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Supreme Court 9 June 2017

R v PO

[2017] NSWSC 757

Assault & violenceHomicide
SENTENCE MURDER STABBING INTENTION TO CAUSE GRIEVOUS BODILY HARM JUVENILE OFFENDER FINDING OF SPECIAL CIRCUMSTANCES

Citation: R v PO [2017] NSWSC 757
Court: Supreme Court of New South Wales
Date: 9 June 2017
Judge: Fullerton J

Background

In the early hours of 21 September 2014, a fatal street fight occurred in Port Macquarie's central business district. The offender, PO, was 16 years and 8 months old at the time. He stabbed a 25-year-old man, Charlie Farmer, twice in the chest and abdomen with a large kitchen knife during a confrontation that had escalated from an earlier verbal altercation between the two groups.

Mr Farmer's chest wound was described by a forensic pathologist as "rapidly and inevitably fatal," having severed major blood vessels including the inferior vena cava and penetrated the aorta. Despite medical attempts at the scene, Mr Farmer was pronounced dead approximately two hours after the stabbing.

PO was charged with murder and, after pleading not guilty at trial, was convicted by a jury on 10 April 2017. The jury's verdict necessarily reflected findings that he had either intended to kill Mr Farmer or inflict grievous bodily harm, and that he did not act in genuine self-defence. By the time of sentencing, PO had been in continuous custody since his arrest and was 19 years and 4 months old.

  • What sentence was appropriate for a juvenile offender convicted of murder, having regard to the standard non-parole period and the principles in Muldrock v R?
  • What weight should be given to general deterrence where the offender was an adolescent with significant psychosocial immaturity and a severely disrupted background?
  • Whether special circumstances existed to justify varying the statutory ratio between the non-parole period and the balance of the term, given the offender's age and rehabilitation needs upon release.
  • Whether, and to what extent, the offender's intoxication by methamphetamine and home-brewed alcohol at the time of the offence bore on the sentencing assessment.

Decision

Fullerton J imposed a total sentence of 15 years, comprising a non-parole period of 9 years from 21 September 2014 and a balance of term of 6 years. The non-parole period is shorter than the standard ratio would otherwise produce, reflecting a finding of special circumstances.

The court accepted that the offender's youth and psychosocial immaturity significantly moderated the weight of general deterrence. PO had lost his mother at around age 9, had no parental guidance for years thereafter, and had been living with a school friend's family before the offence. Fullerton J found that this absence of family structure and moral guidance during formative years left him particularly vulnerable to the influence of older peers, including the companion who supplied both the methamphetamine and, apparently, the direction to retrieve the knife before the fatal encounter.

The court also acknowledged the absence of any reliable evidence about how the combined effects of methamphetamine and home-brewed alcohol affected PO at the time, meaning no adverse or mitigating factual findings could be made specifically about the degree of intoxication. The court noted that his mental health had deteriorated during custody, with a recent acute episode requiring hospitalisation, and that this was likely to make continued imprisonment more burdensome.

Fullerton J found special circumstances warranting a departure from the standard non-parole ratio. The extended balance of term was designed to allow a prolonged period of supervised parole to support PO's eventual reintegration into the community, given his age, fractured background, mental health needs, and the rehabilitation potential recognised in juvenile sentencing principles. The court directed that PO serve his sentence as a juvenile offender until he turns 21.

Orders Made

  • PO sentenced to a total term of 15 years imprisonment
  • Non-parole period of 9 years commencing 21 September 2014, expiring 20 September 2023
  • Balance of term of 6 years expiring 20 September 2029
  • Eligible for release to parole on 21 September 2023
  • Directed to serve the sentence as a juvenile offender until he turns 21 years of age

Key Takeaways

  • Sentencing a juvenile for murder requires careful synthesis of competing considerations: the gravity of the offence and principles of retribution on one hand, and the reduced culpability associated with adolescent immaturity and disadvantaged background on the other.
  • A juvenile offender's chronological age is not the sole factor in assessing general deterrence; psychosocial immaturity and the absence of parental guidance during formative years can further reduce the weight of that sentencing purpose.
  • Under the Children (Criminal Proceedings) Act 1987 (NSW), the Supreme Court directed that the offender serve his sentence as a juvenile until age 21, reflecting the statutory recognition that juvenile offenders may require different custodial conditions.
  • Special circumstances justifying a variation to the standard non-parole ratio were established here by the offender's age, mental health deterioration in custody, and the need for an extended supervisory period upon release to assist community reintegration.
  • Where evidence is absent about the precise intoxicating effect of drugs or alcohol at the time of an offence, the sentencing court cannot make adverse or mitigating factual findings on that issue; it must sentence on what is actually proven.

Legislation and Cases Referenced

Legislation
- Children (Criminal Proceedings) Act 1987 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), including s 3A (sentencing purposes)

Cases
- Muldrock v R (2011) 244 CLR 120; [2011] HCA 39
- BP v R [2010] NSWCCA 159; 201 A Crim R 379
- KT v R [2008] NSWCCA 51
- R v YS [2014] NSWCCA 226
- R v SB; R v AE; R v MG [2015] NSWSC 659
- R v SSA; R v Siose [2007] NSWSC 1202