(2008) 182 A Crim R 571
R v BE [2023] NSWSC 1007
R v BL [2024] NSWSC 51
R v Sione
Source
Original judgment source is linked above.
Catchwords
(2010) 201 A Crim R 379
KT v R [2008] NSWCCA 51(2008) 182 A Crim R 571
R v BE [2023] NSWSC 1007
R v BL [2024] NSWSC 51
R v Sione
Judgment (15 paragraphs)
[1]
Background Report by Claudia Lyons, 29 November 2023
Ms Lyons is a caseworker with Youth Justice NSW. Much of her report is consistent with the content of Dr Seidler's first report. What follows largely focuses upon additional information. It should be understood as reporting AD's circumstances until five months ago.
The substantive part of this report begins with "Response to Custody". AD has been transferred between various Youth Justice Centres. He has received "numerous misbehaviour reports for reasons including fighting, damage to property, subversive behaviour and disobedience". A significant number of these were received during the first year, possibly being linked with his difficulties adjusting to the custodial environment. It is noted that he has been subject to many incidents, predominantly relating to self-harm.
Positive comments are made about him completing chores and seeking opportunities to help around the unit. He has participated in a Youth Justice offence specific program, Changing Habits and Reaching Targets on a fortnightly basis with his caseworker and reportedly uses what he learns to help him manage being in custody.
AD was also in Stage 1 of the Voyage Program, a therapeutic and educational program which is a component of the Pasifika Cultural Intervention Model. He was reported to engage positively in sessions and interacts well with facilitators and peers.
It is said that he is trying to increase his connection to culture and immerse himself in a more positive community through his involvement in Pasifika but his "promotion and glorification of gang values appears to contradict the values taught through the program". He would benefit from ongoing involvement with Pasifika.
In a part dealing with "Family and Living Circumstances" there is an account which is largely consistent with the history AD provided to Dr Seidler. However, it also includes that his mother reported that her second husband was diagnosed with cancer when AD was eight years old. She described AD taking on a leadership role and being protective over his family at this time. AD recalled that there was less supervision in the home with his mother spending significant periods in hospital with his stepfather. He began affiliating with negative peers associated with the "27" gang. He had older peers who provided financial support and food for himself and his family. He said this contributed to his ongoing loyalty and attachment to these peers.
The report confirms AD is engaging with education. Teaching staff reported that he was a motivated student who had made good progress and worked productively. He is also described as respectful and cooperative in classes. He was due to receive a Record of School Achievement at the end of last year.
AD gave an account of his involvement with a gang which was consistent with what he had told Dr Seidler, including that he intended to continue his affiliation with these peers when he returns to the community but claims this will not involve engaging in pro-criminal activity. He was confident in expressing this claim but was unable to identify specific strategies he could use to remove himself from antisocial situations.
He also provided a broadly consistent account of his abuse of alcohol and a more disturbing account of using cannabis in greater quantities and more frequently in the period leading up to his arrest. He claimed he was under the influence of both at the time of the offence but I note that this is not a mitigating factor.
Dr Annie Parsons, a child, adolescent and forensic psychiatrist had diagnosed AD with major depressive disorder with anxious distress, cannabis and alcohol use disorders, conduct disorder and ADHD. She has prescribed pharmacotherapy to address his mental health and sleep difficulties.
The psychologist AD had been seeing at Cobham Youth Justice Centre confirmed his regular engagement and progress attained.
AD 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 AD 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.
It is not an agreed fact that the object was a screwdriver and nor is it agreed that AD 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.
AD described feelings of anger towards himself, saying that he lost control of his emotions and was unable to control his anger in the moment. He claimed to have reflected on the event and the impact upon Jason and his family. He said he thought about them every day and recognised the suffering caused by his actions.
[2]
Dr Seidler's report of 10 April 2024
Dr Seidler's second report was prompted by the provision to her of additional documentation, being the affidavit of Mr Large of 5 December 2023 and the Background Report by Ms Lyons of 29 November 2023.
After referring to matters discussed in those documents Dr Seidler addressed a number of questions. She referred to a number of factors some of which could be considered to have impaired AD's maturity compared with an average 13-14-year-old and others which could have enhanced it.
Dr Seidler said it was impossible to determine whether AD's childhood conduct disorder will develop into antisocial personality disorder. It is a diagnosis that cannot be made before adulthood. She described antisociality as the strongest predictor of future criminal behaviour. Development of this disorder would increase the likelihood of reoffending and reduce an individual's prospects for rehabilitation. Conversely there would be improvement in relation to these issues. She referred to a number of strategies that would reduce the risk of AD going on to develop the disorder.
