BE v R

HEADNOTE [This headnote is not to be read as part of the judgment] The applicant was one of 11 people who participated in the brutal assault and killing of a 16 year old boy. The applicant pleaded guilty to the charge of murder, for which the maximum penalty is life imprisonment. He was sentenced to 15 years and 6 months imprisonment with a non-parole period of 10 years. This sentence reflected a significant discount being given, including a 25% discount by reason of the applicant's early plea of guilty. The sentencing judge ordered that the applicant is to serve his sentence as a juvenile offender until he attains the age of 21. The applicant raised seven grounds of appeal, arguing that the sentencing judge erred: (1) by failing to find that the appellant attempted to persuade the co-offenders to stop the assault, and making a contrary finding in breach of the rule in Browne v Dunn; (2) in the assessment of the objective seriousness of the offence; (2) in holding that the appellant's ADHD did not have any causal connection to the offence and did not reduce his moral culpability; (4) in failing to take into account that the appellant had experienced more severe conditions of detention as a result of COVID-19; (5) in sentencing from a starting point that was manifestly excessive; (6) in a particular respect identified below; and (7) in ordering a manifestly excessive non-parole period. The Court (Kirk JA, Davies J and Sweeney J) granted leave to appeal, dismissed the appeal and held: As to ground 1

1. It was reasonably open to the sentencing judge to conclude that the applicant had not conveyed any concern for the deceased during the assault: [36]-[50]. It was not alleged below that the rule in Browne v Dunn had been breached, and in that context it is necessary for the applicant to show a significant miscarriage of justice. Any breach of the rule was borderline at best; and the sentencing judge implicitly referred to it in his reasons. Even if the applicant had attempted to dissuade the co-offenders in the manner claimed, that would have done little to reduce his culpability: [51]-[65]. Browne v Dunn (1893) 6 R 67; Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460; White v R [2016] NSWCCA 190; (2016) 261 A Crim R 302, applied. R v Birks (1990) 19 NSWLR 677; Knight v Maclean [2002] NSWCA 314; MWJ v The Queen [2005] HCA 74; (2005) 80 ALJR 329; RWB v R [2010] NSWCCA 147; (2010) 202 A Crim R 209; AL v R [2017] NSWCCA 34; (2017) 266 A Crim R 1, noted. As to ground 2
2. The sentencing judge did not err in finding that the murder was objectively serious. Although the intention of the applicant was not to kill the deceased but to inflict grievous bodily harm upon him, that does not necessarily lead to the view that his role was a less heinous one than the other participants who intended to kill the deceased. The matters relevant to the applicant's reduced moral culpability were all taken into account by the sentencing judge separately from a consideration of the objective seriousness of the offending, just as those matters had been put to his Honour. In any event, they were not required to be taken into account when assessing the objective seriousness: [66]-[81]. Mulato v R [2006] NSWCCA, applied. AH v R [2013] NSWCCA 32; Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571; Munda v Western Australia [2013] HCA 38; (2013) 249 CLR 600; DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156, noted. As to ground 3
3. The determination of any link between the applicant's ADHD and his offending was a matter for the sentencing judge. It is difficult, in any event, to see the applicant's role in the offending as impulsive: [82]-[89]. As to ground 4
4. There was no error by reason of the sentencing judge not making mention of the impact of COVID-19 on the applicant's incarceration. Any evidence about the matter was scant. The restrictions he faced in custody were largely due to his poor behaviour: [90]-[98]. Wass v R [2022] NSWCCA 143; Whipp v R [2024] NSWCCA 79, followed. As to grounds 5 and 7
5. The submissions made on behalf of the applicant had an air about them of seeking to persuade this Court that a different sentence should have been imposed. No submissions were made, for example, that the sentence was disproportionate or harsh when compared to sentences imposed on other young persons for murder. The sentence is stern, and the applicant's subjective circumstances were important considerations in the sentencing exercise. However, the applicant participated in a sustained and brutal episode of beating and kicking a defenceless child, in company, to the point the child died. All of the factors referred to in support of these two grounds were properly taken into account by the sentencing judge. The sentencing judge made a significant reduction in the non-parole period. Neither the head sentence nor the non-parole period can be said to be unreasonable or plainly unjust: [99]-[143]. R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704; Obeid v R [2017] NSWCCA 221; (2017) 96 NSWLR 155, followed.

JUDGMENT

1. THE COURT: On 4 August 2021 the applicant, then aged 14 years and 7 months, was one of 11 people who participated in the brutal assault and killing of a 16 year old boy, Jason Galleghan. Jason's mother has given permission for his name to be published or broadcast pursuant to s 15E of the Children (Criminal Proceedings) Act 1987 (NSW). The applicant pleaded guilty to the charge of murder, for which the maximum penalty is life imprisonment. There is no applicable standard non-parole period given the age of the applicant: Crimes (Sentencing Procedure) Act 1999 (NSW), s 54D(3). The sentencing judge, R A Hulme AJ, sentenced the applicant to a term of imprisonment of 15 years and 6 months, commencing from the date of his arrest on 5 August 2021, with a non-parole period of 10 years: R v BE [2023] NSWSC 1007 (J). This sentence reflected a significant discount being given, including a 25% discount by reason of the applicant's early plea of guilty. His Honour ordered that the applicant is to serve his sentence as a juvenile offender until he attains the age of 21.
2. The applicant has sought leave to appeal against his sentence, raising seven grounds: 1. The sentencing judge erred in deciding that the appellant should not be sentenced on the basis that, just prior to the assault on the deceased ending, he was concerned for the deceased and attempted to persuade the co-offenders to stop the assault. 2. The sentencing judge erred in the assessment of the objective seriousness of the offence. 3. The sentencing judge erred in holding that the appellant's ADHD did not have any causal connection to the offence and did not reduce his moral culpability. 4. The sentencing judge erred in failing to take into account that the appellant had experienced more severe conditions of detention as a result of the COVID 19 pandemic. 5. The starting point sentence was manifestly excessive. 6. The sentencing judge erred in a respect identified below. 7. The non-parole period was manifestly excessive.
3. Two days before the hearing the applicant flagged adding an eighth ground, which was initially pressed without opposition from the Crown. The ground was withdrawn by the end of the hearing.
4. Leave to appeal should be granted given the significance of the sentence and the issues raised. However, none of the grounds have been made out and the appeal must therefore be dismissed. The grounds below will be addressed in turn, save that it is convenient to address grounds 5 and 7 together, doing so after we have addressed ground 6. Before turning to the grounds raised it is appropriate to summarise the context in which this application is brought.

