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[2026] NSWCCA 82
Court of Criminal Appeal (NSW)
2026-06-17
N Adams CJ at CL at [1]; Lonergan J at [150]; Dhanji J at [151].
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: AD v R [2026] NSWCCA 82
Hearing dates: 1 May 2026
Date of orders: 17 June 2026
Decision date: 17 June 2026
Before: N Adams CJ at CL at [1];
Lonergan J at [150];
Dhanji J at [151].
Decision: (1) Grant an extension of time to bring this appeal.
(2) Grant leave to appeal.
(3) Dismiss the appeal.
Catchwords: SENTENCING — appeal against sentence — offence of murder by juvenile offender — procedural fairness — where report recorded applicant’s untested second-hand account about his involvement in the offending — where sentencing judge rejected this account — whether applicant denied procedural fairness because he was not given the opportunity to make submissions — no practical unfairness established
SENTENCING — appeal against sentence — manifest excess — where offending serious and applicant involved in the assault in a significant way — where no comparison with co-offender’s manslaughter sentence — sentence not unreasonable or plainly unjust
Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW), s 19(1)
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 54D(3), 21A(2)
Crimes Act 1900 (NSW), ss 18(1), 86
Criminal Appeal Act 1912 (NSW), s 5(1)(c)
Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 3.5(2)(a)
Cases Cited: BE v R [2024] NSWCCA 100
Dent v R [2025] NSWCCA 43
DL v The Queen (2018) 265 CLR 215; [2018] HCA 32
ES v R [2019] NSWCCA 262
Hancock v R [2025] NSWCCA 213
House v The King (1936) 55 CLR 499; [1936] HCA 40
Khanwaiz v R [2012] NSWCCA 168
McLaughlin v R [2025] NSWCCA 13
Nguyen v R [2025] NSWCCA 42
O’Neil-Shaw v The Queen [2010] NSWCCA 42
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
R v AD [2024] NSWSC 444
R v BE [2023] NSWSC 1007
R v BL [2024] NSWSC 51
R v DPD [2023] NSWSC 477
R v SB, AE & MG [2015] NSWSC 659
R v Sione; R v Dawson [2024] NSWSC 846
R v TB [2024] NSWSC 447
TH v R [2025] NSWCCA 121
Weir v Regina [2011] NSWCCA 123
Category: Principal judgment
Parties: AD (Applicant)
The Crown (Respondent)
Representation: Counsel:
Mr D Dalton SC / Mr D Bhutani (Applicant)
Ms M Millward (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)
File Number(s): 2021/00223960
Publication restriction: Pursuant to s 15A Children (Criminal Proceedings) Act 1987 (NSW), there is to be no publication of the names of or any matter which could identify the applicant or any children involved as co-offenders or otherwise involved in these proceedings.
Pursuant to s 15E Children (Criminal Proceedings) Act 1987 (NSW), the mother of the deceased has granted permission for his name to be published.
[This headnote is not to be read as part of the judgment]
On 4 August 2021, the applicant and a group of largely juvenile co-offenders kicked, punched and stomped on the body and the head of 16-year-old Jason Galleghan during a prolonged assault. The applicant pleaded guilty to murder. He was 13 years and 11 months old at the time of the offending.
On 24 April 2024, the applicant was sentenced in the Supreme Court to a term of 14 years and 4 months’ imprisonment with a non-parole period of 9 years and 3 months.
A Background Report tendered during the proceedings on sentence recorded the applicant’s account that he had dropped a screwdriver off a balcony during the assault to prevent it being used to stab the deceased. The Agreed Facts on sentence stated that the applicant dropped a “long object” but did not identify this object. The applicant’s written submissions listed his discarding of the screwdriver as a factor relevant to the determination of objective seriousness. However, neither the Crown nor the applicant’s counsel made oral submissions about this account before the sentencing judge. His Honour ultimately did not accept this second-hand account in the Background Report.
The applicant sought leave to appeal against his sentence on two grounds: that he was denied procedural fairness because the sentencing judge did not give notice that he intended to reject the account in the Background Report (ground 1); and that the sentence was manifestly excessive (ground 2).
The Court (N Adams CJ at CL, Lonergan and Dhanji JJ agreeing) held, granting leave to appeal but dismissing the appeal:
As to ground 1:
O’Neil-Shaw v The Queen [2010] NSWCCA 42, distinguished.
DL v The Queen (2018) 265 CLR 215; [2018] HCA 32; Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6; Weir v Regina [2011] NSWCCA 123; Nguyen v R [2025] NSWCCA 42; Khanwaiz v R [2012] NSWCCA 168; ES v R [2019] NSWCCA 262; McLaughlin v R [2025] NSWCCA 13; Dent v R [2025] NSWCCA 43, considered.
As to ground 2:
N ADAMS CJ at CL: On 4 August 2021, 16-year-old Jason Galleghan (the deceased) was beaten to death by a group of largely young offenders. The offenders kicked, punched and stomped on his head during a prolonged assault. Parts of the assault were video-recorded and one such recording was uploaded to Instagram. After the assault, the deceased was left without medical attention in a seriously injured state. He died in hospital two days later from the injuries sustained.
AD (the applicant) was one of the offenders who participated in the fatal assault of the deceased. He cannot be identified as he was aged 13 years and 11 months at the time. On 29 September 2023, he pleaded guilty in the Supreme Court to murder contrary to s 18(1) Crimes Act 1900 (NSW) which carries a maximum penalty of life imprisonment. No standard non-parole period applied because the applicant was under the age of 18 years at the time he committed the offence: s 54D(3) Crimes (Sentencing Procedure) Act 1999 (NSW) (“Sentencing Act”). He received a discount of 20% on account of his plea of guilty.
On 24 April 2024, R A Hulme AJ sentenced the applicant to a term of imprisonment of 14 years and 4 months with a non-parole period of 9 years and 3 months: R v AD [2024] NSWSC 444. The sentence commenced on 5 August 2021. The non-parole period will expire on 4 November 2030 and the head sentence will expire on 4 December 2035.
By notice of appeal filed on 30 January 2026, the applicant seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the sentence imposed on him. He relies on the following two grounds:
Ground 1: The sentence proceedings were procedurally unfair as the sentencing judge rejected the submission that the applicant dropped the screwdriver outside of the house to avoid the victim being stabbed, without giving the applicant proper notice.
Ground 2: The sentence imposed was manifestly excessive.
