DL v R

1. [1]

   BASTEN JA: The appellant, whose identity is not disclosed because he was under the age of 18 years at the time of his offending, [1] was convicted of murder. His victim was a girl, also under the age of 18 years, whose name cannot be published without consent of a senior available next of kin. She will be referred to, as in previous judgments, as TB.

2. [2]

   On 19 July 2005 TB was violently attacked after alighting from a bus on her way home from school. The appellant was arrested later that day. On 27 March 2008 the appellant was convicted by a jury of her murder. On 14 November 2008 he was sentenced by R S Hulme J to imprisonment for a term comprising a non-parole period of 17 years, with a further term of 5 years, giving a sentence of 22 years. [2]

3. [3]

   At the time of sentencing, a standard non-parole period of 25 years was prescribed for a murder where the victim was under 18 years of age. In accordance with established principle as to the operation of the standard non-parole period at that time, the sentencing judge gave it primary significance in his determination of the appropriate sentence. In 2011 that approach was rejected by the High Court in Muldrock v The Queen. [3] Some five years later, on 14 April 2016, the appellant sought leave to appeal from his sentence.

4. [4]

   The appeal was first dealt with by this Court on the basis of the Director’s concession that the sentencing judge had adopted an erroneous approach. It was therefore necessary for the Court to resentence him. That took place on 13 April 2017. [4] By a majority, the Court concluded, pursuant to s 6(3) of the Criminal Appeal Act 1912 (NSW), that no lesser sentence was warranted in law. The dissenting judge, Rothman J, would have resentenced the appellant to a non-parole period of 12 years with a further term of 6 years, giving a sentence of 18 years imprisonment.

5. [5]

   The appellant was granted special leave to appeal to the High Court; on 8 August 2018 that Court upheld the appeal and set aside the order of this Court dismissing the appeal against sentence. The matter was then remitted to this Court for redetermination. [5]

6. [6]

   When first before this Court, the appellant sought and obtained an extension of time within which to seek leave to appeal against sentence, and also obtained leave to appeal. Those orders were not affected by the orders of the High Court. Nor is there any dispute as to error on the part of the sentencing judge. Accordingly, the sole function of this Court is to determine whether or not some lesser sentence is warranted in law and, if so, determine and impose that sentence; if not the appeal should be dismissed.

7. [7]

   In my view a lesser sentence should be imposed.

Background circumstances and sentencing

1. [8]

   The circumstances of the offending and the sentencing have been extensively recounted, both in the earlier judgment of this Court and by the High Court. They will be repeated only so far as necessary to explain the conclusions reached below.

2. [9]

   TB was attacked by the offender with a knife and repeatedly stabbed in the back, chest, face and head. She received some 48 stab wounds, one of which penetrated her heart and proved fatal. The attack was described by the sentencing judge as “frenzied”:

3. [10]

   The offender was arrested that evening at his home. The murder was undoubtedly vicious, but it was not accompanied by elements of sadistic cruelty which can occur. Otherwise, the objective seriousness of the offending was characterised by the ongoing severity of the attack, however short lived the event.

4. [11]

   The moral culpability of the offender is harder to assess, because his conduct defied rational explanation. The sentencing judge stated:

5. [12]

   The sentencing judge was invited by the prosecutor to conclude that the killing was premeditated and planned, an inference which was available because the offender (i) had not attended school that day and had lied to his mother about his whereabouts; (ii) had knowledge of the bus taken by TB on her way home and the stop at which she alighted; (iii) had twice in the preceding days alighted at that stop, which was not his usual stop; (iv) was carrying a knife and (v) undertook a ferocious attack.

6. [13]

   The sentencing judge gave careful consideration to the prosecution submissions in this respect. However, there were countervailing considerations. The judge noted that (i) the evidence did not establish that this was an isolated instance of truancy, indeed there was evidence that it was not; [6] (ii) the offender and TB were accustomed to travel home from school on the same bus; (iii) when the driver had questioned his getting off at an unusual stop he had given an explanation not shown to be false; (iv) there was no particular relationship between the offender and TB; (v) there was no evidence that the offender did not carry a knife on other occasions, and (vi) there was no reason why the offender, not having attended school, might not be in the vicinity of the bus stop in the course of the afternoon.

