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

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

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). [1]

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

3. The maximum penalty for murder is life imprisonment. Standard non-parole periods do not apply where the offender is a child.

4. 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

5. 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.

6. BE was aged 14 years 7 months as of 4 August 2021.

7. 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

8. 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 whereby he would be lured to the house and assaulted.

9. At a time unspecified, present at Perigee Close on 4 August 2021, were Adult 1 and Mr Bartolo, Adult 2 (32) and his partner, Stacey Pale (36), and young persons TB (13), BL (15), MM (15), AD (13) and BE. Thomas Pakau (18) and Rebyll Oaariki (24) arrived at some stage.

10. At about 1.49pm, BE posted messages on Instagram, including:

“me n 2 of the boys are bashing someone today lmao”. [3]

3. It is understood the last word is a “laughing” acronym.

11. At about 3.23pm, Ms Pale left the house and walked to the shops which are in the direction of Doonside railway station.

12. At about 3.37pm, BE had a conversation by text on Instagram with his girlfriend, JB (14). He made reference to an unnamed male being “nearly at doonside station” and that “we gotta take him from doonside station to here” … “(the house)”. He asked her to hurry up to “meet us at the house”.

13. At about 3.45pm, BE, Adult 1 and BL left the house and walked to Doonside railway station to meet the deceased. At about 3.56pm at the station, the deceased met with BE, Adult 1, BL and Ms Pale. The five arrived at Perigee Close at 4.09pm. The deceased was immediately taken to the spare bedroom by Adult 2 where they were joined by BE, TB, Adult 1, AD, MM and BL.

14. Between 4.09pm and 4.20pm the deceased was assaulted by Adult 2 while the six others just mentioned looked on. Some of them were encouraging the violence although BE did not say anything. From outside the room a person heard a “bang” and Adult 2 saying, “fuck, fuckin’ gronk”. Another person heard what sounded like “just big hits … like body to wall”. Neighbours heard screaming and the sounds of items being smashed. They described “blood curdling screams” that “sounded like someone was being used as a punching bag. It kept going for minutes and minutes. It sounded like someone getting flogged”.

15. The deceased was stripped of his clothing, leaving him in only his underpants.

16. Mr Pakau entered the bedroom and saw the deceased against the wall, being punched to the head and body by Adult 2. Pakau grabbed Adult 2 and threw him off the deceased. AD and BL tried to get involved in the assault but Pakau prevented them. BE and TB were yelling out at the time.

17. Mr Pakau and Ms Oaariki left the house and so did Adult 2 a short time later. They went to Adult 2’s house not far away at Mikado Way, Doonside.

18. BE’s girlfriend, JB, arrived at the house at 4.19pm. He met her at the front door and told her to wait on the porch.

19. After Adult 2 left, the assault in the bedroom was continued by BE, TB, AD, MM and BL in the presence and with the encouragement of Adult 1 for more than 20 minutes. At one point the deceased was laying on the mattress in the room with TB and BL stomping on his chest.

20. At 4.42pm BE and JB as well as TB, AD, MM and BL ran from the house. BE, JB, TB and BL ran to the nearby home of Jordan Crow at Cygnus Close, Doonside. Mr Crow was shown footage of the assault upon the deceased.

21. Adult 1, Mr Bartolo and Ms Pale remained at the house. They left at 4.46pm but returned at 5.11pm.

22. While at Mr Crow’s house, BL spoke on the phone with Adult 1 who told him that the deceased was not breathing and did not have a pulse. BE, JB and TB left Mr Crow’s house and went to the railway station.

23. At 5.42pm, Adult 1 called triple 0 and told the operator the deceased was unconscious inside Perigee Close. Police and ambulance officers arrived within minutes. Adult 1 and Mr Bartolo were sitting on a couch in the lounge room. Adult 1 pointed towards the bedroom, saying, “He’s in there”. No attempts had been made to assist or resuscitate the deceased.

24. The deceased was found lying behind a semi-closed door in a prone position consistent with how he was positioned at the end of the last recording and then subsequently rolling to his side behind the door. He was unconscious and not breathing. Ambulance officers were able to establish a heart rhythm and he was taken to Westmead Hospital.