A third ground of appeal complaining of a breach of the parity principle was withdrawn shortly before the hearing of the appeal.
The applicant filed a Notice of Intention to Appeal on 13 May 2024. The Notice of Appeal was not filed until 30 January 2026, which is out of time pursuant to r 3.5(2)(a) of the Supreme Court (Criminal Appeal) Rules 2021 (NSW). The applicant has applied for leave to file the notice of appeal out of time. In support of this application, the applicant relied on the affidavit of Danka Durovic, the applicant’s solicitor, sworn on 28 January 2026. The delay was partially explained by delays in obtaining the transcript and exhibits from the sentencing proceedings and in briefing senior counsel.
Agreed Facts signed by the applicant on 25 September 2023 were placed before the sentencing court. The following summary is based on these Agreed Facts.
The following adult and juvenile offenders were involved in the events leading up to and at the time of the murder:
Richard Sione (32 years old);
Kayla Dawson (19 years old);
BL (15 years and 1 month old);
BE (14 years and 8 months old);
MM (15 years and 2 months old);
TB (13 years and 3 months old); and
The applicant AD (13 years and 11 months old).
The deceased had become friends with Kayla Dawson, who was three years older than he was, when they both lived in the eastern suburbs. Ms Dawson then moved to Doonside and, from time to time, the deceased would visit her and her boyfriend, Harley Bartolo, at their modestly sized home in Perigee Close.
While in the Doonside area, Ms Dawson became friendly with Richard Sione and his girlfriend Stacey Pale. Ms Dawson also came to know the five juvenile co-offenders. There is no evidence as to the nature or extent of her prior contact with the applicant.
On 4 August 2021, Ms Dawson planned for the deceased to catch the train to visit her in Doonside. Unbeknownst to him, she had arranged for him to be “bashed” because she believed and told others that he had stolen her AirPods. Whether the applicant was informed of this is unknown.
In order to ensure the deceased was coming to Doonside as planned, BL called him twice at 12:46pm. BL then sent the deceased a text message at 12:55pm on 4 August 2021 that said, “2:00 jason we go kb for a bit then go roll cunts”. Present at Ms Dawson’s house on Perigee Close prior to the deceased’s arrival were the applicant, Mr Sione, Ms Pale, Ms Dawson, Mr Bartolo and the young persons, TB, BE, BL and MM. Also present were friends of Mr Sione, Thomas Pakau and Rebyll Oaariki.
External CCTV cameras recorded the various comings and goings that day. At 1:58pm, Ms Dawson is seen outside the residence. She is then seen skipping down Perigee Close to meet Ms Pale and help her with her bags back to the residence.
At 2:01pm, Ms Pale and BL are depicted walking into the residence with another person. At 2:32pm, MM arrived with the applicant and Mr Sione. At 2:45pm, Ms Dawson texted the deceased and asked, “where you”. Between 3:25pm and 3:44pm, Ms Dawson and BL called the deceased no less than ten times.
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 the deceased at 3:56pm. The five individuals walked back to the house together, arriving at 4:09pm.
Everyone, except Ms Pale, entered the house. The deceased walked through the lounge room and into a spare bedroom with Mr Sione where the assault commenced.
Mr Pakau and Mr 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”. Mr Bartolo could hear the deceased “getting flogged”.
MM came out into the lounge room with the deceased’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.
The assault by Mr Sione lasted for approximately 11 minutes from 4:09pm until Mr Sione left at 4:20pm. Mr Sione was the only adult involved in the assault; the remaining offenders, besides Ms Dawson who arranged the assault, were all under the age of 18 years.
The young people TB, BE, BL and MM and the applicant then started assaulting the deceased 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. The deceased was already injured at the commencement of the first video.
The assault by the five young persons with Ms Dawson present at times continued from 4:20pm until 4:42pm. The co-offenders did not all participate physically simultaneously.
At 4:30pm, the applicant left the bedroom and dropped what is described in the Agreed Facts as a “long object” off the balcony, onto the ground, before then re-entering the house. In his remarks, the sentencing judge observed (at [17]):
Given it is not further described, I assume there is no agreement between the parties about what the object was.
The identity of this “long object” is the subject of the applicant’s first ground of appeal.
At one point, Mr Bartolo went to the bedroom door and saw the deceased laying on a mattress having his clothes removed. He saw TB and BL stomping on the deceased’s chest.
Throughout the assault, 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”. One neighbour asked Ms Dawson what was going on inside the house. Ms Dawson responded, “Nothing, it’s just a family dispute. Don’t worry. It will be alright”. She told this neighbour not to call the police.
MM and TB left the house at 4:42pm and the applicant left shortly after them. BL and BE ran from the house at 4:46pm. The applicant 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.
Ms Dawson, Mr Bartolo and Ms Pale checked on the deceased 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 they called triple-0.
During the triple-0 call, Ms Pale told the operator that the deceased was unresponsive and unconscious and that she thought he was dead. During the 10-minute call, both Ms Pale and Ms Dawson refused on a number of occasions to go into the room with the deceased. When they eventually went into the room, they both refused to do CPR.
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”. The deceased was found shirtless on his back on top of a white mattress. He was not breathing but was resuscitated.
The deceased 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”.
Videos recorded a total of four minutes and three seconds of the assault. However, the deceased was inside the house for 33 minutes prior to the five young persons leaving.
The first recording was taken on BL’s phone. It commenced at 4:23pm and runs for 1 minute and 59 seconds. The deceased’s clothing had been removed prior to the commencement of the recording and he was only wearing his underwear.
The second recording was also taken on BL’s phone. It commenced at 4:39pm and runs for 2 minutes and 17 seconds. This recording was uploaded to Instagram and received approximately 170,000 views.
The third recording was taken on Ms Dawson’s phone at 4:31pm and runs for 1 minute and 26 seconds. This video was taken from a different angle to the first video.
While the contents of these recordings are not described in the Agreed Facts, the sentencing judge described them as follows in his Honour’s remarks based on the exhibits tendered by the Crown (at [26]-[28]):
[26] 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 [the applicant]. The assailants, particularly MM, continually yelled expletive laden abuse. At one point he was compelled by [the applicant] to state his name while MM held him by the hair and forced him to look up at [the applicant]. She then yelled, “A good kick to the face” and tapped [the applicant]’s back. [The applicant] *then kicked Jason’*s face with such force that his head jolted back and hit the gyprock wall. [The applicant] 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 [the applicant] 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.