7. [14]

   There was another relevant factor, namely the offender’s state of mind. As the judge noted, “[p]remeditation requires some degree of reasoning”. [7] Such reasoning might have been inferred in other circumstances and would, for consistency, have suggested that the offender had the capacity to form an intention to kill, a finding which the prosecutor urged on the sentencing judge.

8. [15]

   It is clear both from the careful assessment of the evidence in the sentencing judgment and the later reassessment undertaken by this Court in 2017, that the capacity for reasoning and the specific intention in the mind of the offender are difficult to establish. The jury verdict was consistent with the conclusion that the offender intended to cause his victim grievous bodily harm. However, a finding that he intended to kill would have been a circumstance of aggravation and could only be made if the sentencing judge were satisfied as to that matter beyond reasonable doubt.

9. [16]

   Because of the absence of any acceptable direct evidence as to the offender’s state of mind or understanding, the judge was required to rely on the circumstances of the offence and the psychiatric evidence adduced before him.

10. [17]

    The first psychiatrist to see the offender following his arrest was Dr Kasinathan. From his first meeting on the day following his arrest, he saw the offender some 20 to 30 times over a period of 18 months. [8] When he first assessed him, immediately following the offence, he said that “his thought form … didn’t seem normal. He seemed to switch topics on a couple of occasions and his replies weren’t directly answering the question. His emotional appearance – or his affect – also looked a bit strange.” [9] Dr Kasinathan was uncertain as to the significance of his initial observations, but concluded, after seeing him at least 20 times, that there were no “symptoms or signs of psychosis.” [10] He also said that although, on initial assessment, he thought “there might be some thought disorder” he had not seen that since. [11]

11. [18]

    The judge asked Dr Kasinathan what he meant by “psychosis”, to which he gave the following response: [12]

12. [19]

    The most extensive psychiatric evidence was that given by Dr Allnutt, a forensic psychiatrist. Dr Allnutt expressed the view that the offender “in all likelihood … suffers from, or has suffered from, depressive and anxiety symptoms. Probably with obsessive compulsive symptoms, of obsessive compulsive disorder.” [13] The following exchange then occurred:

13. [20]

    Dr Allnutt said that “the clinical evidence doesn't enable a conclusion, doesn't enable me to conclude that he suffered from a psychosis.” [14] He was asked whether he could identify a causal link between the anxiety disorder and the murder of TB on 19 July 2005, but said there was inadequate information “even to allow an inference.” [15]

14. [21]

    Thirdly, the sentencing judge heard evidence from Dr Olav Nielssen, who had prepared three reports with respect to the offender. Dr Nielssen’s view was that, at the time of the offence, the offender was suffering from early stages of a psychotic illness, namely schizophrenia, which he expected would emerge more clearly over time. That, he acknowledged, had not occurred. [16]

15. [22]

    In his report dated 8 May 2007, Dr Nielssen expressed the following opinions:

16. [23]

    The prosecutor cross-examined Dr Nielssen, suggesting that a possible motive for the killing was “just that he hated TB or was very angry with her”. Dr Nielssen accepted that that was “an alternative possibility”, but suggested the offender must have had “a very extreme and disproportionate type of action [reaction?] which does suspect [suggest?] some loss, belief form, or gross disturbance in the capacity of self-control or emotional regularity of some kind.” [17] After Dr Nielssen expressed his belief that there was “probably some kind of underlying impairment”, the following exchange took place: [18]

17. [24]

    The judge then asked the following questions: [19]

18. [25]

    The judge summarised the evidence in his judgment on sentence, noting that, as a non-psychiatrist, he would pause before disagreeing with any of the psychiatrists. [20] His conclusions were expressed in the following terms:

19. [26]

    After dealing with a number of other aggravating and mitigating circumstances, the judge returned to the question of the offender’s mental state:

Issues on appeal

1. [27]

   The following passages taken from the written submissions for the appellant on this appeal reflect the principal considerations identified by senior counsel:

2. [28]

   The prosecutor submitted that the appeal should proceed on the following basis:

3. [29]

   Submitting that the Court would nevertheless conclude that a sentence no less severe than the original sentence should be imposed, the prosecutor’s submissions continued:

4. [30]

   In reply, the offender took issue with the prosecutor’s withdrawal of the earlier concession that some adjustment was required, submitting that the only issue was the extent of the reduction.