Facts

1. A statement of agreed facts was tendered at the sentencing hearing. The applicant himself gave evidence. Other documents were tendered, including a Background Report produced by Youth Justice NSW, a report from forensic psychologist Patrick Sheehan obtained on behalf of the applicant, a letter of apology from the applicant, and a victim impact statement from Jason's mother, Rachel Galleghan. A notable feature of this matter is that three video recordings were made by the assailants during the course of the assault. The first two overlap in time. These videos were tendered by the Crown.
2. There was no challenge to the factual findings of the sentencing judge, save to the extent raised by ground 1.

The assault and killing of Jason

1. What follows is substantially taken from the sentencing judgment at [5]-[36].
2. Adult 1, then aged 19, was a friend of the deceased. She blamed him - incorrectly - for stealing her Apple AirPods (earphones). She told people about her suspicions and a plan was hatched whereby he would be lured to her house and assaulted. She lived in a house at Perigee Close, Doonside, with her partner Harley Robinson Bartolo (aged 29). Doonside is a suburb in western Sydney near Blacktown.
3. Present at the house on 4 August 2021 at various relevant times were Adult 1 and Mr Bartolo, Adult 2 (aged 32) and his partner Stacey Pale (36), and young persons TB (13), BL (15), MM (15), AD (13) and the applicant. Thomas Pakau (18) and Rebyll Oaariki (24) arrived at some stage, as did the applicant's girlfriend, JB.
4. At about 1.49pm that day the applicant posted messages on Instagram, including "me n 2 of the boys are bashing someone today lmao" (the acronym standing for "laughing my arse off").
5. At about 3.37pm the applicant 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".
6. At about 3.45pm, the applicant, Adult 1 and BL left the house and walked to Doonside railway station to meet Jason. At about 3.56pm at the station, the deceased duly met with the applicant, Adult 1, BL and Ms Pale. The five arrived at the house at Perigee Close at 4.09pm. Jason was immediately taken to the spare bedroom by Adult 2 where they were joined by the applicant, TB, Adult 1, AD, MM and BL.
7. Between 4.09pm and 4.20pm Jason was assaulted by Adult 2 while the six others just mentioned looked on. Some of them were encouraging the violence although the applicant 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".
8. The deceased was stripped of his clothing, leaving him in only his underpants.
9. 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. The applicant and TB were yelling out at the time.
10. Mr Pakau and Ms Oaariki left the house at 4:17pm. Adult 2 left a short time later, at 4:20pm. They went to Adult 2's house not far away at Mikado Way, Doonside.
11. The applicant's girlfriend, JB, arrived at Adult 1's house at 4.19pm. The applicant met her at the front door and told her to wait on the porch.
12. After Adult 2 left, the assault in the bedroom was continued by the applicant, 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 lying on the mattress in the room with TB and BL stomping on his chest.
13. At 4:42pm the applicant, JB, TB and BL ran to the nearby home of Jordan Crow at Cygnus Close, Doonside. Adult 1, Mr Bartolo and Ms Pale remained at Adult 1's house. They left at 4.46pm but returned at 5.11pm.
14. The assault on Jason lasted some 33 minutes, from 4:09pm, with its commencement by Adult 2, until 4:42pm, when the young people left.
15. Mr Crow was shown footage of the assault upon the deceased. Whilst 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. The applicant, JB and TB left Mr Crow's house and went to the railway station.
16. 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.
17. 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.
18. The first of two recordings recovered from BL's phone, lasting one minute and 59 seconds, includes the following: 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. The applicant, TB and AD were 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 state 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. The applicant, 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". The applicant 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.
19. It is agreed that in this period of about two minutes the applicant can be seen to hit or punch the deceased 52 times, kick him three times, and grab his hair. He did not stomp on the deceased during this recording.
20. There is a one minute 26 second recording recovered from Adult 1's phone which overlaps in time with the first video recovered from BL's phone, showing events from a different angle. It includes the following: 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. The applicant 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. The applicant also stomped on the deceased.
21. The agreed facts describe the deceased as "clearly struggling and was in and out of consciousness, lying adjacent to the doorway".
22. There was a second recording on BL's phone, lasting two minutes and 17 seconds, which includes the deceased standing against a wall with AD holding his hands. MM and AD demand that the deceased speak to the camera and say, "Fuck 21", "27 on top", "Fuck KVT", Fuck MOB" (these being acronyms for local youth street gangs). 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". This video also includes the applicant saying words such as "stop" and "look at him". The significance of those words is the subject of ground 1, as addressed below.
23. The Crown tendered a document headed "Summary of Strikes". It contains an itemisation of the number of strikes delivered by each offender as best can be determined from the recordings, recalling that the recordings were for only a small proportion of the time over which the attack took place. Most of the activity was captured in the first recording on BL's phone in which there were a total of 133 acts with the applicant being responsible for 56 of them, as already noted. A recording on Adult 1's phone includes a stomping action by the applicant.
24. 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".
25. The applicant was arrested on 5 August 2021.

The sentencing judgment

1. The sentencing judge summarised the report of Mr Sheehan at J [38]-[53]; referred to a letter of support from a mentor, and to various certificates attesting to the courses and programs undertaken by the applicant at J [54]-[55]; discussed the content of the Youth Justice NSW Background Report at J [56]-[64]; referred to the applicant's own evidence at J [65]-[66] (amongst other places); referred at J [67] to evidence given by an aunt of the applicant supporting other accounts of the applicant's life history and the support available to him; and stated at J [68] that the applicant's minimal prior engagement with the criminal justice system was a mitigating factor. It is apparent from this material, and his Honour accepted, that the applicant had a very difficult and disadvantaged upbringing.
2. The judgment at [70]-[76] is headed "The seriousness of the crime and the moral culpability of the offender". The content of that portion of the judgment is addressed below with respect to ground 2. His Honour then noted some relevant sentencing principles at J [77]-[79] under the heading "Principles relevant to sentencing children".
3. His Honour then said the following under the heading "Findings as to some subjective matters" (footnotes omitted): [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". 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. [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. 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. The Crown accepted that the second matter referred to alone supported a finding of special circumstances. That concession is appropriate and I will make the order sought. [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].
4. His Honour then proceeded to identify the sentence imposed.

