IN THE SUPREME COURT OF VICTORIA	Not Restricted	
AT MELBOURNE
Criminal Division
S ECR 2022 0212
Between:		
		
THE KING		
		
-and-		
		
MA	Accused	
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JUDGE:	Croucher J	
WHERE HELD:	Melbourne	
DATE OF HEARING:	2 October 2023	
DATE OF SENTENCE:	19 October 2023	
CASE MAY BE CITED AS:	R v MA	
MEDIUM NEUTRAL CITATION:	[2023] VSC 613	
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CRIMINAL LAW — Sentence following trial — Manslaughter — By unlawful and dangerous act — MA (aged 17) approached AC (aged 41) at train station in wee hours, concealing large knife — MA jabbed at AC with knife, without intending to stab him, but blade entered chest accidentally — Blade penetrated ten centimetres, causing internal injuries — AC fled to friend’s residence nearby, but bled to death in driveway — Whole incident, except moment of stabbing, captured on CCTV — MA originally charged with common law murder on basis of alleged intention to cause really serious injury (not death) — DPP rejected MA’s early offer to plead guilty to manslaughter — Prior to trial, MA failed to renew plea offer, despite awareness DPP would have accepted then — At trial, judge ruled no case to answer on murder, entered acquittal on that charge, and left manslaughter to jury — MA put prosecution to proof on identity, but accepted perpetrator committed manslaughter — Jury returned verdict of guilty of manslaughter — Offence serious, but less so than many other manslaughters — Profound victim impact — Prior appearances in NSW for offences of violence — On youth parole and bail in NSW at time of offence — Hardship of custody given pandemic restrictions, ADHD, and family in NSW — MA now 19, but immature and impressionable — Importance of youth — Reasonable prospects of rehabilitation — Relevance of general and specific deterrence, just punishment, denunciation, community protection, and rehabilitation — Parsimony — Current sentencing practices — MA held in youth justice centre (“YJC”) since arrest in January 2022 — MA vulnerable to more negative influences in adult prison — Sentence of detention in YJC may have been open had MA’s plea offer been accepted in 2022 — Parties submit imprisonment only available sentence now, but with shorter non‑parole period than usual — Sentence of six years’ imprisonment with non‑parole period of three years — Court recommends to Adult Parole Board that MA remain in YJC to serve prison sentence — Crimes Act 1958 (Vic), ss 5 & 421; Sentencing Act 1991 (Vic), ss 5 & 32; Children, Youth and Families Act 2005 (Vic), s 471.
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APPEARANCES:	Counsel	Solicitors	
			
For the Director of Public Prosecutions	Mr J Dickie with
Ms J Ollquist	Abbey Hogan, Solicitor for Public Prosecutions	
			
For the Accused	Mr D Sala	Stary Norton Halphen Lawyers	

HIS HONOUR:
Overview
1	In the very early hours of a December morning in 2021, Adam Cassar was killed as a result of a knife wound to his chest sustained while at Melton Railway Station.  He was 41.  In May this year, a jury found MA guilty of the manslaughter of Mr Cassar.  MA was a boy of 17 at the time of the offence.
2	The whole incident, except the precise act that resulted in the fatal wound, was captured on CCTV cameras, albeit the footage is a little grainy.
3	Mr Cassar arrived at the station by himself just before 2:30 a.m.  MA had been there for most of the last hour‑and‑a‑half with a group of youths.  Mr Cassar and MA were complete strangers.  Both were heavily intoxicated.  Mr Cassar staggered past MA and his group to a gap between two buildings at the front of the station.  Once there, he removed his over‑trousers, leaving him wearing the pair he had on underneath.  MA followed him to the gap while carrying a large knife, which he concealed under folded arms as he neared Mr Cassar.
4	While it cannot be seen on the CCTV footage, the following can be inferred.  MA produced the knife and jabbed it at Mr Cassar, but without intending to stab him.  At the same time — probably because of a combination of Mr Cassar’s flinching attempt to protect himself when he saw the knife at such close quarters and MA’s movement — the knife’s trajectory was deflected by the back of Mr Cassar’s left hand and ended up accidentally stabbing him in the chest.
5	Startled, Mr Cassar fled immediately, with his over‑trousers in his hand.  In his panic, he half‑hurdled a fence he could have walked around just as easily, and ran to a friend’s home nearby.  Tragically, however, he died in the driveway of those premises shortly afterwards because of blood loss from his chest wound.
6	MA did not appear to realise how badly Mr Cassar was hurt, if at all, for he watched him run away as if nothing, or nothing much, had happened.
7	Late in January 2022, MA was extradited to Melbourne from his hometown of Sydney.  He was charged with murder (at common law) and held in a youth detention centre, where he has remained ever since.
8	At trial, after the close of the Crown case, I ruled that MA had no case to answer on murder, as the evidence could not establish an intention to cause really serious injury.  I entered an acquittal on that charge, but left the unindicted alternative of manslaughter to the jury.  MA did not give evidence.  Through counsel, he put the Crown to its proof on identity but accepted that the perpetrator had committed manslaughter.  Evidently, the jury were satisfied beyond reasonable doubt that MA was the perpetrator, for they found him guilty.
9	I heard MA’s plea in mitigation on 2 October.  It is now my task to sentence him for the manslaughter of Mr Cassar.
10	Before announcing sentence, in the reasons that follow, I shall address in some detail a range of factors, including the offending and its surrounding circumstances, the victim impact statements, the gravity of the offence, MA’s personal circumstances, the factors urged in mitigation, the applicable sentencing purposes, current sentencing practices, and the submissions of counsel.
