proceedings which demonstrated the following:

    1. (1)

       The offender was required to move out of his father’s home at a young age and took up residence with the principal offender, Mr Watson.

    2. (2)

       The circumstances of his residence with Mr Watson plainly demonstrated his vulnerability at that time and is consistent with the dysfunctional family he reported to Ms Howell.

    3. (3)

       Ms Watson and Mr Devos gave evidence that the offender had been supplied with alcohol and marijuana by Mr Watson and as far as Mr Devos was concerned, “special medicine”. It is unclear whether that special medicine was amphetamines or some other drugs but there is corroboration that the offender was supplied drugs by Mr Watson when he was only 16 years of age.

    4. (4)

       Ms Watson indicated that, when she first met the offender, he was a nice, honest young child who wanted to help out with the horses. He was subsequently exposed to Mr Watson’s violent behaviour. I accept the offender’s submission that he was exposed from a young age to a manipulative and violent man who had a history of violence and sexual offending.

    5. (5)

       The offender has no criminal history.

42. [158]

    There is no evidence of remorse by the offender.

43. [159]

    I turn then to some particular factors in mitigation.

44. [160]

    I have earlier found that there is little or no planning involved in the offending by the offender.

45. [161]

    I agree with the submission of the offender that he is unlikely to reoffend and has good prospects of rehabilitation (see s 21A(3)(g)-(h). I accept in that respect the opinion of Ms Howell that the offender has a low risk to reoffend and has good prospects of rehabilitation. This is consistent with the actions of the offender after the murder where he maintained without further offence until his arrest.

46. [162]

    I note that the offender has indicated that he is not using illicit drugs and has stopped smoking, adding to the quality of his health. Before coming into custody he described himself as a “mess” and indicated that his incarceration has improved in improvements in his health.

47. [163]

    I also note that Ms Howell opined that the offender would benefit from treatment to better understand and address his dependence on illicit substances. Ms Howell also spoke of the offender’s goals and aims he hopes to achieve in custody to ensure that he is capable of reintegrating into the community in a prosocial way, including addressing his mental health concerns through appropriate diagnosis, commitment to treatment and engaging in building supportive relationships with members of his family and the community.

48. [164]

    It must be recognised, however, that despite abstinence from illicit drugs and alcohol by the offender in custody, Ms Howell’s report would suggest the need for careful supervision in relation to his prior addiction on release.

49. [165]

    The offender does not have a record of prior convictions (see s 21A(3)(e)).

50. [166]

    I consider that, contrary to the submission of the Crown, non-exculpatory duress did play a role in the offending by the offender.

51. [167]

    The offender may have chosen to stay with Mr Watson. Even aside from the offender’s own accounts of physical assaults by Mr Watson upon him, the evidence was that Mr Watson was a violent and manipulative man. So much was evidenced the morning after the murder in the degree of control he exercised over Ms Watson and the offender. It is plain from the differences in age and the demonstrably threatening presence of Mr Watson to those around him that an instruction given to attend the round yard to leap upon the deceased from the tyres surrounding the yard would not have been a matter that the offender considered optional, at least having regard to his own wellbeing.

52. [168]

    Nonetheless, as the Crown has submitted, he did not leave when sent to the round yard and he did actively participate in bringing the deceased to the ground

53. [169]

    I have taken into account the offender’s social disadvantage at an early age and the factors operating at the time of his offending identified by Ms Howell, namely, developmental disability and substance abuse, as relevant to both his moral culpability and subjective factors relevant to sentencing.

54. [170]

    I accept the submission of the Crown that delay is not mitigatory because the offence was concealed by those involved over a long period of time.

Deterrence

1. [171]

   Given the seriousness of the offending general and specific deterrence are relevant but diminished as previously discussed in these reasons for sentence.

2. [172]

   Having regard to the youth of the offender, and his mental health at the time of offending and disadvantage occasioned by his upbringing, general deterrence must play a significantly reduced role in his sentencing.

3. [173]

   I am conscious of the need to avoid double counting with other factors in sentencing if finding special circumstances.