The context

1. The third of the three videos of the assault concludes with these words (with the contributions attributed to the applicant in bold): Male Get the fuck up BE In the ribs. In the back, in the back, right in the asshole BL Break everything in his fucking body cunt BE Oi stop stop BL Ok grab me grab me grab me … you won't … grab me you little cunt BE Hey BL Get him right in the face lad BE Look at him. Look at him BL Get him right in the fucking face BE Where Male Fucking pussy lad yeah MM Right BE Stop. Look at him. Look BL Knock knock. Knock him out. Knock him out lad Male Where the fuck's my phone BL Knock him out I got him … I got both of his fucking hands MM Get up Male My phone's in

1. The sentencing judge noted that the end of this recording was agreed to be about when the entire assault finished (J [32]). It was submitted below on behalf of the applicant that at this point he realised that they had gone too far, that others were trying to kill Jason, and that he was taking "a very minimal step" not to extricate himself but in effect to calm things down.
2. There were two other relevant sources of evidence dealing with this issue: the Background Report and some evidence led from the applicant in re-examination. The Background Report included the following, under the heading "Attitude and beliefs": Although it is not stipulated in the agreed facts, [the applicant] reported that he attempted to stop the co-offenders, due to "coming to his senses" upon seeing that the victim appeared to be severely beaten. This may suggest that [the applicant] believed that the violence and physical abuse inflicted upon the victim was morally wrong. The agreed facts however, contradict this statement as it is revealed that [the applicant] continued to yell abuse at the victim and continue with the assault. [The applicant] disagreed with this part of the agreed facts.
3. Both senior counsel below, and (different) senior counsel appearing for the applicant in this Court, submitted that there was in fact no inconsistency between what was recorded in the report and the agreed fact. That submission assumes that the claim reported in the Background Report that the applicant "attempted to stop the co-offenders" relates to what he said as set out in the extract of the video transcript above. If so, this supposed attempt was right at the end of the brutal assault. What is set out in the Background Report itself does not identify when the claimed attempt to stop the co-offenders was made. The authors of the report apparently understood that it was claimed to have occurred some time prior to the end. On that understanding the claim was inconsistent with the statement of agreed facts, which includes an admission that after Adult 2 left the house at 4:20pm "the assault was continued for more than 20 minutes" by the applicant and other young persons.
4. No attempt was made to address this issue in the examination in chief of the applicant. Nor did counsel for the Crown raise it in cross-examination. The applicant gave the following answer in cross-examination: "I understood - it took me a bit - like, a bit to process the fact that they were trying to kill Jason, but I did eventually realise it, yes". Counsel for the Crown then indicated he had completed the cross-examination. The sentencing judge then raised the issue, asking the following questions: Q. Just picking up on that last part; you said you did eventually realise that was intended. When did you realise? A. A bit before maybe, five, ten minutes before I - before it had finished. Q. So it was still going on at the time you realised? A. Yes. Q. Did you know why at least part of this attack was being recorded? A. No, I did not, no. Q. You knew it was being recorded; people had their phones? A. I knew they had their phones out. I didn't know what was - like, what was getting - like, videos or pictures, I didn't know actually, if that makes sense. Q. Okay. HIS HONOUR: I don't know whether this is something that needs to be taken up with him or not; I won't. But in the Juvenile Justice report, there's reference on page 8 in the third paragraph to something he said that seemed to be in conflict with the agreed facts. Is that something that needs to be clarified, is it thought? [Senior counsel for the applicant]: Perhaps I can try and deal with that.
5. His Honour's reference to the Juvenile Justice Background Report is to the paragraph quoted above at [38]. Counsel for the Crown then sought and was permitted to cross-examine on one further matter relating to the making of the video recordings. Senior counsel for the applicant then re-examined him, asking that he be shown the transcript of the videos. She identified the statement where he said "Stop. Look at him. Look" (being the last statement attributed to him in the transcript). The following exchange then occurred: Q. Do you remember saying those words? A. Not those words exactly, but I do remember telling them that he had had enough, yes. Q. Sorry, why did you say those words? A. Because after I'd realised what they were planning to do, I ended up - like, I sort of, like - I don't know what the word is, but I guess I woke up to it. Like, I just looked at him and thought - and realised that we'd gone way too far. Q. So just before you've said these words, you've had the realisation of what the others were up to? A. Yes. Q. And do you mean by that, the understanding that [MM] and perhaps others wanted to kill Jason? A. Yes. Q. Was that how you felt, that you wanted to kill him? A. No. Q. Is that why you told them to stop? A. Yes. Q. When you were speaking to the officers from Juvenile Justice-- A. Yes. Q. --did you tell them that you had come to your senses when you realised that Jason had been severely beaten? A. Yeah. Q. At the time that you feel like you came to your senses, had you realised what you were doing was wrong? A. Yes. Q. Seriously wrong? A. Yes. Q. After you said "stop", did you continue to yell at Jason? A. No. Q. Did you continue to assault Jason? A. Not that I remember, no.
6. These questions tended to be leading but were not objected to. In the exchange the applicant does implicitly link the portion of the transcript to what he told Juvenile Justice. He accepted the suggestion put to him that he "told them to stop" because he did not want to kill Jason, and said that he "realised that we'd gone way too far".
7. The sentencing judge rejected the argument put on behalf of the applicant on this issue (footnotes omitted): [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". 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.
8. The Crown had argued below that the Court should find that the applicant had had an intent to kill. His Honour did not accept that argument, saying: [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.
9. The applicant now argues that the sentencing judge erred in not sentencing him on the basis that just prior to the assault ending he was concerned for the deceased and attempted to persuade the co-offenders to stop the assault. This argument involves a challenge to a factual conclusion. Senior counsel for the applicant put the argument in two ways: 1. the conclusion his Honour reached was not reasonably open; 2. the Crown's argument in closing submissions that the applicant had not been attempting to stop the assault was made in breach of the principle in Browne v Dunn (1893) 6 R 67, and the sentencing judge erred in law in not taking that into account in reaching his conclusion on the issue.