Summary of offending and surrounding circumstances
   Mr Cassar
11	I shall commence with some information about Mr Cassar.
12	His friend Stuart Sandwith, who gave evidence at the trial, believed that, while Mr Cassar sometimes lived with his mother, he had been living with others at a house in Melton in recent times.  On occasions, he would drop in to see Mr Sandwith, who lived in Staughton Street, just across the way from the Melton Railway Station.
13	Mr Sandwith had last seen Mr Cassar in Melton South on the afternoon before his death, when he gave him a lift to the station.
14	It was to Mr Sandwith’s home that Mr Cassar ran after being stabbed, and where he died.
   MA
15	MA lived in Sydney with his father and his siblings.  His mother had left the family home in 2015.  At the end of 2021, she was living in the Melbourne suburb of Burnside.  The offence happened on an occasion when MA had come down from Sydney after Christmas to see his mother.  I shall say more about his personal circumstances later.
   Lead-up events
16	I turn now to the events leading up to the manslaughter.  These events are apparent from various CCTV cameras around Melbourne, and from other evidence.
17	On Monday 27 December 2021, MA took an overnight bus from Sydney to Melbourne.  After his arrival at Southern Cross Station on the Tuesday morning, he travelled on a suburban train to the Burnside area to visit his mother.  There was evidence that he was at his mother’s premises during the day.
18	Later in the afternoon, he met an acquaintance, who drove him and two other young males to a liquor store in Melton.  At about 5:30 p.m., MA left the shop with a bottle of Fireball whisky.
19	From about 1:09 a.m. the next morning (Wednesday 29 December), MA and six other young males arrived on foot at Melton Railway Station.  MA was carrying the whisky bottle, from which he drank.  Most of the group sat down on benches at the taxi rank near the front entrance to the station.
20	At about 1:20 a.m., MA walked along Platform 1 carrying the whisky bottle.  An implement can be seen in the pocket of his trousers, which, I accept, was the knife used later in the offence.
21	At about 1:40 a.m., MA threw the whisky bottle on the bitumen outside the station, causing it to shatter. While others in the group may have taken a swig earlier, it is likely that MA had drunk the lion’s share of the bottle’s contents, and was heavily intoxicated.
22	Around 2:23 a.m., while near the taxi rank, MA climbed into a silver Holden Commodore, which then drove away.
23	At about 2:27 a.m., Mr Cassar arrived on foot at the station via an underpass.  He walked along Platform 1 and ended up wandering around the front entrance area of the station.  He was noticeably unstable on his feet.  He was probably affected by drugs, as later toxicological analysis showed the presence of methylamphetamine and cannabis in his blood and urine, and morphine in his urine.
24	Around the same time, the silver Holden returned to the station and parked in the taxi bay.  Soon afterwards, MA stepped out of the car, which drove away again a short time later.  After initially sitting on one of the benches at the rank, MA stood, while some other young males from the group sat on those benches.
25	At 2:31 a.m., after twice heading away from the front of the station briefly, Mr Cassar staggered towards the area where MA and his group were situated.  After looking in Mr Cassar’s direction, MA walked towards him.  When near the station’s entrance, the two had a brief passing interaction, which did not appear to involve anything untoward.  Mr Cassar kept walking in the same direction, past the other young males seated on the benches, towards a gap between the police building and the toilet block.
26	When Mr Cassar reached the gap between the buildings, he put his right foot up on a steel post, as if trying to tie or adjust his shoe.  He then bent down and moved behind the toilet block to a point where he was concealed, in whole or in part, from the view of the CCTV camera.  That said, given his movements that can be seen on the footage, and subsequent events, it can be inferred that Mr Cassar then removed his over‑trousers, leaving him wearing the other pair he had on underneath.
27	Meanwhile, after Mr Cassar walked away from their brief interaction, MA turned and watched him walk past the other youths.  As Mr Cassar got closer to the gap between the buildings, MA began to follow him.  Soon after that, a large knife can be seen in MA’s right hand, which he then concealed by folding his arms as he neared Mr Cassar.
28	It appears that Mr Cassar was just completing the removal of his over‑trousers when MA arrived at the gap and stood face to face with him.  It is not known what, if anything, was said between them, as there is no sound on the CCTV recording.  
   Evidence concerning the stabbing
29	While the next interaction between them cannot be seen definitively on the CCTV footage, some inferences can be drawn.  Such inferences are available from the whole of the evidence, including the medical evidence, and from what can be seen of Mr Cassar and MA either wholly or partly on the CCTV footage before, during and after the crucial moment, as well as in the shadows their figures cast on the pavement at that time.
30	Equally, and as I explained when ruling that there was no case to answer on murder, there are limits to the inferences that might be drawn adversely to MA on the criminal standard of proof given the less culpable alternative hypotheses that cannot rationally be excluded on the evidence.  These limits in the evidence must also be borne in mind when attempting to find facts adverse to or in favour of MA for the purposes of sentencing.
31	The medical evidence was that the stab wound was slightly to the right side of Mr Cassar’s chest, at about nipple‑height.  It was two‑and‑a‑half centimetres in width and just off vertical in orientation.  The characteristics of the wound indicated there was only one sharp edge to the blade that caused it, and that that sharp edge was to the top when the blade penetrated the chest.  The wound was about ten centimetres in depth.  The wound tract went straight into the body, but slightly right to left.  It went between the third and fourth ribs, thereby missing bone, into the right lung and hilum, transected the internal thoracic artery, and injured the pulmonary artery.
32	While the pathologist who gave evidence at trial was uncomfortable using a subjective measure of the degree of force required to effect the wound, there was unchallenged evidence that the pathologist who conducted the autopsy (but who was unavailable at trial) had opined at a preliminary hearing that, “given the skin and soft tissue were only incised”, he “would put it more towards the lesser side than the greater … degree of force, so … mild to moderate”. 
