R v Ad

[2024] NSWSC 444

Supreme Court

New South Wales

Medium Neutral Citation:

R v AD [2024] NSWSC 444

Hearing dates:

15 April 2024

Date of orders:

24 April 2024

Decision date:

24 April 2024

Jurisdiction:

Common Law

Before:

R A Hulme AJ

Decision:

Sentenced to imprisonment for 14 years and 4 months with a non-parole period of 9 years and 3 months.

Catchwords:

CRIME – sentencing – juvenile offender – murder – plea of guilty – youth gang bashing of child – assault captured on video and posted on social media – serious offence – reduced moral culpability on account of immaturity of youth and background – remorseful – reasonable prospects of rehabilitation and avoiding reoffending – special circumstances to allow for parole flexibility as offender matures – special circumstances for serving sentence as a juvenile offender

Legislation Cited:

Children (Criminal Proceedings) Act 1987 (NSW), ss 6, 19(1), 19(4), Pt 3 Div 4

Crimes (High Risk Offenders) Act 2006 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 4, Div 2A

Cases Cited:

BP v R [2010] NSWCCA 159; (2010) 201 A Crim R 379

KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571

R v BE [2023] NSWSC 1007

R v BL [2024] NSWSC 51

R v Sione; R v Dawson [2024] NSWSC 378

TM v R [2023] NSWCCA 185

Category:

Principal judgment

Parties:

Rex (Crown)
AD (Offender)

Representation:

Counsel:
P Hogan (Crown)
R Wilson SC (Offender)

Solicitors:
Director of Public Prosecutions (NSW) (Crown)
AA Criminal Lawyers (Offender)

File Number(s):

2021/223960

Publication restriction:

Nil.

JUDGMENT

1. AD is a child who is to be sentenced for the murder of Jason Galleghan at Doonside on 4 August 2021. ^[1]

   1. There has been consent to the identification of the deceased pursuant to s 15E of the Children (Criminal Proceedings) Act 1987 (NSW). The date of the murder on the indictment is 6 August 2021 to reflect the date of death.

2. Murder is a “serious children’s indictable offence” which must be dealt with according to law rather than under Pt 3, Div 4 of the Children (Criminal Proceedings) Act 1987 (NSW). ^[2]

   2. Children (Criminal Proceedings) Act, s 3(1), s 17

3. The maximum penalty for murder is life imprisonment. The Crown conceded this was not a case calling for the imposition of such a penalty. The standard non-parole periods for murder do not apply where the offender is a child.

The offence

4. Two co-offenders have previously been sentenced: R v BE [2023] NSWSC 1007 and R v BL [2024] NSWSC 51. The statement of agreed facts in each case differ in some respects with those in the present case and with the facts found in the judge-alone trial over which I presided: R v Sione; R v Dawson [2024] NSWSC 378. I propose to confine attention to the facts agreed between the parties in the present case.

5. Police obtained footage from domestic CCTV cameras as well as mobile phone data which allowed precise times to be assigned to some of the events described in the agreed facts.

6. The following people (with their ages indicated) were involved in events leading up to and at the time of the murder:

Richard Sione (32 years)

Kayla Dawson (19 years)

BL (15 years, 1 month)

BE (14 years, 8 months)

MM (15 years, 2 months)

TB (13 years, 3 months)

AD (13 years, 11 months)

7. The deceased, Jason Galleghan, was aged 16. He and Ms Dawson had known each other for some time. When she moved to Doonside Jason visited her and her boyfriend, Harley Bartolo, at their modestly sized home in Perigee Close.

8. Ms Dawson became friendly with Richard Sione and Stacey Pale who is said to have been Mr Sione’s partner. Ms Dawson also came to know the five young persons listed above. There is no evidence as to the nature or extent of her prior contact with AD.

9. Jason and Ms Dawson exchanged phone calls and text messages in the week or so prior to the offence. On 4 August 2021 she arranged for him to come to Doonside as part of a plan to set him up to be “bashed” because she believed he had stolen her AirPods. Whether AD was informed of this is unknown.

10. Ms Dawson and BL each made frequent calls and sent texts to Jason during the afternoon of 4 August 2021 to ensure he was coming to Doonside. Present at the house were AD, Mr Sione, Ms Pale, Ms Dawson, Mr Bartolo and young persons TB, BE, BL and MM. Also present were friends of Mr Sione, Thomas Pakau and Rebyll Oaariki.

11. At 3:23pm, Ms Pale left the house and went to the shops, which are on the far side of the train station. At 3:44pm, Ms Dawson, BE and BL walked to Doonside station where they encountered Ms Pale and met Jason at 3.56pm. The five walked back to the house together, arriving at 4.09pm.

12. Everyone, except Ms Pale, entered the house. The victim walked through the lounge room and into a spare bedroom with Mr Sione where the assault commenced.

The assault

13. Messrs Pakau and Oaariki heard sounds of the assault coming from the bedroom. Mr Oaariki heard a noise “like a bang” and heard Mr Sione swearing and saying “fuck, fuckin’ gronk”. Mr Pakau heard noises that sounded like “… just big hits … like body to wall”. Another person (Mr Bartolo according to the agreed facts) could hear Jason “getting flogged”.

