R v DS; R v DM

On 18 September 2019, the offender DS pleaded guilty to the following counts: [1]

DS also asked the Court to take into account a further matter on a Form 1, namely an offence of aggravated enter dwelling house with intent to steal which occurred on 6 April 2017. [4]

On 23 September 2019 the offender DM pleaded guilty to the following counts: [5]

DM asked the Court to take into account the following two matters on a Form 1:

The maximum penalties applicable to the various offences to which each offender has pleaded guilty are as follows:

In the case against DS, the Crown tendered the following evidentiary material: [15]

In the case against DM, the Crown tendered the following evidentiary material: [17]

The Crown also provided written submissions in respect of each offender.

The following documentary material was tendered in the case of DS: [18]

The following documentary material was tendered in the case of DM: [19]

In addition, I was assisted by written submissions provided by counsel for each offender.

The victim impact statement tendered by the Crown was prepared on behalf of the deceased's family. The deceased was a young man who came to Australia in 2008 to forge a better future for himself and his family. Put simply, he came to this country in search of a better life, and saw Australia as a land of opportunity.

As one might expect, the emotional toll of the deceased’s death on his family generally, and on his elderly parents in particular, has been substantial. His death has also deprived the members of his family of the benefits of the financial assistance that he provided to them.

I take this opportunity of extending my sympathy to all of the members of the deceased's family. It is my hope that the conclusion of the proceedings against the offenders today will assist them in obtaining some degree of closure.

Counsel for DS made an application for the imposition of a provisional sentence pursuant to s 60B of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Act). At the conclusion of the hearing I rejected that application and indicated that the reasons for reaching that decision would be incorporated in my judgment. Those reasons now follow.

Section 60B of the Sentencing Act is in the following terms:

In the present case, had I been otherwise minded to accede to the application, each of the provisions of s 60B(1)(a),(b) and (c) would have been engaged. The issue is whether the requirements of s 60B(1)(d) are met.

The term “serious cognitive impairment" which appears in s 60B(1)(d) is not defined in the Sentencing Act. However, the term “cognitive impairment” is defined in s 32(6) of the Mental Health (Forensic Provisions) Act 1990 (NSW) (the MHA) as follows:

In order to form the opinion that it is not appropriate to impose an ordinary sentence on the offender because of the matters set out in s60B(1)(d), the court must firstly conclude that the information presently available does not permit a satisfactory assessment to be made of whether the offender has, or is likely to develop, a serious personality or psychiatric disorder, or a serious cognitive impairment. Various aspects of the medical evidence touch on this issue.

Dr Milic did not diagnose DS as suffering from any mental health disorder, including depression. He concluded that the offender’s responses to questions posed in the course of a mental health assessment indicated that he suffered from a depressed and submissive personality style. [20]

Like Dr Milic, Ms Lucas concluded that the offender did not present with a diagnosable psychological disorder or mental illness. [21] She also found that the offender’s description of his general functioning, combined with results of his IQ assessment, did not indicate the presence of any developmental intellectual disability. [22] Significantly however, Ms Lucas specifically tested the level of the offender’s cognitive ability. [23] She concluded that the offender had a full score IQ of 79, stating: [24]

She went on to say: [25]

In the course of giving evidence Ms Darragh agreed that a cognitive impairment can be serious, yet brief in time. [26] She also agreed that she did not see any obvious sign of cognitive impairment in the offender. However, she agreed that unlike Ms Lucas, she had not specifically tested for the presence of such impairment. [27]

In the absence of any definition of the term “cognitive impairment” in the Sentencing Act, it is appropriate to apply the definition set out in the MHA. Significantly, pursuant to that definition, cognitive impairment includes (inter alia) borderline intellectual functioning. The unchallenged opinion of Ms Lucas is that the offender’s functioning falls at that level. The evidence of Ms Darragh that she saw no indication of such impairment was obviously qualified by her concession that she had not administered any relevant testing. For these reasons, I am satisfied that the offender suffers from a cognitive impairment. Whether that impairment is serious is a separate question.

The Macquarie Dictionary defines the word “serious” as meaning (inter alia):

The opinion of Ms Lucas was that the offender’s borderline intellectual functioning was reflected in several factors, to the point where he was placed equal to, or above, only 4% of his same-aged peers. A borderline intellectual functioning which manifests itself in multiple ways is obviously serious. In these circumstances, the evidence supports a conclusion that DS has a serious cognitive impairment.