[3]
Principles relevant to sentencing children
It is necessary to have regard to the principles set out in s 6 of the Children (Criminal Proceedings) Act. They are as equally applicable where an offender is dealt with according to law:
6 Principles relating to exercise of functions under Act
A person or body that has functions under this Act is to exercise those functions having regard to the following principles-
(a) that children have rights and freedoms before the law equal to those enjoyed by adults and, in particular, a right to be heard, and a right to participate, in the processes that lead to decisions that affect them,
(b) that children who commit offences bear responsibility for their actions but, because of their state of dependency and immaturity, require guidance and assistance,
(c) that it is desirable, wherever possible, to allow the education or employment of a child to proceed without interruption,
(d) that it is desirable, wherever possible, to allow a child to reside in his or her own home,
(e) that the penalty imposed on a child for an offence should be no greater than that imposed on an adult who commits an offence of the same kind,
(f) that it is desirable that children who commit offences be assisted with their reintegration into the community so as to sustain family and community ties,
(g) that it is desirable that children who commit offences accept responsibility for their actions and, wherever possible, make reparation for their actions,
(h) that, subject to the other principles described above, consideration should be given to the effect of any crime on the victim.
Caselaw is replete with further statements of principle that apply in the sentencing of juvenile offenders: for example, KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571 at [21]-[26] (McClellan CJ at CL) and BP v R [2010] NSWCCA 159; (2010) 201 A Crim R 379 at [4]-[6]. They include that considerations of general deterrence and retribution may give way to the rehabilitation of a youthful offender. This is not to say that general deterrence and retribution should be ignored as there is a significant public interest in deterring antisocial conduct. The emphasis given to rehabilitation as opposed to general deterrence and retribution may be moderated in certain circumstances, including where (as here) the crime is violent and of considerable gravity. The younger the offender the greater the weight that might be afforded the element of youth. If immaturity is a significant factor in the offending the criminality of the offender will be less. This provides a counterpoint to the need to denounce, punish and hold the offender to account for what he has done.
The foregoing is not intended to be exhaustive but simply illustrative of the factors that must be carefully considered in the sentencing of a youthful offender such as AD. It is important to recognise that there are no automatic consequences which follow from the fact that an offender is a juvenile. It is a matter of instinctive synthesis of many considerations, some pointing in opposite directions.
[4]
Subjective mitigating factors
AD's moral culpability is reduced because of his age for the reasons given earlier (at [40]) It is also reduced because of aspects of his upbringing. It had the following features which were usefully highlighted in the written submissions of Mr Wilson SC (at [12]):
1. Early exposure to domestic violence;
2. Familial breakdown;
3. Parental absence (father and at times mother);
4. Step father suffering from cancer when the offender was 8 years old;
5. Early introduction to gang culture (age 8) and gang membership (age 10);
6. Early exposure to delinquent and anti-social role models and to substance abuse, criminal behaviour and violence through a gang;
7. Grief (direct and vicarious) due to his mother having a stillborn baby (when aged 9);
8. Mother who was loving but strict and used harsh forms of corporal punishment;
9. Poor school performance and attendance;
10. Childhood sexual abuse at age 13 by older "girlfriend" who was 19;
11. Lack of parental moral guidance in relation to violent behaviour; and
12. A history of self-harm.
Some of these features had a link with AD 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 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.
There was debate at the sentence hearing about a passage in the Crown's written submissions (at [49]) that "the offender's conduct in committing a crime of violence of considerable gravity amounts to 'adult behaviour' or conducting himself in the manner an adult might. Such a finding would permit the court to give greater emphasis to general deterrence and retribution". It would appear this was derived from KT v R at [25]. According to Hodgson JA in BP v R at [6], however, "courts should [not] be over-ready to discount the relevance of an offender's youth on the basis that the offender has engaged in adult behaviour or acted as an adult". Hodgson JA went on to observe about the case at hand that although the offence was a very serious one, it did not involve significant planning or reflection or other indicia of mature decision-making. The offender was aged 16 and the circumstances of the offence suggested emotional immaturity and less-than-fully-developed capacity to control impulses were likely to be contributing factors.
By comparison, the present case also involves a very serious offence but one committed by a 13-year-old offender with, on his part, no planning or reflection and certainly nothing that could be described as "mature decision making". He was emotionally immature and was poorly equipped for reasons provided in the reports to control impulses. The offence, insofar as this offender was concerned, cannot be described as one involving "adult behaviour". It had the attributes listed by Yehia J in TM v R [2023] NSWCCA 185 at [49]:
"[T]he conduct had all the hallmarks of youth, including immaturity, absence of impulse control, poor self-regulation, and a tendency to go along with the group."