14. MM came out into the lounge room with Jason’s jumper and gave it to Mr Oaariki. At one stage, Mr Pakau tried to stop the assault when Mr Sione was in the room but when he was unable to do so, he and Mr Oaariki left the house at 4:17pm.

15. The assault by Mr Sione lasted for approximately 11 minutes from 4:09pm until he left at 4:20pm.

16. The young people TB, BE, BL and MM and AD then started assaulting Jason with each of them assaulting him at various times. Part of the assault was video recorded on mobile phones with the first video commencing at 4:23pm. Jason was already injured at the commencement of the first video.

17. The assault by the five young persons with Ms Dawson present at times continued from 4.20pm until 4.42pm. At 4.30pm AD left the bedroom and went out to the front verandah from where he dropped a “long object” onto the ground before re-entering the house. Given it is not further described, I assume there is no agreement between the parties about what the object was.

18. At one point Mr Bartolo went to the bedroom door and saw Jason laying on a mattress having his clothes removed. He saw TB and BL stomping on Jason’s chest.

19. Next door neighbours heard screaming and the sound of items being smashed inside the home at Perigee Close. They heard something that “sounded like someone was being used as a punching bag. It kept going for minutes and minutes. It sounded like someone getting flogged.”

20. MM and TB left the house at 4:42pm and AD left shortly after them. BL and BE ran from the house at 4.46pm. AD and MM went to Mr Sione’s home in Mikado Way, Doonside. TB, BE and BL also went there after first visiting another house in the area.

21. Ms Dawson, Mr Bartolo and Ms Pale checked on Jason and noticed that he was badly injured and unconscious. They did nothing to assist him. They left the house and returned about 20 minutes later. It was another 30 minutes or so until Ms Dawson called triple 0.

22. When paramedics arrived at around 5.46pm, Ms Dawson and Mr Bartolo were sitting in the lounge room. Ms Dawson pointed towards the hallway and said, “He’s in there”. Jason was not breathing but was resuscitated. He was taken to hospital but died two days later, on 6 August 2021. An autopsy determined the cause of death was “complications of multiple blunt force injuries to the body”.

Mobile phone recordings

23. Videos recorded a total of four minutes and three seconds of the assault. However Jason was inside the house for 33 minutes prior to the five young persons leaving.

24. The agreed facts mention three of the recordings. The first was on BL’s phone; it commenced at 4:23pm and runs for 1 minute and 59 seconds. Another recording on BL’s phone commenced at 4:39pm and runs for 2 minutes and 17 seconds. This recording was uploaded to Instagram and received approximately 170,000 views.

25. A further recording was made on Ms Dawson’s phone at 4:31pm runs for 1 minute and 26 seconds. The agreed facts state that this video was taken from a different angle to the first mentioned video but the first recording is supposed to have started at 4.23pm and runs for about 2 minutes.

26. The agreed facts do not include any description of the content of these recordings but the Crown tendered recordings and their transcripts (Exhibit C). They capture only a small part of the period during which the assault by the young persons was carried out. Jason’s clothing had been removed so that he was wearing only boxer shorts. He was trying to protect himself but was completely defenceless against the extreme aggression and brutality of the five assailants.

27. He was punched, kicked, and stomped on many times including by AD. The assailants, particularly MM, continually yelled expletive laden abuse. At one point he was compelled by AD to state his name while MM held him by the hair and forced him to look up at AD. She then yelled, “A good kick to the face” and tapped AD’s back. AD then kicked Jason’s face with such force that his head jolted back and hit the gyprock wall. AD then kicked him again. At another point Jason was forced to repeat some gang-related statements such as “Fuck 21” and “27 on top” while standing against the wall with AD holding his hands.

28. A recording made towards the end of the assault included Jason saying, “I’m going to pass out”. BL then grabbed him by the hair and threw him across the room on to the floor. BL stomped on his chest and held his foot there. Jason rolled onto his side. However, BL continued to hold his foot on his chest and BE stomped on him.

Arrest

29. AD was arrested at Mr Sione’s place at Mikado Way at 7am on 5 August 2021. He was wearing the same clothing he wore during the video recordings of the assault and Jason’s blood was on his shoes. He declined to be interviewed.

Basis upon which the plea to murder was entered and accepted

30. The agreed facts conclude with the following statement:

The plea of guilty to murder is entered and accepted on the basis of constructive murder, namely that the offender committed the foundational offence of specially aggravated detain for advantage. The advantage was the opportunity to assault and humiliate the victim.

In committing that offence, the offender assaulted the deceased, causing actual bodily harm.

The Crown accepts that the evidence cannot establish beyond reasonable doubt that the accused intentionally inflicted grievous bodily harm or contemplated the intentional infliction by others of grievous bodily harm as a possible incident of assaulting the victim.

The victim’s death was caused, or a substantial contribution to the cause of death was made, during the commission of that offence by the combined actions of the offender and his accomplices.

Objective seriousness of the offence

31. The Crown submitted that the objective seriousness of the offence was “above the mid-range” whereas the defence submitted that it was “below the middle of the range”.

32. AD is to be sentenced on the agreement of the parties that he is guilty of constructive murder. The foundational offence is that he was a party to a joint criminal enterprise of specially aggravated detain for advantage. The advantage was the opportunity to assault and humiliate Jason. The circumstances of special aggravation are that the offence was committed in company and actual bodily harm was caused. AD concedes that he was involved in the assault in a “significant way” (T11.6). The Crown concedes he did not intend or contemplate the infliction of grievous bodily harm. Death was caused by the multiple blunt force injuries inflicted during the commission of the foundational offence.