25. That night at Mikado Way, Adult 1, Mr Pakau, Ms Oaariki, AD, MM and BL watched videos of the assault, one of which was also uploaded to Instagram. The total recording time of the videos was 4 minutes and 3 seconds however the assault lasted for 33 minutes, from its commencement by Adult 2 until the departure of BE, TB, BL, MM and AD.

26. One of two recordings recovered from BL’s phone includes:

1. MM yelling and screaming at the deceased and encouraging others to assault him, including “Stomp on his fucking head, stomp on his fucking head … get him … stomp on his fucking head …”.

2. BE, TB and AD punching, kicking and stomping on the deceased as he lay on a mattress on the floor. He was holding his arms up above his face in an attempt to protect himself. MM continued calling out to “Stomp on his head … put him in a fucking grave”. BL contributed, “Yeah go hard … Don’t stop until he is fucking knocked out cunt”. The agreed facts include that “this particular part of the assault was sustained and extremely vicious”.

3. BL asked Adult 1 to film “this for me … I’m going to kill this cunt and put him through the wall”. He said more along the same lines and MM said, “Enough, wait until I’m finished then you can fucking put him through the wall … alright … go finish him off … go go go … finish him … fucking finish him”.

4. BE, TB, AD and BL continued to violently assault the deceased by kicking, punching and stomping on his head, chest and body. One of the males said, “Oi, leave him, leave him” and “Okay that’s it guys … guys”. BE said, “You think that’s it, yeah” at which point the deceased stood up and BL yelled, “Sit the fuck down” before slapping the deceased in the face.

27. It is agreed that in this period of about 2 minutes BE can be seen to hit or punch the deceased 52 times, kick him 3 times, and grab his hair. He did not stomp on the deceased during this recording.

28. There is a 1 minute 26 second recording recovered from Adult 1’s phone which overlaps part of that recovered from BL’s phone but shows events from a different angle. It includes:

1. MM grabbing the deceased by the hair and ramming his head into a gyprock wall repeatedly until a hole was created. She proceeded to slap and kick him in the face causing his head to jolt back into the wall numerous times.

2. AD forced the deceased to answer questions, such as “What’s your name”? MM was holding the deceased’s hair, forcing his head backwards and to look up to AD. She then yelled, “A good kick to the face” and tapped AD’s back. AD then kicked the deceased’s face with force, jolting his head backwards and causing it to hit the gyprock wall. AD and TB then each kicked the deceased in the face.

3. BE and BL told the deceased to stand up but the deceased repeatedly said he was going to “pass out”. BL grabbed him by the hair and threw him across the room, onto the floor and then stomped his left foot on the deceased’s chest and applied pressure. The deceased rolled onto his side and BL continued to hold his foot with pressure on his chest. BE also stomped on the deceased.

29. The agreed facts describe the deceased as “clearly struggling and was in and out of consciousness, lying adjacent to the doorway”.

30. There was a second recording on BL’s phone which includes:

1. The deceased standing against a wall with AD holding his hands. MM and AD demand the deceased speak to the camera and say, “Fuck 21”, “27 on top”, “Fuck KVT”, Fuck MOB”. These are acronyms for local youth street gangs.

2. BE said, “Oi stop stop … look at him … look at him … stop … look at him … look”.

31. This aspect is controversial. BE claimed that at this point he realised that the deceased had had enough and that they had gone too far. The Crown submitted that the tone of BE’s voice when he was saying these things is not consistent with this claim. I have replayed this passage a number of times. BE’s voice is not raised and there is no indication of urgency or pleading. I am not persuaded that it conveys any concern by BE for the deceased, or that he was trying to persuade any of the co-offenders that the assault should cease. Immediately before saying the words quoted above, somebody is repeatedly striking the body of the deceased as BE is saying, “In the ribs. In the back, in the back, right in the asshole”.