5. [31]

   The offender also took objection to the neutral position on “special circumstances”, noting that in the earlier proceedings the prosecution had conceded that his age and the fact that it was his first time in custody, combined with his mental illness, had warranted a finding of special circumstances.

Legal basis of resentencing

1. [32]

   In accordance with the third factor noted by the Director, the argument in this Court proceeded on the basis that no standard non-parole period applied on the resentencing exercise. That is a concession beneficial to the offender, from which this Court could not depart without hearing further from the parties. I do not propose that course. However, lest it should be assumed that the Court has accepted the correctness of the concession, the following circumstances should be noted.

2. [33]

   As originally inserted on 1 February 2003, the table of standard non-parole periods only applied to offences committed on or after that date. [23] The effect was that, in accordance with general principles, a more serious penalty should not apply with respect to offences committed before it came into force.

3. [34]

   A new Item 1B was introduced with effect from 1 January 2008. [24] That item imposed a standard non-parole period of 25 years where the victim of a murder was a child under 18 years of age. It applied to the determination of a sentence for an offence “whenever committed”, unless the person had been convicted or the court had accepted a plea of guilty before the commencement of the amendments. [25] That amendment operated adversely to the interests of the offender by applying a potentially more severe punishment regime with respect to an offence committed more than two years before the new regime came into operation. The trial judge applied the new provision when sentencing the offender in 2008.

4. [35]

   From 1 January 2009, the provisions relating to standard non-parole periods do not apply “if the offender was under the age of 18 years at the time the offence was committed”: s 54D(3). The question is whether that provision applied in this Court for the purposes of either determining whether a lesser sentence was warranted in law, and, if so satisfied, imposing a fresh sentence. The High Court in DL v The Queen noted that “[a]t the date the Court of Criminal Appeal considered re-sentencing, no standard non-parole period applied to the offence.” [26] However, the Court did not need to, and did not, address the question as to what law then applied.

5. [36]

   There is a transitional provision with respect to the operation of the new subs 54D(3): Sch 2, cl 60(1) of the Sentencing Procedure Act provides that the amendment to s 54D “does not affect any sentence imposed before the commencement of that amendment.” It follows that error could not have been found on the part of the sentencing judge in applying that provision as it was in force at the time of sentencing; nor could the sentence have been deemed to be excessive because that provision was applied, had the standard non-parole period been correctly applied.

6. [37]

   There is no doubt as to the principle to be applied when the law has changed in a manner adverse to the offender between the time of the original sentencing and the resentencing by the Court of Criminal Appeal. Thus, in Radenkovic v The Queen [27] Mason CJ and McHugh J stated:

7. [38]

   The general thrust of the statement in Radenkovic is of a continuing entitlement to the benefit of the more lenient regime. The language that the earlier regime should apply “particularly when that law was more favourable to him than the law as it existed at the hearing of the appeal” does not, when read in context, mean that the same conclusion follows when the law is less beneficial. (That was not the circumstance under consideration in Radenkovic.)