(Emphasis added.)
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.
The foundational offence was therefore that the applicant was party to a joint criminal enterprise to commit an offence of specially aggravated detain for advantage contrary to s 86(3) Crimes Act.
Section 86(1) sets out the “basic offence” of kidnapping as follows:
(1) Basic offence A person who takes or detains a person, without the person’s consent—
(a) with the intention of holding the person to ransom, or
(a1) with the intention of committing a serious indictable offence, or
(b) with the intention of obtaining any other advantage,
is liable to imprisonment for 14 years.
The relevant advantage in this case was the opportunity to assault and humiliate the deceased.
The specially aggravated offence is set out in s 86(3):
(3) Specially aggravated offence A person is guilty of an offence under this subsection if the person commits an offence under subsection (1)—
(a) in the company of another person or persons, and
(b) at the time of, or immediately before or after, the commission of the offence, actual bodily harm is occasioned to the alleged victim.
A person convicted of an offence under this subsection is liable to imprisonment for 25 years.
The proceedings on sentence for both the applicant and TB took place on 15 April 2024. In addition to the indictment and the applicant’s criminal and custodial history, the Crown tendered the Agreed Facts and a Background Report prepared by a Youth Justice NSW caseworker dated 29 November 2023. The Crown also tendered the video recordings of the assault.
A victim impact statement of the deceased’s mother, Rachel Galleghan, was also tendered and read during the proceedings on sentence. In that statement, Ms Galleghan expressed the profound grief and pain experienced by the deceased’s family.
The applicant did not give evidence during the sentencing proceedings. Instead, he relied on the following documents to establish mitigating factors on sentence:
A report of Dr Katie Seidler, forensic psychologist, dated 24 November 2023 and a supplementary report dated 10 April 2024;
Affidavits of the applicant’s solicitor affirmed on 5 December 2023 and 8 April 2024 (relevant to the issue of remorse, explained further below);
A character reference from the applicant’s mother dated 8 April 2024; and
Various reports and certificates concerning courses and programs undertaken by the applicant since his arrest.
During oral submissions, the sentencing judge asked a question of the applicant’s senior counsel as to the identity of the applicant’s gang affiliations to which counsel responded:
Your Honour, he prefers not to provide other people for any finding upon anybody else.
It can be inferred that this is a possible explanation for the applicant choosing not to give evidence at his proceedings on sentence. The Crown relied on this in this Court to support a submission that the applicant made a considered decision not to give evidence.
The applicant and the Crown relied on written submissions on sentence. The Crown submissions were dated 10 November 2023, and the applicant’s submissions were dated 9 April 2024.
The Background Report dated 29 November 2023 was notionally tendered by the Crown during the sentence proceedings (Exhibit B). The transcript notes that the report was admitted without objection.
The Background Report was prepared by Claudia Lyons, a caseworker with Youth Justice NSW.
Under the heading “Attitude and Beliefs”, Ms Lyons stated that the applicant denied “any intention to harm the victim” and only wanted to intimidate him. She then observed:
In relation to the mention in the Agreed Facts of [the applicant] dropping a long object off the balcony, [the applicant] described that another young person had a screwdriver, and reported thinking that he was going to use it to stab him, referring to the victim. [The applicant] reported that he had taken this away from the young person in order to prevent this from occurring.
h. the offender took steps to remove a screwdriver from the incident, in order to prevent any possible infliction of GBH (Background Report p9; Agreed Facts [26]).
In written submissions, the Crown submitted that the objective seriousness of the offence was “above the mid-range” whereas the applicant submitted that it was “below the middle of the range”.
In oral submissions, defence counsel distinguished the applicant’s involvement in the incident from other co-offenders, noting that there was no evidence that the applicant was involved in the “planning and luring phase” of the incident nor Mr Sione’s initial assault. However, it was conceded that the applicant was involved in the assault “in a significant way”, including stomping and kicking the deceased as shown in the video footage.
On behalf of the applicant, counsel submitted that the applicant’s liability for constructive murder was a “very different and less serious kind of murder than BE and BL”, namely murder based on an intent to cause really serious injury. Instead, counsel submitted that the closest and most comparable co-offender was TB, who was to be sentenced for manslaughter. The applicant’s criminality was said to be “only marginally different” from the criminality involved in manslaughter by joint criminal enterprise to assault the deceased, with the “only factual difference” being the detention of the deceased.
In response, the Crown submitted that there was a significant difference between liability on the basis of constructive murder as opposed to manslaughter. It was submitted:
… [T]he concept of constructive murder has to have some work to do in assessing the relative seriousness of the two matters. It recognises the significance of engaging in serious criminal activity that results in death, and the Crown’s submission is that it must have the effect that it significantly elevates the criminality of being involved in an offence that is based on constructive murder beyond manslaughter. If for no other reason than the penalty for the foundational offence is the same as the penalty for manslaughter. They are both 25-year offences that elevate in an offence that results in death beyond the offence. The maximum penalty available for the foundational offence must be significant, and it is significant, the Crown submits, because it reflects the very serious consequences of engaging in that sort of serious criminal conduct which leads to death. Whether it was intended to lead to death, whether it was intended to result in even a really serious injury, that is the work that the concept of constructive murder has to do.
The difference between liability for manslaughter and liability for constructive murder in this particular case might not be as great as it would be if your Honour was dealing with that offender. That is intended to be a concession; I hope that I have expressed it in a way that your Honour can understand what the Crown is saying that the difference would be greater if your Honour were dealing with adult offenders or even significantly older young offenders. But in the circumstances of this case, the Crown accepts that an assessment of [the applicant]’s liability for constructive murder might not be as great a difference to manslaughter as it would be for adult offenders.
His Honour described the details of the assault and went on to note that there were two factors which differentiated the applicant from his co-offenders BE and BL: that he played no role in luring the deceased to the home and that he did not act with an intention to inflict grievous bodily harm, as the Crown conceded (at [36]).
His Honour found that constructive murder should be regarded as less serious than other categories of murder in this case because of the absence of an intent to cause really serious harm. However, he did not accept the applicant’s submission that his criminality was only marginally different from the criminality involved in manslaughter by a joint criminal enterprise to assault the deceased (see above at [56]). His Honour observed (at [38]):
The detention was a component of an offence committed by [the applicant] 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.
His Honour summarised the applicant’s background set out in the report of Dr Seidler and the Background Report in some detail at [41]-[92].