33. The assault was described when sentencing of BE and BL (both of whom were sentenced on the basis that they shared an intention to inflict grievous bodily harm) as follows:

The assault involved prolonged, frenzied and extreme violence inflicted by a crazed rabble upon a virtually naked 16-year-old boy who was vulnerable and defenceless. The offenders carried this out with apparent glee in front of cameras recording their disgraceful behaviour, and the humiliation of their victim, for the consumption of depraved viewers including subscribers to a social media platform.

Many murders are committed with the use of a weapon but that was not the case here. However, this killing occurred slowly, at the hands and feet of multiple offenders and over a prolonged period. Before finally lapsing into unconsciousness, the deceased child must have experienced increasing levels of pain and agony, contemplating how much worse it was going to become and not knowing when or how it was going to end.

34. Whether or not he was present at the time in the bedroom, AD was at least aware that Jason had been injured by the savage assault by Richard Sione before he chose to participate in the savagery himself. Jason was grossly outnumbered and cowering at times. He was mocked and humiliated. AD only briefly left the room but returned and remained until the end.

35. The small proportion of the period in which the assault was carried out which was recorded provides only a glimpse of the violence. AD was recorded administering numerous punches, kicks and stomps. Whether this was representative of his physical acts for the duration of the assault is unknown. The Crown submitted nevertheless that he participated in an act of senseless violence with a mob mentality.

36. A factor that differentiates this offender from his co-offenders BE and BL is that he played no role in luring Jason to the home for the purpose of administering a “bashing”. Another factor is that they both acted with an intention to inflict grievous bodily harm whereas the Crown concedes that this offender did not.

37. The Crown correctly submitted that constructive murder is not always less serious than other categories of murder. In this case, however, it appears to be reflected in the agreed basis of liability for the offence that it should be regarded as less serious because of the absence of an intent to cause really serious harm.

38. On behalf of AD it was submitted that his “criminality is only marginally different from the criminality involved in manslaughter by a joint criminal enterprise to assault the deceased. The only factual difference is the detention.” I cannot accept that characterisation of marginal difference. The detention was a component of an offence committed by AD that has a maximum penalty of imprisonment for 25 years. The detaining was for the purpose of obtaining an advantage; it was committed in company; and actual bodily harm was occasioned. They are significant additions to the criminality involved in a joint criminal enterprise to assault a person as a result of which death occurs.

39. The assessment made when sentencing BE and BL was that this was “a murder of very great seriousness”. It was not found to be in the worst category warranting imposition of the maximum penalty. Having regard to the distinguishing features I have mentioned, and again I avoid reference to a range, my assessment is that this murder, and AD’s role in it, is serious.

40. In addition to the objective gravity of the crime and AD’s participation in it, it is necessary to consider his moral culpability which is reduced for a number of reasons. They include his very young age with a concomitant reduced ability to exercise mature judgment, control impulses, self-regulate and consider consequences. There are other matters that reduce his moral culpability but first it is necessary to review the evidence concerning his background and personal circumstances.

The offender

41. AD was born in August 2007 and was aged 13 years and 11 months at the time of the offence.

42. There was no oral evidence at the sentence hearing. Documents tendered on behalf of AD included two reports by Dr Katie Seidler, clinical and forensic psychologist, an affidavit by an employee of AD’s solicitor, a letter from AD’s mother, and reports and certificates concerning courses and programs undertaken by AD since his arrest.

Dr Seidler’s report of 24 November 2023

43. Dr Seidler observed that this is the first time AD has been charged with an offence but “he has been on an aggressive and violent trajectory for some years”.

44. He was born of a Greek father and his mother was from the Cook Islands. He identified the Cook Islands as his home “on an emotional level”.

45. He witnessed domestic violence by his father towards his mother when he was very young and sometimes sought to intervene to protect her. His parents’ relationship broke down when he was four or five years of age and he has not had any contact with his father since. His mother re-partnered when he was about six and he identifies his stepfather as his father. He has an older sister and two younger siblings. He has always been close to his grandparents.

46. He described his parents as strict. They gave harsh forms of corporal punishment but he accepted this as normal within the Pacific Islander community. He described his mother as kind, loving, protective but quick tempered. His stepfather was caring and loving and also “very cool”. However, his stepfather’s daughters did not like his mother and he perceived this conflict to have brought about the dissolution of his mother and stepfather’s relationship.

47. His mother delivered a still born child when he was about nine and her unresolved grief was catastrophic for the family. AD started to spend increasing periods of time away from the family home staying with friends.

48. AD experienced some racism over the years. He said that racist comments made him angry such that he would often respond with violence and aggression.

49. Schooling was difficult for AD, both academically and with respect to his behaviour. He acknowledged that he put in very little effort which was reflected in his results. His poor behaviour in primary school in terms of aggression and fighting was reactive to social difficulties like being the victim of racism or bullying. In high school it was more to do with being associated with gang activity. He was in Year 8 at the time of his arrest.

50. He told Dr Seidler that when he was aged 12 he was “jumped” by a rival gang and badly beaten. He lost consciousness and sustained a number of minor injuries.

