R v BL

Supreme Court of NSW|2023-12-12|Before: Hulme AJ

Solicitors: Director of Public Prosecutions (NSW) (Crown) Guirguis Legal (Offender) File Number(s): 223946/2021

JUDGMENT

BL is a child who is to be sentenced for the murder of Jason Galleghan at Doonside on 4 August 2021.
Murder is a "serious children's indictable offence" which must be dealt with according to law rather than under Pt 3, Div 4 of the Children (Criminal Proceedings) Act 1987 (NSW). [1]
The maximum penalty for murder is life imprisonment. Standard non-parole periods do not apply where the offender is a child.
I have previously sentenced a co-offender who was also a child: R v BE [2023] NSWSC 1007. Because of the similarities between the two cases these sentencing remarks will replicate quite a deal of what I said then. As in that case, for reasons I have discussed with counsel, this judgment has no value as a comparator aside from consideration of parity of sentencing of co-offenders.

The recordings

That night at Mikado Way, Ms Dawson, Mr Pakau, Mr Oaariki, AD, MM and the offender watched videos of the assault, one of which was also uploaded to Instagram. The total recording time of the videos was 4 minutes and 3 seconds however 33 minutes elapsed from the commencement of the assault by Mr Sione until the departure from the house of BE, TB, MM, AD and the offender.
The agreed facts refer to there being an overlap between the first recording on the offender's phone and a recording from Ms Dawson's phone but they are said to have starting times and a duration that makes the assertion of overlap seem incorrect. In fact, it is unclear whether the sequence of the recordings is correct in that it appears possible that the two recordings on the offender's phone precede that which was derived from Ms Dawson's phone. However, I was told at the hearing that the starting times may be misleading in that they may be an artefact of a recording being sent from one phone to another and not reflective of the actual times the recordings commenced. I was assured that there is in fact some overlap between the two recordings mentioned. This is significant for the following reason. In the sentence proceedings for BE there was evidence tendered as to how many times he and other offenders were seen to strike or otherwise assault the deceased. Evidence of this type has not been tendered in these proceedings in the same level of detail so the fact of an overlap, and its extent, is of no or little material consequence.
The first of two recordings recovered from the offender's phone is of 1 minute and 59 seconds duration and is said to have commenced at 4.23pm. This was a few minutes after Mr Sione had left, whereafter the assault was continued by the juveniles. This recording includes: 1. Injuries can be seen on the deceased's body from the earlier assault by Mr Sione during which the deceased's clothing had been removed. 2. MM yelled at the deceased, "If you fuck with my family again cunt … I'm going to fuck you up". She continually yelled and screamed, encouraging others to assault the deceased. She yelled, "Stomp on his fucking head, stomp on his fucking head … get him … stomp on his fucking head …". 3. BE, TB and AD punched, kicked and stomped 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". The offender contributed, "Yeah go hard … Don't stop until he is fucking knocked out cunt". The agreed facts include that "this particular part of the assault was sustained and extremely vicious". 4. The offender gave his phone to Ms Dawson and asked her 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". 5. BE, TB, AD and the offender continued to violently assault the deceased by kicking, punching and stomping on his head, chest and body. At one point the deceased stood up and the offender yelled, "Sit the fuck down" before slapping the deceased in the face.
It is agreed that in this recording, the offender can be seen to hit or punch the deceased 6 times, kick him 3 times and stomp on him 4 times.
A recording with a duration of 1 minute 26 seconds was recovered from Ms Dawson's phone. It is said to have commenced at 4.31pm. However, it is also said to overlap part of the first recording on the offender's phone but shows events from a different angle. It includes the following events: 1. MM grabbed the deceased by the hair and rammed his head into a gyprock wall repeatedly until a hole was created. She then slapped and kicked him in the face causing his head to jolt back into the wall numerous times. She yelled expletive-laden abuse at him. 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 to look up to AD. She then yelled, "A good kick to the face" and tapped AD's back. AD then kicked the deceased's face with force, jolting his head backwards and causing it to hit the gyprock wall. AD and TB then each kicked the deceased in the face. 3. BE and the offender told the deceased to stand up but the deceased repeatedly said he was going to "pass out". The offender grabbed him by the hair, threw him across the room onto the floor and then stomped on the deceased's chest and applied pressure. The deceased rolled onto his side and the offender continued to hold his foot with pressure on his chest. BE also stomped on the deceased.
The agreed facts include that "the deceased was clearly struggling and was in and out of consciousness, lying adjacent to the doorway".
The second recording on the offender's phone is said to have commenced at 4.39pm and runs for 2 minutes and 17 seconds. It includes the following: 1. The deceased was standing against a wall with AD holding his hands. MM and AD demanded the deceased speak to the camera and say, "Fuck 21", "27 on top", "Fuck KVT", "Fuck MOB". These are acronyms for local youth street gangs. 2. At the conclusion of the recording, the deceased was forced to his knees by MM. AD and the offender said, "Kiss my fucking shoes". The offender took possession of MM's phone and said, "Here, I'll film it".
It is agreed that in this recording the offender is seen to hit or punch the deceased twice and stomp on him twice.