For all of these reasons, and in terms of the first limb of 60B(1)(d), the evidence does permit a satisfactory assessment of whether the offender has, or is likely to develop, a serious cognitive impairment. That being the case, the terms of s 60B(1)(d) are not engaged. I should also say that even if the contrary conclusion were reached, the imposition of a provisional sentence would depend upon the Court being further satisfied that it was not in a position to satisfactorily assess the likelihood of re-offending, and/or the offender’s prospects of rehabilitation. For the reasons I have discussed further below, [28] the evidence does permit me to make both of those assessments.

At the time of the offending, DS was 15 years and 1 month old, and DM was 16 years and 8 months old. Counsel for each offender submitted that the principles applicable to sentencing young offenders necessarily had a role to play in determining an appropriate sentence. In R v Khalid and ors I summarised those principles in the following terms: [29]

I will return to the application of these principles when dealing with the respective subjective cases of each offender.

The statement of agreed facts tendered by the Crown encompasses the entirety of the offending and is in the following terms:

In respect of the murder offence, the Crown acknowledged that the offender’s plea of guilty had been entered on the basis of constructive murder, the foundational offence being that of robbery armed with an offensive weapon with wounding. The Crown pointed to the fact that the offender was wearing his “hoody" over his head when he entered the service station, and that he saw DM stab the victim. The Crown also pointed out that in circumstances where the offender could see that the deceased was being attacked, he removed his hoody from his head and went about committing the robbery, assisted by DM.

The Crown emphasised that the offender did not seek to deter DM from attacking the deceased, and that having observed the attack, he did not withdraw from any plan to rob the service station. However, the Crown acknowledged that there was no evidence that the offender knew of any intention on the part of DM to kill the deceased, describing his (i.e. the offender’s) involvement in the deceased’s murder as “passive". The Crown accepted that the overall criminality of DS was less than that of DM.

In respect of the offence of aggravated taking and driving of a motor vehicle, the Crown pointed to the fact that after Mr Mahatara had been stopped, the offender had tapped a wheel brace against the window of his vehicle. The Crown submitted that was obviously done in an attempt to frighten Mr Mahatara. The Crown also emphasised that this offence had been committed only a short time after the offender had witnessed DM kill the deceased.

The Crown also pointed to the fact that it was this offender who was driving Mr Mahatara’s vehicle during the subsequent police pursuit, although the Crown again accepted that the offender had played a substantially lesser role in the commission of this offence than DM.

In terms of the offence of murder, the Crown submitted that it was obvious that the offender had intended to kill the deceased, and that such intention had been formed at some time prior to the offender entering the service station. Whilst the Crown accepted that the evidence did not support a finding that the offender was carrying the knife solely as part of a planned or premeditated attack on the deceased, it was submitted that the robbery had been planned, and had been motivated by a need for money.

The Crown submitted that it was clear from the CCTV footage that having entered the service station, the offender almost instantaneously put his arm around the neck of the deceased and stabbed him in the back. The Crown emphasised that as the deceased tried to escape, the offender followed him down to the other end of the store and stabbed him again, assisted DS to commit the robbery, and then dipped his finger into the deceased’s blood and used it to write the letters “IS" on a glass window of the service station. It was submitted that the offence of murder was “a very very serious" crime which demanded severe punishment.

In terms of the wounding of Mr Mahatara, and the associated aggravated offence of taking and driving his vehicle, the Crown submitted that it was the offender who had principally engaged with Mr Mahatara, and who played the more significant role in the offending. It was submitted that the offender’s stabbing of Mr Mahatara was nothing more than a completely unprovoked act of violence, which resulted in Mr Mahatara suffering significant injuries.

Counsel for DS emphasised that the offender’s plea of guilty had been entered on the basis of constructive murder. Whilst accepting that the CCTV footage was obviously graphic, counsel submitted that it was clear from that footage that DS had not played any active role in the deceased's murder. It was submitted, in particular, that there was no evidence that the offender had any intention to kill, or inflict grievous bodily harm upon, the deceased, and that there was no evidence that he was aware of any such intention held by DM. .

Counsel submitted that the relevant intention on the part of the offender was an intention to participate in the robbery of the service station. Whilst counsel acknowledged that the robbery had obviously been planned to some degree, he emphasised that this was not the case in terms of any involvement of DS in the deceased's murder. It was submitted, in particular, that DS could not be held responsible for any planning in relation to DM’s use of the knife which was in his possession.