33	Mr Cassar also sustained a fresh incised injury — a cut — nearly five centimetres in length laterally across the back of his left hand.  It is far more likely that this cut was caused by the sharp edge of the blade, and not by its dull side.
34	On the CCTV footage, while only part of Mr Cassar’s body, and none of MA’s, can be seen at the crucial moment, it appears that, as if to protect himself, Mr Cassar raised his left arm from his side to his upper chest region and pushed outwards and perhaps downwards with the back of his left hand facing towards the ground, while holding his over‑trousers in the same hand.  At some point in the process, he must have transferred the over‑trousers to his right hand, as they can be seen in that hand as he runs away an instant later.
35	In the shadow cast by MA, there appears to be a brief but limited jabbing movement from him at about chest height.  At the same time, there appears to be a more pronounced movement by Mr Cassar’s shadow, one consistent with the defensive action that can be seen directly on the CCTV footage.
   Submissions
36	Mr Dickie, who appeared with Ms Ollquist for the Director of Public Prosecutions, submitted — correctly, in my view — that I should not sentence on the basis that there were two motions by MA with the knife causing the two separate wounds.  Instead, in his submission, I should act on the basis that there was only the one motion during which Mr Cassar sustained both the cut to the back of his hand and the stab wound to his chest.
37	Mr Dickie also submitted that I should be satisfied, beyond reasonable doubt, that MA intended to stab Mr Cassar but not to cause him really serious injury, and that I could not be satisfied, on the civil standard, of any less culpable scenario.
38	Mr Sala appeared for MA.  While he did not urge any particular version of events concerning the stabbing, he submitted that I should sentence upon the most favourable view of the facts to MA open on the evidence.
   Findings concerning the stabbing
39	Having considered counsel’s submissions and all of the evidence, including the CCTV footage (which I watched again numerous times), I make the following findings.
40	It is plain enough, from the CCTV footage, including the shadows on the pavement, that MA did not employ either an overarm or an underarm or a sidearm motion to stab Mr Cassar.  Rather, I am satisfied beyond reasonable doubt that, when very close to Mr Cassar, MA revealed the knife and jabbed it at him once.  Further, as he did so, he must have held the knife with the sharp edge of the blade upwards, and probably in a back‑handed fashion.
41	However, I am not satisfied beyond reasonable doubt that MA intended to stab Mr Cassar.  In light of the CCTV footage and the medical evidence, I consider it likely, or at least reasonably possible, that, as MA made a short jabbing motion with the knife, its trajectory was deflected by the back of Mr Cassar’s left hand being brought downwards (hence the cut to his hand); and that, while still held by MA, and as part of the same motion, the knife ended up piercing Mr Cassar’s chest by accident.  In my view, it is likely that this occurred because of Mr Cassar’s flinching attempt to protect himself upon seeing the knife at such close quarters and MA’s concurrent jabbing movement.
42	Further, that they were both heavily intoxicated (and, in consequence, less in control of their actions) only adds to the likelihood of clumsy movements of this character.
43	I am also satisfied, to the criminal standard, that, while the blade penetrated to a depth of about ten centimetres, this was well short of its total length.  I regard this as another factor suggesting an accidental stabbing to the chest consistent with the foregoing scenario.  This is because, while it is not necessarily so, it might reasonably be expected that a deliberate stabbing to the chest with a knife as long as can be seen on the CCTV footage would have resulted in a much deeper wound.  This is all the more likely in circumstances where the blade had gone between Mr Cassar’s ribs and there were, on the medical evidence, no other bony structures preventing it from travelling beyond the depth it reached.
44	As far as the evidence allows, I am required to make findings of fact on sentence that are consistent with the jury’s verdict.  The jury were directed that there was no issue that the perpetrator committed manslaughter in that he caused Mr Cassar’s death by an unlawful and dangerous act, that act being an intentional unlawful assault with a knife.  In the circumstances that pertained here, to jab the knife at Mr Cassar deliberately at close quarters, but without an intent actually to stab, is an intentional unlawful assault with a knife capable of amounting to an unlawful and dangerous act that caused death.  Thus, I consider my findings to be consistent with the jury’s verdict.
   Events after the stabbing
45	I turn now to the events immediately after the stabbing.
46	No doubt startled by what had just occurred, Mr Cassar fled with his spare trousers in his right hand.  In his panic, he half‑hurdled a fence he could have walked around just as easily, his right shoe coming off in the process, and ran to Mr Sandwith’s premises.
47	Mr Sandwith’s partner alerted him to a noise outside their home.  Mr Sandwith went out to the front to investigate, and found Mr Cassar stumbling and falling while holding the fence.  He rang triple‑zero and, while on the call, tried to assist Mr Cassar.
48	Police arrived at 2:44 a.m., and paramedics followed at 2:54 a.m.  Despite the best efforts of all, Mr Cassar could not be saved.  He was declared deceased at 3:30 a.m.  The pathologist opined that he died as a result of blood loss from his internal chest wounds.
49	Returning to the moments after the stabbing, as I indicated earlier, MA did not appear to realise how badly Mr Cassar was injured, if at all, for he watched him run away as if nothing, or nothing much, had happened.  That that was his state of belief is plausible, given the accidental nature of the stabbing to the chest and the brevity of their interaction, as well as the fact that Mr Cassar did not look incapacitated when he ran away.  MA’s intoxication is also likely to have dulled his appreciation of events.
50	After another 90 seconds or so, for part of which period he continued to look in the direction Mr Cassar had run, MA appears to have spoken to the other youths in the group.  He then turned and walked away from the station towards the underpass.  A short while later, the other youths followed.