The applicant was aged 13 years and 11 months at the time of the offence. He was 16 years and 8 months old at the time of sentence.
The applicant’s father was Greek and his mother was from the Cook Islands. He witnessed domestic violence by his father against his mother when he was very young and sometimes sought to intervene to protect her. His parents’ relationship broke down when he was 4 or 5 years of age, and he has not had any contact with his father since. His mother re-partnered when he was about 6 years old 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. He described his parents as strict and reported that they administered corporal punishment, although he accepted this as normal within the Pacific Islander community.
His mother delivered a stillborn child when he was about 9 years old and her unresolved grief was catastrophic for the family. The applicant started to spend increasing periods of time away from the family home staying with friends. His stepfather had, a year earlier, been diagnosed with cancer which was described as having led the applicant to take on a leadership role. It also coincided with less supervision in the home.
The applicant performed poorly in school and there were many behavioural concerns relating to his aggression and violence. His poor behaviour in primary school was said to be reactive to social difficulties including racism or bullying, while in high school it was related to his association with gang activity. He was suspended on multiple occasions and had an attendance of less than 50 per cent at the time of the offending. He was in Year 8 at the time of his arrest.
At around age 9 or 10, the applicant gained 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. He was exposed to substance abuse, criminal behaviour and violence from other members of the gang, some of whom were considerably older. At age 12, the applicant was “jumped” by a rival gang and badly beaten.
The applicant first consumed alcohol at age 10 and cannabis at about age 11. He progressed to consuming alcohol daily and cannabis twice a week.
In relation to the applicant’s continued loyalty to gang associates, the sentencing judge observed (at [51]-[52]):
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”.
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.
The applicant similarly expressed to the author of the Background Report that he intended to continue his affiliation with his peers from the gang when he returns to the community but claimed that this will not involve engaging in pro-criminal activity.
Dr Seidler observed that while this was the first time the applicant had been charged with an offence, he “has been on an aggressive and violent trajectory for some years”.
Since entering custody, the applicant had been diagnosed with attention deficit hyperactivity disorder (“ADHD”), a diagnosis that Dr Seidler agreed with. While the applicant reported experiencing depressed mood, suicidal thoughts and self-harm, Dr Seidler did not consider the criteria was met for a depressive condition. The applicant evidenced traits commensurate with Antisocial and Borderline Personality Disorders but neither condition could be diagnosed due to the applicant’s young age. Dr Seidler noted that this was something that would need to be monitored as the applicant grew older.
The applicant’s adjustment to custody was challenging but improved over time. He was attending school and had completed a number of courses. He reported feeling well-supported in custody. He had regular contact with members of his family, his caseworker and a psychologist and was engaged in the Pasifika program which aligned with his Cook Islands heritage. While the applicant had received numerous misbehaviour reports including for fighting, damaging property, subversive behaviour and disobedience, a significant number of those were noted to have taken place in the first year.
Dr Seidler concluded:
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 [the applicant]. To his credit, he recognises the inappropriateness of his actions and seemingly feels intense guilt as a result. [The applicant] 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.
[The applicant] 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.
He also claimed that another young person had a screwdriver with which [the applicant] 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.
(Emphasis added.)
It is not an agreed fact that the object was a screwdriver and nor is it agreed that [the applicant] 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.
The sentencing judge found that the applicant’s moral culpability was reduced by his very young age with “a concomitant reduced ability to exercise mature judgment, control impulses, self-regulate and consider consequences” (at [40]). His Honour did not accept the Crown’s submission that the offence involved “adult behaviour” and found that it was instead a very serious offence committed by a 13-year-old offender with no planning, reflection or “mature decision making” (at [98]).
His moral culpability was also found to be reduced because of aspects of his upbringing including the following features (at [96]):
Early exposure to domestic violence;
Familial breakdown;
Parental absence (his father and at times his mother);
His stepfather suffering from cancer when the applicant was 8 years old;
Early introduction to gang culture (age 8) and gang membership (age 10);
Early exposure to delinquent and anti-social role models and to substance abuse, criminal behaviour and violence through a gang;
Grief (direct and vicarious) due to his mother having a stillborn baby (when aged 9);
His mother who was loving but strict and used harsh forms of corporal punishment;
Poor school performance and attendance;
Childhood sexual abuse at age 13 by an older “girlfriend” who was 19;
Lack of parental moral guidance in relation to violent behaviour; and
A history of self-harm.
As to the applicant’s vulnerability, his Honour observed (at [97]):
Some of these features had a link with [the applicant] 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 [sic] 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.
The sentencing judge noted that the applicant had no criminal history.
The sentencing judge found that the evidence established that the applicant was “genuinely remorseful” (at [103]). This evidence included the applicant’s statements to Dr Seidler, the author of the Background Report and his solicitor.
His Honour found that the applicant’s prospects of rehabilitation and avoiding reoffending were “reasonable” (at [109]). However, while he had demonstrated progress since entering custody, his Honour noted that his gang affiliations and stated intention to maintain them was a matter of concern.
The sentence to be imposed upon [the applicant] 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 [the applicant] 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 [the applicant] 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.
The sentencing judge found that there were special circumstances warranting a reduction of the non-parole period including the applicant’s young age and the need to provide him with guidance and support upon his re-integration into the community (at [111]).
The sentencing judge also made an order pursuant to s 19(1) of the Children (Criminal Proceedings) Act 1987 (NSW) that the applicant serve his sentence as a juvenile offender until he attains the age of 21.
A discount of 20% was applied for the applicant’s plea of guilty.
As set out above, the applicant was sentenced to a term of 14 years and 4 months’ imprisonment with a non-parole period of 9 years and 3 months. The starting point prior to the application of the discount was 18 years’ imprisonment.
While the applicant disavowed reliance on a ground of appeal concerning parity, the sentences imposed on the applicant’s co-offenders remain relevant to both the determination of manifest excess under ground 2 and any potential re-sentence by this Court.
The adult offenders Stacey Pale, Harley Bartolo, Thomas Pakau and Rebyll Oaariki were sentenced for offences other than murder or manslaughter.
The remaining adult offenders Mr Sione and Ms Dawson were found guilty of murder following a judge-alone trial heard by the sentencing judge. Mr Sione was sentenced to 32 years’ imprisonment with a non-parole period of 24 years. Ms Dawson was sentenced to 20 years’ imprisonment with a non-parole period of 13 years: R v Sione; R v Dawson [2024] NSWSC 846.