In respect of the aggravated offence of taking and driving Mr Mahatara’s vehicle, counsel for DS acknowledged that Mr Mahatara had been alone when he was stopped. Counsel emphasised that DS had not touched Mr Mahatara at any time. However, it was accepted that the offender had clearly intimidated Mr Mahatara, and that his conduct of tapping the wheel brace on the window must have placed Mr Mahatara in fear. Counsel also emphasised that DS had entered the vehicle after DM had threatened Mr Mahatara.

Counsel for DM accepted that it was open to conclude that the offender had acted with an intention to kill the deceased. However, he submitted that the evidence did not support a conclusion that the offender was carrying the knife as part of a planned or premeditated attack on the deceased. Counsel described DM’s offending as “the tragic culmination of [the offender's] ongoing pre-occupation with violence as a means to an end".

In terms of the wounding of Mr Mahatara, counsel accepted that the offender's actions had the potential to cause death or very serious injury, to the point where Mr Mahatara could count himself fortunate to be alive. Counsel accepted that the offender’s plea of guilty carried with it an acceptance that Mr Mahatara had been stabbed with an intention to cause him really serious bodily injury. However, Counsel submitted that I could not be satisfied beyond reasonable doubt that the offender had intentionally stabbed Mr Mahatara to a particularly vulnerable area of his body. It was further submitted that the evidence did not support a conclusion that the wounding was premeditated or planned.

The entirety of the conduct of the offenders, including the conduct encompassed by the additional matters that each offender has asked me to take into account, had a number of serious consequences. It left one man murdered. It resulted in the service station where the deceased worked being robbed. It caused Mr Mahatara to be seriously injured, to the point where he was fortunate not to have lost his life. It resulted in Mr Cameron sustaining concussion along with a bilateral fracture of the nasal bones and facial lacerations. It resulted in Mr Field sustaining cuts and bruises to his mouth.

Viewed in an overall sense, the conduct of the offenders on the afternoon and evening of 6 April 2017, and on the morning of 7 April 2017, is best described as amounting to a violent and uncontrolled criminal rampage. That said, it is obviously necessary to assess the objective seriousness of each individual instance of offending. In doing so, I turn firstly to the offence of murder.

Whilst the description of the deceased’s murder which is set out in the statement of agreed facts might be described as graphic, it does not properly convey the true nature of the offending. The CCTV footage of the incident, which was obtained from multiple cameras placed inside the service station supplements the agreed facts in a material way. I have viewed the entirety of that footage. It is, quite frankly, horrifying in the extreme.

The agreed facts make reference to the offender DM appearing to “engage the deceased in conversation" after which the deceased “pointed with his pen in the direction of the service counter and motioned for [DM] to follow him". [46] It is apparent from the footage that DM had enquired of the deceased about the location of a particular item or items within the service station. That this is so, is evident from the fact that the deceased motioned for DM to follow him. DM had no interest in knowing the whereabouts of anything at all. DM engaged in an act of complete subterfuge in that respect, and set up the deceased to be attacked only seconds later. I am satisfied that at least by the time of engaging in conversation with the deceased, DM had formed the intention to kill him.

As he followed the deceased to the front counter area, DM removed the knife from his pants and attacked the deceased from behind. The deceased was working by himself that evening. There was nobody who could come to his assistance. He was in a position of complete vulnerability. He was largely, if not completely, defenceless. DM’s act of attacking the deceased from behind was, quite simply, an act of unmitigated cowardice.

The deceased was obviously startled by the first blow struck by DM, however the initial wound he sustained was comparatively superficial in nature. The deceased attempted to fight back, and tried to get away from DM. The injuries on the deceased’s hands are indicative of the degree to which he attempted to defend himself. However, he was overpowered by DM who, in an uncontrolled and ferocious display of gratuitous violence, inflicted two further blows with the knife. One perforated the deceased’s heart, the other partially transected his left external iliac artery. The extent of the immediate loss of blood brought about by these two blows is evident from the CCTV footage.

Having then assisted DS to carry out what was obviously a planned robbery motivated by a desire to obtain money to purchase drugs, [47] DM’s final act, which can only be described as both macabre and callous in the extreme, was to dip his finger in the deceased’s blood and draw the letters “IS” in that blood on the glass window of the service station. Along with DS, he then forced his way out of the service station, leaving the deceased to die in the aftermath of what was, in a very real sense, a cold blooded murder.