8. [39]

   It must be noted that the present case is not concerned with a change in the law which resulted in a harsher regime at the time of resentencing, as was the case in Radenkovic. Nor is it concerned with the same situation which can arise between offending and sentencing. Nor is it concerned with the circumstance discussed in R v MJR [28] where there has been a change in “practice” as to sentencing for particular offences, where the maximum penalty had not varied. Rather, this case concerns the situation where a more lenient regime has been created between the time of sentencing and the time of resentencing, but in circumstances where the new regime is expressly stated not to affect existing sentences. In this situation, the answer appears to turn on the language of s 6(3) of the Criminal Appeal Act, namely:

9. [40]

   What the Court must consider is whether a less severe sentence “is warranted in law and should have been passed”; if so satisfied, it must be pass “such other sentence” in substitution for the sentence in fact imposed. On one view, there is a tension between the present tense (“is warranted”) and the past perfect tense (“should have been passed”). The former suggests that the court should act upon the law and facts as presented to it at the time of resentencing; the latter suggests that the comparative judgment can only be made by reference to what should have happened at the time of sentencing. In Crump v R [29] Meagher JA considered that “regard must be had to the current law to the extent that it is intended to operate with respect to any re-sentencing exercise undertaken by this Court in the face of error on the part of the sentencing judge.” However, Radenkovic was applied, presumably to suggest that a more adverse regime would not operate unless a clear intention to that effect was indicated in the amending legislation.

10. [41]

    The Queensland court of appeal has held in R v Hughes, [30] with respect to the equivalent Queensland provision, s 668E(3) of the Criminal Code 1899 (Qld), that the new sentence “has to conform with the law as it was at the time of the original sentence.” In circumstances not dissimilar to the present, in R v Raine, [31] Atkinson J (Sofronoff P and Morrison JA agreeing) applied the reasoning in Hughes to conclude that “[i]f this Court were to resentence the applicant, it would be required to sentence him according to the sentencing regime that applied at the time when he committed the offence. … Accordingly this Court would be bound to apply the same sentencing regime which bound the learned sentencing judge.” [32]

11. [42]

    Similar (though not identical) language used to be found in s 353 of the Criminal Law Consolidation Act 1935 (SA). [33] A similar conclusion was reached by Bampton J in R v Pishdari. [34]

12. [43]

    In Victoria, the Court of Appeal in Younger v The Queen [35] noted that a similar approach had been adopted with respect to former s 568(4) of the Crimes Act 1958 (Vic), which contained language similar to s 6(3) of the Criminal Appeal Act (NSW). [36] (The result in Younger itself turned on a different provision.)

13. [44]

    Perhaps curiously, some of the reasoning in these cases focused upon the use of the term “substitution” in respect of the varied sentence, rather than the terminology “ought to have been” imposed.

14. [45]

    A further consideration, not addressed in the cases noted above, is that, as approved in Betts v The Queen, [37] the resentencing court is allowed to take into account events which have occurred since the sentencing, which may indicate that a better assessment of rehabilitation, or the severity of the conditions of imprisonment. may have arisen which were not anticipated by the sentencing judge. On that view, the factual framework for the sentencing is not the same as it was before the sentencing judge, although that factor cannot be relied upon to establish error.

15. [46]

    In considering the correct approach to the tender of further evidence in respect of a sentencing appeal, this Court in Douar v R [38] considered the inter-relationship of the “mixed tenses” (and mixed moods) of the verbs in s 6(3). The same issue was addressed in Baxter v R, [39] where Spigelman CJ noted that in Douar the tension had been resolved “by stating that the text was ambiguous and the ambiguity should be resolved in favour of the practice of the court to receive evidence of post-sentence conduct.” The Chief Justice approved that conclusion. [40] The reasoning adopted in Baxter was primarily that the “dominant and active verbs in s 6(3) are both in the present tense … the employment of the past tense [sic] in the phrase ‘should have been passed’ is distinctly subsidiary.” [41]

16. [47]

    It is also significant, as noted in Betts, that the Court has further powers to order production of documents, order that persons attend to give evidence and to receive evidence, pursuant to s 12(1) of the Criminal Appeal Act. As a matter of principle, there is no reason why the power to receive further evidence and the obligation to impose the law as in force at a particular time should be determined on the same basis. Nor, at least in relation to questions of law, should the question be answered, as in Douar, by reference to court practice.

17. [48]

    Finally, it is curious that the issue appears not to have been discussed in Archbold: Pleading, Evidence & Practice in Criminal Cases before the Criminal Appeal Act 1907 (UK) was replaced by the Criminal Appeal Act 1968 (UK). The latter provides in s 11(3) that the appeal court may quash a sentence and “in place of it pass such sentence … as they think appropriate for the case and as the court below had power to pass when dealing with him for the offence.”