The aftermath

Later in the evening of 4 August 2021 the offender and Mr Sione were out walking in the area and came across a person who asked, "What happened around the corner?" Sione replied, "I just bashed this boy. I had to take off before the cops came. I left all the young ones around there to finish him off." The offender took out his phone and showed the person the two recordings of the assault upon the deceased.
Mr Sione and the offender were arrested later that evening. They each told arresting officers that they had not been present at the house at Perigee Close earlier that day. The offender exercised his right to silence and declined to be interviewed. His phone was seized and was found to contain three deleted video files recording the assault. He had recorded two; the third was likely a recording sent to him by someone else. [4]
On 5 August 2021, the offender was asked to come out of a cell at Blacktown police station in order to speak with two police officers. The following conversation occurred: Officer 1: Alright [BL], do you want to come out here for a second? BL: I shall do. Officer 2: What's going on? We've got your phone. We've got the videos. They are clear. BL: What you seen what I did? I kicked him and when he tried to stand up, it made me mad, so I punched him in the head once. Officer 1: What about his ribs? BL: When he rolled over, I pushed my foot into his side. Officer 1: Your foot was on his chest. We could hear his bones break. BL: No wonder you heard the crack, every cunt flogged him. Officer 2: But why did you do that? It was extremely violent. What did he do to deserve that? BL: Do you know [the house in Perigee Close]? He stole from the lady there. I live there too. He stole from the house. When you live this life, you don't steal and shit. Officer 1: How was it that bad that he deserved that? BL: He was a dog. Officer 2: Why did he come over then? BL: Kayla organised him to come over and told him we were going to be erching. Officer 1: Erching? BL: Yeah breaking into cars and shit. Officer 2: We got your mates too. BL: Who [BE] and [TB]? Officer 2: Yep. BL: Good, I'm glad you caught them. Officer 2: Do you want to go on tape and tell me that he stole from you, that he deserved that? BL: I'm not a dog. That's why I didn't talk before, the cunt deserved it. Officer 2: He's doing to die, dead.
The deceased died the following morning. There was extensive bruising, abrasions and lesions as well as a fractured jaw, internal haemorrhaging and various forms of acute brain injury. The injuries were widespread over most of the body. The forensic pathologist described the cause of death as "complications of multiple blunt force injuries to the body".