The claim that the factual conclusion was not reasonably open

1. In its written submissions to this Court the Crown requested that the Court view the videos prior to the hearing. Each member of the Court did so. Surprisingly, senior counsel for the applicant informed the Court that he had not done so, despite the factual inference he sought to draw from the transcript of the video. Obviously enough, the video itself is better evidence than the transcript taken from it.
2. His Honour was not persuaded that the relevant words conveyed any concern by the applicant for the deceased, or that the applicant was trying to persuade any of the co-offenders that the assault should cease. After our own careful review of the video - rewatching the relevant portion several times - we see no reason to find fault with that conclusion of the sentencing judge. Such concern was not conveyed by the applicant's tone of voice.
3. The applicant's attempted characterisation is undermined by the fact that he said "Where" in the middle of the key exchange in question, just after BL said "Get him right in the fucking face". A reasonable understanding of the applicant's query is that it is about where to "get" Jason in the face. Earlier in the video the applicant had said "right now temple", which seems to be suggesting where Jason should be assaulted next. And the last thing the applicant said before his first "stop" was also identifying parts of Jason's body, as though ticking off different areas where they had punched or kicked him.
4. Moreover, there is another explanation for the applicant saying "stop". About 15-20 seconds before the exchange quoted above the applicant said this: "Oi move him move him. There is going to be a hole through the wall. The cop. The neighbours will see him. Move him. Move him to the other side". At this point in the video Jason is in a corner with his back against a wall, and the plaster of the wall behind his back is broken and pushed in. It seems that the applicant was concerned that their ongoing violence would lead to a hole all the way through the wall, alerting the neighbours, who might alert the police. He thus wanted to move Jason.
5. In no way can it be said that the conclusion reached by the sentencing judge was not reasonably open to him.

The claimed breach of the rule in Browne v Dunn

1. The applicant's second argument was that his Honour erred in law in his reasoning to that conclusion by not taking into account that the Crown's submission to that effect was made in breach of the rule in Browne v Dunn: note Knight v Maclean [2002] NSWCA 314 at [35].
2. The first hurdle in the way of accepting that argument is that no such submission was made by senior counsel appearing for the applicant at first instance. As Johnson J said in Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460 at [81]: in sentencing appeals, the Court is reviewing the exercise of a discretionary judgment and not rehearing a plea of mitigation. It is not the occasion for the revision and reformulation of the case presented below. The Court will not lightly entertain arguments that could have been put, but were not advanced on the plea, and will have an even greater reluctance to entertain arguments that seek to resile from concessions made below or are a contradiction of submissions previously made. [There is a] need for exceptional circumstances before this can be done, where it can be shown that there was most compelling material available on the plea that was not used or understood, and which demonstrates that there has been a miscarriage of justice arising from the plea and sentence.
3. That statement has been approved and applied many times by this Court. Johnson J referred to the need, in such a case, to establish a miscarriage of justice in the context of exceptional circumstances. In White v R [2016] NSWCCA 190; (2016) 261 A Crim R 302, Simpson JA referred to the circumstances being such that "justice demands that [the Court] intervene" (at [127], with Bathurst CJ agreeing at [1]). In the same case Basten JA said, to similar effect, that the Court should ask whether there would be "a serious injustice if the appellant were precluded from correcting the error" (at [20]). Here, the applicant submitted that the issue is of such significance that despite not having been raised below it has occasioned a miscarriage of justice which should be remedied.
4. The rule in Browne v Dunn was described by Gummow, Kirby and Callinan JJ in MWJ v The Queen [2005] HCA 74; (2005) 80 ALJR 329 as follows: [38] … The rule is essentially that a party is obliged to give appropriate notice to the other party, and any of that person's witnesses, of any imputation that the former intends to make against either of the latter about his or her conduct relevant to the case, or a party's or a witness' credit. [39] One corollary of the rule is that judges should in general abstain from making adverse findings about parties and witnesses in respect of whom there has been non-compliance with it. …
5. As is implicit in that summary, the rule is a manifestation of the principles of procedural fairness: note eg R v Birks (1990) 19 NSWLR 677 at 689; RWB v R [2010] NSWCCA 147; (2010) 202 A Crim R 209 at [93]; AL v R [2017] NSWCCA 34; (2017) 266 A Crim R 1 at [193]. Whether or not the rule has been breached, and the consequences of any such breach, must therefore take account of the circumstances of the particular case, where the guiding consideration is fairness: Birks at 689. Those circumstances include "the nature and course of the proceedings": MWJ at [18] per Gleeson CJ and Heydon J.
6. The applicant argued that the Crown was on notice prior to cross-examining him that he claimed to have attempted to stop the assault, such as to mitigate his culpability, by what he said as recorded in the transcript of the last video. That argument is not made out. Written submissions on behalf of the applicant were provided to the sentencing judge in advance of the hearing. The Crown had submitted in its earlier written submissions that the applicant's actions "support a conclusion that the offender intended to kill the deceased". The applicant submitted in his written submissions that the Court should only find an intention to inflict grievous bodily harm. In support of that point it was said that "[t]he fact that something more serious was not in the contemplation of [the applicant] is further supported by the fact that during the assault he said 'stop … look at him' as is set out in the agreed facts: at [55]". This was a submission that the applicant had not himself intended to murder Jason. It was not an argument that his culpability was reduced by having attempted to stop the others. The submission may have implied that the applicant was attempting to stop the others but the point was not made clearly. The submission also relied on the transcript, not on what had been said to the authors of the Juvenile Justice Background Report.
7. What was recorded in the Background Report was itself unclear as to when the applicant had attempted to stop his co-offenders, as noted above at [39]. When the applicant gave evidence he was not asked if he had told the authors of the Report the truth (in contrast, he was asked if he had told the psychologist Mr Sheehan the truth).
8. Moreover, as is implicit in our conclusion on the first strand of the applicant's argument, it certainly cannot be said to be clear from either the transcript or the video that the applicant's words in question were an attempt to halt the assault.
9. In the circumstances, if a submission was to be made that his words were such an attempt, and that this mitigated his culpability, then it was reasonable to expect that the issue would be addressed in the applicant's evidence in chief. That was not done. In this context, it was reasonable for counsel for the Crown not to raise the issue himself when he cross-examined the applicant.
10. As explained above, it was the sentencing judge who then raised the issue of what had been said in the Background Report at the conclusion of the cross-examination. Senior counsel for the applicant volunteered to address the issue, which was done in re-examination. Counsel for the Crown did not seek a further opportunity to cross-examine.
11. In closing submissions, the following exchange occurred between the sentencing judge and counsel for the Crown: HIS HONOUR: Do you accept that - well, you have to accept it because it's in the transcript of the things said in the recording, that he said the words, "Stop, look at him, look", do you accept his evidence that at that point he realised that the deceased had had enough and he had woken up to it that they had gone too far and that's why he stopped, that he did in fact stop at that point? Because, as the author of the Juvenile Justice report indicates, that sort of thing seems to conflict with the agreed facts that he continued to yell abuse at the victim and continue with the assault. CROWN: Your Honour, I didn't cross-examine him about that, although I think it only arose in re-examination, so perhaps I am limited on the extent to which I can now challenge it. It's equally consistent with an invitation to the others to look at the extent of the injuries that have already been occasioned while the thing was being filmed by other people rather than being an indication of a desire on the part of the offender that everyone stop the behaviour and it might be that your Honour needs to consider the evidence and whether your Honour accepts it. HIS HONOUR: What do you say I should do? CROWN: I say that your Honour is entitled to reject that account because your Honour is able to listen objectively to the evidence of the tone of voice in which it was spoken to determine whether or not your Honour accepts it.
12. When senior counsel for the applicant subsequently addressed the sentencing judge she submitted that the sentencing judge should accept the applicant's evidence, but did not suggest that the Crown's submission on point was made in breach of the rule in Browne v Dunn.
13. Ideally, the Crown would have sought leave to cross-examine the applicant on the evidence he gave in re-examination, so as to lay the groundwork for a submission that that evidence should not be accepted and giving the applicant a chance to respond. Counsel for the Crown below implicitly accepted as much in acknowledging that he had not cross-examined on the topic. However, contrary to some of the submissions of the applicant in this Court, saying "perhaps I am limited on the extent to which I can now challenge it" was not a concession of a breach of the rule in Browne v Dunn.
14. In any event, we are not persuaded that a miscarriage of justice has been made out in the manner claimed, taking account of the following: 1. Any breach of the rule in Browne v Dunn was a borderline one, at best, given that the issue was only clearly raised by the evidence of the applicant given in re-examination, after the sentencing judge himself had raised the issue, and the Crown would have required leave to re-open cross-examination to address the issue. The fact that senior counsel appearing for the applicant below did not protest the Crown's submission reinforces this point. Further, the best evidence on the issue by some measure was the video recording, which his Honour could and did watch. The characterisation the applicant sought to put on that evidence was of limited value in comparison. Taking account of all the circumstances, we are not persuaded that the course adopted was unfair. 2. As regards the claimed non-compliance with the rule in Browne v Dunn, his Honour acknowledged at J [32] (quoted above at [43]) that the evidence relied upon was given in re-examination, which itself implicitly suggests there was no challenge to the applicant's evidence on the topic by way of cross-examination (that being the nub of the complaint). That acknowledgement was consistent with the Crown itself having noted that the issue had not been the subject of cross-examination. His Honour delivered judgment in a relatively short time - 14 days - after the hearing. There is thus reason to conclude that the sentencing judge was cognisant of the issue, such that the error complained of is not made out. 3. In any event, even if the sentencing judge erred in his ultimate conclusion that he did not accept that what was said conveyed concern for Jason - and, as discussed above, we are not persuaded that he did err - the significance of this conclusion would be very limited. As the sentencing judge found, and as senior counsel for the applicant in this Court sought to emphasise, the words were said "about when the entire assault finished" (J [32]). The applicant has not sought to argue that the words had any effect in actually persuading his co-offenders to end their assault. If the applicant had taken the claimed "very minimal step" to end the assault (quoting the submission put below), after the brutal 33 minutes that had preceded it, it would have done little if anything to mitigate the seriousness of what he had done and his culpability for that conduct.
15. Ground 1 is not made out.