18. [49]

    In circumstances where the parties adopted the approach that the offender should be resentenced according to the law as it presently stands, the issues raised above should not be resolved. The common position of the parties, which operates favourably to the offender, should form the basis of the reconsideration.

(a) preliminary issues

1. [50]

   In completing the remitted appeal against sentence, two preliminary issues should be addressed. First, nothing turns on the withdrawal by the prosecutor of a “concession” that the original sentence must now be “adjusted”, nor the reason given for taking that stance. As to the first point, a concession that there should be adjustment, albeit the adjustment “should be minimal”, is not much of a concession.

2. [51]

   As to the second point, there is no necessary error in speaking of “adjustment”. In Baxter [42] Spigelman CJ said that, having identified error, the Court “did not proceed as if the identification of error created an entitlement on the part of an Applicant to a new sentence, for example, by merely adjusting the sentence actually passed to allow for the error identified.” To do that, the Chief Justice stated, “would be to proceed on the assumption that the sentencing judge was presumptively correct, when the Court has determined that the exercise of the discretion had miscarried."

3. [52]

   This passage was cited with approval in Kentwell v the Queen, [43] the joint reasons explaining that the Court “does not assess whether and to what degree the error influenced the outcome.” [44] In short, “adjustment”, as it applies to the process undertaken by the appellate court, is an inaccurate description of that process and, if applied by the court itself, is likely to indicate error. On the other hand, to describe the outcome as involving “an adjustment” is simply a colloquial description which distinguishes a reduction of the sentence from a refusal to interfere on the basis that no lesser sentence is warranted.

4. [53]

   More importantly, to suggest that in exercising the discretion afresh the appellate court has no regard to the sentence imposed by the sentencing judge, or the reasons for arriving at that sentence, would lead to error in many cases. In the present case, the sentencing judge presided over a jury trial and was therefore familiar with the extensive evidence which was not heard by nor the transcript provided to this Court; nor was the trial evidence the subject of submissions on the appeal. Secondly, the sentencing judge had the benefit of hearing the oral evidence of the three psychiatrists whose conflicting opinions had to be resolved. This Court must make allowance for that advantage in carrying out its own assessment. Thirdly, the fact that the judge properly (in accordance with the then current understanding of the statute) gave emphasis to the standard non-parole period of 25 years must also be taken into account in understanding why, as he expressly stated, “against the statutory provision of a non-parole period of 25 years, I do not feel able to reduce the non-parole period below 17 years …”. [45]

5. [54]

   The second preliminary point arises from the prosecution’s submission that the Court should exercise its discretion “on the basis of [the primary judge’s] factual findings in respect of the offending”, but make its own determination in respect of objective seriousness and moral culpability. This is not a bright line distinction. The tension which arises in such circumstances was clearly articulated in relation to civil appeals in Fox v Percy. [46] The joint reasons of Gleeson CJ, Gummow and Kirby JJ, after noting “the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses’ credibility and of the ‘feeling’ of a case which an appellate court, reading the transcript, cannot always fully share”, [47] nevertheless noted that “[a]ppellate courts are not excused from the task of ‘weighing conflicting evidence and drawing [their] own inferences and conclusions’.” [48] Nothing in Kentwell denies this reality.

6. [55]

   The present Court is not disadvantaged in all respects. For example, there was no conflicting lay evidence heard by the sentencing judge which needed resolution. Further, in dealing with the psychiatric evidence, the sentencing judge expressly noted that “[n]one was shaken from his opinion during the course of cross-examination, nor did any of the cross-examination cause me to have more doubts about the evidence of one rather than another.” [49] Finally, this was not a case in which an important factor, such as prospects of reoffending, degree of remorse or prospects of rehabilitation, turned upon an assessment of the offender, who had given evidence. Nevertheless, once it is conceded that the trial judge (and sentencing judge) has an advantage in a particular respect, it is necessary to give some consideration to how the judge’s assessment of that specific factor flowed through into the sentence in fact imposed.

