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

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.
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
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

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.
Police obtained footage from domestic CCTV cameras as well as mobile phone data which allowed precise times to be assigned to some of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Ad

Details

AGLC: R v Ad [2024] NSWSC 444
Case: [2024] NSWSC 444
Decision Date: 24 April 2024

CaseChat Overview and Summary

In the case of R v Ad, the appellant, Ad, was charged with murder following a youth gang bashing of a child, an incident which was captured on video and subsequently posted on social media. Ad pleaded guilty to the offence, and the case proceeded to sentencing. The court had to determine the appropriate sentence for Ad, taking into account the seriousness of the offence, his age and immaturity, his background, and the likelihood of rehabilitation and avoidance of reoffending.

The primary legal issues before the court were the degree of moral culpability attributable to Ad due to his youth and background, as well as the appropriate balance between punishment and rehabilitation. The court considered the principles of sentencing juvenile offenders, which place emphasis on rehabilitation and the potential for the offender to avoid reoffending. The court also examined whether special circumstances existed that would warrant parole flexibility or the imposition of a sentence that recognised Ad’s status as a juvenile offender.

The court found that Ad’s immaturity and background did mitigate his moral culpability, and that he had shown remorse for his actions. The court also concluded that Ad had reasonable prospects of rehabilitation and avoiding reoffending in the future. Given these factors, the court determined that it was appropriate to impose a sentence that would allow for parole flexibility as Ad matured and that recognised his status as a juvenile offender. The court ordered that Ad be sentenced to a term of imprisonment with the possibility of parole after serving a minimum non-parole period, reflecting the special circumstances of the case.

The court ordered that Ad be sentenced to a term of imprisonment, with a non-parole period of [specific term] years. This sentence recognises the seriousness of the offence while also providing flexibility for parole as Ad matures and undergoes rehabilitation. The sentence aims to balance the need for punishment with the potential for Ad to avoid reoffending in the future.

Orders