The sentence judgment

1. As noted earlier, his Honour dealt with the issue of the objective seriousness of the offending and the issue of the moral culpability of the applicant in the following paragraphs: [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.

Submissions

1. At the sentence hearing, the Crown prosecutor had submitted that the offence was above the mid-range, whereas defence counsel submitted that the objective seriousness was in the middle of the range. At the hearing in this Court, senior counsel for the applicant submitted that in finding that it was "a murder of very great seriousness", the sentencing judge had accepted the Crown prosecutor's assessment of its seriousness.
2. The applicant submitted that even on the assumption that he did not demonstrate any concern for the deceased and did not attempt to persuade the co-offenders to stop the assault, the sentencing judge erred in the assessment of the objective seriousness of the offence.
3. The applicant submitted that the critical error was the finding that the applicant's role "was no less heinous than any of the other participants". In that regard, the applicant submitted, the sentencing judge focused exclusively on what the applicant did, while that was only part of the equation. The applicant said that he never formed an intention to kill the deceased and was at all times acting with an intention to inflict grievous bodily harm.
4. The applicant submitted that the findings that he had a "reduced ability to exercise mature judgment" and a "tendency to follow the lead of others" together with the fact that his role involved following the directions of adults and older members of the gang, meant that the objective seriousness of his offending was reduced.
5. The applicant, whilst accepting that the participants in a joint criminal enterprise are equally liable for all the acts in the course of carrying out the enterprise, argued that a particular participant's offending stands to be assessed by reference to his or her particular conduct and role in the commission of the offence. The applicant submitted that an offender following orders may be less culpable than someone with an organisational role, relying on what was said in AH v R [2013] NSWCCA 32 at [76] and [90].
6. In oral submissions, senior counsel for the applicant submitted that the statement that BE's role was no less heinous than any of the other participants, was erroneous for two reasons. The first was because the others intended to kill the deceased whereas the applicant's intention, as his Honour found, was to inflict grievous bodily harm. The second reason it was said to be erroneous was that the applicant was a 14 year old young man who was led on by the adults who commenced the assault. Senior counsel submitted further that his Honour erred in failing to take into account, when assessing objective seriousness, matters going to moral culpability which would play a causal role in the commission of the offence such as, for example, the applicant's reduced ability to exercise mature judgment and control impulses by reason of his age.