(b) determining sentence

1. [56]

   One aspect of this exercise was apparent from the way in which both parties engaged with sentences imposed in similar cases. It was not in doubt that such assistance as could be obtained from earlier sentencing judgments required that regard be had to whether they were affected by the standard non-parole period, and, if so, whether they pre-dated or succeeded the decision of the High Court in Muldrock.

2. [57]

   A similar exercise of comparative cases was undertaken on the first appeal. There was also reference to the statistics then available from the Judicial Commission. As explained by Rothman J on the first appeal, the relevant range of sentences imposed upon juveniles for murder required attention to the fact that the offender was not “almost 18 years of age” at the time of the offending (he was 16): [50]

3. [58]

   The prosecutor noted that what should be sought through reference to comparative cases was “consistency in the application of legal principle” and not “numerical equivalence” as explained in Hili v The Queen. [51] However, as Hili also noted, quoting with approval the reasoning of Simpson J in Director of Public Prosecutions (Cth) v De La Rosa: [52]

4. [59]

   Of the cases relied upon by counsel for the offender, the Director accepted that five involved a critical factor, namely the victim being a young person under 16 years of age. Those cases were as follows:

   1. (1)

      R v MTN; R v CVH. [53] Having been found guilty of murder following a trial, the offender, who was aged 17 years and 3 months at the time of the offence (the deceased being aged 16 years) was given a sentence of 16 years 6 months, with a non-parole period of 11 years, for the murder. The offences arose out of a dispute between two gangs, the deceased and another person having been wrongly identified as members of the other gang. The offender was the leader of the attack, death being caused by a stab wound that penetrated the victim’s heart. The attack was found to be deliberate and the offender’s intention was to inflict grievous bodily harm; the offender had a previous conviction for assault occasioning actual bodily harm, but expressed remorse and deep regret and had a borderline intellectual disability.

   2. (2)

      R v MS. [54] Again the offender was convicted following a trial and sentenced for murder to imprisonment for 17 years with a non-parole period of 11 years. The victim was aged 15 years at the time of her death and was the girlfriend of the offender who was then aged 17 years. The victim was strangled to death and there was a finding that the offender intended to kill the victim. He was aged 18 years at the time of sentence, had an extensive criminal record but had expressed contrition and had good prospects of rehabilitation. The judge took into account his youth, Aboriginality, lack of opportunity in life and the circumstances prevailing in the country town where the offence occurred.

   3. (3)

      R v O’Grady [55] involved the murder by an offender (who was 16 years 9 months) of a 14 or 15 year old male acquaintance whom the offender led into bushland and shot with a rifle 9 times. There was significant evidence as to his state of mind at the time, including a history of heavy use of alcohol and drugs and the development of violent fantasies, including obsessional thoughts and hallucinations. The sentencing judge had been satisfied there was impairment of his capacity of self-control, but his acts remained purposeful and rational. He was sentenced to 15 years imprisonment with a non-parole period of 10 years.

   4. (4)

      R v MAH [56] was decided at a time when the offence carried a standard non-parole period of 20 years, although the judge disregarded it. [57] The offender was found guilty at trial of a premeditated killing of a 17 year old youth. The offender was aged 17 years 10 months at the time of the offence. The motivation appears to have been jealously of the relationship between the victim and the offender’s girlfriend. The victim was kicked in the head, struck with a log and buried in a shallow grave. A sentence of 22 years was imposed with a non-parole period of 16 years 6 months.

   5. (5)

      R v SB; R v AE; R v MG. [58] Three males were found guilty following a trial of kicking and bashing a 17 year old male to death at a party. Each was approximately 16 years at the time of the offence. The victim died when struck on the head with a wine bottle by a fourth accused. Each was sentenced to 12 years imprisonment with a non-parole period of 8 years.

5. [60]

   Although some assistance may be obtained from these cases, the prosecutor was correct in her submission that none is on all fours with the present case; all have significant points of departure, although the full details have not been set out above.