The offender

The offender did not give evidence at the sentence hearing. Information about him was to be derived from two Juvenile Justice reports and two reports by Dr Susan Pulman, senior forensic psychologist and senior clinical neuropsychologist. There was also a reference from Ms Juleigh McFadden, the offender's maternal aunt.
Dr Pulman's first report is dated 24 May 2023 and followed her interviewing and assessing the offender on 23 August 2022, 8 November 2022 and 8 March 2023. Her second report is dated 11 December 2023 and followed a further interview with the offender on 21 November 2023. It includes observations made by her as to the offender's progress in the 2 years and 3 months he had been in custody.
The offender is the youngest of his mother's two sons. He was born in Blacktown in June 2006. He was just over the age of 15 at the time of the offence and will turn 18 in just under five months' time.
The offender's father left the family a few months after the offender's birth. His mother re-partnered with a man who lived with the family until the offender was aged 8 or 9. It was not until after he had left that the offender was told that the man was not his father. The offender was exposed to family violence throughout this period.
The offender told Dr Pulman about witnessing domestic violence in the home with his mother being "beaten up" by her partners. He described them as "mostly party boys, abusive, drinking". His mother told Dr Pulman that her own mother had been an alcoholic who had failed to protect the children from witnessing physical abuse and experiencing sexual abuse. This led to the offender's mother being protective of him, implementing strict rules concerning his whereabouts in order to minimise any risk of harm to him getting abused by others as she had experienced as a child.
I gather from the history in Dr Pulman's reports that the grandmother was supposed to be assisting in the care of the offender and his older sibling but she showered attention on his brother while ignoring the offender's needs. As a single parent, the offender's mother was working and studying at university to upgrade her qualifications to become a registered nurse with little support from her family. She would come home from work and find that the offender had been locked out of the house, his grandmother having told him to wait outside until his mother came home. The offender said he ran away from home and stayed with mates who were older than him who he had met around the streets.
Dr Pulman reviewed extensive documentation which prompted her opinion that the offender's mother was likely experiencing her own mental health and financial difficulties working, studying and looking after two children on her own and had minimal emotional reserve to manage the many behavioural and emotional challenges the offender was exhibiting. The notes included regular reports of the offender being late for school, not having any lunch, not having taken medication, being sometimes dirty and tired, and regularly absconding from school.
The offender's education progressed to Year 9 in 2021. He was suspended on 13 May 2021 for 20 days and did not return. He ran away from home. He told Dr Pulman that he was "never any good at school, I had problems concentrating and didn't have any friends". He attended Redbank House at the Children's Hospital at Westmead for almost half of 2016 due to behavioural difficulties and learning problems. Department of Education records indicated an extensive history of behavioural difficulties commencing in kindergarten. Dr Pulman read that there had been diagnoses of "ADHD (Inattentive), Oppositional Defiant Disorder, language difficulties with problems engaging with his peers and his behavioural and academic concerns were to be considered against his background of developmental trauma".
The offender told Dr Pulman that he had been prescribed Ritalin when he was diagnosed with ADHD in primary school which he took up until the time he ran away from home. His mother described symptoms to Dr Pulman that she thought meant her son had autism but Dr Pulman said were suggestive of complex developmental trauma and not specific to autism.
Dr Pulman referred to extensive efforts made by the Department of Education to assist the offender. However, she said: [5] Despite this [the offender] was unable to regulate his behaviour due to ongoing family dysfunction and attachment difficulties including the loss of his stepfather, the re-emergence of his biological father into his life at the age of eight years, both his stepfather and biological father's decision to cease any relationship with [the offender], the ongoing tumultuous relationship between his mother and grandmother, lack of supervision and emotional support in the home and a family history of trauma. [The offender] was noted to be unable to socialise with his peers, focus for any period of time, unable to regulate his emotions or understand the emotions of others. He was raised in an environment with constant exposure to family violence whereby such behaviour became ingrained and normalised. His mother was evicted from her home with [the offender] staying with friends and going missing on several occasions. [the offender] had reported at times that he did not wish to return home because his mother was abusive as was his grandmother. A child living in a constant state of alarm and fears of safety is unable to learn effectively at school or understand how to self soothe resulting in aggressive and uncontrolled outbursts in behaviour, self harm, substance abuse and poor self-identity.
Dr Pulman administered some neuropsychological assessment tests in March and November 2022. A test on motivation and effort indicated that his performance should be interpreted with caution as it may not be a true reflection of his actual abilities. As a result they are not worth reviewing.
The offender was prescribed Fluoxetine when he came into custody which he initially reported had him feeling "good now" but when Dr Pulman saw him in November 2023 he had unilaterally ceased taking it, seemingly because of a body image concern arising from the side effect of weight gain. The offender's mother had been told by a caseworker that he was again self-harming, suggestive of continuing symptoms of a mood disorder. Progress notes confirmed this.
The offender told Dr Pulman that he started consuming alcohol after his 15th birthday (which was shortly before the murder). He denied having used any illicit substances although acknowledged he had used cocaine once and on the day of the murder he had been consuming cannabis and alcohol.