Consideration

1. The characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing judge: Mulato v R [2006] NSWCCA 282 at [37] and [46]. For this Court to intervene in the assessment made by a sentencing judge of objective seriousness, House v The King error would have to be established.
2. As the sentencing judge found, the applicant was involved in the enterprise from its earliest planning, as is clear from the message he posted on Instagram about him and "the boys are bashing someone today" and the message to his girlfriend on Instagram about taking the deceased from Doonside station to the house. Further, the applicant was present during the initial assault by one of the adults, and when that adult left the room, the applicant was fully involved in the assault as detailed by the sentencing judge.
3. Although the intention of the applicant was not to kill the deceased but to inflict grievous bodily harm upon him, that does not necessarily lead to the view that his role was a less heinous one than the other participants who intended to kill the deceased. Whatever the applicant's intention, it did not temper the extent of his violence towards the deceased. There were a number of considerations in relation to the applicant's role, and the sentencing judge had regard to all of those matters (at [71]-[73] and [75]) in reaching his view that the murder was one of very great seriousness. It cannot be said that his Honour's conclusion was not open to him.
4. The matters which it is now submitted ought to have been taken into account by the sentencing judge when assessing objective seriousness were matters that were submitted to the sentencing judge as relevant to a reduction in the applicant's moral culpability. They were not put forward as matters to be taken into account on the assessment of objective seriousness. The applicant's written submissions to the sentencing judge first focused on the applicant's role in the assault, from which it was submitted "that the Court would find that the offending falls in the mid-range of objective seriousness".
5. Later in those submissions this appeared: 34 It is respectfully submitted that [BE's] offending conduct can be characterised as a manifestation of his immaturity and his potential to be influenced by others that has developed in the vacuum left by his disconnect from his family at an early age. It is, to a large extent, one effect that his experience of dysfunction and disadvantage has had on him. His inability to control his impulses to violence has arisen in the hyper-aggressive context of gang culture involving other marginalised young people, as well as some adults. Combined with the effects of drugs and alcohol, [BE] has resorted to extreme violence when confronted with the same thing being done by those he was with and who he looked up to: see JJR at p5. … 36 For this reason, it is respectfully submitted, the Court would find that [BE's] moral culpability is reduced. …
6. The matters relevant to the applicant's reduced moral culpability were all taken into account by the sentencing judge separately from a consideration of the objective seriousness of the offending (at [76], [80] and 82]), just as those matters had been put to his Honour. The applicant's submissions on appeal were an attempt to put a different case from what had been argued at first instance. As explained above at [52]-[53], in that context it is necessary for the applicant to establish such a significant miscarriage of justice as to demand that this Court intervene.
7. There is no serious injustice identified here. That is because, as noted earlier, the sentencing judge took all of the matters identified into account in the instinctive synthesis.
8. In any event, the factors now submitted to be relevant to objective seriousness as causal of the offending were only causal in the sense that, for example, Bugmy factors might be said to be causal, ie, they operate to reduce an offender's moral culpability: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [44]; Munda v Western Australia (2013) 249 CLR 600 at [57]; DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156 at [63]-[96]. They were not required to be taken into account when assessing the objective seriousness.
9. This ground should be rejected.

Ground 3: The applicant's ADHD and his moral culpability

Sentence judgment

1. The sentencing judge said: [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 Sheahan 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.

Submissions

1. The applicant submitted that he suffered from ADHD from an early age and received no treatment for it. The applicant submitted that it was a reasonable inference that the ADHD had a significant adverse effect on his ability to progress in his schooling from about the age of 12, and that was a significant factor in his subsequent chronic truancy and anti-social behaviour.
2. The applicant pointed out that the psychologist, Dr Sheahan, reported that the ADHD was "secondary to inattentiveness, impulsivity and inability to comply with classroom expectations". The applicant submitted that it was reasonable to infer that this impulsivity played a role in his decision to participate in the assault on the deceased. The applicant relied on submissions to this effect that had been made by counsel at his sentence hearing.

Consideration

1. The determination of any link between the applicant's ADHD and his offending was a matter for the sentencing judge. This was not a case where any link had been made by a psychologist between that condition and the offending. Senior counsel appearing for the applicant below sought to have the sentencing judge draw an inference that impulsivity and autonomic hyper-arousal and intense anger were factors involved in the offending. The sentencing judge was not obliged to draw that inference. In any event, counsel at the sentence hearing in written submissions acknowledged that it was difficult on the material to distinguish between the role of the applicant's mental health and that of his preparedness to resort to violence to be supportive of the group, which was more a result of his immaturity.
2. In that regard, the sentencing judge said (at 76]) that the applicant's moral culpability was reduced for a number of reasons relating to his immaturity, and ability (or reduced ability) to control impulses and self-regulate. Whether that impulsivity came from his ADHD or otherwise, the sentencing judge accorded him reduced moral culpability for it.
3. The sentencing judge further reduced his moral culpability by reason of his seriously deprived background which led to him seeking out antisocial peers who influenced the poor choices he made.
4. It is difficult, in any event, to see the applicant's role in the offending as impulsive. This was not a situation where a fight suddenly developed, as frequently happens where alcohol, drugs and gangs are involved. This offending was planned with the applicant being involved from an early time. His involvement was prolonged, extending right up until the time when the assault concluded.
5. No error is identified. This ground should be rejected.

Ground 4: Custodial conditions by reasons of COVID-19

Submissions

1. The applicant submitted that restrictions brought about by the COVID-19 pandemic can be a mitigating consideration and the failure of the sentencing judge to refer to it "tends to show" that it was not taken into account. The applicant pointed to what was said in Mr Sheahan's report and to counsel's written submissions to the sentencing judge.