The juvenile co-offenders BE and BL pleaded guilty to murder. They were both sentenced to 15 years and 6 months’ imprisonment with a non-parole period of 10 years: R v BE [2023] NSWSC 1007 and R v BL [2024] NSWSC 51. The starting point prior to the application of a combined 40% discount was 26 years. BE’s severity appeal was dismissed by this Court: BE v R [2024] NSWCCA 100.
The co-offender TB pleaded guilty to manslaughter. He was sentenced to 7 years and 6 months’ imprisonment with a non-parole period of 4 years and 6 months: R v TB [2024] NSWSC 447. The starting point of his sentence prior to the application of a 25% discount was 10 years’ imprisonment.
This first ground of appeal, as originally formulated, contended that the sentencing judge erred in not accepting that the applicant dropped a screwdriver outside of the house to avoid the deceased being stabbed. In the applicant’s amended grounds of appeal filed on 30 April 2026, this ground was amended to one concerning procedural fairness; namely, that the sentencing judge rejected the applicant’s submission that he dropped the screwdriver without giving him proper notice of his intention to do so.
The relevant finding of fact is set out above at [79].
The applicant submitted that he was denied procedural fairness when the sentencing judge failed to raise this factual issue with the parties before rejecting the applicant’s account of discarding the screwdriver.
Mr Dalton SC (who did not appear for the applicant below) pointed to the fact that the Background Report (Exhibit B) was tendered by the Crown in the proceedings without objection and no challenge was made by the Crown to the portion of the report containing the hearsay assertion. It was noted that the only time that the applicant had his attention drawn to the reference to the “long object” in the Agreed Facts was with the author of the Background Report and it was on that occasion that he explained that that object was a screwdriver he discarded.
Mr Dalton submitted that the discarding of a potential weapon was highly material to the state of mind of the applicant, which was at issue during the sentence proceedings and the subject of concessions made by the Crown at sentence concerning the relative criminality of constructive murder, set out above at [58].
Mr Dalton also relied on the sentencing remarks for the co-offender TB at [36]:
Included in TB’s agreed facts is that while Ms Dawson, BE and BL were meeting Jason at the railway station there was conversation and a search for possible weapons involving Mr Sione, MM and [the applicant] (and not TB) in preparation for the proposed assault. That is a factor that distinguishes TB from [the applicant], however this passage was excluded from the agreed facts in [the applicant’s] case.
It was submitted that given his Honour regarded the search for possible weapons to be a matter of materiality with respect to the sentence for TB, so too would the fact of the applicant discarding a weapon be material to his level of criminality. This was also said to show that there was material available to the Crown concerning the procurement of weapons and that the Crown would have, or should have, objected to that aspect of the Background Report if it was not agreed.
In this context, the applicant submitted that his Honour should have notified the parties that he was inclined to reject the applicant’s account and provided an opportunity for further submissions to be made or a concession obtained from the Crown.
The Crown made detailed submissions as to why it was well open to the sentencing judge to reject the truth of the second-hand hearsay assertion, which I will refer to below in my consideration. As to the assertion of a denial of procedural fairness, the Crown distinguished this case from those where a sentencing judge gave a positive indication that they were disposed to make a particular finding only to later resile from it. While the finding contended for was noted in the applicant’s written submissions, it was not the subject of oral submissions or otherwise referred to in the sentence proceedings.
The Crown submitted that defence counsel was not deprived of the opportunity to call the applicant to give evidence on the point because the applicant’s case on sentence was clearly presented so as to avoid the applicant giving evidence in the proceedings and exposing himself to cross-examination.
It was submitted that the Crown did not embrace the contents of the Background Report simply by tendering it, given reports of this nature are tendered on a routine basis at sentencing proceedings.
In oral submissions, counsel for the Crown responded to the applicant’s reliance on the portion of TB’s facts extracted above at [103] by noting that [17] of the Agreed Facts for TB included the following paragraph (which was not included in the Agreed Facts in the applicant’s case):
While they were gone, a conversation took place between Sione, [MM] and [the applicant] regarding what they intended to do to the deceased when he arrived at the house. They were searching for weapons and talking about “s**tomping” on the deceased’s head, and how they intended to “completely fuck him up”. (Emphasis in original.)
This ground as initially pleaded contended for “House” error (House v The King (1936) 55 CLR 499; [1936] HCA 40) based on the sentencing judge’s rejection of the applicant’s second-hand hearsay assertion in the Background Report (mistaking the facts). Had reliance on the ground in that iteration been maintained it could have easily been disposed of. The standard of appellate review in relation to alleged errors of fact made by a sentencing judge is the “reasonably open” test, as recently stated by a five-judge bench of this Court in Hancock v R [2025] NSWCCA 213 at [72]-[74]. The rejection of the applicant’s account was a course reasonably open to his Honour for reasons I explain below at [131]-[133].
The focus of the ground as ultimately argued is whether the applicant was denied procedural fairness because he was not given the opportunity to persuade the sentencing judge not to reject his hearsay account about the screwdriver.
The relevant principles when an applicant asserts that he or she was denied procedural fairness in their sentence are well known. The High Court confirmed them in DL v The Queen (2018) 265 CLR 215; [2018] HCA 32. In that decision, the court (Bell, Keane, Nettle, Gordon and Edelman JJ) allowed an appeal against a sentence imposed by this Court on the basis that it had, inter alia, departed from an unchallenged factual finding made by the sentencing judge without notice to the appellant. This was held to be procedurally unfair and had occasioned a miscarriage of justice: at [44].
The test is one of “practical injustice”: Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 at [37]. The application of that test to criminal appeals was explained by Garling J (with whom Macfarlan JA and Johnson J agreed) in Weir v Regina [2011] NSWCCA 123 at [64]-[67] as follows:
[64] It is clear that an offender is entitled to procedural fairness during criminal proceedings, including proceedings on sentence: Pantorno v The Queen (1989) 166 CLR 466 at 472-3 per Mason CJ and Brennan J, 482-483 per Deane, Toohey and Gaudron JJ; Parker v DPP (1992) 28 NSWLR 282; Baroudi v Regina [2007] NSWCCA 48; Button v Regina [2010] NSWCCA 264.
[65] The particular form which procedural fairness dictates may vary. That is because the content of the requirement of fairness may be affected by what is said and done during the proceedings: Re Minister for Immigration & Multicultural and Indigenous Affairs; ex parte Lam (2003) 214 CLR 1 at [34] per Gleeson CJ. Here the relevant process was the sentencing of Mr Weir by King DCJ in circumstances where, the applicant contends that, King DCJ indicated the sentence that he proposed to impose.