The actions of DM in writing the letters “IS” in the deceased’s blood on the window, and the statements he made at the time of his arrest, necessarily raise the question of whether his actions were motivated by an adherence to some form of extremist ideology. Dr Eagle noted that the offender had initially told her that he did not intend the attack on the deceased to be an act of terrorism, before telling her that he “pretty much” did have that intention. [48] He then told her that the attack on the deceased was “not part of a terror plan”, and attributed any terrorism tendencies to DS. [49]

The variations in these histories must necessarily be assessed in light of DM’s mental illness which I have discussed further below. The actions of DM following his attack on the deceased, and his statements to police, are obviously disturbing. However, I am not satisfied that in acting as he did, the offender was motivated by any form of extremism. The Crown did not suggest that this was the case. However, that must not be allowed to detract from the seriousness of DM’s offending which was aggravated by the complete vulnerability of the deceased. [50]

Any further observations about the objective seriousness of DM’s offending in murdering the deceased would be superfluous. The offending finds itself substantially above the mid-range of objective seriousness.

As far as DS is concerned, it must be acknowledged that his plea of guilty was entered on the basis of constructive murder. That does not automatically lead to the conclusion that DS should receive a lesser sentence than would be the case if his plea had been entered on some other basis. [51] The approach to be applied in sentencing in a case of constructive murder was set out by Wood CJ at CL in R v Jacobs: [52]

The relevant intention of DS was to participate in the robbery. That robbery was obviously planned. DS watched the attack on the deceased unfold. As he did so, he approached the service station counter and proceeded to carry out the planned robbery.

Having observed DM attacking the deceased, who as I have pointed out was in a position of complete vulnerability, DS did not attempt, at any time, to withdraw from the planned robbery. On the contrary, he took immediate steps to carry it out. However, there is no evidence that he was aware in advance of any intention which had been formed by DM to kill the deceased, be it with the use of a knife or otherwise. It is also clear that he did not actually participate, in any way, in DM’s attack on the deceased. In all of these circumstances, and whilst the objective seriousness of the deceased’s murder is, as I have found, above the mid-range, the criminality of DS is substantially less than that of DM.

In terms of the offences involving Mr Mahatara the first observation to make is that such events occurred within hours of the attack on the deceased. It is evident that in waving Mr Mahatara’s vehicle down, both offenders were engaging in a further act of subterfuge designed to assist them in achieving their criminal ends. Clearly, Mr Mahatara formed the impression that the offenders were in need of some assistance. Mr Mahatara acted as a concerned and responsible citizen, and stopped to assist them. He was immediately confronted by DM telling him that he and DS had “killed someone and held up a service station”. DM then showed Mr Mahatara the knife that he was carrying. DS, in a further act of intimidation, tapped the wheel brace that he was holding on the window of Mr Mahatara’s vehicle. It is little wonder in those circumstances that the agreed facts record that Mr Mahatara was scared.

DM then opened the door of Mr Mahatara’s vehicle. In another act of senseless and gratuitous violence committed on an unsuspecting member of the public who had stopped because he thought the offenders needed help, DM stabbed him. The stab wounds, had they been inflicted in a marginally different area of the body, would have threatened Mr Mahatara’s life. The plea of guilty entered by DM to the offence of wounding carries with it an admission that in stabbing Mr Mahatara, he intended to cause him really serious bodily injury. The offenders then took Mr Mahatara’s vehicle and drove off.

I am satisfied in all of the circumstances that DM played a significantly greater role than DS in the commission of the offences involving Mr Mahatara. It was DM who primarily engaged with Mr Mahatara, it was DM who produced the knife, and it was DM who carried out the stabbing. DS did, however, engage in an act of intimidation in DM’s company, although I acknowledge that he did not enter the vehicle until after DM.

The offending in the case of each offender is aggravated by the fact that, alone in his vehicle in the early hours of the morning, Mr Mahatara was vulnerable. I regard the offending surrounding Mr Mahatara as being at the mid-range of objective seriousness, although for the reasons set out the criminality of DM is again higher than that of DS.