51	A moment after that, MA broke off to his left to the station’s carpark.  He knocked on the passenger window of a car parked there, and asked the driver for a lift home, which was declined.  He then rejoined the other four young males as they headed off through the underpass.
52	Various CCTV recordings from around the suburbs show MA making his way back to the Burnside area during the early hours of the morning.
53	Several hours later, in the afternoon, MA can be seen going from the Burnside area to Southern Cross Station, where he boarded a bus back to Sydney.
   Arrest, extradition, charge and interview
54	On 28 January 2022, MA was arrested at a police station in Sydney.  He was extradited to Victoria and charged with murder.  He exercised his right to silence when interviewed by police.  He has remained in youth detention in this State ever since.
Victim impact statements
55	I turn now to the victim impact statements.  They were made by Mr Cassar’s mother, Margaret Cassar, and his 22‑year‑old daughter, Kiera Cassar.
56	In her statement, which was read by Mr Dickie, Margaret Cassar said she has been destroyed emotionally and that she has become a recluse.  For her, no words can explain the trauma she feels.  Every aspect of her life has been affected adversely.
57	Kiera Cassar read her statement.  She said that the crime not only stripped away her father’s life from her, but also denied him the opportunity of finding love, of seeing her marry, and of meeting her future children.  Her day is over if she hears a song that reminds her of him, for she ends up distracted, crying, and angry.  She also referred to the grave impact his death has had on other members of the family, and his friends, and how they have struggled to come to terms with it.
58	These statements convey the aching grief of loved ones struggling with a loss that should never have occurred.  In so far as it is permissible to do so, I have had regard to these victim impact statements in considering sentence.
59	I wish to add this.  I realise that there is nothing this Court can say or do to salve, let alone heal, the grief and pain suffered by Mr Cassar’s loved ones.  The sentence to be imposed is not a reflection of the worth of his life.  It cannot be.  Rather, it reflects many factors which I am required by law to take into account, only one of which is the impact on victims.
Nature and gravity of offence
60	Next, I turn to consider the nature and gravity of manslaughter generally and this offence in particular, including MA’s level of culpability.
61	Manslaughter in this State is (mostly) a common law offence, the maximum penalty for which is set by statute at 25 years’ imprisonment.
62	As will have been apparent from my earlier remarks, the form of manslaughter relied on in this case is manslaughter by unlawful and dangerous act.  This means that, when he jabbed the knife at Mr Cassar at close quarters and thereby caused his death, while MA neither intended to cause death or really serious injury nor was reckless as to either outcome (for otherwise it would be murder), his conduct was still unlawful and dangerous.  The jabbing was unlawful because it amounted to an intentional assault without legal justification or excuse.  It was dangerous because a reasonable person in MA’s position would have realised that, in catching Mr Cassar unawares and jabbing the knife at him at such close quarters, he was exposing him to an appreciable risk of serious injury.
63	The manslaughter committed by MA had some serious features, including the following.
64	First, every offence of manslaughter has a grave component, by definition, in that the life of another human being has been lost in circumstances amounting to a crime.  The law must maintain a special concern for the sanctity of human life.
65	Second, here, the life of a cherished father and son, and one who was part of a wider family and circle of friends, was taken as a result of violent, unlawful and dangerous conduct.  Inevitably, and as the victim impact statements make plain, the grief and pain for Mr Cassar’s loved ones is palpable.
66	Third, MA used a weapon — a large and dangerous knife — to jab at Mr Cassar when close to him.
67	Fourth, MA carried the knife with him before the incident.  It is not as if he grabbed the knife spontaneously from elsewhere in the midst of a confrontation.  Further, he had no lawful purpose in carrying a knife like that in public.
68	Fifth, there was not the slightest provocation in Mr Cassar’s behaviour, and none was suggested by Mr Sala.  He was just minding his own business when confronted unawares with violence by MA late at night in a public place.
69	Finally, it is aggravating that MA was on youth parole and on bail in New South Wales at the time of the offence.
70	The foregoing matters must be weighed against the factors limiting the gravity of this instance of manslaughter, which include the following.
71	First, as serious as MA’s conduct was, it was less grave and culpable than, say, manslaughter by deliberately stabbing a person in the chest, whether with a state of mind just short of murderous intent or with an intent well short of that threshold.  While his act of jabbing the knife at Mr Cassar when close to him was violent and dangerous, as I have said, I am not satisfied that any actual stabbing of his person was intended.
72	Second, there was only one act of jabbing, not repeated acts.
73	Third, while that unlawful act was objectively dangerous, I am not satisfied that MA, in his intoxicated state, foresaw the causation of physical harm, let alone the possibility of grave harm or death.
74	Fourth, and consistently with the lack of intent to stab, there was no other violent act by MA before, while or after Mr Cassar fled, as sometimes happens in homicides.
75	Finally, while the CCTV footage shows that there was an element of pre‑meditation in MA’s decision to confront Mr Cassar with the knife, that decision appears to have been made spontaneously, and only a matter of seconds before they came face to face.
76	When all of the circumstances are considered, while I accept that the offence is serious, I think this instance of manslaughter is a good deal less serious, and involves a much lower level of culpability, than many other examples of the offence encountered in practice.  The main reason I take that view is the unintentional nature of the actual stabbing, notwithstanding MA’s deliberate act of jabbing the knife at Mr Cassar when close to him.
MA’s background and personal history
   Sources of information
77	I turn now to MA’s background and personal history in more detail.  Some of this information was conveyed by Mr Sala on the plea, and some is contained in the neuropsychological report of Laura Scott, which I received in evidence without objection.