[66] The key to determining whether there has been a breach of the requirement of procedural fairness is to ascertain the consequence of any departure from the dictates of proper procedure because what is ultimately in issue is whether unfairness has resulted from the process: See Lam at [34]. The concern of the law is to avoid practical, and not merely theoretical, injustice: Lam at [37].
[67] One common basis for demonstrating that practical injustice and unfairness has occurred is where an individual has lost the opportunity to make submissions to the decision maker in opposition to a proposed course and in support of a course which he urges: Lam at [36]; Button at [18].
As Dhanji J observed in Nguyen v R [2025] NSWCCA 42 at [50] (“Nguyen”), “[t]he test of practical injustice has the result that cases involving complaints of a denial of procedural fairness will inevitably turn on the particular facts of the case”.
These principles have been applied in appeals to this Court in a variety of factual contexts.
In O*’Neil-Shaw v The Queen [2010] NSWCCA 42 (“O’*Neil-Shaw”), the applicant pleaded guilty to a charge which involved an attack upon his stepfather. At the sentencing hearing, he gave detailed evidence concerning various cruelties inflicted by his stepfather upon him and other members of his family. He also provided supporting affidavits from other members of the family. The Crown did not seek to cross-examine either the applicant or the deponents to those affidavits concerning his stepfather’s conduct. Despite this, the sentencing judge did not accept the evidence of the abuse. On appeal to this Court, it was held that this constituted a denial of procedural fairness. Basten JA (with whom Howie and Johnson JJ agreed) observed the following at [26]-[27]:
[26] … [T]he factual basis [on which an offender is to be sentenced] should be identified with particularity and disputed facts resolved by the accusatorial process upon the evidence before the court. Where the evidence was not challenged or disputed by the prosecution, and was not inherently implausible, his Honour was not entitled to reject it or fail to act on it, or at least was not entitled to do so without proper notice to the applicant that he intended to take that course.
[27] It is a basic rule of procedural fairness that a party who does not accept the evidence of a witness should put the alternative view in cross-examination, both so that the witness may respond and so that the court has the benefit of assessing the response: R v SWC [2007] VSCA 201; 175 A Crim R 71 at [12]-[15] (Maxwell P, Kellam JA and Kaye AJA). Where there has been no cross-examination of witnesses to contest their evidence, “judges should in general abstain from making adverse findings about parties and witnesses”: MWJ v The Queen [2005] HCA 74; 80 ALJR 329 at [39] (Gummow, Kirby and Callinan JJ).
(Emphasis added.)
[46] Evidence might be evidence of facts, or evidence of an opinion (usually an expert) based on facts. Basten JA in O’Neil-Shaw was dealing with the former. In that context, the quality of “implausibility” of a fact (viewed in the context of the whole of the evidence) is readily capable of assessment, albeit reasonable minds might differ as to the result of that assessment. Basten JA was not dealing with evidence of an opinion where rejection might be based on the implausibility of the conclusion, or, more likely, the facts or reasoning on which the conclusion was based.
[47] In the present case it was not “inherently implausible” that the applicant could have been, as a result of his upbringing, suffering from a psychological condition impacting him at the time of his offending so as to make a causal contribution to that offending. That was, having regard to his description of his upbringing, and the relevant literature, a possibility. But the conclusion that he in fact was suffering such a condition was, as discussed above, a matter of speculation. Thus, while the fact was not “inherently implausible”, it was “inherently implausible” that this conclusion could be reached based upon the evidence before the court. As Basten JA said in the same paragraph relied on by the applicant, “[s]tatements of general principle must be understood in their context”. I do not regard what was said in O’Neil-Shaw as dictating a conclusion that there was a denial of procedural fairness in this case.
In Nguyen, the applicant had argued that the sentencing judge erred by rejecting a psychologist’s opinion about the connection between the applicant’s mental health conditions and offending conduct without giving him a fair opportunity to be heard. Dhanji J (with whom Davies and Huggett JJ agreed) found that there was no “practical injustice” caused because the applicant put no sustainable argument as to how the sentencing judge might have been properly persuaded to accept the psychologist’s opinion based on the available evidence.
The same passage in O*’*Neil-Shaw was also considered by Beech-Jones J (with whom Basten JA and Harrison J agreed) in Khanwaiz v R [2012] NSWCCA 168 as follows (at [96]):
One qualification on the principle enunciated in O’Neil-Shaw at [26] is that it does not apply to evidence that is “inherently implausible”. This qualification has its origins in the statement of Lord Morris in Browne v Dunn (1894) 6 R 67 at 79 that there is no necessity to directly confront a witness whose story has “so incredible and romancing a character that the most effective cross examination would be to ask him to leave the witness box”. Lord Morris also referred to the need to only confront a witness who had “deposed to a state of facts which is quite reconcilable with the rest of the case”. In this matter the “rest of the case” is the agreed statement of facts. When agreed facts are tendered and oral evidence is given that contradicts the agreed facts, it is open to the sentencing judge to act solely on the basis of those agreed facts. There is no requirement for the sentencing judge to advise the parties that he or she proposes to act on the agreed facts, even though they are inconsistent with other material, including evidence given by an offender (R v Falls [2004] NSWCCA 335 at [26] per Dunford J; Zammit v R [2010] NSWCCA 29 at [26] per Howie J; McClellan CJ at CL and Harrison J agreeing).
(Emphasis added.)
Whether there has been a denial of procedural fairness is [a] matter of substance which must be determined by reference to the circumstances. The question is not whether the applicant feels disappointed because his reading of the decision-maker’s likely decision has not come to pass; rather the question is whether there has been actual unfairness: Re Minister for Immigration & Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 at [34] per Gleeson CJ. Actual unfairness, if it arises, will generally involve a party either being deprived of the opportunity to make submissions or refraining from making submissions by reason of an indication, which ultimately proves to have been false, from the decision-maker.
More recently, in McLaughlin v R [2025] NSWCCA 13 (“McLaughlin”), this Court (Hamill and Coleman JJ and I) upheld a ground of appeal asserting a denial of procedural fairness when a sentencing judge rejected an aspect of the expert evidence. The sentencing judge had indicated to defence counsel that the Crown had accepted certain evidence, leaving no basis for any further submissions to be made on that subject. It was held that this indication deprived the applicant of the opportunity to address on that finding further (at [125]-[126]).