DS was born on 8 March 2002 and is now 18 years of age. His heritage is from the Wiradjuri people. [53] He was in Year 10 at the time of his arrest and was living with his mother, [54] although he rarely attended school. [55] On one account the offender was expelled from school at one point, [56] on another account he was suspended from one school and expelled from another. [57]

The offender’s father, who was incarcerated when the offender was 8 years of age, [58] passed away in 2014. The offender discovered his body. It is evident that these events had a marked effect on the offender, who was close to his late father, being the parent from whom he derives his indigenous heritage. [59] It was about this time that the offender first came into trouble with the law. [60] The offender’s difficulties in the years leading up to his arrest were summarised by Ms Darragh: [61]

The offender reported to Ms Lucas that he had commenced using cannabis and alcohol at the age of 12, and that he had later commenced to use MDMA and Ice. In 2016 he was involved in a foundation designed to assist with substance abuse problems but did not complete the relevant programme. [62] The offender reported to Dr Milic that he had developed a daily marijuana habit from a young age and that although he had “tried” other illicit drugs, he did not use them habitually. [63] The offender reported to Ms Thomas and Ms Bender that he had used marijuana, methamphetamines, cocaine and ecstasy from the age of 13 years. [64] Their joint report confirmed the offender’s prior attendance at the foundation. [65] The obvious inconsistencies in the histories provided by the offender in respect of his drug use will be apparent. However, on any view of the evidence, he has had difficulties in that respect since entering his teenage years.

I have previously set out the results of cognitive testing administered to the offender. [66] He is clearly in the borderline range, a factor which reduces his moral culpability for the offending.

The offender’s pleas of guilty were entered virtually immediately prior to the scheduled commencement of his trial. In these circumstances, I propose to allow a discount of 10%.

The offender first came before the Children’s Court in 2016 and was given the benefit of a control order in respect of an offence of aggravated break and enter and commit a serious indictable offence in company. He has other entries for offences of dishonesty, including obtaining a financial advantage by deception and larceny, being carried in a conveyance taken without the consent of the owner, having custody of a knife in a public place, destroying or damaging property, and affray. That history disentitles the offender to leniency.

The offender told Ms Thomas and Ms Bender that his motivation for the offending was to obtain money for drugs. [67] Their report went on to state:

These expressions must necessarily be assessed through the prism of a person found to have borderline intellectual functioning. In circumstances where the offender has pleaded guilty to the offences, I am satisfied that his expressions of remorse are genuine. I am fortified in that view by the statements made by the offender to Ms Potts to the effect that he was disturbed that one innocent person was dead, and that another was severely injured.

Ms Darragh’s report records that since been taken into custody, the offender has continued his education by pursuing a number of subjects including English, Mathematics and Ancient History. [68] He has received Bronze and Silver teachers’ awards and his school reports generally make reference to him being focused, being respectful towards teachers and students, having healthy attitudes, and being courteous.

Although Ms Darragh noted numerous instances of the offender misbehaving in custody, there has been some significant improvement in this regard, to the point where Juvenile Justice staff have indicated that the offender is “easy to manage and pleasant" and “would do as he was asked". [69] Ms Darragh concluded: [70]

In her report of 8 November 2019, Ms Darragh recorded that the offender was continuing his education and had received further awards. [71] His school report made reference to him being capable and having potential, but identified a need to work on his motivation and applying himself to his work. It was noted that he had engaged well during counselling and had been happy to cooperate. [72] Ms Darragh concluded: [73]

In her oral evidence, Ms Darragh agreed that the offender was respectful and quiet, that he engaged well, and that he did his best to talk things through with her. [74] She also said that there were a number of rehabilitation programs available to the offender if he remained in juvenile custody which she considered would be beneficial to his prospects of rehabilitation. [75] In their joint report Ms Thomas and Ms Bender confirmed that the offender had participated in a number of recreational programs and that reports from custodial staff were all positive “stating that [the offender] has put in effort and shown growth”. [76]

Quite apart from these matters, the large number of educational certificates tendered in the offender's case demonstrate that he has been using his time in custody productively, having completed modules in a wide range of academic and other subjects.

Whilst the offender's successful rehabilitation is necessarily dependent upon him continuing on his present course, his prospects in that regard appear favourable.

The offender’s likelihood of reoffending is necessarily tied to the same evidence. He is obviously far less likely to lapse into reoffending when he is eventually released if he properly addresses his drug use. He has engaged in drug and alcohol counselling whilst in custody. [77] In her report of 8 November 2019 Ms Darragh stated: [78]

I am satisfied that if the offender maintains his current path of rehabilitation in respect of his drug use, he is far less likely to offend than might otherwise be the case.