That appears to be in conflict with the Juvenile Justice report of 17 February 2022 which includes (p6) that the offender was not only drinking alcohol but was also smoking cannabis on a regular basis. This was after he started socialising with a peer group with whom he engaged in anti-social behaviour, used alcohol and drugs and committed crime.
The earlier Juvenile Justice report included: [6] [The offender] reported that he developed a strong loyalty to these friends and trusted them. However, since the offences took place and he entered custody, [the offender] advised that he does not want anything to do with these former friends and described them as negative influences.
The more recent report quoted that and continued: [7] [The offender] added that as he started to spend more time with this negative peer group, the group started to expand and they would spend the majority of their time at co-offender Kayla Dawson's house. [The offender] advised that there was always a large number of people spending their time at Ms Dawson's and all their time was spent drinking alcohol, consuming drugs and partying. [The offender] reported that he was enjoying this lifestyle of no rules, being with friends all the time and he did not want to leave the environment.
The account about drug use to Dr Pulman is also in conflict with another passage in the earlier report (p4) which records that on about 19 July 2021 there was engagement by Community Services with the offender after he had been brought to hospital in a drug-induced psychosis after taking what appeared to be methamphetamine. He was reported to be very aggressive at the time.
In the conclusion to her latest report (at p14) Dr Pulman referred to literature indicating that children exposed to trauma, such as the offender had been, experience altered brain development which can lead to an increased susceptibility to stress, poor impulse control, lack of awareness of their own and other people's emotions, reduced ability to consider options in the moment and reduced help seeking behaviour. She concluded that the offender would satisfy the diagnostic criteria for ICD Complex Post Traumatic Stress Disorder. This required specialised trauma therapy in order for him to develop the skills to self-regulate his behaviour.
Dr Pulman then said the following about the impact of this upon the offender's behaviour relevant to the offending: [8] [The offender's] impaired brain development, together with his ADHD, poor self concept and need to belong contributed to him seeking to engage with any peer group that he felt would provide him with a sense of belonging. He was therefore highly vulnerable to the influence and exploitation of antisocial peers and his need for acceptance would likely have overridden his decision making ability and his capacity to think through the consequences of his actions for the benefit of others. … [the offender] may have felt his own safety was at risk if he did not go along with the activities of the peer group on the day of the alleged offence. [The offender] expressed considerable regret over his actions in the index offence.
Dr Pulman ended the report with a description of the type of intense ongoing psychotherapy the offender required. She also recommended he be reviewed by a forensic psychiatrist with a view to determining the appropriateness of a reintroduction of antidepressant medication to address his ongoing symptoms of a mood disorder and thoughts of self-harm.
A positive matter included in Dr Pulman's latest report is the following. After referring to her earlier interviews of the offender in November 2022 and March 2023 she wrote: [9] The writer therefore had the opportunity to observe [the offender's] emerging maturity over a period of 12 months. The writer observed a change in [his] capacity to reflect on his offending behaviour in line with his developing maturity and insight into the consequences of his actions. He appeared ashamed of his behaviour and involvement in the actions leading [to] the death of the young victim. He repeatedly said, "it shouldn't have happened; it should have all been settled in a different way. It was terrible what happened." [The offender's] expression of remorse was more focused on the harm caused to the victim and his family and less egocentric than his responses 12 months earlier.
The Juvenile Justice report of 27 September 2023 includes an account provided by the offender of his involvement in the murder. It conflicts in a number of respects with the statement of agreed facts which he signed. One matter that is not in conflict is concerned in part with a matter motivating him to behave as he did. It is set out in some detail in the report (at p7), but it will suffice to say that he claimed he had reason to prove a point and that it prompted him to act more aggressively. Later (at p8) it is reported that he said he was trying to impress his negative peer group by doing things that he would not normally do. He wanted people to think that he was tough and to have a reputation as someone who would do anything, regardless of the consequences. He was swept up in a lifestyle that had no rules and he was free to do as he pleased. He had an attitude of "not caring about anything".
However the report includes: [10] When reflecting on his thoughts on the offence now, [the offender] advised that he is upset, disappointed and ashamed of himself and what he did to the victim. [The offender] advised that his behaviour was "disgraceful" and said that he was never a violent person prior to meeting his co-offenders. [The offender] advised that he was a shy person that struggled to make friends and just wanted to be accepted; and this lead to the situation that he is in now. [The offender] advised that he "took a life" for a reason that he described as "silly" and that the victim could have gone home and lived a normal life, and now his family will never see him again. [The offender] also advised that his actions have also impacted his mother and feels sorry for what he has done to her. [The offender] advised that he wants to go back in time and tell himself that his mother loves him and to just go home. [The offender] advised that his co-offenders mean nothing to him now and he never wants to associate with them again.
The letter from Ms McFadden, the offender's maternal aunt, relates many positive qualities she and her family see in him despite the traumatic events that beset his upbringing. She confirmed that they will support him in the future.