51. It was at around age nine or ten that he attained access to social media through which he met people who were in a gang. He became an active gang member of the “27 Gang” in the Mt Druitt area. As might be expected, some of his peers in the gang were considerably older. He was exposed to substance abuse, criminal behaviour, and violence. He expressed to Dr Seidler a strong sense of identification with this gang, most members of which were from Pacific Islander cultures. He told her that he is still affiliated with it but does not “do the gang stuff anymore”, meaning violent behaviours like “stabbings”. Despite this he said he would be willing to engage in acts of violence if necessary to “back (his) boys up”.

52. Paradoxically, he told Dr Seidler that because he does not want to reoffend due to the feelings of intense guilt he experiences, he recognises the need to distance himself from the gang to a degree.

53. At the age of 13 AD was in a sexual relationship with a girlfriend who was 19 years of age. As Dr Seidler correctly observed, “this would clearly be an illegal and abusive relationship with [AD] being the victim of sexual abuse, although he did not identify his experience as such”.

54. AD first consumed alcohol at age 10 and cannabis at about age 11. He progressed to consuming alcohol daily and cannabis twice a week.

55. AD declined to discuss the offending with Dr Seidler in any detail because of “legal advice”, however he disclosed that there was a gang-related context when the offence occurred. He described feeling sorry for Jason whom he believed did not deserve to lose his life. According to Dr Seidler he described feeling the burden of living with the guilt of his involvement in the death of Jason for the rest of his life.

43. AD told Dr Seidler that his initial adjustment to the custodial environment was challenging. He became suicidal and acted upon this a number of times. He has now learned to cope to some extent. He attends school and last year was in Year 10. He spent time working out in the gym. He claimed he “feels safe in gaol”.

44. He feels well supported with visits from his grandmother and regular contact with his mother, an aunt, and a Juvenile Justice officer. He speaks with his caseworker daily and a psychologist weekly. At the time of Dr Seidler’s first consultation in November 2023 he had recently commenced a weekly program run by police. He also attends a weekly program called Pasifika which involves him engaging in activities with other Pacific Islander youth.

45. According to AD he has been diagnosed while in custody with attention deficit hyperactivity disorder and has found medication beneficial in alleviating the severity of his symptoms. He said he commenced experiencing depressed mood when he was about age nine or ten. The first time he tried to kill himself was at around that age and there were three further occasions prior to coming into custody. There was usually a significant stressor precipitating these events, such as a relationship breakdown. He reported continuing self-harming behaviour but now with less frequency.

46. AD said he was easily triggered to anger and generally short-tempered. He said his anger escalates quickly and is intense and difficult to control without lashing out physically. It can take him some time to calm down and de-escalate. He claimed that he is used to violence; it was normalised for him as a means of dealing with interpersonal problems or stressors. The weekly sessions with the psychologist are helping him learn different ways to cope with stress.

47. Dr Seidler said that she agreed with the diagnosis of ADHD but did not consider the criteria was met to diagnose a depressive condition. She was, however, concerned about the development of personality disordered traits as he moves into adulthood. It was not possible to make diagnoses at his current age. However, she felt there was evidence of traits commensurate with Antisocial and Borderline Personality Disorders and this was something that will need to be monitored as he ages.

48. Dr Seidler’s review of documentation provided to her by AD’s solicitors included school records from his primary and secondary school. She said it referred to serious and recurrent behavioural concerns throughout his education, primarily relating to aggression and violence. He was also disruptive and defiant in class and in relation to the authority of teachers, as well as vandalising school property. It was noted that his aggression and violence was directed at both male and female students. He was suspended on multiple occasions and there also seemed to have been an expulsion. In 2021 AD’s attendance at school was less than 50 per cent.

49. Dr Seidler concluded her formulation as follows:

This is an unfortunate case of a young man, who along with co-offenders and presumably gang brothers, was involved in taking the life of a young teenaged male. This is the tragic culmination of years of difficulty for [AD]. To his credit, he recognises the inappropriateness of his actions and seemingly feels intense guilt as a result. [AD] is however, only beginning to gain insight into his vulnerabilities and hopefully through the process of maturation and professional intervention, he can begin to make important changes to improve his future trajectory.

63. The report concludes with responses provided by Dr Seidler to various questions posed for her consideration. In one question dealing with the impact of his background upon his involvement in the offence she said:

As a result of the various challenges and disadvantages that [AD] has experienced in his young life, he is considered more vulnerable than other young people his age and this contributed contextually to the circumstances that resulted in his offending. Specifically, on the basis of the history, [AD] is a young person who is more impulsive, less well regulated, more prone to affective dyscontrol and poor coping and more vulnerable to peer influence. This also contributed to a lack of consequential reasoning (although he still has the capacity for such reasoning). This set the stage for [AD’s] strong affiliation with a gang of delinquent youth, with these connections contributing to his sense of identity, his peer relationships, his ongoing violent behaviour, his lack of empathy for those outside of the group and ultimately his offending behaviour.

64. As to remorse, Dr Seidler considered that he expressed “what appears to be genuine guilt and remorse associated with his involvement in the offence. … His insight in relation to the antecedents and impacts of his offending behaviour is developing commensurate with his experience of relevant intervention.”