6. [61]

   A critical feature in the present case is the combination of the frenzied nature of the attack and the absence of any satisfactory explanation, motive or the trigger for such an attack.

7. [62]

   In the first appeal to this Court reliance was placed upon medical records relating to the offender created following his transfer to the adult correctional system in February 2010, including the report of a psychiatric registrar, Dr Chan dated 17 September 2014. Dr Chan recorded evidence on the basis of which the offender was transferred to the Mental Health Unit, to be managed as a “correctional patient”. However, after four weeks of observation Dr Chan concluded that there was no evidence of any psychosis and that his presentation was more consistent with characteristics found in persons on the autism spectrum. He was then discharged from the Mental Health Unit. That material led the majority in this Court on the first hearing to conclude that the suggestion of incipient schizophrenia, which appeared to have been the basis of the sentencing judge’s conclusion that the offender suffered from a temporary psychosis, had not been fulfilled. That led to a different conclusion from the sentencing judge’s finding that the offender had acted with an intention only to inflict grievous bodily harm. The majority in this Court concluded that the proper finding should have been that of an intention to kill.

8. [63]

   The judgment was set aside in the High Court on the basis that the evidence had been admitted as relevant to the offender’s progress in serving his sentence and the extent to which it may have demonstrated effective rehabilitation. [59] The use to which it was put, the High Court concluded, demonstrated procedural unfairness in circumstances where the offender had no warning that the Court might resentence upon a different factual basis from that adopted by the primary judge, and in reliance upon the new evidence. [60]

9. [64]

   No attempt was made to challenge the factual findings of the sentencing judge on this appeal and only passing reference was made to the evidence of Dr Chan. Nevertheless, the offender did place reliance upon post-sentencing material for a number of propositions, which included the following: [61]

10. [65]

    Some matters listed, based on reports of the offender, should not be given significant weight. An example is the report of sexual abuse in 2010, not reported until 2014. The prison authorities dismissed this “after investigation” as a fabrication. Counsel said there was no record of any investigation, and the allegation was consistent with the records of accepted vulnerability. There may have been little done by way of investigation, but the allegation was four years old when reported. The offender gave no evidence in court.

11. [66]

    Whilst limited weight can be given to some of the prison records, it is likely that the sentencing judge was not aware of the extent of the difficulties that the appellant has in fact faced whilst in custody. (He was in a juvenile institution at the time of sentencing.) The difficulties constitute a factor which this Court should have regard to in resentencing the appellant. Needless to say, the sentencing judge did not anticipate the anxiety and stress resulting from the extended appeal process.

12. [67]

    Other factors which were properly taken into account by the sentencing judge included the offender’s youth at the time of the crime. Noting that he was “16 at the time of the offence” the judge recognised longstanding authority that “considerations of general deterrence and some of the other purposes of sentencing are to be given less weight in the case of such persons”, referring to R v GDP [62] (an offender suffering from a psychosis at the time of the murder), and R v Hearne. [63]

Conclusions

1. [68]

   The evidence of comparative cases and the relevant statistics indicate that one effect of the application of the standard non-parole period, prior to the decision of the High Court in Muldrock, was to increase the sentences imposed for murder in cases to which it applied. That was its intended purpose. It is also clear that the sentencing judge would have been minded to impose a lower non-parole period, absent the 25 years standard non-parole period applicable in the circumstances as he then understood them.

2. [69]

   It is also clear that the conclusion of this Court on the first hearing that no lesser sentence was warranted depended upon a finding of fact which is not now sought and which should not be made, that the mental condition of the offender at the time of the offence involved an intention to kill and not merely an intention to cause grievous bodily harm. Not only does that provide a significant difference in the level of moral culpability of the offender, but it engages an important mitigating factor, namely that general deterrence is properly reduced in relation to an offender suffering from a form of mental disability. It is also appropriate that personal deterrence takes on less significance.

3. [70]

   In addition to the considerations which operated in favour of the offender at the time of the sentencing, this Court should have regard to the evidence that the offender has faced conditions of confinement which appear to have had an adverse impact on his mental state and resulted in a level of severity of punishment not fully appreciated at the time he was sentenced.