   Family
78	MA was born in Alexandria in Egypt in June 2004.  He is the middle of seven siblings aged between nine and 25.  His family was originally from South Sudan but fled the country before he was born.  They lived in Egypt for four or five years before settling in Sydney when MA was about 12 months old.
79	His mother left the family home in 2015 when he was only 10 or 11.  She departed without a word to MA, which left him confused and anxious.  Further, upon his peer group learning about this, he was teased relentlessly by another child, which compounded his distress.
80	After the separation, MA’s father formed a relationship with a woman in Africa, with whom he had a child (who is now aged five).  However, his father and siblings still live in Sydney.
81	His parents have reunited in recent times.  Currently, MA’s contact remains primarily with his father.
   Education
82	As for his education, MA had some academic difficulties at school, and his performance was below average.  He had a classroom aide in Grades 3 and 4, when he also completed remedial maths and reading classes.  Years 10 to 12 were very disrupted as a result of interstate moves and episodes of arrest and incarceration, which I shall come to shortly.  MA attributed his poor academic performance to his home environment.  He believes he needed extra help and was not encouraged to complete homework.
   Employment
83	As for employment, MA has had some small cleaning jobs.  Unsurprisingly, given his age when arrested, he has never had any formal employment.
   Drug and alcohol use
84	From the age of 13 or 14, MA drank alcohol regularly.  From the age of 17, he was drinking most of a bottle of spirits each day.
85	He has experimented with GHB, cocaine, MDMA, marijuana and a number of prescription medications from an early age.
86	He reported to Ms Scott that he may have had some Xanax on the night of the offence, but he could not be sure.  Mr Sala added that his instructions were that, while he cannot remember this incident, MA thinks it is likely that, when, as depicted on the CCTV footage, he left the station in the silver Holden in the minutes before the offence, he did so to ingest illicit drugs, probably GHB.
   Prior criminal history
87	As for his criminal history, while MA has no prior convictions in Victoria, he has had appearances in the Children’s Court of New South Wales for offences committed in that State.
88	In September 2019, when he was 15, MA was placed on probation for 12 months on two charges of robbery in company and one of assault with intent to rob.  The probation order included a non‑association condition in respect of eight other boys.
89	The next month, he was placed on a control order for 12 months on a charge of aggravated robbery, with a non‑parole period of four months, three months of which he had already completed.
90	In August 2020, when he was 16, a charge of possessing a prohibited drug was dismissed with a caution.
91	In December 2020, for contravening the non‑association condition of his earlier probation order, and for having goods suspected of being stolen, he was placed on a bond for six months, with supervision by Juvenile Justice.
92	In April 2021, when he was still 16, on a charge of assault occasioning actual bodily harm in company, he was placed on a control order for 15 months, with a non‑parole period of eight months, nearly four months of which he had already completed, and with supervision on parole by Youth Justice.  (As I understand it, this is the parole he was breaching when he committed the current offence.)  At the same hearing, a charge of having goods suspected of being stolen was dismissed with a caution, and he was placed on a bond for nine months on a charge of larceny, with supervision from Juvenile Justice.
93	Consistently with this criminal history, MA told Ms Scott that, in the period leading up to the offending, he was so often on remand that he did not have a dedicated bedroom or his own bed at home and had to sleep on the couch.  When out of custody, after spending the days with his friends, and often sleeping at their homes overnight, he would return to his home each morning to change for school.
   Account of, and reaction to, offence
94	As for the circumstances of the offending, MA told both Ms Scott and Mr Sala that he was completely unable to remember the offence itself.  He remembers that he travelled to Melbourne to visit his mother, and that he had been drinking with friends on the evening before the offence.  His last memory of that night was of being in a park around sunset.  His next memory was of waking at his mother’s house the following day.  He recalled he felt sick and vomited.  He felt as though he was coming down from drugs and complained of a headache lasting two days.
95	Neither he nor his friends were aware of the stabbing.  He first became aware of it a week later when police contacted his youth justice worker.  His initial reaction was disbelief.
96	When asked by Ms Scott how he felt about the offending now, he said he felt “sad and shit”.  He felt shocked when he was found guilty of manslaughter.  His emotions had been “all over the place since”, and that “it feels fake, to be honest”.  In response to further questioning, MA reported a changed sense of self, saying, “I’m not really myself anymore …  I’m less outgoing, more by myself.”
97	In Ms Scott’s view, MA struggled to articulate his emotional reaction to the charge.  She observed that he did not make any spontaneous comments or reflections on the offending.  In response to specific questioning, he said, “It is very hard to feel bad about something I don’t remember.”
   Neuropsychological examination
98	On neuropsychological testing, Ms Scott reported that MA obtained a full‑scale IQ score of only 75 on the WAIS‑IV, which is in the borderline range.
99	In summary, Ms Scott opined that MA presents with prominent impairments in attentional abilities (including attention span, sustained attention and attentional switching) and in executive functions (including mental flexibility, impulse control, planning and organisation).  He also shows problems in various aspects of memory, particularly the rate of new learning and the organisation of memories.  He otherwise shows largely intact skills in working memory, processing speed, verbal skills, intellectual abilities, recall of well learned or contextualised information, and various aspects of executive function (including idea generation and abstract reasoning).
100	Behaviourally, Ms Scott opined that MA presented as somewhat impulsive and a little immature for his age.  She considered that there are signs of perseverative tendencies (for example, repetitive actions and behaviours).  She also said that, though his scores on a formal measure did not indicate elevated psychological distress, her clinical impression was of an unusually dampened emotional response to a major life stressor (namely, his conviction for manslaughter).
