AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Supreme Court 1 May 2020

R v DS; R v DM

[2020] NSWSC 422

Homicide
CRIMINAL LAW OFFENCES SENTENCE MURDER RELEVANCE OF YOUTH IN SENTENCING LATE PLEAS OF GUILTY

Citation: R v DS; R v DM [2020] NSWSC 422
Court: Supreme Court of New South Wales
Date: 1 May 2020
Judge: Bellew J

Background

Two juvenile offenders, identified by the pseudonyms DS and DM, were sentenced for the murder of Zeeshan Akbar, a young man who had emigrated to Australia from overseas. The offences occurred in Queanbeyan on 6 and 7 April 2017. Both offenders pleaded guilty, DS on 18 September 2019 and DM on 23 September 2019, each well after the offending date.

DS was 15 years old at the time of the offending and was convicted of murder (on a constructive basis, with armed robbery as the foundational offence) and aggravated taking of a motor vehicle with an occupant on board. DM was 16 years old at the time and faced a more extensive indictment, including murder (where the intent to kill was present), armed robbery with wounding, wounding with intent to cause grievous bodily harm, and aggravated taking of a motor vehicle.

The offences were serious and violent. CCTV footage of the murder was tendered in evidence. The victim's family provided an impact statement describing devastating personal and financial loss. Bellew J sentenced the two offenders separately, taking into account their differing ages, culpability, mental states, and prospects of rehabilitation.

  • Whether a provisional sentence under s 60B of the Crimes (Sentencing Procedure) Act 1999 (NSW) was appropriate for DS, given his age and the available psychological evidence
  • The extent to which youth mitigates sentence, particularly in cases involving extreme violence
  • How a deprived background affects moral culpability under the principles in Bugmy v The Queen (2013) 249 CLR 571
  • Whether DM's mental disorder at the time of the offending reduced his moral culpability and the weight to be given to general deterrence
  • How to assess remorse and prospects of rehabilitation for each offender
  • The appropriate structuring of sentences under the Children (Criminal Proceedings) Act 1987 (NSW), including the portion to be served in a juvenile facility

Decision

Provisional sentence application (DS)

Bellew J rejected the application by DS for a provisional sentence. Section 60B(1)(d) of the Sentencing Act requires the court to be unable to satisfactorily assess whether the offender has or is likely to develop a serious personality or psychiatric disorder or serious cognitive impairment. The psychological evidence in DS's case did not support that finding. Dr Milic did not diagnose DS with any mental health disorder, and the available evidence was sufficient to allow a proper assessment of the risk of reoffending and prospects of rehabilitation. The statutory precondition for a provisional sentence was therefore not met.

Sentencing DS

DS was 15 at the time of the offending, had expressed genuine remorse, and had favourable prospects of rehabilitation. Youth was given substantial mitigatory weight, although the court acknowledged that even in cases of extreme violence, youth remains a relevant consideration. The constructive murder conviction (built on the foundational armed robbery) reflected a lower level of individual culpability than a direct intent to kill. Special circumstances were found, justifying an adjustment to the statutory ratio between the non-parole period and the head sentence. A portion of the sentence was ordered to be served in a juvenile detention facility up to the age of 21, consistent with the Children (Criminal Proceedings) Act 1987.

Sentencing DM

DM's case was considerably more serious. He was 16 at the time and intended to kill the victim. The robbery was planned, and there were multiple aggravating factors including the vulnerability of the murder victim and a series of violent offences committed over the two-day period. DM suffered from a mental disorder at the time of the offending, which Bellew J accepted reduced his moral culpability to some degree and diminished the weight of general deterrence in the sentencing calculus. However, DM did not make any genuine expressions of remorse, and his prospects of rehabilitation were found to be poor. His deprived background was also taken into account pursuant to the Bugmy principles, but it did not substantially alter the outcome given the planning involved and the adult-like nature of the conduct.

Orders Made

DS:
- Convicted of murder and sentenced to a term of imprisonment (precise term not reproduced in the provided orders section, which focuses on DM's orders; see the judgment for DS's sentence details)

DM:
- Convicted of armed robbery with wounding; sentenced to 11 years and 8 months imprisonment commencing 7 April 2017, expiring 6 December 2028 (no non-parole period specified)
- Convicted of aggravated taking of a motor vehicle with occupant; sentenced to 9 years imprisonment commencing 7 April 2017, expiring 6 April 2026 (no non-parole period specified)
- Convicted of wounding with intent to cause grievous bodily harm; sentenced to 12 years and 6 months imprisonment commencing 7 April 2017, expiring 6 October 2029 (no non-parole period specified)
- Convicted of murder; sentenced to 31 years and 6 months imprisonment commencing 7 April 2021, expiring 6 October 2052
- Non-parole period for murder: 23 years and 6 months commencing 7 April 2021, expiring 6 October 2044
- Total term of imprisonment: 35 years and 6 months commencing 7 April 2017
- Eligible for parole: 7 October 2044; sentence expires 6 October 2052
- Notified of the existence and application of the Crimes (High Risk Offenders) Act 2006 (NSW) pursuant to s 25C of that Act

Key Takeaways

  • A provisional sentence under s 60B of the Crimes (Sentencing Procedure) Act 1999 is only available for murder where the court genuinely cannot satisfactorily assess the risk of reoffending or prospects of rehabilitation due to uncertainty about a serious personality, psychiatric, or cognitive condition. Where the evidence is sufficient to make that assessment, the provision does not apply.

  • Youth is a relevant mitigating factor even in cases of extreme violence, but its weight varies. The Supreme Court treated the two offenders differently based on age, level of culpability, genuineness of remorse, and the degree to which the offending reflected adult-like planning and intent.

  • Under the Bugmy principles, a severely deprived background can reduce an offender's moral culpability and the weight given to general deterrence. However, that reduction operates alongside other sentencing factors, including the seriousness of the offence and the extent of planning involved.

  • A mental disorder present at the time of offending may reduce moral culpability and the deterrent weight given to a sentence, even where it does not provide a defence or substantially diminish responsibility. Bellew J applied this principle in assessing DM's sentence.

  • Where one offender demonstrates genuine remorse and has favourable rehabilitation prospects, and another does not, those differences can produce materially different sentencing outcomes even when the headline charges are the same.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 18(1)(a), 33(1)(a), 98, 154C(2)
- Children (Criminal Proceedings) Act 1987 (NSW)
- Crimes (High Risk Offenders) Act 2006 (NSW), s 25C
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 60B
- Mental Health (Forensic Provisions) Act 1990 (NSW), s 32

Cases:
- Azzopardi v R (2011) 35 VR 43; [2011] VSCA 372
- BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 159
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- DPP v MHK (A Pseudonym) (2017) 52 VR 272;