65. As to prospects of rehabilitation and likelihood of reoffending she wrote:

[AD] is only young and he has had a difficult life to date. He presents with a range of significant risks associated with a future criminal trajectory. In addition to a number of criminogenic needs that require intervention. He impresses as a young person who is developing insight and who is prepared to engage in relevant interventions. [AD] appears to recognise that if he does not make changes, there is a risk he may reoffend, which is something he claimed he does not want. Taking all this together, whilst there are notable challenges for this young person, I would hope that with time and the provision of appropriate supports and interventions, his prognosis for meaningful change will be positive.

66. Dr Seidler made a number of recommendations at the end of this report concerning programs and treatments that might best address AD’s rehabilitative needs.

Affidavit of Michael Large, 5 December 2023

67. Mr Large is a solicitor employed by AD’s principal solicitor. He noted the chronology of AD having been arrested on 5 August 2021, committed for trial on 13 January 2023 and arraigned in this Court on 3 March 2023. He annexed documentation confirming that the only matter being put in issue at that time was whether the Crown could rebut the presumption of doli incapax.

68. The matter was subsequently listed for a judge-along trial with TB on 14 August 2023. That trial date was vacated on 24 July 2023 on the application of TB by reason of late service by the Crown of a large volume of further material. The matters were listed for a joint trial on 9 October 2023.

69. On 18 July 2023, when the hearing of TB’s application was imminent, AD had a conference with his lawyers during which he told them he wanted to plead guilty. He was advised by counsel that he had a chance of being found not guilty at trial because the Crown may not be able to overcome the doli incapax presumption. AD expressed no interest in that; he felt bad for pleading not guilty. At one point he said:

I feel guilty about what I did. I want justice for the victim’s family. If I was in their shoes, my family would be like that too. I want them to feel like they are safe, I don’t want them to, I can’t even forgive myself about what happened. Thinking about that family, I hate it.

70. A further conference was scheduled for the following day to allow AD time to reflect on his decision and to ensure he was not simply worn down and overwhelmed by the process. He reiterated the same decision as to his plea, essentially for the same reasons.

71. The matter was listed on 29 September 2023 when AD was further arraigned and entered a plea of guilty to murder. On 9 October 2023 he was present in court when TB was arraigned and entered a plea to manslaughter. He had a conference with his lawyers after court when he at first expressed some frustration with the Crown accepting a plea to manslaughter from his co-offender. However, he went on to say something to the effect that he had no regret about his decision to plead guilty to murder. Mr Large summarised in notes made soon after the conference: “He sees the decision he made as an indication of showing how genuinely sorry he is for his conduct”.

Affidavit of Michael Large, 8 April 2024

72. This second affidavit from Mr Large serves to annex a document that confirms AD’s enrolment in six Year 11 subjects for 2024.

Letter from the offender’s mother, 8 April 2024

73. AD’s mother expressed support for him on behalf of the entire family. She acknowledged the dreadful thing he had done and expressed sadness about AD being confined to custody. She said that he had told her he realised what he had done and the role he had played in the death of Jason. She wrote, “He feels so sorry for what he did, he talks about how sorry he is nonstop”. She expressed pride “for the way in which he’s taken responsibility for his role and accepted the consequences of his actions”. She also expressed her deep sympathy for Jason’s mother.

Reports and certificates

74. There are certificates awarded for various achievements as well as a “Portfolio Report” from Putland Education and Training Unit. It records awards and TAFE certificates issued to AD during 2023 with positive comments added about his quiet, motivated and conscientious approach to lessons. Academic results and teacher comments for Years 9 and 10 were also positive but there is comment about the need for greater effort, focus and consistency in some areas.

Background Report by Claudia Lyons, 29 November 2023

75. Ms Lyons is a caseworker with Youth Justice NSW. Much of her report is consistent with the content of Dr Seidler’s first report. What follows largely focuses upon additional information. It should be understood as reporting AD’s circumstances until five months ago.

76. The substantive part of this report begins with “Response to Custody”. AD has been transferred between various Youth Justice Centres. He has received “numerous misbehaviour reports for reasons including fighting, damage to property, subversive behaviour and disobedience”. A significant number of these were received during the first year, possibly being linked with his difficulties adjusting to the custodial environment. It is noted that he has been subject to many incidents, predominantly relating to self-harm.

77. Positive comments are made about him completing chores and seeking opportunities to help around the unit. He has participated in a Youth Justice offence specific program, Changing Habits and Reaching Targets on a fortnightly basis with his caseworker and reportedly uses what he learns to help him manage being in custody.

78. AD was also in Stage 1 of the Voyage Program, a therapeutic and educational program which is a component of the Pasifika Cultural Intervention Model. He was reported to engage positively in sessions and interacts well with facilitators and peers.

79. It is said that he is trying to increase his connection to culture and immerse himself in a more positive community through his involvement in Pasifika but his “promotion and glorification of gang values appears to contradict the values taught through the program”. He would benefit from ongoing involvement with Pasifika.

80. In a part dealing with “Family and Living Circumstances” there is an account which is largely consistent with the history AD provided to Dr Seidler. However, it also includes that his mother reported that her second husband was diagnosed with cancer when AD was eight years old. She described AD taking on a leadership role and being protective over his family at this time. AD recalled that there was less supervision in the home with his mother spending significant periods in hospital with his stepfather. He began affiliating with negative peers associated with the “27” gang. He had older peers who provided financial support and food for himself and his family. He said this contributed to his ongoing loyalty and attachment to these peers.