In McLaughlin, I discussed some of the cases in which a denial of procedural fairness had been alleged on the basis that counsel was led to understand that a certain course would be taken but it ultimately was not (at [117]-[119]):
[117] … [I]n Baroudi v R [2007] NSWCCA 48 it was held that procedural fairness was denied when the sentencing judge failed to warn counsel for the offender that he intended to impose a non-parole period of around 12 months longer than the concession that had been made by the Crown.
[118] In Milsom v R [2014] NSWCCA 142, Garling J (with whom Macfarlan JA and Johnson J agreed) noted at [66]:
“The key to determining whether there has been a breach of the requirement of procedural fairness is to ascertain the consequence of any departure from the dictates of proper procedure because what is ultimately in issue is whether unfairness has resulted from the process: See Lam at [34]. The concern of the law is to avoid practical, and not merely theoretical, injustice: Lam at [37].”
[119] Similarly, in Chong v R [2017] NSWCCA 185, the offender contended that he had been denied procedural fairness concerning the finding as to his role in the relevant drug supply. Harrison J (as his Honour than was) (with whom Basten JA and Schmidt J agreed) observed the following at [38]:
“It seems to me …. to be very important for sentencing purposes that any concession by the Crown that an accused person falls within a particular category of criminal responsibility, and upon which an accused person would appear to have relied, should not lightly be departed from and not, as it were, without notice. Notice in that context incorporates the notion that the accused person will be given the opportunity to address the prospect that the assumption will be disregarded by the sentencing judge if that is proposed.”
In Dent v R [2025] NSWCCA 43, the applicant contended that he was denied procedural fairness when the sentencing judge found that the objective seriousness of the offence was aggravated because it was committed “without regard for public safety” pursuant to s 21A(2)(i) of the Sentencing Act. This finding had not been pursued by the Crown, conceded by the defence, or foreshadowed by the sentencing judge at any time prior to delivering sentence. Basten JA found that the ground was not made out because “[t]he circumstances of the offending which created a risk to the public were both self-evident and obviously relevant” (at [19]). Weinstein J (with whom McNaughton J agreed) found that there had been a breach of procedural fairness because the applicant was not alerted to the possibility of his Honour’s finding and observed that it would have been preferable for the sentencing judge to notify the parties by email to give them an opportunity to address on this aggravating factor (at [80]). However, his Honour concluded that there had been no “practical injustice” visited upon the applicant because the finding was “inevitable” (at [87]-[88]).
Applying these principles to the present case, it can be seen that this is not a case in which the sentencing judge gave any indication as to whether or not he proposed to accept the second-hand hearsay assertion in the Background Report. Nor is this case similar to what happened in O*’*Neil-Shaw. The applicant in that matter gave detailed evidence and there was other supporting affidavit evidence going to the fact he sought to establish. In the present case, in addition to no oral submissions being made, the applicant chose not to give evidence nor adduce any other evidence on this issue.
Nor is this in the category of cases in which the sentencing judge made a finding contrary to a Crown concession without giving warning that such a course would be taken. I do not accept the applicant’s submission that it can be inferred that the Crown accepted the truth of the assertion made to the author of the Background Report. If the disputed fact had been agreed, it could have been included in the Agreed Facts at any date up until sentence. The fact that this did not occur is consistent with there being no agreement about the disputed fact, as his Honour pointed out in his sentencing reasons. Further, the hearsay assertion was contrary to other aspects of the Agreed Facts as well as being contrary to the Agreed Facts tendered in relation to the co-offender TB. These circumstances distinguish this case from those in which the sentencing judge made a finding contrary to a Crown concession without indicating that such a course would be adopted.
Although little turns on it, I do not accept the applicant’s submission that the Crown could have challenged the disputed assertion in the Background Report by calling the author of it for cross-examination at the proceedings on sentence. Although that was a course open to the Crown, it would not have advanced the issue because the author of the report could have done no more than repeat what the applicant had told her. The dispute is not as to whether the applicant made the disputed assertion but, rather, with the truth of the assertion. In the absence of any ability to compel the applicant to give evidence and be challenged on it, the only way of challenging the assertion to the author of the Background Report was to point out its implausibility by reference to other aspects of the material before the sentencing court (as the Crown did in this Court).
There are at least two available inferences as to why the Crown did not make any submissions about the applicant’s hearsay assertion at the proceedings on sentence: either it was overlooked or, when no oral submissions were made on behalf of the applicant as to why the account should be accepted, the Crown presumed it had been abandoned. This Court is in no position to favour one of these inferences over the other which means that I must simply proceed on the basis that for some reason or other, the Crown did not challenge the applicant’s assertion before the sentencing judge.
The disputed assertion was specifically addressed by the sentencing judge in his Honour’s reasons. As outlined above, his Honour proceeded on the basis that it was not part of the Agreed Facts and, as self-serving second-hand hearsay, he did not propose to accept it. Implicit in the applicant’s submissions in this Court is an assertion that unfairness arose from the fact that his Honour did not reconvene the court to warn the applicant’s senior counsel that he proposed to adopt that course.
As the principles derived from the relevant authorities establish, the central issue is one of potential unfairness; has the applicant established practical, rather than merely theoretical, injustice in the approach taken by his Honour. I have concluded that no unfairness has been established in the circumstances of this case for the following reasons:
The sentencing judge did not give any indication which deflected senior counsel from making further or any oral submissions;
The applicant’s senior counsel was afforded the opportunity to make oral submissions at the proceedings on sentence;
The disputed assertion was not in the Agreed Facts;
The disputed assertion was self-serving;
The disputed assertion was second-hand hearsay;
The disputed assertion was made for the first time more than two years after the commission of the offence;
The disputed hearsay was not given as an account of his offending to anyone else including police or Dr Seidler (on the basis of legal advice);
The applicant did not give or call evidence of the disputed assertion at the proceedings on sentence;
The disputed assertion formed part of an account which was inconsistent with the Agreed Facts. For example, the applicant told the author of the Background Report that he did not have “any intention to harm the victim” and just “wanted to talk to him”. He also claimed that the catalyst for his involvement was that the deceased started hitting the young people to get out of the room. This was inconsistent with the agreed fact that the assault was first perpetrated by Mr Sione and the recordings of the assault;
The applicant’s behaviour in the recordings is inconsistent with the proposition that he at any stage had a genuine concern to protect the deceased from further harm;
After the applicant dropped the “long object” at 4:30pm, he is recorded continuing his participation in the assault on the deceased, including forcefully striking him and kicking him;
The recordings taken before 4:30pm do not show any of the young persons in possession of a screwdriver; and
The disputed assertion was contrary to the Agreed Facts for TB. I have not taken this into account against the applicant for the purposes of this appeal but simply note the Crown submission that there was other potential evidence contrary to a suggestion that the applicant did not want weapons to be used.