I am satisfied on the whole of the evidence that, particularly given his youth, the offender would benefit from a longer period on parole to assist in his rehabilitation and his reintegration into the community. Accordingly, I propose to make a finding of special circumstances and will adjust the ratio between the head sentence in the non-parole period accordingly. The Crown did not oppose that course.

Finally, the evidence of Ms Darragh makes it clear that there are, as she put it, “lots of great programs” from which the offender would benefit, and which will remain available to him for such time as he remains in juvenile custody. [79]

It is obviously in the offender’s interests, and in the interests of the wider community, that his rehabilitation continue in the most beneficial way. Section 19 of the Children (Criminal Proceedings) Act 1987 provides (inter alia) as follows:

I am satisfied that there are special circumstances justifying the offender's detention as a juvenile offender until the age of 21. Those circumstances include his access to educational and related programs and courses of the kind to which Ms Darragh referred and which are available in juvenile custody. For these reasons I propose in due course to make an order pursuant to s 19(1).

I have already set out the principles which apply to the sentencing of young offenders. [80] Bearing in mind those principles, the following observations may be made as to their application in the case of this offender. Firstly, whilst accepting that considerations of general deterrence and principles of retribution are generally of less significance in sentencing a young offender, those considerations cannot be completely ignored in a case such as the present, given the seriousness of the offending. Secondly there is no evidence in the present case that the immaturity of this offender was a significant factor in the commission of any of the offences. Thirdly, the emphasis which is given to the rehabilitation of a young offender may be moderated when the offender has conducted himself or herself in a way that an adult might. In this regard, and as I have already observed, the robbery of the service station was clearly planned and the offender has a criminal history. In the circumstances, whilst there is an obvious need for rehabilitation, that need is tempered by the need to protect society.

The offender’s youth is relevant and I have taken it into account. However, it is moderated given the extreme violence which was involved in the offending.

DM is the eldest of eight children, the youngest of whom is aged one. His parents separated when he was 15 years of age, a circumstance which he found particularly difficult. [81] The offender reported that his father had been “in and out of custody" over a period of time, but that he is now rehabilitated and has become a positive community member and a role model for the offender, although since his arrest the offender has had little contact with him. [82]

The offender reported that his childhood and adolescence were characterised by physical violence in the family home. A history provided to Dr Eagle by the offender’s mother included the following: [83]

Although the importance of attending school and avoiding problems were always impressed upon him, [84] the offender reported that he attended three different public schools in his youth and was suspended and/or expelled from them for a variety of reasons including truanting, smoking and fighting. He was suspended from high school for selling drugs. Shortly after that, he was arrested for the present offending.

The offender reported to Mr Pemberton and Ms Thomas that he had experimented with both alcohol and cannabis at the age of 11, and regularly used both substances from the age of 12. He commenced methamphetamine use at the age of 14, having been introduced to that drug by an older peer group. From that point onwards drug use played a prominent role in his life. He reported that he believed that a combination of drugs and alcohol significantly increased the likelihood of him engaging in criminal behaviour. [85] The offender told Dr Nielssen that he began drinking alcohol from around the age of 15 and was drinking regularly from that time, including during the period immediately before his offending. He also told Dr Nielssen that he began smoking cannabis at around the age of fourteen, and said that he was smoking it every day. [86]

The offender reported to Mr Pemberton and Ms Thomas that he had been involved with a number of support services to try and manage his behaviour, and he had been diagnosed with Attention Deficit Hyperactivity Disorder for which he was prescribed Ritalin. [87] As an adolescent, he spent a period of time in Austinmer Forensic Hospital, [88] at which time he was diagnosed with schizophrenia, substance use disorder and conduct disorder. He was prescribed Olanzapine, which he continues to take. Staff at that forensic facility commented that the offender was “desensitised to aggressive behaviour" and had “a lack of remorse towards people he had hurt". [89]

Dr Eagle concluded that it was likely that the offender had a post traumatic condition which she described as a complex post-traumatic stress disorder. She said: [90]

In accordance with the principles set out by the High Court in Bugmy v The Queen, [91] I have had taken into account the offender’s deprived background, particularly in respect of those matters reported by the offender’s mother to Dr Eagle.