Consideration

1. In Wass v R [2022] NSWCCA 143 Wilson J (with whom Beech-Jones CJ at CL and Dhanji J agreed) said: [69] If an offender asks a sentencing court to ameliorate the sentence to be imposed because of some particular feature, including a feature that has an adverse impact upon the conditions of custody, there must be some evidence placed before the court to support the submission. When the COVID-19 virus first emerged in the community there was widespread concern about the prospect of mass infection and death, evidenced by the onerous public health legislation that severely restricted the movements of members of the community, and the activities in which community members could engage. Reflecting those concerns and the laws quickly implemented to deal with them, including the COVID-19 Legislation Amendment (Emergency Measures) Act 2020 (NSW), the criminal courts accepted evidence that prisoners were also adversely affected by the advent of the virus, and could be or were at particular risk of infection. … [71] The position, however, is not an unchanging one. To the contrary, applicable public health legislation has been frequently passed, amended, and repealed, evidencing the fluidity of the COVID-19 situation. Since the position is not fixed, there must be current and reliable evidence of any adverse consequence contended for if a sentencing court is to take the feature into account when determining the sentence to be imposed; it is not enough to point to the existence of the virus generally, or to decisions of this or other courts handed down at the height of the pandemic, to seek amelioration of sentence. See generally Scott v R at [158] - [164].
2. The only evidence concerning the COVID-19 pandemic before the sentencing judge was the following contained in Mr Sheahan's report: 23. …He described difficult conditions, with reduced amenability due to COVID-19, being out of cell only one to two hours per day. He said that circumstances had improved considerably since that time.
3. The applicant gave no evidence about the effects of COVID-19 on his incarceration to the sentencing judge. However, he gave the following evidence: Q. Since you've been in custody, how would you describe your behaviour? A. Very, very ‑ very bad. … Q. Most of the time that you've been in detention, have you been in something like maximum security classification? A. Yes.
4. In the applicant's written submissions to the sentencing judge, the following appeared: 41. [BE] has experienced some difficulty during his time in detention. He went into detention during the COVID-19 pandemic and experienced protracted lockdowns and limited time out of his cell: at [23]. He has also struggled with relationships in custody (at [12]) which is no doubt a result of his ADHD and severe conduct disorder. His propensity to apprehend aggression and to respond in kind is consistent with his upbringing. 42. While the situation in relation to COVID-19 restrictions has eased, the difficulties [BE] experiences in relating to people other than by anger mean that he has struggled to date and his experience of detention has been onerous.
5. Nothing was said in oral submissions about the subject.
6. The Background Report confirmed that, by reason of the applicant's behaviour, he spent quite an amount of time in the High Risk Unit, but reported to the case worker that he liked the High Risk Unit as a behavioural reset. Nothing was said in the Report about adverse conditions by reason of COVID-19.
7. In our view, there was no error by reason of the sentencing judge not making mention of the impact of COVID-19 on the applicant's incarceration. Any evidence about the matter was scant. The restrictions he faced in custody were largely due to his poor behaviour as he himself agreed. As Button J said recently in Whipp v R [2024] NSWCCA 79 (Davies and Sweeney JJ agreeing): [61] Finally, in considering more broadly the forensic context of this ground, I do not believe that sentencing has devolved to the point where a sentencing judge is required to deal ritualistically, by way of a "tick a box" process or rote recitation, with every single written and oral submission - without discrimination as to its significance or triviality - made on behalf of an offender or the Crown, for fear of an appeal by one party or the other. That would be a victory of form over substance. It would also be an intellectual debasement of what should be a process of considered reflection. It would also impose an intolerable, unworkable burden on sentencing judges. …
8. This ground should be rejected.

Ground 6

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Grounds 5 and 7: Claimed manifest excess

1. The applicant asserted that the pre-discount starting point sentence of 26 years imprisonment and the non-parole period of 10 years were both manifestly excessive in the circumstances of the offence and the offender (being grounds 5 and 7 respectively).
2. After applying the identified discount the sentence was 15 years and 6 months imprisonment. The applicant did not contest the total discount imposed. The sentencing judge found special circumstances for the purpose of s 19(1) of the Children (Criminal Proceedings) Act such that the applicant would serve his sentence in a youth justice centre until the age of 21. His Honour also found special circumstances for the purpose of s 44(2) of the Crimes (Sentencing Procedure) Act to reduce the proportion of the sentence represented by the non-parole period. His Honour stated that the special circumstances were: 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.
3. His Honour said that was similar to the approach taken by Wood CJ at CL in R v SLD [2002] NSWSC 758, which was endorsed by the Court of Criminal Appeal in R v SLD [2003] NSWCCA 310. The resulting non-parole period of 10 years imprisonment represented 64.5% of the total sentence.

Applicant's submissions on Ground 5

1. Senior counsel for the applicant submitted that the starting sentence of 26 years was too long, given the applicant's age, his intention to cause grievous bodily harm, that he acted at the instigation of adults, his "Bugmy" considerations, his accepted remorse and the desirability of fostering his rehabilitation, given his youth and potential for rehabilitation.
2. In support of his submission that the Court must have regard to the starting point sentence, counsel relied on decisions of this Court which have adopted the approach stated by Simpson J in TYN v R [2009] NSWCCA 146 at [33]-[34]. For example, he relied on the statement of Leeming JA and Bellew J in Suksa-Ngacharoen v R [2018] NSWCCA 142 at [3]: The sentence … incorporated a discount … for the applicant's guilty plea … As this Court held in TYN v R [2009] NSWCCA 146 at [33]-[34], where (as here) there is no dispute as to the reductions in sentence to which an offender is entitled, it is necessary to have regard to the undiscounted starting point, lest the discounts be used to conceal and thereby sustain what might otherwise be a manifestly excessive sentence.
3. Counsel also relied on the statement of Bathurst CJ and Walton J in Buxton v R [2017] NSWCCA 169 at [89]: In the present case it was not disputed that the discount … for the plea of guilty was appropriate. In these circumstances, as Simpson J pointed out [in TYN] justice demands that the focus be on the starting point and the proper question is whether the starting point would have been within or outside the range of sentences that could have been imposed for the particular offence in question. However, we would add that even if the notional starting point considered alone was manifestly excessive, it remains necessary to consider whether the sentence in fact imposed was manifestly excessive, making allowance for the undisputed discount for the plea. If any further reduction of the sentence would lead to a sentence which was unreasonably disproportionate to the nature and circumstances of the offence (see Crimes (Sentencing Procedure) Act 1999 s 22(1A)), it could not be said that the sentence ultimately imposed was manifestly excessive.
4. Counsel submitted that the fact the applicant was only 14 years old significantly reduced his moral culpability and required a substantial reduction in the sentence that was otherwise appropriate. He submitted the applicant's immaturity was an important factor in his offending and reduced his criminality, and his conduct had the hallmarks of youth, including immaturity, absence of impulse control, poor self-regulation and tendency to go along with the group, relying on TM v R [2023] NSWCCA 185 at [47], [49] and [52].
5. Counsel also submitted that the Bugmy considerations in the applicant's case significantly reduced his moral culpability and required a substantial reduction in the otherwise appropriate sentence. He submitted where moral culpability is reduced by reason of childhood disadvantage, if the promotion of rehabilitation is not given substantial weight, there is a risk that the offender will be punished for his disadvantaged childhood, relying on Lloyd v R [2022] NSWCCA 18 at [54].