   ADHD
101	In Ms Scott’s view, MA’s neuropsychological profile is consistent with attention deficit hyperactivity disorder (“ADHD”).  In this regard, she pointed to his history of early learning difficulties and behavioural dysregulation.  His profile also shows significant deficits in higher attentional abilities and executive functions, which are typical of people with ADHD.  In addition, she saw signs of impulsivity, restlessness and emotional immaturity, all of which are consistent with this condition.
102	Ms Scott opined that stressors throughout childhood related to his refugee experience, his father’s gambling and his mother’s fluctuating involvement may have exacerbated his difficulties.
103	As she explained, ADHD is a permanent, lifelong condition present from early childhood.
104	In her view, symptoms of ADHD would have been present at the time of offending.  However, while she thinks those symptoms may have contributed to the offending, they are not likely to be the main causal factor.  In her view, his intoxication is likely to have exacerbated his existing difficulties with impulse control and behavioural regulation.  His impulsivity and impaired planning would have reduced his capacity to anticipate the potential outcomes of approaching a stranger while carrying a knife — such as the possibility of injury to himself or the other person being much higher in those circumstances.
105	In Ms Scott’s view, while MA’s symptoms of ADHD are not likely to deteriorate in custody, his symptoms would place him at a higher risk of conflict with other prisoners and custodial staff, as he is likely to be quite reactive with poor impulse control.
106	In her opinion, he would be particularly vulnerable in adult custody because of his borderline range cognitive functioning and his reduced executive function skills.  He would be particularly suggestible and vulnerable to external influence.  She added that he has less ability than others to question the validity of statements or suggestions made to him, and he could be easily influenced, especially if exposed to the problematic attitudes and behaviours of adult offenders.
   Psychological state
107	Ms Scott indicated that she was very concerned about MA’s psychological state.  She pointed to a history of chronic suicidality and complex familial dynamics which MA struggles to articulate but which, in her view, have clearly impacted him significantly.  In her opinion, he is at greater risk of suicidal and self‑harming behaviours than other prisoners without this prior history.
108	Of greater concern, however, in her view, is MA’s apparent lack of engagement with his conviction for manslaughter.  She thinks he is in the very early stages of processing this.  He expresses disbelief and a sense of unreality.  Ms Scott is concerned that he could be showing signs of post‑traumatic stress.  In her view, he shows little insight and demonstrates few psychological coping skills.  She recommends that he receive urgent psychiatric and clinical psychological review.
109	In Ms Scott’s opinion, MA will ultimately benefit from the opportunity to return to the community and engage with multidisciplinary supports to address his mental health and ongoing symptoms of ADHD.  He will require support to re‑engage in vocational training or employment in a manner that is appropriate for his cognitive abilities (i.e., with an individualised learning plan and accommodations).
Mitigating factors
   Youth
110	Next, I turn more squarely to the factors in mitigation urged by Mr Sala, commencing with MA’s youth.
111	In my view, the most important mitigating factor is that MA was only 17 at the time of the offending, and is still only 19 now.
112	One of the great aims of the criminal law is to rehabilitate younger offenders.  The young are usually treated more leniently in recognition of the fact that they are less mature, less able to form moral judgments or control their impulses, and less aware of the seriousness and consequences of their actions.  This is especially so in the case of offences committed impulsively.  MA’s offence was committed impulsively.  It is also significant that he is, as Ms Scott opined, immature for his age, and impressionable.
113	This is not a case in which the weight to be accorded to youth is to be subjugated to other considerations, let alone extinguished, because of MA’s criminal history or the nature of his offence, serious though it is.  Instead, youth, immaturity and impressionability, and the aim of rehabilitating such a young offender, remain important considerations in sentencing him.
114	It is of course a pity that, as a result of the sentence to be imposed, MA will have to continue to develop his values and attitudes in a custodial environment, and for a substantial period.  That, of course, is an unavoidable consequence of the nature and gravity of his offence.  In a case as serious as this, the applicable sentencing purposes (which I shall come to shortly) require such an outcome.  But the sentence still must be tempered, and markedly so, by reason of MA’s youth, impressionability and immaturity.  In my view, it would be wrong and counterproductive to fail to do so.
   MA emotionally troubled at time of offence; ADHD; low intelligence; intoxication
115	Next, Mr Sala raised the following matters in explanation of why, at the time of the offence, MA was out late at night and affected by alcohol and possibly illicit drugs.
116	It was just after Christmas when MA travelled to Melbourne to visit his mother.  Their relationship was strained and challenging.  Added to that, the evidence suggests that, notwithstanding that they had not seen each other for a considerable period, MA’s visit with his mother was only brief because, sadly, she was absent for at least some of the time he was at her home.  Mr Sala added that it can be inferred that, in those circumstances, the visit was “emotionally problematic” for MA.  It was in this context, he submitted, that MA’s sense of disappointment and disaffection had an impact on his decisions to consume alcohol, and possibly drugs, and to be lurking around a train station late at night with other boys.
117	I accept that these particular circumstances would have been very emotionally charged for MA.  Also, it must be remembered that he was a boy of only 17 at the time.  Further, I accept that his youth, ADHD, low intelligence and intoxication are likely to have combined to contribute to his poor and impetuous decisions, including what turned out to be his fatal acts of approaching Mr Cassar armed with a knife and then jabbing it at him.
118	However, I think that, in so far as this contextual explanation for his behaviour relies on MA’s emotional upset concerning his mother, it must be balanced against the fact that his criminal history and his account to Ms Scott suggest that drinking copious amounts of alcohol, taking drugs and spending time out with other boys at night were rather common features of his behaviour in the period leading up to this offence.