Criminal history

The offender has a criminal history that is of only marginal significance for present purposes. Eight offences committed on 3-4 June 2021 and 29-30 July 2021 were dealt with by way of dismissal with a caution or imposition of a bond by the Children's Court on 18 February 2022.
There was also an offence later on the night of the murder, a matter of robbery in company. The person with whom the offender was in company was Richard Sione. [11] That was also dealt with by the Children's Court on 18 February 2022 and a bond was imposed.

Progress in custody

A "Custody Information" report provided information about the offender's progress at the Cobham Youth Justice Centre from 4 October 2022 to 15 September 2023. It is a generally positive report recounting his involvement in a variety of educational, personal development, vocational, and psychological courses and programs.
The offender is said to be learning cultural responsibility and obligation. He is engaged in the Indigenous Art Program and is involved with the Afro-Nited program which is designed to challenge offending behaviours and equip participants with skills to become positive role models and leaders in their communities. He is a group leader in the PCYC Fit 4 Life program and a mentor in the Shine 4 Kids program.
All of this is positive but unfortunately there have also been 11 "misbehaviour reports", six of them for fighting, and six "incident advices", two of which involved him as the perpetrator of a physical assault on a young person.

Family victim impact statement

Ms Rachel Galleghan, with considerable courage, again provided a heart-rending family victim impact statement. She had previously done so for the sentence hearing last August concerning BE.
Ms Galleghan described the most terrible experience she has endured since she received the awful news on 4 August 2021 concerning her beloved son. I observed on the last occasion and repeat that Ms Galleghan, her two daughters, extended family and friends have lost much more than can be fully comprehended. Nothing the criminal courts can do can change any of that of course. I emphasise that the provision of this family victim impact statement is an important part of the proceeding and it has not been forgotten. Again, the sincerest condolences are extended to all Jason Galleghan's family and friends.

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

In sentencing BE I described the objective seriousness of the offence and I will repeat it with necessary modification where appropriate.
A starting point for identifying matters relevant to the objective seriousness of the crime is 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 stolen some earphones. While killing him may not have been premeditated by the offender, he certainly contemplated that there would be a serious group assault. That was why the deceased was summoned and brought to the house. The offender played an active role in luring him by his calls and text and then being one of the offenders who met the deceased at the railway station and accompanied him to the house.
The assault involved prolonged, frenzied and extreme violence inflicted by a crazed rabble upon a virtually naked 16-year-old boy who was vulnerable and defenceless. The offenders carried this out with apparent glee in front of cameras recording their disgraceful behaviour, and the humiliation of their victim, for the consumption of depraved viewers including subscribers to a social media platform.
The offender claimed to have been under the influence of alcohol and cannabis at the time but his counsel correctly conceded in written submissions (at [10]) that this is not a matter of mitigation.
Many murders are committed with the use of a weapon but that was not the case here. However, this killing occurred slowly, at the hands and feet of multiple offenders and over a prolonged period. Before finally lapsing into unconsciousness, the deceased child must have experienced increasing levels of pain and agony, contemplating how much worse it was going to become and not knowing when or how it was going to end.
The role of the offender was no less heinous than any of the other juvenile 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 Mr Sione which he agrees that he and the others encouraged. He then participated as enthusiastically as anyone in the assault that continued for the next 20 minutes.
There can be various mental states for the crime of murder, most usually an intention to kill or to inflict grievous bodily harm. At one point of the attack the offender said, "I'm going to kill this [expletive]". However, whether he meant this literally is not clear. In the end I have a reasonable doubt about whether he acted with an intention to kill and will sentence on the basis that he intended to inflict really serious bodily harm.
In sentencing BE I described this as a murder of very great seriousness. Counsel for the present offender acknowledged and made no criticism of this for the purpose of sentencing his client. [12]
Despite the high gravity of the crime and the offender'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. There are also other matters that reduce the offender's moral culpability.

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). 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 BL. 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.
Supplementing those considerations is the need to take into account the circumstances of the offender's childhood, including the family violence to which he was exposed. This is a reference to the matters that led Dr Pulman to say that the offender satisfied the diagnostic criteria for Complex Post Traumatic Stress Disorder. This and the other diagnoses and descriptions of the offender's personality and psychological make up add to the need to find a reduced level of moral culpability.