In applying these principles, AD's reduced moral culpability will result in less weight being given to general deterrence and retribution and greater weight given to rehabilitation. It is necessary to remain mindful, however, that the offence involved an extreme level of violence and had the consequence that a child's life has been taken; tragically and with unimaginable brutality.
[5]
Plea of guilty
AD's representatives notified the Crown of his intention to change his plea to one of guilty on 25 September 2023. The parties agree that the way the defence had been conducted up until that time confined the prospective trial to a single issue concerned with the doli incapax presumption. The utilitarian benefit arising from this concession by AD that the murder was otherwise proved and his ultimate plea of guilty warrant a discount of 15- 20% according to the Crown and at least 20% according to the defence. An allowance of 20% will be made (with slight rounding down for practical purposes).
[6]
Remorse
The evidence establishes that he is genuinely remorseful.
[7]
Rehabilitation prospects and unlikelihood of reoffending
It was submitted on AD's behalf that his prospects of rehabilitation are "hopeful - especially if he remains in juvenile custody completing his education and receiving psychological treatment and counselling". However, it was contended that it was difficult at this stage to assess his prospects of rehabilitation and likelihood of further offending due to his conduct disorder and the question of whether he will develop an antisocial personality disorder.
Provision is made in Pt 4, Div 2A of the Crimes (Sentencing Procedure) Act 1999 (NSW) for provisional sentencing of child offenders in murder cases. It may be a procedure that could be useful in a particular case, although the fact that no provisional sentence has been imposed in the 11 years since Div 2A was inserted in Pt 4 of the Act indicates that it has never been thought to be an appropriate course to take.
The first three preconditions for such a sentence set out in s 60B(1) are met in this case: AD was less than 16 when the offence was committed; he is less than 18 now, and the proposed sentence is a term of imprisonment. The fourth precondition is that the court be of the opinion that "the information presently available does not permit a satisfactory assessment of whether the offender has or is likely to develop a serious personality … disorder … such that the court cannot satisfactorily assess either or both of … whether the offender is likely to re-offend [or] the offender's prospects of rehabilitation".
In relation to whether a satisfactory assessment of those matters is possible now, it is the case that AD's gang affiliations and stated intention to maintain them is a matter of concern. On the other hand, there are some good reports about his conduct and performance, and he has demonstrated progress in the two and a half years he has been in custody. As it was put in submissions, he has gone from being a serial truant to a student who has completed Year 10 and is now working towards his Higher School Certificate. Instances of misbehaviour have reduced in their frequency. Much will depend upon him continuing to apply himself with the opportunities provided in Youth Justice Centres where the resources for young offenders appear to be greater than they are in adult correctional centres.
A satisfactory assessment can be made at this point. Even if I were not of that view, I would be concerned about imposing a sentence provisionally for two reasons. First, if it did transpire that AD attracted a diagnosis of antisocial personality disorder, that would be a matter of concern and suggest that there should be a longer sentence to acknowledge the need for community protection. That would not be possible, however, as s 60G(3) provides that the final sentence, including its non-parole period, can be no longer than the provisional sentence. Secondly, the deferment of final sentencing for up to five years would be to impose further trauma upon Jason's family. It would also have the potential to be burdensome for AD himself, not knowing his fate with certainty for years.
That is all hypothetical in the view I have formed that the fourth precondition to be met before a provisional sentence can be imposed is not met. The assessment that is possible to be made at this point is that AD's prospects of rehabilitation and avoiding reoffending are reasonable.
[8]
Pre-sentence custody
AD has been in custody since his arrest on 5 August 2021. His sentence will need to be backdated to that date.
[9]
Special circumstances and the non-parole period
There are special circumstances warranting a reduction of the non-parole period of the sentence. They include the very young age at which AD first entered into custody and the need to provide him with guidance and support upon his re-integration into the community upon release on parole. That is evident for a number of reasons including monitoring him in relation to any gang affiliation and substance abuse. It is also appropriate to allow a greater degree of flexibility to the State Parole Authority as to when it is appropriate to permit release on parole having regard to his maturity and progress towards rehabilitation. The restrictive conditions experienced due to COVID-19 during the first year or so of custody is also a relevant factor.