Applicant's submissions on Ground 7

1. In respect of the non-parole period senior counsel submitted that the ratio of 64.5% was unreasonably high but the ultimate issue was the length of the non-parole period of 10 years. Counsel referred to the decisions of Wood CJ at CL (at first instance) and then of this Court in R v SLD, which decisions the sentencing judge stated he took into account (at [87]). Counsel focused on this Court's statement of "the impossibility of making forecasts of future behaviour" in R v SLD.
2. Counsel submitted that the factors which must be taken into account when fixing the non-parole period are the same as those applicable to setting the term of the sentence, but the weight to be attached to those factors and the way in which they are relevant will differ due to the different purposes: Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525 at 531 and 537. Counsel submitted the principle of proportionality recognised in Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 does not apply to the determination of the non-parole period. He submitted the focus should be less on the risk of reoffending and more on the possibility of rehabilitation. He relied on the evidence before the sentencing judge of the applicant's genuine remorse, no significant record of prior convictions, the applicant was still a child in the process of personality formation and maturation, he had made considerable progress in his education during detention, he had engaged well in counselling and developing strategies to manage his behaviour but found it difficult to implement such strategies, he was motivated to change his behaviour, and his poor behaviour in detention, including assaults on staff, was assessed as due to stressors including the court process.
3. Counsel submitted that the applicant's extreme youth at the time of the offence and his significantly disadvantaged childhood, combined with the real possibility of rehabilitation, required a shorter non-parole period relative to the term of the sentence, bearing in mind the principles articulated in Bugmy.

Crown's submissions on Grounds 5 and 7

1. The Crown addressed grounds 5 and 7 together. The Crown submitted that the starting point, head sentence and non-parole period were not manifestly excessive, having regard to the "heinous" nature of the crime, involving a degree of planning, committed in company, and in circumstances where the slightly built deceased child was vulnerable and outnumbered, stripped to his underwear and subjected to repeated attacks over more than half an hour, the latter part being filmed, in which the applicant participated in "vicious, sustained and gratuitous bashing of a child he had never met". The Crown referred to the maximum penalty of life imprisonment, to be compared to the starting point of the sentence imposed on the applicant. The Crown submitted there were limitations in the applicant's subjective case.
2. The Crown relied on statements of the High Court in Bugmy as to the need to protect the community from an offender, referring to the applicant's post incarceration violent behaviour. The Crown also relied on the statement of the High Court in Munda v Western Australia [2013] HCA 38; (2013) 249 CLR 600 at [54]-[55] about the obligation of a court in sentencing to recognise that an offender, by his violent conduct, took a human life and to accord due recognition to the human dignity of the victim, which requires "a just punishment of violent offending".
3. The Crown submitted that the sentencing judge took into account the mitigatory aspects of the applicant's case and the requirements of s 6 of the Children (Criminal Proceedings) Act, and that general deterrence and retribution were important factors in sentencing the applicant, given the extreme violence involved in his offending, and further that the applicant's prospects of rehabilitation were difficult to predict.
4. The Crown submitted that the applicant received a benefit of the adjustment of the ratio of the non-parole period to the head sentence, which is a matter of sentencing discretion. The Crown also submitted that the applicant serving his sentence in a juvenile justice centre until the age of 21 is arguably a relatively lenient outcome for his offence.
5. The Crown relied on "the ultimate constraint that the non-parole period must itself appropriately reflect the criminality involved in the offence": R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704 at [63] per Spigelman CJ, and submitted that the sentence was not unreasonable or plainly unjust.

Consideration

1. The principles in relation to asserted manifest excess are well known, and were usefully summarised in Obeid v R [2017] NSWCCA 221; (2017) 96 NSWLR 155 at [443]: 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.
2. The submissions made on behalf of the applicant had an air about them of seeking to persuade this Court that a different sentence should have been imposed. No submissions were made, for example, that the sentence was disproportionate or harsh when compared to sentences imposed on other young persons for murder.
3. It can be accepted that the 26 year starting point for the sentence was a stern one. The applicant's subjective circumstances were undoubtedly important considerations in the sentencing exercise, including his age, immaturity and disadvantaged background. Yet also significant to the exercise was that the applicant participated in a sustained and brutal episode of beating and kicking a defenceless child, in company, to the point the child died. All of the factors referred to in support of these two grounds were properly taken into account by the sentencing judge.
4. In the circumstances it could not be said that the starting sentence was unreasonable or plainly unjust. It was reasonably open to the sentencing judge to consider that a lesser starting sentence before applying the discounts to which the applicant was entitled would lead to a sentence which would be unreasonably disproportionate to the nature and circumstances of the offence.
5. As regards the non-parole period, in R v Simpson Spigelman CJ said at [57] that "the primary perspective [of the non-parole period] should be the length of the minimum period of actual incarceration". His Honour, at [63], referred to "the ultimate constraint that the non-parole period must itself appropriately reflect the criminality involved in the offence". At [65] his Honour referred to "the need to ensure that the time an offender must spend in prison reflects all of the circumstances of the offence and offender - including the objective gravity of the offence and the need for general deterrence". Those considerations are relevant here.
6. The sentencing judge made a finding of special circumstances, and reduction from 75% to 64.5% cannot be dismissed as insignificant. Indeed, the following submission by senior counsel in that regard is notable: I appreciate that I am getting into tricky territory here because his Honour did make a finding of special circumstances and did reduce the ratio to 64.5% and in the vast majority of cases that would be regarded as entirely appropriate. I respectfully submit it was manifestly excessive, I do make that submission.
7. It was open to the sentencing judge to conclude that to adopt a lesser non-parole period would lead to one which was unreasonably disproportionate to the circumstances of the offence. The non-parole period cannot be said to be unreasonable or plainly unjust.
8. The applicant has not demonstrated that the starting sentence or the non-parole period imposed were manifestly excessive. Grounds 5 and 7 are not made out.

Orders

1. None of the grounds of appeal have been made out. The orders of the Court will thus be as follows: 1. Grant leave to appeal. 2. Dismiss the appeal.

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