4. [71]

   Prospects of rehabilitation will usually loom large in sentencing a young person without a prior criminal record. Furthermore, such prospects are often seen as a function of genuine remorse and a degree of insight into past misconduct. However, coherent evidence as to these elements is simply missing in the present case. As the Director noted, the offender has never accepted responsibility for the murder. The trial judge concluded on the evidence that the offender was “unlikely to re-offend” but, based on “the uncertainties apparent in the evidence of the psychiatrists” he was “unwilling to find that the [offender’s] prospects of rehabilitation are good.” [64] I would not depart from these findings.

5. [72]

   Further, I accept the judge’s conclusion that in the light of (i) the offender’s age, (ii) the absence of a criminal record, (iii) the fact that this is his first time in prison and (iv) the likelihood (now established) that prison is a more severe punishment for him than for most adult offenders, there should be a finding of special circumstances, justifying a variation of the proportion between the period of mandatory custody and the remainder of the term.

6. [73]

   Finally, in re-sentencing the Court must have regard to the profound loss and grief of the victim’s parents, brother, sister, extended family and friends, as recounted in the parents’ victim impact statements read to the sentencing judge. The suffering of the parents, particularly, must have been amplified by the lack of explanation from the offender and the psychiatrists’ inability to reach definitive conclusions.

Re-sentencing

1. [74]

   There can be no clearly correct sentence, or self-evidently appropriate range, in sentencing a person who was 16 years of age at the time of the offending (and immature for his age) but who conducted a ferocious and inexplicable attack upon a helpless acquaintance. There is no doubt that condign punishment must reflect an element of outrage for a senseless killing and must be sufficient to denounce the conduct of the offender. [65] Such a sentence will recognise not merely the death of the victim but the sense of insecurity such crimes create in a local community.

2. [75]

   It is also proper to have regard to the need to protect the community from the offender. [66] It is that factor, combined with the difficulty in assessing the danger to the community, which creates a significant degree of uncertainty in fixing upon a sentence in the present case.

3. [76]

   The effect of a finding of special circumstances is to increase the balance of the term of the sentence beyond one-third of the non-parole period. It is commonly assumed that effective supervision is unlikely to extend beyond three years. Nevertheless, an extended term on parole can provide a salutatory reminder as to the likely consequence of further offending. However, it is important to bear in mind that an offender will not necessarily be released on parole at the expiration of his non-parole period. That will be a matter for the Parole Authority. Because the balance of the term dictates the overall length of potential imprisonment, it is important that, for a young man in prison for the first time, the overall sentence not exceed the period during which imprisonment can properly continue.

4. [77]

   In my view the offender should be resentenced to a non-parole period of 13 years with a further term of 5 years. The sentence commenced on 19 July 2005, so that the appellant became eligible for parole on 19 July 2018. The sentence will expire on 18 July 2023, being a sentence of 18 years imprisonment.

5. [78]

   SCHMIDT J: I also agree with Basten JA but like Fagan J, express no view on the issue his Honour discusses at [33]-[48], which the parties did not address.

6. [79]

   It is apparent that but for the role which the standard non-parole period played in this difficult sentencing exercise, the sentencing judge would have imposed a lesser sentence on the applicant, notwithstanding the objective seriousness of his awful offence. On this appeal his Honour’s factual findings, particularly as to the applicant’s mental state, are not challenged and the error involved in the approach adopted to the impact of the standard non-parole period, conceded. In those circumstances, I am also satisfied that application of the principles which Basten JA has discussed to the factual findings, cannot result in the conclusion that no lesser sentence should be imposed. That result has been driven by the applicant’s youth at the time of his offence, what his Honour found as to his then mental state and the considerations which those findings necessarily give rise to, as Basten JA has explained. In the result, I also agree with the orders which his Honour proposes.

7. [80]

   FAGAN J: I agree with Basten JA. Because the parties adopted the common position referred to by his Honour at [32] and [49], I have not given consideration to the issue discussed by his Honour at [33]-[48] and I express no view upon it.