32. In his evidence BE said that he eventually realised that the others were trying to kill the deceased but that was “a bit before maybe, five, ten minutes … before it had finished”. ^[4] However BE’s participation in the assault of the deceased continued until near the end of the recording which is agreed to be about when the entire assault finished. In re-examination he said this realisation was what prompted him to say “stop, look at him” etc. He did not want the deceased to be killed and that is why he told the others to stop. ^[5]

    4. T21

    5. T23

33. At one point the deceased was forced to his knees by MM. AD and BL said, “Kiss my fucking shoes”. BL took possession of a phone from MM and said, “Here, I’ll film it”.

34. The Crown tendered without objection a document headed in part, “Summary of Strikes”. [6] It contains an itemisation of the number of strikes delivered by each offender as best can be determined from the recordings. It must be borne in mind that the recordings were for only a small proportion of the time over which the attack took place; several minutes in a little over half an hour. Most of the activity was captured in the 1 minute 59 second recording on BL’s phone in which there were a total of 133 acts with BE being responsible for 56 of them, 52 being “hit/punch”, 3 being a kick and 1 being a grabbing of the hair. A recording on Adult 1’s phone includes a stomping action by BE.

    6. Exhibit D

35. The deceased died on 6 August 2021. There was extensive bruising, abrasions and lesions as well as a fractured jaw, internal haemorrhaging and brain injury. The injuries extended all over the head, trunk, legs and arms. The forensic pathologist described the cause of death as “complications of multiple blunt force injuries to the body”.

36. BE was arrested at a hotel in Ermington on 5 August 2021. He exercised his right to silence by declining a police interview.

The offender

37. Information about BE has been provided through a variety of documents as well as by evidence given by him and an aunt at the sentence hearing.

Report of Mr Patrick Sheehan, forensic psychologist, 28 June 2023

38. BE described to Mr Sheehan a difficult and disadvantaged childhood. His early memories were distressing through having witnessed conflict between his parents including domestic violence. His father left when he was in preschool. He had limited and unreliable contact thereafter with him, giving rise to feelings of rejection.

39. He remained in the care of his mother who had a severe alcohol abuse problem, rendering her unable to provide any care or supervision. He was neglected in the home; he had to find his own food as well as care for his younger brother. His mother brought a series of antisocial male partners into the home. Family and Community Services became involved.

40. His mother participated in rehabilitation but continued relapsing until he was aged 12-13 years when the threat of having the children removed into State care became very real. She became more attentive and commenced employment but by this stage BE’s behaviour had become increasingly uncontrollable. He was running away from home at the age of 12 and would be returned by police. From the age of 13 his care was shared between his aunt at Marayong and his mother in Glebe, each of them requiring periodic respite due to his behaviour. He told Mr Sheehan that his aunt and mother had tried to warn him that his behaviour would lead to more serious consequences but he never listened.

41. BE has maintained close contact with his mother, brother and two aunts since being in custody. He has infrequent contact with his father.

42. Schooling was far from enthusiastically embraced by BE. He had poor concentration and was prone to tantrums. He truanted with increasing frequency. He reported having been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) at age 11 but said it was untreated until he came into custody. Towards the end of primary school and continuing into high school his conduct worsened. He was getting into fights regularly, bringing weapons to school and facing criminal charges. He was moved to a behavioural school in Year 8 but was frequently absent, preferring to engage in activities with antisocial peers. By Year 9 he ceased attending completely.

43. BE returned to schooling in detention and completed his Year 10 school certificate. He was hoping to commence TAFE courses but has been moved to a centre where that is not possible. He is currently doing Year 11 studies.

44. Mr Sheehan described BE as having grown up “in a socioeconomically depressed area where unemployment, substance abuse and crime were common” and “his peer group had no positive aspirations for the future”. He became mindful of gang culture in the western suburbs and aligned himself to an amorphous group from whom he sought acceptance. These were the people associated with the events of 4 August 2021. Within this group it was normal to perceive other groups as enemies with whom they were prepared to fight. He carried a knife for protection.

45. BE described to Mr Sheehan serious problems with substance abuse. He commenced using cannabis from the age of 12 and was soon heavily smoking it as well as abusing MDMA on a daily basis. He was recklessly using alcohol, drinking over a bottle of spirits every day, starting in the morning. He said he was prone to increased anger and fighting when intoxicated.

