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Supreme Court 23 June 2023

R v KS (No 1)

[2023] NSWSC 696

Assault & violenceHomicide

Citation: R v KS (No 1) [2023] NSWSC 696
Court: Supreme Court of New South Wales
Date: 23 June 2023
Judge: Yehia J

Background

The offender, KS, was 16 years old when he committed two serious offences on 17 September 2021: the murder of a 16-year-old boy (KA) and grievous bodily harm with intent against another 16-year-old (BK). Both offences involved the use of a 30-centimetre knife. KS was 18 years old at the time of sentencing.

The offences arose from a period of escalating conflict between two groups of young people in the same area. The tensions had played out on social media, and there had been an earlier organised fist fight between KS and the deceased, after which both groups believed the dispute had ended. Weeks before the offending, KS's stepfather had confiscated a knife from beneath KS's pillow. KS subsequently purchased a second knife online, telling his stepfather he needed it to "protect myself if I have to." The fatal encounter occurred when the deceased and BK visited a house very close to KS's home.

KS had pleaded guilty to both offences in the Children's Court at an early stage of the proceedings. A 25% discount was applied to both sentences to reflect the utilitarian value of those early guilty pleas. The standard non-parole period did not apply to either offence because KS was under 18 at the time of the offending.

  • What is the appropriate sentence for a child offender convicted of murder and grievous bodily harm with intent, having regard to the principles applicable to sentencing children?
  • To what extent do personal attributes of youth, including reduced capacity for consequential thinking and emotional immaturity, bear on the objective seriousness of the offences and on moral culpability?
  • How should the court weigh rehabilitation, deterrence, denunciation, and community protection when sentencing a young offender for offences of the utmost gravity?
  • Whether KS's history of depression and excessive cannabis use, employed as self-medication, operated as a mitigating factor in the sentencing exercise.
  • What aggregate term and non-parole period appropriately reflect the competing considerations, including the subjective case of a young offender?

Decision

Yehia J found that the offences were of considerable objective seriousness. The murder involved the deliberate use of a knife, resulting in the death of a 16-year-old with his life ahead of him. The grievous bodily harm offence caused serious physical injury and lasting psychological harm to BK. The court acknowledged the profound impact on the victims' families and on BK, who experienced ongoing trauma, night terrors, and flashbacks.

At the same time, Yehia J gave significant weight to KS's youth and the well-established principle that children have reduced capacity for self-regulation and mature reasoning about the consequences of their actions. The court accepted that these characteristics reduced KS's moral culpability, even if they did not diminish the objective gravity of the offences themselves. KS's history of depression and heavy cannabis use as a form of self-medication were treated as relevant subjective factors.

The court found that KS had genuine prospects of rehabilitation. His age, the early guilty pleas, his remorse, and the psychological evidence before the court all pointed to rehabilitation as a significant sentencing consideration. The court was also required under the Crimes (High Risk Offenders) Act 2006 (NSW) to advise KS that the Act applies to the offence of murder and that he may be subject to its provisions at the end of his sentence.

Yehia J determined the sentence by first identifying indicative terms for each offence (before applying the guilty plea discount), then imposing an aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW). The court directed that the sentence be served as a juvenile offender until KS reaches 21 years of age, consistent with the approach applicable to young offenders under the Children (Criminal Proceedings) Act 1987 (NSW).

Orders Made

  • Aggregate sentence of 16 years imprisonment, commencing 17 September 2021 and expiring 16 September 2037.
  • Non-parole period of 11 years, commencing 17 September 2021 and expiring 16 September 2032.
  • KS is eligible for release to parole at the expiration of the non-parole period.
  • The sentence is to be served as a juvenile offender until KS reaches 21 years of age.
  • Indicative sentence for murder (after 25% plea discount): 14 years and 3 months imprisonment.
  • Indicative sentence for grievous bodily harm with intent (after 25% plea discount): 7 years and 6 months imprisonment.

Key Takeaways

  • When sentencing a child offender, the Supreme Court applied the established principle that youth and developmental immaturity reduce moral culpability, even where the objective seriousness of the offending is high. This operates as a distinct consideration, separate from the assessment of objective gravity.

  • A 25% discount for early guilty pleas entered in the Children's Court was applied without controversy, consistent with the utilitarian value recognised in the sentencing framework.

  • Under the Children (Criminal Proceedings) Act 1987 (NSW), the standard non-parole period for murder and grievous bodily harm with intent does not apply where the offender was under 18 years at the time of the offending.

  • Rehabilitation carries particular weight in the sentencing of young offenders, and the court treated KS's age, remorse, early pleas, and psychological profile as pointing meaningfully toward that objective.

  • The Crimes (High Risk Offenders) Act 2006 (NSW) applies to murder offences and the sentencing court is required to advise the offender that they may be subject to its provisions upon completion of their sentence.

Legislation and Cases Referenced

Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW), ss 6, 19
- Crimes Act 1900 (NSW), ss 18(1)(a), 33(1)(b)
- Crimes (High Risk Offenders) Act 2006 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 6, 22A, 44, 53A

Cases:
- Apps v R [2006] NSWCCA 290
- Barbaro v The Queen (2014) 253 CLR 58
- BP v R [2010] NSWCCA 159
- Bresnahan v R [2022] NSWCCA 288
- Charbaji v R [2019] NSWCCA 28
- DH v R [2022] NSWCCA 200
- DS v R; DM v R (2022) 109 NSWLR 82
- Hili v The Queen (2010) 242 CLR 520
- JA v R [2021] NSWCCA 10
- KT v The Queen (2008) 182 A Crim R 571
- Miller v R [2015] NSWCCA 86
- MS2 & Ors v Regina (2005) 158 A Crim R 93
- Munda v State of Western Australia (2013) 249 CLR 600
- Park v R [2019] NSWCCA 105
- R v Ciaron McCullough [2009] NSWCCA 94
- R v DB [2010] NSWSC 812
- R v Eaton [2023] NSWCCA 125
- R v Elliott and Blessington [2006] NSWCCA 305