81. The report confirms AD is engaging with education. Teaching staff reported that he was a motivated student who had made good progress and worked productively. He is also described as respectful and cooperative in classes. He was due to receive a Record of School Achievement at the end of last year.

82. AD gave an account of his involvement with a gang which was consistent with what he had told Dr Seidler, including that he intended to continue his affiliation with these peers when he returns to the community but claims this will not involve engaging in pro-criminal activity. He was confident in expressing this claim but was unable to identify specific strategies he could use to remove himself from antisocial situations.

83. He also provided a broadly consistent account of his abuse of alcohol and a more disturbing account of using cannabis in greater quantities and more frequently in the period leading up to his arrest. He claimed he was under the influence of both at the time of the offence but I note that this is not a mitigating factor.

84. Dr Annie Parsons, a child, adolescent and forensic psychiatrist had diagnosed AD with major depressive disorder with anxious distress, cannabis and alcohol use disorders, conduct disorder and ADHD. She has prescribed pharmacotherapy to address his mental health and sleep difficulties.

85. The psychologist AD had been seeing at Cobham Youth Justice Centre confirmed his regular engagement and progress attained.

86. AD gave the author of the report an account of his involvement in Jason’s murder. It included that he did not have any intention to harm him. He claimed he was not involved in the premeditation. He was aware there was an issue between Jason and a co-accused but was not aware of the details. He said he could not recall any conversations between the group from the time that he arrived at the home to the time the assault commenced. He wanted to talk to Jason about what had happened to understand why he did “it”, intending to intimidate him but not to go any further or cause any physical harm. He denied knowledge of the other young persons intending to assault Jason. He claimed Jason started hitting them to get out of the room and this was the catalyst for him to feel angry and engage in the assault.

87. He also claimed that another young person had a screwdriver with which AD thought Jason was going to be stabbed. To prevent this occurring, he took it and went out and dropped it off the verandah; this was the “long object” referred to in the agreed facts.

88. It is not an agreed fact that the object was a screwdriver and nor is it agreed that AD carried out this action for the purpose of preventing it being used in the assault. I am not prepared to accept this untested second-hand account. I will make an assessment of the offence on the basis of what is in the agreed facts.

89. AD described feelings of anger towards himself, saying that he lost control of his emotions and was unable to control his anger in the moment. He claimed to have reflected on the event and the impact upon Jason and his family. He said he thought about them every day and recognised the suffering caused by his actions.

Dr Seidler’s report of 10 April 2024

90. Dr Seidler’s second report was prompted by the provision to her of additional documentation, being the affidavit of Mr Large of 5 December 2023 and the Background Report by Ms Lyons of 29 November 2023.

91. After referring to matters discussed in those documents Dr Seidler addressed a number of questions. She referred to a number of factors some of which could be considered to have impaired AD’s maturity compared with an average 13–14-year-old and others which could have enhanced it.

92. Dr Seidler said it was impossible to determine whether AD’s childhood conduct disorder will develop into antisocial personality disorder. It is a diagnosis that cannot be made before adulthood. She described antisociality as the strongest predictor of future criminal behaviour. Development of this disorder would increase the likelihood of reoffending and reduce an individual’s prospects for rehabilitation. Conversely there would be improvement in relation to these issues. She referred to a number of strategies that would reduce the risk of AD going on to develop the disorder.

Principles relevant to sentencing children

93. It is necessary to have regard to the principles set out in s 6 of the Children (Criminal Proceedings) Act. They are as equally applicable where an offender is dealt with according to law:

6 Principles relating to exercise of functions under Act

A person or body that has functions under this Act is to exercise those functions having regard to the following principles-

(a) that children have rights and freedoms before the law equal to those enjoyed by adults and, in particular, a right to be heard, and a right to participate, in the processes that lead to decisions that affect them,

(b) that children who commit offences bear responsibility for their actions but, because of their state of dependency and immaturity, require guidance and assistance,

(c) that it is desirable, wherever possible, to allow the education or employment of a child to proceed without interruption,

(d) that it is desirable, wherever possible, to allow a child to reside in his or her own home,

(e) that the penalty imposed on a child for an offence should be no greater than that imposed on an adult who commits an offence of the same kind,

(f) that it is desirable that children who commit offences be assisted with their reintegration into the community so as to sustain family and community ties,

(g) that it is desirable that children who commit offences accept responsibility for their actions and, wherever possible, make reparation for their actions,

(h) that, subject to the other principles described above, consideration should be given to the effect of any crime on the victim.

94. Caselaw is replete with further statements of principle that apply in the sentencing of juvenile offenders: for example, KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571 at [21]-[26] (McClellan CJ at CL) and BP v R [2010] NSWCCA 159; (2010) 201 A Crim R 379 at [4]-[6]. They include that considerations of general deterrence and retribution may give way to the rehabilitation of a youthful offender. This is not to say that general deterrence and retribution should be ignored as there is a significant public interest in deterring antisocial conduct. The emphasis given to rehabilitation as opposed to general deterrence and retribution may be moderated in certain circumstances, including where (as here) the crime is violent and of considerable gravity. The younger the offender the greater the weight that might be afforded the element of youth. If immaturity is a significant factor in the offending the criminality of the offender will be less. This provides a counterpoint to the need to denounce, punish and hold the offender to account for what he has done.