46. He claimed to have abstained from substance abuse since being in custody. Mr Sheehan noted that juvenile justice centres are well-known as a drug free environment compared to adult correctional centres. He had not engaged in any programs and disclosed that if drugs were available, he would probably use them. At the sentence hearing he said he would like to think he would have the willpower not to, but acknowledged that he had not yet full worked through his drug and alcohol issues. ^[7]

    7. T10.35

47. Mr Sheehan considered BE “has clear symptoms of severe conduct disorder, which I would regard as comorbid with his ADHD”.

48. BE told Mr Sheehan he had been diagnosed with schizophrenia by Justice Health while in custody. He reported hearing voices telling him to hurt people, claiming that “it’s been happening for years, I just ignored it”. There was no report of other symptoms that might support such a diagnosis and Mr Sheehan was unable to arrive at it, saying he would be greatly assisted by Justice Health records. (Counsel indicated that such records were unavailable.) Mr Sheehan did, however, consider that BE has a Polysubstance Use Disorder (moderate, in sustained remission in a controlled environment).

49. As to the offence, BE told Mr Sheehan that he felt obliged to assist with the attack, feeling pressured to do so. He also acknowledged that he wanted to show fealty to the group and impress the older peers who he looked up to. He said he was affected by drugs and alcohol at the time. He denied wanting to kill the deceased. He said the idea was to teach him a lesson but “it went so far”. He also said:

I took someone’s life. It’s the worst thing anyone could do. I feel bad about it every day, I see his face and everyone hitting him. I can’t believe I done that and let it go on for so long. The family must be really upset, they probably hate me and they have every reason to hate me and want me to get put in gaol for the rest of my life.

50. Mr Sheehan specifically declined to offer any comments on BE’s personality functioning because he “is still a child in the process of personality formation”. For much the same reason, it seems, he also considered it unwise to apply violence risk assessment tools. He considered the prediction of risk BE would present to the community upon release to be speculative and difficult without knowing how maturation might change him and the extent to which his dysfunction may be left behind or carried through to adulthood.

51. The difficulty in this respect is demonstrated in one of the concluding passages of Mr Sheehan’s report:

He does, however, embody a range of characteristics associated with both violent and non-violent recidivism, through his history of aggression, impulsivity, antisocial lifestyle, unstructured lifestyle, emotional dyscontrol, absence of prosocial influences, and substance abuse history. His hopeless and destructive lifestyle has been interrupted by his arrest and detention. His discussion of offences shows that he appreciates the scale of wrongdoing and does not downplay his personal responsibility in the tragic death of the victim. He has framed the experience as a transformative event that has forced him to change. However, he continues to find himself in physical conflict with peers in detention, suggesting that he has some way to go in addressing and resolving the correlates of his risk of violence. [BE’s] sustained remission from substance abuse is favourable but may primarily be an artefact of his controlled environment.

52. Mr Sheehan stressed the importance of BE engaging in rehabilitation programs and remaining in juvenile detention for as long as possible (age 21) to maximise the prospect of his avoiding relapse into substance use when he transitions into the adult correctional system.

53. An explanation of the diagnosis of BE having a severe conduct disorder was provided by way of email by Mr Sheehan which was tendered by consent. He said (in part):

Conduct Disorder is defined as a repetitive and persistent pattern of behaviour in which the basic rights of others or major age-appropriate societal norms or rules are violated. It is a childhood/juvenile diagnosis applicable to youths under the age of 18 years and is commonly viewed as a potential precursor to adult antisocial personality disorder.

Other documents

54. There is a letter of support by a person from the “Shine for Kids” program who has been working with BE as a mentor since April 2023. His engagement with this program is described as positive. He is said to consistently demonstrate self-reflection and has participated openly and honestly and with a positive attitude. He has recognised that emotional regulation and anger is something he struggles with and wants to work on.

55. There are also certificates and other documents attesting to BE’s participation in various courses and educational programs and recognising “model behaviour in school” and “being respectful to staff and peers”.