[10]
Special circumstances and serving sentence as a juvenile
It was submitted that there were "special circumstances" for making an order under s 19(1) of the Children (Criminal Proceedings) Act that AD 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. I am satisfied this is appropriate. I accept the opinion of Dr Seidler in this respect. She considered the programs and interventions within the juvenile justice system will better meet AD's needs. She felt he would be vulnerable in the adult correctional environment, most particularly from the adverse influence of those more entrenched in an antisocial world view and peer culture that he may seek to model himself in order to fit in and be safe. She also advised it would be unlikely AD would be able to seamlessly continue with his Year 12 studies if he were to be transferred to an adult facility when he turns 18 in August 2025. The combined force of those matters provides "special circumstances" under s 19(4) for making the order.
[11]
Parity
The sentence to be imposed upon AD 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 AD 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 AD 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.
[12]
Family victim impact statement
I again wish to express my admiration and gratitude for the courage of Ms Rachel Galleghan in describing the impact this terrible crime has had upon her and her family. She has attended court every day of the proceedings concerning each of the offenders.
The importance of family victim impact statements should never be underestimated. In this case Ms Galleghan has described for the benefit of the court, the public, and (importantly) the offenders the profound and enduring grief, pain and loss that are the consequences of their appalling conduct. This is an aspect of harm that is caused to the wider community. I extend sincere condolences to all of Jason Galleghan's family and friends.
[13]
High risk offender legislation
The Crimes (High Risk Offenders) Act 2006 (NSW) has potential application to AD upon his release. I ask that his solicitor explain the ramifications of this to him.
[14]
Sentence
Convicted
Sentenced to imprisonment comprising a non-parole period of 9 years and 3 months and a balance of the term of the sentence of 5 years and 1 month.
That is a total sentence of 14 years and 4 months. It has been reduced for the reasons given from a starting point of 18 years.
The sentence is to date from 5 August 2021 which means that AD will become eligible for release on parole when the non-parole period expires on 4 November 2030. The total sentence will expire on 4 December 2035.
Pursuant to s 19(1) of the Children (Criminal Proceedings) Act 1987, AD is to serve his sentence as a juvenile offender until he attains the age of 21.
A copy of the two reports of Dr Katie Seidler dated 24 November 2023 and 10 April 2024 are to be provided to Youth Justice NSW.
[15]
Endnotes
There has been consent to the identification of the deceased pursuant to s 15E of the Children (Criminal Proceedings) Act 1987 (NSW). The date of the murder on the indictment is 6 August 2021 to reflect the date of death.
Children (Criminal Proceedings) Act, s 3(1), s 17
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Decision last updated: 24 April 2024
Two co-offenders have previously been sentenced: R v BE [2023] NSWSC 1007 and R v BL [2024] NSWSC 51. The statement of agreed facts in each case differ in some respects with those in the present case and with the facts found in the judge-alone trial over which I presided: R v Sione; R v Dawson [2024] NSWSC 378. I propose to confine attention to the facts agreed between the parties in the present case.
Police obtained footage from domestic CCTV cameras as well as mobile phone data which allowed precise times to be assigned to some of the events described in the agreed facts.
The following people (with their ages indicated) were involved in events leading up to and at the time of the murder:
Richard Sione (32 years)
Kayla Dawson (19 years)
BL (15 years, 1 month)
BE (14 years, 8 months)
MM (15 years, 2 months)
TB (13 years, 3 months)
AD (13 years, 11 months)
The deceased, Jason Galleghan, was aged 16. He and Ms Dawson had known each other for some time. When she moved to Doonside Jason visited her and her boyfriend, Harley Bartolo, at their modestly sized home in Perigee Close.
Ms Dawson became friendly with Richard Sione and Stacey Pale who is said to have been Mr Sione's partner. Ms Dawson also came to know the five young persons listed above. There is no evidence as to the nature or extent of her prior contact with AD.
Jason and Ms Dawson exchanged phone calls and text messages in the week or so prior to the offence. On 4 August 2021 she arranged for him to come to Doonside as part of a plan to set him up to be "bashed" because she believed he had stolen her AirPods. Whether AD was informed of this is unknown.
Ms Dawson and BL each made frequent calls and sent texts to Jason during the afternoon of 4 August 2021 to ensure he was coming to Doonside. Present at the house were AD, Mr Sione, Ms Pale, Ms Dawson, Mr Bartolo and young persons TB, BE, BL and MM. Also present were friends of Mr Sione, Thomas Pakau and Rebyll Oaariki.
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 Jason at 3.56pm. The five walked back to the house together, arriving at 4.09pm.
Everyone, except Ms Pale, entered the house. The victim walked through the lounge room and into a spare bedroom with Mr Sione where the assault commenced.