Special circumstances

1. [174]

   The Crown opposed any finding of special circumstances being made by the Court. It was submitted that the length of the sentence that would be imposed upon the offender would result in a statutory ratio providing him with a suitable period for supervision.

2. [175]

   In support of that submission, the Crown put the following submissions:

   1. (1)

      It has been held that it is doubtful whether the fact a sentence represents an offender's first time in custody may alone justify finding special circumstances: Collier v R [2012] NSWCCA 213 at [36]; Singh v R [2020] NSWCCA 353 at [79]; R v Kaliti [2001] NSWCCA 268 at [12]; R v Christoff [2003] NSWCCA 52 at [67]; Langbein v R [2008] NSWCCA 38 at [112]; Clarke v R [2009] NSWCCA 49 at [12].

   2. (2)

      Special circumstances may, however, be found in combination with other factors: Leslie v R [2009] NSWCCA 203 at [37]; R v Little [2013] NSWCCA 288 at [30]. No other factors have been raised.

   3. (3)

      If there are circumstances that are capable of constituting special circumstances, the Court is not obliged to vary the statutory ratio. Before a variation is made "it is necessary that the circumstances be sufficiently special": R v Fidow [2004] NSWCCA 172 (“Fidow”) at [22]; Langbein v R [2013] NSWCCA 88 at [54]. Also in Fidow, Spigelman CJ (with whom Hulme and Adams JJ agreed), said, at [20]:

3. [176]

   Nonetheless, in my view, the Court should find special circumstances in this matter having regard to a number of factors taken in combination.

4. [177]

   First, this is the first time the offender has been in custody.

5. [178]

   Second, it has been held that the fact of isolation for a person sentenced to custody for the first time can be particularly burdensome. DPP v Hersi [2020] VCC 347 (Dawes J) (26 March 2020) at [26].

6. [179]

   I accept that the circumstances of the offender’s incarceration will be made more onerous because of the effect of Covid restrictions which exacerbate the effect of the applicant’s youth and the fact that it is his first time in custody by creating more onerous custodial conditions. The offender has spent a substantial period of time since his incarceration in isolation and has been deprived of visits with his family either by way of AVL or in person. (He has been able to make phone calls.) See R v Taha [2022] NSWCCA 46 at [77] per Walton J (with whom McCallum JA and Fullerton J agreed); Valentine v R [2020] NSWCCA 116 per Wright J (with whom Harrison and R A Hulme JJ agreed).

7. [180]

   I also have regard to the offender’s drug addiction which is in remission in custody and the need for treatment, which will extend to treatment in the community

8. [181]

   Those special circumstances warrant a lowering of the non-parole: see Casey v R [2015] NSWCCA 142 at [34]-[35] (per Hoeben CJ at CL, with whom Hidden and Adams JJ agreed). In making this adjustment I have had regard to the principle that the ultimate constraint upon the non-parole period is the criminality involved and, where relevant, an offender’s subjective circumstances, and must not be reduced to a level beyond that which is “necessary to punish the offender….”: Goodbun v R [2020] NSWCCA 77 at [124] (per Fullerton J, with whom Bathurst CJ and Bellew J agreed).

9. [182]

   This is a matter having unusual features. In sentencing the offender, I have been mindful of the legislative guidepost of the maximum sentence together with factors bearing upon the objective seriousness of the offence and subjective features.

10. [183]

    I have also had regard to the cases relied upon by the parties as comparable cases: Kane v R [2001] NSWCCA 150 (per Ipp AJA with whom Handley JA and James J agreed); R v Dalley [2000] NSWSC 1154 (per Bell J); Dalley v R [2002] NSWCCA 284 (per Simpson J with whom Spigelman CJ and Blanch J agreed save in one respect not relevant to these sentencing proceedings).

11. [184]

    The offender has been in custody since his arrest on 5 September 2019. His sentence should be back dated to that date.

12. [185]

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

    1. (1)

       I sentence you to imprisonment of a non-parole period of 8 years commencing 5 September 2019 and expiring 4 September 2027 and the balance of the term of 4 years commencing 5 September 2025 and expiring on 4 September 2031.

    2. (2)

       Thus, you will be eligible for release on parole at the expiry of the non-parole period on 4 September 2027.