Youth Justice NSW Background Report

56. The circumstances of BE’s upbringing are described in this report in terms similar to those in Mr Sheehan’s report except that he denied being exposed to domestic violence in the home whereas violence between his parents was a feature of “distressing” early memories he described to Mr Sheehan. Feelings of rejection by his father are consistently described and appear to be a significant influence in his personality development. The sudden death of a maternal uncle who had become a “key male figure”, presumably as a paternal substitute, when he was 12 years’ of age, and the death of a close maternal aunt from cancer almost a year ago while he was in custody were each traumatic events for him.

57. There is inconsistency between the two reports about some aspects of BE’s schooling but the overall effect is the same; he became increasingly disconnected, exhibited challenging behaviours and was frequently truanting. He received multiple suspensions for his aggression and making threats towards students and teachers where police and officers of the Department of Communities and Justice became involved.

58. BE conveyed to the author of this report that most of his friends were gang affiliated and, through them, he was exposed to anti-social and criminal activities in the community. He reported that his association with a gang increased his self-confidence and sense of identity.

59. The report includes confirmation of the ADHD diagnosis from a young age and the lack of medication for it prior to entering into custody. There is also mention that after several months in custody BE disclosed having experienced auditory and visual hallucinations. He estimated that auditory hallucinations to harm others began in 2020, and he related them to substance use. He said visual hallucinations concerned the victim of the index offence. He said that he had been prescribed medications for these symptoms and has been working closely with a psychiatrist.

60. A psychologist at Frank Baxter Youth Justice Centre reported that BE had engaged positively in counselling in the periods in which he has been held at that location; two months last year and now since 1 March 2023. This is to be contrasted with his actual behaviour which has fluctuated and seen him transferring into and out of the High-Risk Unit on multiple occasions. There are references to him assaulting staff members including his unit manager and engaging in high-risk behaviours. While it is said that his behaviour in custody has been of a “poor standard”, paradoxically it is said that BE has reported “that he likes the high-risk unit as a behavioural reset”.

61. In the course of his evidence, BE was asked about assaulting his unit manager in June this year. He said it involved him verbally abusing the man and then walking up to him and punching him with a clenched fist to the face two or three times. When asked what caused it he said, “I don’t know, just – I was having a bad day … I had a couple of bad phone calls … There wasn’t really a reason”. He said he was angry about the phone calls, not with the unit manager. Other staff were present and had to hold BE back. He agreed that through his life he had found it hard to control his anger and still does, even though he is now taking medication. He said that sometimes when he gets angry he “can black out, so I won’t in the moment think about what I’m doing”. ^[8] That is very concerning.

    8. T15-17

62. The report provided an account of his involvement in the murder in largely consistent terms. He said there was a plan to intimidate and assault the deceased but not to murder him. He said that his alcohol and drug use shortly prior to the event was “to help calm his nerves and reduce the anxiety and stress”, the anxiety being “around the undertaking of the assault on the victim”. I note that self-induced intoxication is not a mitigating factor. ^[9]

    9. Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(5AA).

63. BE told the author of the report that he attempted to stop the co-offenders due to “coming to his senses upon seeing that the victim appeared to be severely beaten”. The report indicates this is inconsistent with the agreed facts but counsel argued that it is consistent with paragraph 55: “During the recording BE said, ‘Oi stop stop … look at him … look at him … stop … look at him … look”. I mentioned earlier (at [31]) that I am not persuaded of this.

64. In its account of the offence the report concludes:

[BE] expressed regret for what had occurred to the victim and appeared to demonstrate empathy by stating that the victim “didn’t deserve this”. [BE] indicated that he has had several reflections during his lengthy remand period such as his peer affiliation, the impact his actions have had on the victim’s family and the community and how this has changed the course of his life.

BE’s evidence

65. BE wrote a letter addressed to the deceased’s family in which he endeavoured to express remorse for what had occurred. He said that he accepted full responsibility for his part and was truly sorry for what he did. He read the letter when called to give evidence. He said further things along the same lines about remorse for what he had done.

66. He confirmed the accuracy of the history set out in Mr Sheehan’s report. Other aspects of his evidence have been touched upon previously, or simply repeat matters that are contained in one or the other of the reports.