95. The foregoing is not intended to be exhaustive but simply illustrative of the factors that must be carefully considered in the sentencing of a youthful offender such as AD. It is important to recognise that there are no automatic consequences which follow from the fact that an offender is a juvenile. It is a matter of instinctive synthesis of many considerations, some pointing in opposite directions.

Subjective mitigating factors

96. AD’s moral culpability is reduced because of his age for the reasons given earlier (at [40]) It is also reduced because of aspects of his upbringing. It had the following features which were usefully highlighted in the written submissions of Mr Wilson SC (at [12]):

1. Early exposure to domestic violence;

2. Familial breakdown;

3. Parental absence (father and at times mother);

4. Step father suffering from cancer when the offender was 8 years old;

5. Early introduction to gang culture (age 8) and gang membership (age 10);

6. Early exposure to delinquent and anti-social role models and to substance abuse, criminal behaviour and violence through a gang;

1. Grief (direct and vicarious) due to his mother having a stillborn baby (when aged 9);

2. Mother who was loving but strict and used harsh forms of corporal punishment;

3. Poor school performance and attendance;

4. Childhood sexual abuse at age 13 by older “girlfriend” who was 19;

5. Lack of parental moral guidance in relation to violent behaviour; and

6. A history of self-harm.

97. Some of these features had a link with AD becoming associated with one or more of his co-offenders who shared an aimless existence beset by alcohol and substance abuse, criminal behaviour and violence. The applicant’s introduction to gang culture and recruitment to membership occurred at a stage in his life when he was extremely ill-equipped to exercise any sensible and moral judgment. His vulnerability at the time was exacerbated by events distracting his parents from giving him the sort of attention that children deserve. It is similarly the case with his exposure to alcohol and drugs at an early age.

98. There was debate at the sentence hearing about a passage in the Crown’s written submissions (at [49]) that “the offender’s conduct in committing a crime of violence of considerable gravity amounts to ‘adult behaviour’ or conducting himself in the manner an adult might. Such a finding would permit the court to give greater emphasis to general deterrence and retribution”. It would appear this was derived from KT v R at [25]. According to Hodgson JA in BP v R at [6], however, “courts should [not] be over-ready to discount the relevance of an offender’s youth on the basis that the offender has engaged in adult behaviour or acted as an adult”. Hodgson JA went on to observe about the case at hand that although the offence was a very serious one, it did not involve significant planning or reflection or other indicia of mature decision-making. The offender was aged 16 and the circumstances of the offence suggested emotional immaturity and less-than-fully-developed capacity to control impulses were likely to be contributing factors.

99. By comparison, the present case also involves a very serious offence but one committed by a 13-year-old offender with, on his part, no planning or reflection and certainly nothing that could be described as “mature decision making”. He was emotionally immature and was poorly equipped for reasons provided in the reports to control impulses. The offence, insofar as this offender was concerned, cannot be described as one involving “adult behaviour”. It had the attributes listed by Yehia J in TM v R [2023] NSWCCA 185 at [49]:

“[T]he conduct had all the hallmarks of youth, including immaturity, absence of impulse control, poor self-regulation, and a tendency to go along with the group.”

100. In applying these principles, AD’s reduced moral culpability will result in less weight being given to general deterrence and retribution and greater weight given to rehabilitation. It is necessary to remain mindful, however, that the offence involved an extreme level of violence and had the consequence that a child’s life has been taken; tragically and with unimaginable brutality.

Plea of guilty

101. AD’s representatives notified the Crown of his intention to change his plea to one of guilty on 25 September 2023. The parties agree that the way the defence had been conducted up until that time confined the prospective trial to a single issue concerned with the doli incapax presumption. The utilitarian benefit arising from this concession by AD that the murder was otherwise proved and his ultimate plea of guilty warrant a discount of 15- 20% according to the Crown and at least 20% according to the defence. An allowance of 20% will be made (with slight rounding down for practical purposes).

Criminal history

102. AD has no criminal history.

Remorse

103. The evidence establishes that he is genuinely remorseful.

Rehabilitation prospects and unlikelihood of reoffending

104. It was submitted on AD’s behalf that his prospects of rehabilitation are “hopeful – especially if he remains in juvenile custody completing his education and receiving psychological treatment and counselling”. However, it was contended that it was difficult at this stage to assess his prospects of rehabilitation and likelihood of further offending due to his conduct disorder and the question of whether he will develop an antisocial personality disorder.

105. Provision is made in Pt 4, Div 2A of the Crimes (Sentencing Procedure) Act 1999 (NSW) for provisional sentencing of child offenders in murder cases. It may be a procedure that could be useful in a particular case, although the fact that no provisional sentence has been imposed in the 11 years since Div 2A was inserted in Pt 4 of the Act indicates that it has never been thought to be an appropriate course to take.

106. The first three preconditions for such a sentence set out in s 60B(1) are met in this case: AD was less than 16 when the offence was committed; he is less than 18 now, and the proposed sentence is a term of imprisonment. The fourth precondition is that the court be of the opinion that “the information presently available does not permit a satisfactory assessment of whether the offender has or is likely to develop a serious personality … disorder … such that the court cannot satisfactorily assess either or both of … whether the offender is likely to re-offend [or] the offender’s prospects of rehabilitation”.