Dr Nielssen confirmed the offender’s history that he was diagnosed with ADHD at around the age of 11, [92] and that he could still not read or write, although he could count. [93] On a mental state examination, Dr Nielssen diagnosed: [94]

Dr McSwiggan took a history from the offender which was generally consistent with that previously set out. Following a neuropsychological assessment, Dr McSwiggan reported: [95]

Dr Hepner concluded that the offender's overall level of intellectual functioning was within the range of those having mild intellectual disability, with his basic attentional function and speed of information processing being variable, and with deficits apparent in relation to some tasks. [96] She also noted that other testing revealed significant impairment in respect of memory, reading, spelling, sentence comprehension and several aspects of frontal executive function. She concluded that the offender presented as distractible, impulsive and immature for his age. [97]

A history provided to Dr Eagle by the offender’s mother confirmed the offender’s diagnosis of ADHD at the age of 6. [98] Dr Eagle also reported:

The offender told Dr Eagle that in the course of the offending he heard voices at various times, including at the service station when a voice was saying “kill him, kill him, kill him”. [99]

Dr Eagle concluded that the offender may have a mild intellectual disability. [100] More significantly however, she diagnosed the offender as suffering from schizophrenia and said: [101]

Dr Eagle also concluded that although the offender had displayed behaviour which was indicative of violent radicalisation, [102] and had also displayed a preoccupation with ISIS during the period leading up to the commission of the offences, such preoccupation was not part of the offender's psychotic illness. Nonetheless, she considered that given his complex mental disorders and low level of intellectual function, he remained highly susceptible to adverse influences, particularly violent extremists.

The evidence set out above, particularly the opinion of Dr Eagle, engages the principles which apply to the sentencing of mentally ill offenders. Those principles were set out by McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa as follows: [103]

The Crown accepted that it would be open to the Court to find, based on the opinions of Dr Eagle, that the offender's mental state contributed to the commission the offences in a material way. At the same time, the Crown submitted that the offender presented as a danger to the community and that in these circumstances considerations of specific deterrence loomed large and required that any sentence address the need for protection of the public.

Counsel for the offender submitted that the offender’s schizophrenic condition clearly contributed to the commission of the offences and that as a consequence, the offender's moral culpability was significantly reduced. It was submitted that in these circumstances the offender was not an appropriate vehicle for general deterrence.

In light of the unchallenged evidence of Dr Eagle, I am satisfied that the offender’s schizophrenic condition contributed to the commission of these offences in a material way. That reduces his moral culpability and also reduces the need for general deterrence.

The offender’s pleas of guilty were entered virtually immediately prior to the scheduled commencement of his trial. In these circumstances, I propose to allow a discount of 10%.

The offender’s criminal history contained a multiplicity of entries dating back to 2015 when he was aged 14 years and 7 months. Since that time, he has been before the Court for a range of offences including resisting arrest, common assault, aggravated break and enter in company, larceny and destroying property. Despite its length, the offender’s criminal history is limited, in terms of violent offending, to an offence of common assault. His history is not an aggravating factor, but is one that disentitles him to leniency.

The letter written by the offender and tendered to the Court was in the following terms:

The practice of tendering a letter of this kind from an offender has been discouraged, and considerable caution must be exercised in relation to the acceptance of such material in the absence of sworn evidence. [104] In circumstances where the offender has not given evidence, I place little weight on the contents of the letter in assessing the offender’s remorse.

Mr Pemberton and Ms Thomas recorded: [105]

Two observations may be about this evidence. Firstly, and for reasons which will be self-evident, some of the comments made by the offender are highly disturbing. Secondly, the observation that the offender was “highly remorseful” for his offending is substantially qualified by the fact that his expressions of remorse were described as “egocentric in nature”.

In all of these circumstances, I am not persuaded that the offender has expressed any genuine remorse, although his plea of guilty is some indication of an acceptance of responsibility.