Other evidence

67. An aunt also gave evidence which supported the other accounts of BE’s life history. She also spoke of the family support that is available to him.

Criminal history

68. BE has had only minimal prior engagement with the criminal justice system. Charges of having custody of a knife in public on 23 March 2021 and on 5 May 2021 were each dismissed by the Children’s Court with a caution. ^[10] It is a mitigating factor that BE has no significant record of prior convictions.

    10. The criminal history document also records non-judicial cautions and a matter disposed of by way of youth conferencing, the evidence of which appears to be inadmissible: Children (Criminal Proceedings) Act 1987 (NSW), s 15(3).

Family victim impact statement

69. Ms Rachel Galleghan, with considerable courage, read a heart-rending family victim impact statement in which she described the most terrible experience she has endured since receiving a phone call at 8.05pm on Wednesday 4 August 2021 and being told about what had happened to her son. Ms Galleghan, her two daughters, extended family and friends have lost so much more than can be fully comprehended. Nothing the criminal courts can do can change any of that of course. I assure Ms Galleghan that what she has written has been an important part of the proceeding and it has not been forgotten. Again, the sincerest condolences are extended to all Jason’s family and friends.

The seriousness of the crime and the moral culpability of the offender

70. A starting point for identifying matters relevant to the objective seriousness of the crime is the fact that it is concerned with the unlawful taking of a human life. It came about from an unsubstantiated and trivial accusation that the deceased may have taken a set of earphones from one of the co-offenders. While killing him may not have been premeditated, at least insofar as BE is concerned, a serious group assault certainly was; that was why the deceased was summoned and brought to the house by BE and some of his co-offenders.

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

72. Many murders are committed with the use of a weapon but that was not the case here. 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.

73. The role of BE was no less heinous than any of the other participants. He was one of four who brought the deceased from the railway station to the house, knowing that it was for the purpose of assaulting him. He was present during the initial and brutal assault by Adult 2. He then participated as enthusiastically as anyone in the assault that continued for the next half-an-hour, delivering 52 hits, 3 kicks and 1 hair grab in one 2 minute period, more than anyone else in the small proportion of the assault that was recorded.

74. These facts alone describe a murder of very great seriousness.

75. I accept that BE acted with an intention to inflict really serious bodily harm. However, as he conceded in his evidence, he came to realise that others were intent on killing the deceased. I am not persuaded that he did anything to prevent that happening.

76. Despite the high gravity of the crime and BE’s participation in it, he bears a reduced moral culpability 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. He also had a tendency to follow the lead of others. There are other matters that reduce BE’s moral culpability which are referred to below.

Principles relevant to sentencing children

77. 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.

78. Caselaw is replete with further statements of principle that apply in the sentencing of juvenile offenders: for example, R v KT [2008] NSWCCA 51 at [21]-[26] (McClellan CJ at CL). 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 BE to account for what he has done.

79. 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 BE. 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.

Findings as to some subjective matters

80. While there is inconsistency between the reports as to one relevant matter (witnessing domestic violence in the home) I am satisfied that it is appropriate to have regard to the neglect, abandonment and exposure to substance abuse BE experienced in his childhood. This gives rise to a further reduction in moral culpability as it appears clear that these features had a bearing upon him becoming an uncontrollable child who engaged in drug and alcohol use at an early age and sought out the company of antisocial, criminal-offending peers who were influential in the poor choices he made.

81. A submission was made that the various disorders and the claimed diagnosis of schizophrenia were mental health factors that also played a role in his offending. I have considered this but am not persuaded that these conditions did necessarily play such a role. The information is incomplete, particularly in relation to whether schizophrenia is a correct diagnosis. Mr Sheehan was doubtful. Insofar as these conditions might have relevance beyond having a role in the offending, I am not persuaded that they have any additional effect beyond the reduction of moral culpability I have already referred to.