   Previous offer to plead guilty to manslaughter
119	The next factor in mitigation is more difficult to assess.
120	In July 2022, MA offered to plead guilty to manslaughter instead of murder, but his offer was rejected by the Director the next month.  If nothing had changed, that offer would have been a very significant factor in mitigation.  However, in April this year, just prior to the commencement of the trial, MA was made aware that the Director was now willing to accept a renewed offer to plead guilty to manslaughter.  Despite that knowledge, MA declined to renew his offer, and pressed on with the trial, in which, as I have explained, he put the prosecution to its proof on identity.
121	As Mr Dickie pointed out, had the Director accepted the early offer, not only would a trial have been avoided, but a guilty plea also might have indicated remorse and added insight into his wrongdoing.  While a combination of the Director’s earlier stance and MA’s later decision not to renew the offer denied him those particular benefits in mitigation, Mr Dickie submitted that, although there were “complications” in doing so, I should still have regard in mitigation to his early offer to plead guilty.
122	Mr Sala agreed.  He submitted that, in considering this issue, I should also be mindful that, as a young person, it was difficult for MA to have the confidence and trust to make a renewed plea offer in the face of the Director’s rejection of his much earlier offer.  Also relevant to his circumstances at the time of considering whether to renew his offer were his low intelligence and ADHD, that he was effectively alone here in Victoria without family support (as had been the case for around 15 months since his arrest), and that he had new lawyers who had prepared for the imminent trial.
123	Mr Sala also submitted that, had the early offer been accepted, there is a reasonable prospect that a sentence of detention in a youth justice centre would have been open, because, among other things, a precondition to the making of such an order — a finding of exceptional circumstances — also would have been open.  Mr Dickie argued that this submission may involve speculation.
124	While I need not decide whether either a sentence of detention in a youth justice centre or a finding of the necessary exceptional circumstances would have been open had MA’s early plea offer been accepted last year, at the very least, it is plain that he lost a better opportunity to press for such a sentence, or for a more lenient sentence in general, because of the Director’s failure to accept his offer at that early stage of proceedings.
125	Further, I accept Mr Sala’s submission that, in the particular circumstances in which MA found himself just prior to trial, it was understandable that he might not have had the confidence or trust to make a second offer to plead guilty.
126	In those circumstances, I think it is appropriate to regard his early offer to plead guilty as a mitigating factor.  However, I also accept that, notwithstanding the difficulty for MA in making a fresh offer, his earlier offer does not have the same mitigatory weight that would have been due had he renewed his offer and entered a plea of guilty.
   Prospects of rehabilitation
127	I turn now to MA’s prospects of rehabilitation as a mitigating factor.
128	His prior appearances for violence and the offence itself do give rise to concerns.  His inability to remember and explain his offending, his past abuse of alcohol and illicit drugs, and the absence of any serious treatment for those behaviours and his ADHD thus far, are also troubling, and make it difficult to assess his prospects of reform.
129	However, notwithstanding these considerations, absent which his prospects would be much brighter, the fact that MA was, and is still, so young, and that he enjoys the support of his father suggest better prospects of reform in the longer run.  Further, with age and treatment of his ADHD and drug and alcohol problems in the future, it is reasonable to expect that there will be a growing maturity in MA and an associated improvement in his ability to deal with the sadness concerning his mother, as well as his difficulties with alcohol and drugs, his fateful decision to carry a large knife in public and his offence of manslaughter.  I think MA’s early offer to plead guilty to manslaughter also tends to add to those prospects, despite his failure to renew the offer when he was aware it would have been accepted.
130	Balancing all matters, I am satisfied that MA’s prospects of reform are at least reasonable.
   Hardship of time in custody
131	The final factor in mitigation concerns the hardship of MA’s incarceration, which has been, or will continue to be, greater than usual.  There are five factors that lead me to this conclusion.
132	First, I accept Ms Scott’s view that MA’s ADHD has made, and will continue to make, his time in custody harder than usual.
133	Second, I accept that it has been, and will continue to be, very difficult for MA in not having regular face‑to‑face visits from his family, who live in Sydney.  This must have been, and will continue to be, very hard for a youth of his age and immaturity.
134	Third, like other detainees, MA has endured additional hardship resulting from the custodial restrictions occasioned by the pandemic.  That said, those restrictions have been eased, to some extent, more recently, and it is to be hoped that they will continue to ease over time.
135	Fourthly, I accept Ms Scott’s opinion that, for a range of reasons, MA would be particularly vulnerable in adult custody, and that he could well be influenced negatively, especially if exposed to the problematic attitudes and behaviours of adult offenders.
136	Finally, I accept Ms Scott’s opinion that MA is at greater risk of suicidal and self‑harming behaviours than other detainees without his personal history.  This, I think, must translate into an additional hardship in a custodial environment.
Sentencing purposes
   General deterrence, denunciation and just punishment
137	Turning now to the purposes of sentencing, I consider that general deterrence, denunciation and just punishment are important sentencing purposes in this case.  All persons, whether young or old, should understand that the carrying of knives in public for no lawful purpose can lead to tragic consequences of the kind that occurred here.  It must stop.  Further, when that behaviour results in the commission of manslaughter, as here, it is denounced all the more, and must attract punishment that is just in all the circumstances.  Even for those as young as MA, such crimes usually will result in a term of incarceration reflecting, among other things, that another’s life has been taken by an act of violence and that, invariably, the lives of that person’s loved ones have been marred forever.
   Specific deterrence and protection of the community
138	The nature and seriousness of MA’s offence and his prior criminal history suggest that there is also a need for some weight to be accorded to the sentencing purposes of specific deterrence and protection of the community.  On the other hand, this need is moderated somewhat by MA’s youth and his prospects of rehabilitation.