Findings as to some subjective matters

It was submitted that the foregoing matters will result in a custodial sentence weighing more heavily upon the offender. [13] Counsel explained that the offender's difficulty in self-regulation would likely result in him coming into conflict with other inmates or staff, and his anxiety might involve him having anxious ruminations about matters that may arise in custody. [14] This appears to be somewhat speculative.
Less weight will be given to general deterrence as a result of the offender'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 the 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.
It is accepted that the offender is remorseful. [15] The assessment made by Dr Pulman in multiple interviews over a 14-month period, and the material in the Juvenile Justice report, provide a sound basis for that conclusion.
Counsel submitted that the offender has good prospects, or at least reasonable prospects, of rehabilitation. [16] The latter is probably more apt. The offender is now 17 and whether the programs etcetera with which he has been involved over the past year or so are likely to be successful in this respect remains to be seen. At the present time there is cause for optimism.
A submission that the offender was "not fully aware of the consequences of his actions because of his age" must be rejected. [17] He was a party from the very beginning to a joint enterprise in which he intended that the deceased would suffer really serious bodily harm. His physical participation commenced after he had encouraged the considerable violence meted out by Mr Sione. The consequences of the actions of himself and the others were increasingly and visibly obvious as the deceased was battered unmercifully for over half an hour.
It is necessary that a 25% sentencing discount be provided on account of the offender's plea of guilty being entered in the Children's Court.
It was submitted that there were "special circumstances" for making an order under s 19(1) of the Children (Criminal Proceedings) Act that the offender 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 because it will enable the offender to continue with the intensive rehabilitative programs with which he is presently engaged. A further basis for making such an order is that the offender has been subjected to some bullying and has been the victim of some assaults while in juvenile detention and he would be at additional risk if transferred to an adult correctional centre when he turns 18 next June. The combined force of those matters provide "special circumstances" for making the order.
There are also "special circumstances" for the purposes of s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) 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 the offender to be released on parole, having regard to his youth and 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]. It was the approach that was taken in sentencing BE.
The offender has been in custody since his arrest on 4 August 2021 and so his sentence should be backdated until then.
The Crimes (High Risk Offenders) Act 2006 (NSW) has potential application to the offender when the time comes for release from custody. The offender's solicitor will explain the ramifications of this to him.

Parity

It is necessary to bear in mind the sentence imposed upon BE and how it was determined in order to assess a sentence for BL that is appropriately proportionate with it.
The Crown submitted that the overall effect of the objective seriousness of the offences committed by each, their moral culpability and their respective subjective cases are very similar to the point that there is little basis to depart significantly. No attempt was made by counsel for the offender to counter this submission which I accept. [18]

Sentence

Convicted. Sentenced to imprisonment comprising a non-parole period of 10 years and a balance of the term of the sentence of 5 years and 6 months. That is a total sentence of 15 years and 6 months. The sentence is to date from 4 August 2021 which means BL will become eligible for release on parole when the non-parole period expires on 3 August 2031. The total sentence will expire on 3 February 2037. BL is to serve his sentence as a juvenile offender until he attains the age of 21. A copy of the reports of Dr Susan Pulman dated 11 December 2023 and 24 May 2023 are to accompany the warrant.

Endnotes

Children (Criminal Proceedings) Act, s 3(1), s 17
There has been consent to the publication of the deceased child's name pursuant to s 15E of the Children (Criminal Proceedings) Act
When sentencing BE on 23 August 2023 there was a need to anonymise Kayla Dawson and Richard Sione as they were then the subject of outstanding proceedings involving a jury. However, on 15 December 2023 an order was made that they be tried by judge-alone.
T16.3-16.16
Dr Pulman report, 11.12.23, p11
Juvenile Justice report, 17.2.22, p6
Juvenile Justice report, 27.9.23, p5
Dr Pulman report, 11.12.23, p14
Dr Pulman report, 11.12.24, p3
Juvenile Justice report, 27.9.23, pp 8-9
T9.25, 11.24-11.27
T16.31
Defence written submissions (DWS) at [22]
T12.15
DWS at [13]-[15]; T17.37
DWS at [40]-[43]; T17.39
DWS at [12]; T17.40
T21; 22.44 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 February 2024

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