As against the weight of the above, it was submitted on behalf of the applicant in this C**ourt that:
There was “no proper basis” to dismiss the applicant’s assertion;
It was “highly unlikely” that the applicant would have gone to the effort of removing some other benign long object from the room where the assault was taking place;
There was no suggestion the applicant was otherwise being untruthful in his accounts to the professionals; and
A screwdriver is a “long object”.
Having considered these submissions, I am not satisfied that the applicant has established any practical unfairness. Not only was it well open to the sentencing judge to reject the applicant’s assertion, but it is also difficult to imagine his Honour arriving at any other conclusion.
I would not uphold ground 1.
The applicant submitted that the sentence was manifestly excessive given the sentences imposed upon the co-offender TB. The applicant noted that the sentence imposed on the applicant was nearly double that imposed on TB. It was also emphasised that while TB was the youngest offender (aged 13 years and 3 months), there was only an 8-month age difference between TB and the applicant.
The applicant submitted that the sentencing judge gave too much weight to the distinction between the applicant’s criminality and the criminality involved in manslaughter in respect of TB. It was noted that TB was also liable for an unlawful killing on the basis of being a party to an assault occasioning actual bodily harm in company. These are the two aggravating features of the s 86(3) offence, without which the basic offence of detention with the intention of obtaining an advantage under s 86(1)(c) only carries a maximum penalty of 14 years’ imprisonment and not 25 years.
The applicant also relied on two cases said to be comparative to the present case: R v DPD [2023] NSWSC 477 (“DPD”) and R v SB, AE & MG [2015] NSWSC 659 (“SB, AE & MG”).
When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]:
• Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases.
• Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error.
• It is not to the point that this court might have exercised the sentencing discretion differently.
• There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle.
• It is for the applicant to establish that the sentence was unreasonable or plainly unjust.
[4] Mere disagreement by appellate judges with the sentence imposed is not enough to warrant a conclusion that a sentence is manifestly excessive (or manifestly inadequate). The significant degree of latitude afforded to sentencing judges when reviewing sentences for manifest excess or manifest inadequacy reflects the fact that sentencing is a discretionary exercise in which there is no one correct sentence and that, within a range of acceptability, the judgment of a sentencing judge as to an appropriate sentence should be respected: R v White [2025] NSWCCA 111 at [20]-[28].
[5] As noted in He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95 at [42(iv)], an applicant seeking to challenge a sentence on the ground of manifest excess has a “very heavy practical burden”, and must show a kind of disproportion which is so “manifest on its face as to be indicative of, not a mere difference of idiosyncratic opinions, but, rather, of substantive error of law”, citing R v Elemes [2000] NSWCCA 235 at [22]-[23].
The sentencing judge found the objective seriousness to be “serious” and, as the applicant’s senior counsel conceded at the proceedings on sentence, the applicant was involved in the assault in a “significant way”.
I have considered the favourable findings made about the applicant’s subjective case. The sentencing judge was satisfied that his youth and childhood warranted a reduction in his moral culpability. On the other hand, the applicant stated an intention to continue his gang affiliations. Further, the expert evidence was that the applicant had traits consistent with Antisocial and Borderline Personality Disorders which are further risk factors.
As to the applicant’s reliance upon the sentence imposed on TB, the difficulty is that TB was sentenced for manslaughter with a different maximum penalty. Further, the applicant’s offending was more serious than TB because he was part of an agreement to commit an offence contrary to s 86(3) of the Crimes Act which included not only an agreement to detain the deceased but to do so “for the opportunity of assaulting and humiliating” him.
In addition to the applicant being sentenced for murder as opposed to TB being sentenced for manslaughter, TB had a “considerably stronger” subjective case. TB was eight months’ younger than the applicant, was found to have had a background characterised by “serious neglect, trauma, violence and transience” and was entitled to a discount of 25% for his early plea.
Finally, the applicant relied on two cases said to be comparable.
In DPD, a 17-year-old offender was sentenced for constructive murder on the basis that he was a participant in a joint criminal enterprise to assault with intent to rob in company while armed with a dangerous weapon. There were two Form 1 offences. His moral culpability was substantially reduced due to the circumstances of his upbringing. With a starting point of 18 years and 6 months’ imprisonment, the offender was sentenced to 15 years and 3 months’ imprisonment with a non-parole period of 10 years and 3 months.
In SB, AE & MG, three juvenile offenders were sentenced to 8 years’ imprisonment with a non-parole period of 4 years for murder. The liability of each offender was based on extended joint criminal enterprise to assault the deceased. These sentences were influenced by the sentences imposed on co-offenders who had been convicted of manslaughter, but whose criminality was assessed as being appreciably more serious than the offender’s and whose sentence imposed was, correspondingly, significantly longer. One of the co-offenders convicted of manslaughter and sentenced in other sentencing proceedings was identified as having inflicted the act causing death (a blow to the head of the victim with a bottle).
I have considered these decisions relied upon by the applicant, but they do not suggest that the sentence imposed on the applicant was unreasonable or plainly unjust. The nature of the offending for which the applicant stood for sentence was described by the sentencing judge as follows (at [33]-[35]):
[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, [the applicant] 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. [The applicant] 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. [The applicant] 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.
Accordingly, I would propose the following orders:
Grant an extension of time to bring this appeal.
Grant leave to appeal.
Dismiss the appeal.
LONERGAN J: I agree with N Adams CJ at CL.
DHANJI J: I agree with N Adams CJ at CL.
**********
AD
R
[1936] HCA 40
[2003] HCA 6
(2018) 265 CLR 215
(1936) 55 CLR 499
(2017) 96 NSWLR 155
(2003) 214 CLR 1
(1989) 166 CLR 466
(1992) 28 NSWLR 282
(1999) 195 CLR 665
(2000) 202 CLR 321
(2001) 207 CLR 584
(2005) 228 CLR 357
(2010) 242 CLR 520
(2021) 104 NSWLR 518