   Rehabilitation
139	In my view, for at least two reasons, the facilitation of rehabilitation remains an important purpose in fixing sentence.
140	First, that MA has reasonable prospects of rehabilitation, and that he is still just a callow teenager, make rehabilitation a sentencing purpose that must be afforded substantial weight.
141	Second, it is necessary to recognise the interplay between rehabilitation and protection of the community.  Sooner or later, MA will be returning to the community.  It is therefore in the community’s interests that such prospects of rehabilitation as he has be maximised, and that he is not corrupted by his time in custody, so that, when he is released, his risk of reoffending is as low as it reasonably can be and his chances of successful reintegration into society are as strong as they can be.
Current sentencing practices
142	As far as I can determine them, I have also had regard to current sentencing practices for manslaughter.  Such practices are but one factor in sentencing, and certainly not a controlling one at that, but they are nevertheless important in the sentencing synthesis.
143	To this end, I have had regard to sentencing statistics for the offence.  In doing so, however, I recognise that such statistics are of limited utility, mainly because they do not distinguish cases according to their most important sentencing considerations.  Nevertheless, they do give some guidance.
144	In order to assist in gauging current sentencing practices in a more targeted way, I also considered the table of sentences helpfully provided by Mr Dickie and Ms Ollquist.  The table contained six recent instances of sentences imposed on young persons, ranging in age from 15 to 18, who had been convicted of manslaughter.  The sentences imposed ranged from between two and four years’ detention in a youth justice centre to seven‑and‑a‑half years’ imprisonment with a non‑parole period of four‑and‑a‑half years.  Notably, all of these sentences were imposed following pleas of guilty.
145	It is possible to make nuanced comparisons between the cases in the table, the present case, and others.  But, in the area of sentencing, it is almost always difficult usefully to compare other cases.  No two cases are ever truly alike.  None of those I considered was quite the same as MA’s case.  And, in any event, sentences are not precedents to be applied or distinguished.
146	Nevertheless, I found those other sentences, and the reasons given for imposing them, instructive in gauging both the order of sentence imposed for manslaughter committed by young persons, and the extent to which those sentences tend to be affected by various aggravating and mitigating factors.
Submissions
147	Counsel on both sides were at one in submitting that, despite MA’s tender age and all other mitigating considerations, the only sentencing option available is a term of imprisonment with a non‑parole period.  Mr Sala submitted that, when all factors are considered, the non‑parole period should be shorter than usual.  Mr Dickie agreed that such a disposition was open, especially given MA’s youth.
148	As I understood them, counsel also agreed that it would be open to recommend that MA continue to serve the custodial portion of his sentence in detention in a youth justice centre.
149	I accept those submissions.
Sentence
150	I turn now to sentence.
151	MA, would you stand, please?
152	To reiterate and summarise some of the major considerations, I note first that the offence is serious, not least because Mr Cassar, who was caught unawares when just minding his own business, was killed as a result of MA’s unlawful and dangerous act of jabbing a fearsome knife at him in a public place.  Naturally, Mr Cassar’s loved ones are devastated at their loss.  The offence was aggravated by the fact that, at the time, MA was on youth parole and bail in New South Wales.
153	On the other hand, to cause death by menacing another with a knife, but without an intent actually to stab, as occurred here, is substantially less serious than many other instances of manslaughter.
154	Further, the symptoms of MA’s ADHD, in combination with his low intelligence, his youthful ignorance of potential consequences, and his intoxication, are likely to have played a part in his impetuous decisions to confront the hapless Mr Cassar with a knife and jab it at him.
155	In addition, he offered to plead guilty to manslaughter in July last year, but the Director rejected that offer, which denied him a better opportunity to press for a more lenient sentence.  On the other hand, he failed to renew that offer when he learned, just prior to trial, that the Director had had a change of heart.
156	Notwithstanding his prior appearances in New South Wales for offences of violence, and while there is much work to be done by MA, I am satisfied that he has at least reasonable prospects of rehabilitation.
157	In addition, his ADHD will continue to make his time in custody harder than usual, as will the sad reality that he will not receive regular visits from his family, who, like MA, are from Sydney.  He has also endured additional hardship resulting from the custodial restrictions occasioned by the pandemic.  Further, I share Ms Scott’s concerns about his risk of suicide and self‑harm in custody.
158	Most importantly, there is MA’s youth to consider in the sentencing synthesis.  He was just a boy of 17 when he committed the offence, and is still only an immature and impressionable youth of 19.  As I said earlier, the rehabilitation of young offenders is one of the great aims of the criminal law.
159	Finally, I note that, when considering sentencing purposes and exercising the sentencing discretion, it must be borne steadily in mind that s 5(3) of the Sentencing Act commands that a court must not impose a sentence that is more severe than that which is necessary to achieve the purpose or purposes for which the sentence is imposed.  This reflects the fundamental principle of parsimony, which I have applied in considering the appropriate sentence in this case.
160	Balancing these and all other matters, I have determined that, for the manslaughter of Mr Cassar, MA is convicted and sentenced to six years’ imprisonment with a non‑parole period of three years.
161	However, because he is so young, immature and impressionable, and is likely to be subjected to more undesirable influences in adult prison, which would tend to undermine his chances of reform, I recommend that MA be allowed to continue to serve this sentence in a youth justice centre.  Whether this recommendation is taken up or not will be a matter for the Adult Parole Board.
162	Pursuant to s 18 of the Sentencing Act, I declare that, including today, 630 days of pre‑sentence detention be reckoned as served under this sentence.
163	I direct that these reasons and the material exhibited on the plea, including Ms Scott’s report, be made available to the Adult Parole Board and the Youth Parole Board.
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