R v BE - [2023] NSWSC 1007

Supreme Court

New South Wales

Medium Neutral Citation: R v BE [2023] NSWSC 1007
Hearing dates: 9 August 2023
Date of orders: 23 August 2023
Decision date: 23 August 2023
Jurisdiction: Common Law
Before: R A Hulme AJ
Decision:
Sentenced to imprisonment for 15 years and 6 months with a non-parole period of 10 years.

Catchwords:
CRIME – sentencing - juvenile offender – murder – plea of guilty – youth gang bashing of child – assault captured on video and posted on social media – offence of great seriousness – reduced moral culpability on account of background and immaturity of youth – doubtful prospects of rehabilitation – special circumstances to allow for parole flexibility

Legislation Cited:
Children (Criminal Proceedings) Act1987 (NSW), Pt 3 Div 4, ss 6, 19(1)
Crimes (High Risk Offenders) Act 2006 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 4 Div 2A, s 44(2)

Cases Cited:
R v KT [2008] NSWCCA 51
R v SLD [2002] NSWSC 758
R v SLD (2003) 58 NSWLR 589; [2003] NSWCCA 310

Category: Principal judgment
Parties: Rex (Crown)
BE (Offender)
Representation:
Counsel:
P Hogan (Crown)
S Hall SC (Offender)
Solicitors:
Solicitor for Public Prosecutions NSW (Crown)
Karim Criminal Defence Lawyers (Offender)

File Number(s): 224215/2021
Publication restriction: Non-publication order in respect of the identity of adult co-accused persons until the completion of proceedings involving a jury against those persons.

JUDGMENT

BE is a child who is to be sentenced for the murder of Jason Galleghan at Doonside on 4 August 2021.
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). [1]
1. Children (Criminal Proceedings) Act, s 3(1), s 17
The maximum penalty for murder is life imprisonment. Standard non-parole periods do not apply where the offender is a child.
For reasons I have discussed with counsel, this judgment has no value as a comparator aside from consideration of parity of sentencing of co-offenders.

The offence

The following account of the way in which the murder occurred is taken from a statement of agreed facts signed by BE and his lawyer. The fact that some matters are referred to as having occurred at fairly precise times was made possible by subsequent analysis of the content of various phones. This included video recordings of some of the critical events.
BE was aged 14 years 7 months as of 4 August 2021.
Jason Galleghan was aged 16. [2]
2. There has been consent to the publication of the deceased child’s name pursuant to s 15E of the Children (Criminal Proceedings) Act
The critical events occurred in a house at Perigee Close, Doonside. It is a small single-storey residence where Adult 1 (aged 19) lived with her partner, Harley Robinson Bartolo (29). Adult 1 was a friend of the deceased boy but she wrongly blamed him for stealing her Apple AirPods. She told people about her suspicions and a plan was hatched…

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 BE

Details

AGLC: R v BE [2023] NSWSC 1007
Case: [2023] NSWSC 1007
Decision Date: 23 August 2023

CaseChat Overview and Summary

The case before the court involved a juvenile offender, BE, who pleaded guilty to the murder of a child. The offence stemmed from a youth gang bashing that was captured on video and subsequently posted on social media. The court was tasked with determining an appropriate sentence for the defendant, considering the extreme seriousness of the crime and the unique circumstances surrounding the offence. The case was heard in the Supreme Court of Victoria, which had jurisdiction over the matter due to the severity of the crime and the age of the defendant.

The legal issues that the court needed to address included the appropriate weight to give to the heinous nature of the crime, the reduced moral culpability of the defendant due to their young age and background, and the prospects of rehabilitation. Additionally, the court had to consider whether the special circumstances of the case warranted flexibility in the parole arrangements. The court's decision was guided by the need to balance the need for punishment and deterrence with the potential for rehabilitation and reintegration of the juvenile offender into society.

In delivering its judgment, the court emphasised the gravity of the crime, noting that the murder was a brutal and senseless act that had caused significant harm to the victim and their family. However, the court also acknowledged the defendant's background and immaturity, which contributed to the offence. The court found that while the prospects for rehabilitation were doubtful, the special circumstances of the case warranted flexibility in the parole arrangements. The court ultimately sentenced the defendant to a term of imprisonment with a non-parole period, taking into account the need for punishment, deterrence, and the potential for rehabilitation.

The court's final orders included a sentence of imprisonment for a specified term, with a non-parole period that allowed for the possibility of parole under certain conditions. The court also directed that the defendant be subject to certain rehabilitation and supervision measures during and after their imprisonment. The judgment reflects the court's balanced approach to sentencing juvenile offenders, taking into account the seriousness of the crime, the circumstances of the offender, and the potential for rehabilitation.

Orders