107. In relation to whether a satisfactory assessment of those matters is possible now, it is the case that AD’s gang affiliations and stated intention to maintain them is a matter of concern. On the other hand, there are some good reports about his conduct and performance, and he has demonstrated progress in the two and a half years he has been in custody. As it was put in submissions, he has gone from being a serial truant to a student who has completed Year 10 and is now working towards his Higher School Certificate. Instances of misbehaviour have reduced in their frequency. Much will depend upon him continuing to apply himself with the opportunities provided in Youth Justice Centres where the resources for young offenders appear to be greater than they are in adult correctional centres.

108. A satisfactory assessment can be made at this point. Even if I were not of that view, I would be concerned about imposing a sentence provisionally for two reasons. First, if it did transpire that AD attracted a diagnosis of antisocial personality disorder, that would be a matter of concern and suggest that there should be a longer sentence to acknowledge the need for community protection. That would not be possible, however, as s 60G(3) provides that the final sentence, including its non-parole period, can be no longer than the provisional sentence. Secondly, the deferment of final sentencing for up to five years would be to impose further trauma upon Jason’s family. It would also have the potential to be burdensome for AD himself, not knowing his fate with certainty for years.

109. That is all hypothetical in the view I have formed that the fourth precondition to be met before a provisional sentence can be imposed is not met. The assessment that is possible to be made at this point is that AD’s prospects of rehabilitation and avoiding reoffending are reasonable.

Pre-sentence custody

110. AD has been in custody since his arrest on 5 August 2021. His sentence will need to be backdated to that date.

Special circumstances and the non-parole period

111. There are special circumstances warranting a reduction of the non-parole period of the sentence. They include the very young age at which AD first entered into custody and the need to provide him with guidance and support upon his re-integration into the community upon release on parole. That is evident for a number of reasons including monitoring him in relation to any gang affiliation and substance abuse. It is also appropriate to allow a greater degree of flexibility to the State Parole Authority as to when it is appropriate to permit release on parole having regard to his maturity and progress towards rehabilitation. The restrictive conditions experienced due to COVID-19 during the first year or so of custody is also a relevant factor.

Special circumstances and serving sentence as a juvenile

112. It was submitted that there were “special circumstances” for making an order under s 19(1) of the Children (Criminal Proceedings) Act that AD serve his sentence as a juvenile offender. That would have the effect that he could remain in a Youth Justice Centre until the age of 21. I am satisfied this is appropriate. I accept the opinion of Dr Seidler in this respect. She considered the programs and interventions within the juvenile justice system will better meet AD’s needs. She felt he would be vulnerable in the adult correctional environment, most particularly from the adverse influence of those more entrenched in an antisocial world view and peer culture that he may seek to model himself in order to fit in and be safe. She also advised it would be unlikely AD would be able to seamlessly continue with his Year 12 studies if he were to be transferred to an adult facility when he turns 18 in August 2025. The combined force of those matters provides “special circumstances” under s 19(4) for making the order.

Parity

113. The sentence to be imposed upon AD has been assessed in light of the sentences imposed upon BE and BL and the sentence to be imposed today upon TB. The most obvious distinction in relation to TB is that he is to be sentenced for manslaughter. TB is the youngest offender while AD is eight months older and BE and BL are older again. BE and BL were involved in getting Jason to come to the Perigee Close home while AD and TB were not. They all have had backgrounds tainted by unfortunate circumstances which impact sentencing in various respects. There are other variations in their subjective features such as rehabilitation prospects. An attempt has been made to maintain appropriate proportionality of the starting points of the sentences with the various differences in mind.

Family victim impact statement

114. I again wish to express my admiration and gratitude for the courage of Ms Rachel Galleghan in describing the impact this terrible crime has had upon her and her family. She has attended court every day of the proceedings concerning each of the offenders.

115. The importance of family victim impact statements should never be underestimated. In this case Ms Galleghan has described for the benefit of the court, the public, and (importantly) the offenders the profound and enduring grief, pain and loss that are the consequences of their appalling conduct. This is an aspect of harm that is caused to the wider community. I extend sincere condolences to all of Jason Galleghan’s family and friends.

High risk offender legislation

116. The Crimes (High Risk Offenders) Act 2006 (NSW) has potential application to AD upon his release. I ask that his solicitor explain the ramifications of this to him.

Sentence

117. Convicted

Sentenced to imprisonment comprising a non-parole period of 9 years and 3 months and a balance of the term of the sentence of 5 years and 1 month.

That is a total sentence of 14 years and 4 months. It has been reduced for the reasons given from a starting point of 18 years.

The sentence is to date from 5 August 2021 which means that AD will become eligible for release on parole when the non-parole period expires on 4 November 2030. The total sentence will expire on 4 December 2035.

Pursuant to s 19(1) of the Children (Criminal Proceedings) Act 1987, AD is to serve his sentence as a juvenile offender until he attains the age of 21.

A copy of the two reports of Dr Katie Seidler dated 24 November 2023 and 10 April 2024 are to be provided to Youth Justice NSW.

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Endnotes

Decision last updated: 24 April 2024