82. Less weight will be given to general deterrence as a result of BE’s reduced moral culpability. That also follows from an application of the principles concerning sentencing children pursuant to the general law as well as s 6 of the Children (Criminal Proceedings) Act. Retribution is also less significant. That does not mean that no weight or significance is given to these features. They are still important factors in sentencing, particularly given the extreme violence involved in BE’s offending. A core feature that must never be lost sight of is the fact that a child’s life has been taken; brutally, unlawfully and tragically.

83. I am satisfied that BE has displayed genuine remorse by acknowledging the wrongfulness of his conduct, the harm it has caused and the impact it has had on others.

84. Despite that remorse, BE’s prospects of rehabilitation and unlikelihood of reoffending are difficult matters to predict. During the course of the sentence hearing there was a discussion about whether for this reason it might be appropriate to impose a provisional sentence under Pt 4 Div 2A of the Crimes (Sentencing Procedure) Act. The Crown submitted it was not and there was little enthusiasm for it at the defence end of the bar table. Having regard to that, and for the fact that the deceased’s family would likely want to see some finality in the legal proceedings rather than being left in an uncertain state potentially for up to five years, I resolved to proceed with imposition of a final sentence.

85. There are some positive signs in relation to BE’s future in terms of rehabilitation, such as family support and a stated motivation to engage in treatment. Despite this, it is also conceded that his “behaviour in detention has been problematic” and that continues to the present time as exemplified by his assault of the unit manager only two months ago. Senior counsel for BE submitted that he “will need intervention in the form of counselling and treatment to address this (controlling his recourse to violence in the face of conflict or frustration) and in order to develop more appropriate coping mechanisms”. [11] At the present time it is not possible to mitigate the sentence to be imposed because BE has “good prospects of rehabilitation”, or that he is “unlikely to re-offend”. That does not mean he will be punished more severely. It means he cannot obtain the leniency that would follow favourable findings on those matters if they could be made. They simply cannot.

    11. Written submissions [56]

86. It was submitted that there were “special circumstances” for making an order under s 19(1) of the Children (Criminal Proceedings) Act that BE 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. Mr Sheehan regarded it as “important that BE engages in rehabilitation programs within Juvenile Justice over the next few years prior to his transition into the adult correctional system” generally, and particularly to maximise the prospect of him not relapsing into substance use once there. [12] The special circumstances relied upon under s 19(3) were those referred to in the written submissions of senior counsel for BE dated 16 August 2023. [13] The Crown accepted that the second matter referred to alone supported a finding of special circumstances. [14] That concession is appropriate and I will make the order sought.

    12. Mr Sheehan’s report at [29]; see also at [14].

    13. See MFI 4

    14. See email of 17 August 2023 (MFI 5)

87. There are special circumstances for the purposes of s 44(2) of the Crimes (Sentencing Procedure) Act for reducing the proportion of the sentence represented by the non-parole period. They are the need to allow for greater flexibility in the determination of the State Parole Authority as to when it is appropriate to permit BE to be released on parole, having regard to the present uncertainty as to whether there may be improvement in his prospects of rehabilitation and likelihood of reoffending as he matures. This is similar to the approach taken by Wood CJ at CL in R v SLD [2002] NSWSC 758 at [140] which was endorsed by the Court of Criminal Appeal in R v SLD (2003) 58 NSWLR 589; [2003] NSWCCA 310 at [43]-[44].

88. The law requires that the sentence be reduced by 25% because BE entered his plea of guilty in the Children’s Court.

89. He has been in custody since his arrest on 5 August 2021 and so his sentence should be backdated until then.

90. The Crimes (High Risk Offenders) Act 2006 (NSW) has potential application to BE. His solicitor will explain the ramifications of this to him.

Sentence

91. Convicted.

Sentenced to imprisonment comprising a non-parole period of 10 years and a balance of the term of the sentence of 5 years and 6 months. That is a total of 15 years and 6 months.

The sentence is to date from 5 August 2021 which means BE will become eligible for release on parole when the non-parole period expires on 4 August 2031. The total sentence will expire on 4 February 2037.

BE is to serve his sentence as a juvenile offender until he attains the age of 21.

A copy of the report of Mr Patrick Sheehan, psychologist, dated 28 June 2023, is to accompany the warrant.

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Endnotes

Decision last updated: 24 August 2023