The report of Mr Pemberton and Ms Thomas noted that whilst under supervision prior to his arrest, the offender did not participate in any meaningful way in the treatment programs which were offered to him, as a consequence of which he made “minimal gains” in addressing his criminal behaviour. [106] They noted that since being transferred into adult custody, the offender's behaviour had improved and that during interviews for the purposes of the preparation of their report, the offender participated positively and openly. [107] In addressing the offender's ongoing education, they noted: [108]

At face value, such statements would tend to point positively towards the offender's rehabilitation. However, that assumes that the offender remains prepared to adhere to his expressed intentions. Moreover, in circumstances where Dr Eagle diagnosed the offender as having a severe substance use disorder, [109] there is nothing in the evidence which suggests that such an issue is being addressed. That is of particular significance in circumstances where there is evidence of an expressed belief by the offender that a combination of drugs and alcohol increased the likelihood that he would act in a criminal way, and that he found amphetamines made him “a better criminal" because they made him “more alert" and “focused". [110]

The report of Mr Pemberton and Ms Thomas identified that the continued use of methamphetamines was a risk factor for further offending which should be addressed in any rehabilitation of the offender. Despite this, there is nothing to suggest that this will be part of any rehabilitation program, nor is there anything to suggest that the offender has expressed any willingness to rehabilitate himself in that respect. This is particularly significant in light of Dr Eagle's observations: [111]

On the whole of the evidence, and in circumstances where there is no evidence as to how (if at all) the offender proposes to address a principal catalyst of his offending behaviour, his prospects of rehabilitation appear to be poor.

In terms of assessing the likelihood of re-offending, counsel for the offender, whilst accepting that the offender’s criminal history did him no credit, submitted that the general nature of his previous offending was not such as would lead to a conclusion that he is likely to re-offend in the same way as he did in this case, or that he presents as a danger to the community. Insofar as the basis of that submission was limited to the offender’s criminal history, I accept it.

However, there are a number of further observations of Dr Eagle which cause me considerable concern. In particular, Dr Eagle said the following: [112]

Dr Eagle has made the point that it is preferable to defer any final diagnosis of personality disorder until a longer period of clinical observation of the offender can be undertaken. That said, what is presently known is that the offender’s assessment score on the psychopathy checklist is neither marginal nor intermediate. It is disturbingly high. Moreover, the unchallenged opinion of Dr Eagle is that the offender remains highly susceptible to violent extremists on account of his mental disorder and low level of functioning. Those matters support a conclusion that, at least as things presently stand, the offender is at a substantial risk of re-offending.

Counsel for the offender acknowledged that considerations of retribution could not be completely ignored when sentencing a young offender. He also acknowledged that an offender’s youth does not automatically mean that a lesser sentence will be imposed than that which would be imposed on an adult offender for the same offending. However, it was submitted that the offender’s age remained an important factor on sentence. Counsel submitted, in particular, that the offender’s conduct did not involve significant planning or reflection, or any other indicia of mature decision making. It was submitted that the offender’s immaturity, and the fact that his capacity to control impulses was not fully developed, were significant contributing factors to his offending conduct.

As I have noted, DM was 16 years and 8 months old at the time of the offending. Whilst he had not attained his majority, he is not properly regarded as a “child offender”. [113] There is no evidence which supports the conclusion that his immaturity was a significant factor in the commission of any of the offences. Moreover, his use of a weapon, and the planning to which I have referred, support a conclusion that he engaged in what could be described as adult behaviour. [114] In those circumstances, the emphasis given to rehabilitation rather than general deterrence and retribution is moderated, particularly in light of the views that I have reached regarding his prospects of rehabilitation. Further, the seriousness of the offending is necessarily relevant to the emphasis which can be given to an offender’s youth. [115] As Callaway JA observed in Tran there may be cases where just punishment and other sentencing objectives carry importance equal to that of the rehabilitation of the youthful offender. [116] Whilst I do not suggest that the offender’s youth is completely extinguished in the present case, the fact of the matter is that his offending was grave, and his behaviour adult-like. In all of these circumstances, the mitigatory effect of his youth is necessarily reduced. As Sully J said in R v Mastronardi: [117]

The fact that his Honour's observations were made in the context of different offending does not render them any less apt in the circumstances of the present case.

I have taken into account the respective Form 1 offences in each case.

In structuring the sentences to be imposed in each case, I have had regard to considerations of totality. There must, in my view, be a measure of accumulation in each case to reflect the fact that the instances of offending are separate. As I have previously indicated, I have made a finding of special circumstances in favour of DS and the statutory ratio has been adjusted accordingly. In the case of DM, no such finding has been made, but an adjustment to the statutory ratio has been brought about by the level of accumulation that I consider appropriate.

Both offenders have been in custody since 7 April 2017. All sentences imposed should be backdated to commence on that day.

In respect of the offender DS, I make the following orders:

In respect of the offender DM, I make the following orders: