R v Sione; R v Dawson

The offence

1. In the verdict judgment (at [271]-[290]; [341]-[352]) I set out the findings of fact which led to satisfaction beyond reasonable doubt that each offender was guilty of murder (subject to consideration of the partial defence of substantial impairment in the case of Ms Dawson). I draw the following from that section of the judgment, omitting presently irrelevant material.
2. Kayla Dawson went out during the morning and arrived home at Perigee Close on 4 August 2021 at 12.31pm. She spoke by telephone with Jason for about 2½ minutes from 12.36pm. Both Ms Dawson and BL attempted to call Jason at 12.46pm with only BL being successful. BL sent a text to Jason at 12.56pm: "2.00 Jason we go kb [sic - kickback] for bit and then go roll cunts". At some stage between 12:31pm and 12:56pm, Ms Dawson made her belief that Jason had stolen her AirPods known to BL (at least). It was decided that Jason would be lured to Doonside and bashed as punishment, revenge, or retribution for the theft. By the time BE sent a text at 1.50pm ("me n 2 of the boys are bashing someone to day Imao") four people were engaged in this criminal enterprise: Ms Dawson, BL, BE and TB.
3. Jason caught a train at Sydenham railway station at about 2.32pm. At about the same time, Mr Sione, MM and AD arrived at the Perigee Close home. Ms Dawson and BL were making frequent attempts to contact Jason, not always successfully. The progress of his journey was being monitored. There was a level of impatience according to BL.
4. Most of the people present were intoxicated by alcohol and some by drugs as well. Photographs were being taken, one of which showed Mr Sione with all the young persons out the front of the house at 2:57pm. Both BL and BE said (and it was not specifically disputed) that around this time there was talk about the proposal to bash Jason. The house was small. In all the circumstances it is inconceivable that anyone in the house could not have known of the plan. That was the broad effect of Mr Bartolo's evidence as well.
5. The plan was for Jason to be brought to the Perigee Close home where he would be bashed. That was clear by at least 3.37pm when BE sent texts from the house saying, "he's nearly at doonside station … we gotta take him from doonside station [to] here … to the house".
6. At 3.38pm MM invited Thomas Pakau to come to the Perigee Close home. He arrived with Rebyll Oaariki at 3.50pm. Ms Dawson, BL and BE had left to walk to the railway station at 3.44pm.
7. Having been met on arrival at the railway station at 3.56pm, Jason walked with Ms Dawson, BL, BE and Ms Pale to the Perigee Close home. At 3.58pm BE alerted MM by text messages that they were "with him" and were "on our way back". They arrived at 4.08pm. Jason and others mingled on or near the front verandah for a short while before entering the house.
8. Jason was immediately taken to a bedroom where he was assaulted, first by Mr Sione and then by the five young persons with Ms Dawson watching, recording and at one point transmitting a recording.
9. The assault by Mr Sione was very violent. BL and BE were consistent in describing it as first involving Mr Sione angrily interrogating Jason about the theft of Ms Dawson's AirPods and then proceeding to punch and kick him.
10. There must have been significant force being used by Mr Sione as each of Messrs Pakau, Oaariki and Bartolo said that from the lounge room they heard multiple banging noises which must have been coming from the walls of the bedroom. Mr Pakau entered and saw Jason cowering in a corner with Mr Sione swinging a punch at him. That is consistent with what BL and BE described.
11. Mr Pakau intervened and brought the assault by Mr Sione to an end. While varying as to detail, BL, BE and Mr Pakau were consistent in describing Jason having visible injury to his face in the form of swelling and/or bruising.
12. At least some of Jason's clothing had been removed by this stage. His jacket was taken from the house when Messrs Pakau and Oaariki left at about 4.17pm.
13. In the verdict judgment (at [202]-[206]) an estimate of 3-5 minutes was calculated for the time in which Mr Sione was in the bedroom with Jason.
14. Estimates by witnesses as to the time between Mr Sione leaving the room and the assault by the young persons commencing were imprecise and inconsistent. It could at least be said that it commenced soon afterwards.
15. The first recording commenced at about 4.21pm. This was about 5-6 minutes after Mr Sione's assault ended. By this stage, Jason was wearing only boxer shorts. The first images of Jason show this further assault was already underway. He appeared significantly injured. It was the defence case that he appeared to be more injured than at the end of Mr Sione's assault. It follows that the assault by the young persons had been going on for some time prior to the first recording. The assault concluded soon after the end of the final recording at about 4.42pm. This was about half an hour after Mr Sione had commenced the assault.
16. Jason was left on the floor of the bedroom while everyone else left the house. There was little controversy about subsequent events. Ms Dawson and Mr Bartolo later returned. Eventually an ambulance was called. Jason received treatment and was taken to hospital. The delay in Ms Dawson calling triple-0 to seek help for a considerable time is reprehensible given Jason was laying helpless in her house, unable to breathe.
17. Jason died two days later from complications arising as a result of his injuries.
18. Ms Dawson and Mr Sione were separately spoken to by police that evening. They each told lies which were quite nonsensical.

Liability of Kayla Dawson

1. Ms Dawson conceded that the Crown established she was guilty of murder on the constructive and extended joint criminal enterprise bases of liability but contended she had made out the partial defence in s 23A of the Crimes Act 1900 (NSW) of substantial impairment because of cognitive impairment. More precisely, she contended the court should be satisfied there was a substantial impairment of her capacity to control herself because of a cognitive impairment and the impairment was so substantial as to warrant liability for murder being reduced to manslaughter.
2. I was satisfied that Ms Dawson's concession of guilt should be accepted. She was a party to a joint criminal enterprise to lure Jason to the Perigee Close home for the purpose of assaulting him, intending thereby to obtain a psychological advantage of exacting revenge, retribution, or punishment in respect of a perceived grievance. She was in company with co-participants during Jason's detention in the bedroom. She conceded, and I accepted, that she foresaw the possibility of one or more other participants in the assault intentionally causing grievous bodily harm.
3. Jason sustained actual bodily harm during the detention and died two days later. These matters comprised all the elements the Crown was required to prove beyond reasonable doubt and rendered Ms Dawson guilty of murder on both bases of liability mentioned.

Liability of Richard Sione

1. I was satisfied that an agreement to "bash" Jason was formed by Ms Dawson and BL prior to 1pm on 4 August 2021 and that by about 1.50pm it included BE and TB.
2. I was satisfied that Mr Sione, AD and MM joined in the agreement after they arrived at the Perigee Close home at 2.33pm. At [15]-[16] above in this judgment there is summarised the evidence which supported the inference that Mr Sione and the others who were present at the Perigee Close home must have known of the plan. In relation to Mr Sione, I was satisfied beyond reasonable doubt he became a party to the plan prior to the arrival of Jason at the home.
3. I was satisfied beyond reasonable doubt that the assault that was carried out by the young persons after the departure of Mr Sione was the continued execution of the same joint criminal enterprise to which he was a party. The detention and assault of Jason for the purpose of punishment, revenge, and retribution for the perceived theft of some AirPods was a shared objective. There was one joint criminal enterprise to which Mr Sione, the young persons, and Ms Dawson were co-participants.
4. The fact that others did not participate in the assault upon Jason when Mr Sione was assaulting him did not mean he was acting on his own. After he initiated the interrogation and then the assault, the others deferred to him as their superior and allowed him to show them the lead, exert his authority and demonstrate his capabilities.
5. A question was raised at trial as to whether Mr Sione "withdrew" from the joint criminal enterprise when he left the house. The question was answered in the negative (at [347]). He simply walked out. He said and did absolutely nothing to deter or prevent any continued assault by his co-participants in the enterprise.
6. The first basis of liability upon which the Crown contended Mr Sione should be found guilty of murder was that he was directly responsible for inflicting injury upon Jason which had a sufficient causal nexus with the death occurring, and that he had an intention to kill or inflict grievous bodily harm. The Crown case on this basis failed as there was insufficient reliable evidence to establish the extent of the assault and the injuries caused by Mr Sione.
7. The second basis of liability was that Mr Sione was a participant in a joint criminal enterprise to inflict grievous bodily harm and that the blunt force trauma that was inflicted as a result of the assault by himself and the young persons pursuant to this caused death. I was satisfied beyond reasonable doubt of these elements.
8. I indicated in the verdict judgment (at [349]-[351]) that if I had a reasonable doubt about the second basis of liability, I would have been satisfied to that standard of both the third basis (extended joint criminal enterprise) and fourth basis (constructive murder).

Objective seriousness

1. It was unnecessary in the verdict judgment to describe the assault in detail but for sentencing purposes it is necessary to say more. It was premeditated, albeit over a longer period by Ms Dawson, BE and BL than by Mr Sione. They were involved in luring Jason to the home whereas he was not. However, he was the one who initiated the assault. It was one for which there was no sensible explanation.
2. The assault was prolonged in that the overall event lasted some 33 minutes. It involved frenzied and extreme violence inflicted upon a vulnerable, and defenceless 16-year-old boy. By the time it was being continued by the juvenile assailants he was humiliated by having had his clothing removed.
3. The recordings of the assault did not commence until after Mr Sione had left so it cannot be said that he encouraged or endorsed their making. They indicate how defenceless Jason was in that small and sparsely furnished room, outnumbered and away from any help he could have called out for. There was no prospect of him being able to do anything effective to defend himself. Ms Dawson demonstrated her encouragement of the assault by her presence in the room and participation in recording the disgraceful events. She interjected with comments about what was occurring, and laughing as she said she was transmitting a recording: "I'm sending it to Johnno fuck you".
4. The recordings were not made of the entire period of the assault by the juvenile offenders. They show that BL, BE, TB and AD were the most active participants in the punching, kicking and stomping. MM committed some acts of violence, such as slamming Jason's head repeatedly into a gyprock wall, but was more engaged in encouraging the violence of others and delivering expletive-laden verbal abuse. At one stage Jason was commanded to repeat some statements relating to postcode gangs such as "Fuck 21", "27 on top" and the like.
5. There are more detailed accounts of what the recordings depict in other sentence judgments which I remain mindful of but will not repeat here. See, for example, R v BE [2023] NSWSC 1007 at [26]-[30]; R v BL [2024] NSWSC 51 at [30]-[35]. Regrettably the recordings need to be seen to fully appreciate the brutal savagery involved.
6. I am satisfied beyond reasonable doubt that the assault by Mr Sione was of a ferocity and duration that demonstrated to the others the brutality that could be inflicted. It was a benchmark for the violence to be inflicted in the execution of the joint criminal enterprise to inflict grievous bodily harm in which he was a participant. It, and the continuation of the assault after he left, provided the basis for Ms Dawson to foresee the possibility of grievous bodily harm being inflicted. In making these findings I have had regard to the respect and authority Mr Sione held within the group.
7. As I observed in previous sentencing judgments that, "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, [Jason] 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."
8. Submissions made on behalf of Mr Sione sought to argue the basis of liability for murder for which he should be sentenced. It was contended that there was reasonable doubt about the second and third bases and so he should be dealt with on the basis that he is guilty of constructive murder. These submissions must be rejected. The conclusion at trial was that the offender was guilty of murder on the basis that he was "a participant in a joint criminal enterprise to inflict grievous bodily harm and that the blunt force trauma that was inflicted as a result of the assault by himself and the young persons pursuant to this caused death". It was only for completeness and against the possibility that error be found in the reasoning associated with the second basis of liability that findings were made as to the third and fourth bases of liability which were contended for by the Crown.
9. Another submission that cannot be accepted was made under the heading of "Parity". It contended that Mr Sione "may have a justifiable complaint if he is treated differently to" AD who was sentenced on the agreed basis of constructive murder. The parity principle does not apply in such circumstances.
10. In sentencing BE and BL I described the murder as being of "very great seriousness". I have reflected on the submissions of counsel for Mr Sione but am firmly of the view that this finding is apt in the present case.
11. In relation to Ms Dawson, while she was very much responsible for Jason being lured to her home and the plan to "bash" him, the basis of her criminal liability for the murder and her participation in it places the objective gravity of her offence at a lower level than Mr Sione, BE and BL. It is in a broad middle range of seriousness.

Family victim impact statements

1. Ms Galleghan's love and devotion to her dear son has been continually demonstrated by her attendance at court every day of the proceedings for each offender and by her provision of family victim impact statements. They are moving descriptions of the enormous grief, pain and loss Jason's family continue to endure. This is an aspect of harm that has been caused to the wider community. I reiterate my sincere condolences to all of Jason's family and friends.

Background and personal circumstances of Richard Sione

1. Evidence tendered in the defence case on sentence for Mr Sione was confined to a report of Dr Gerald Chew, psychiatrist, and a printout of some emails between Mr Sione's lawyers and the prosecution. While the Crown did not object to the tender of the report it was foreshadowed that submissions would be made as to the weight that should be given to certain aspects. Such submissions were subsequently made about matters that could have been but were not the subject of evidence by the source of the history relied upon by Dr Chew as the basis of the opinions he expressed; the source obviously being Mr Sione. It was submitted, and I accept, that the opinions based upon the history he provided should be considered with circumspection.
2. The report includes an exculpatory account of the events of 4 August 2021 which must be rejected. It is unsurprising that no submission was made on the subject of remorse.
3. Mr Sione was born in 1989 and at the time of the murder was aged 32. He is of Samoan/Tongan heritage. His parents remain together and live in Queensland. He has 13 siblings. He was raised in and continues to adhere to the Christian faith.
4. He told Dr Chew that he struggled academically and had learning difficulties. He required a special needs school for a few years. On leaving school he worked in fast food outlets and had not had many other jobs. At some stage he worked for about three months in a chicken hatchery.
5. It is stated by Dr Chew without elaboration that, "He told me that his father abused alcohol and was often violent at home beating him". The report also includes that Mr Sione "was in a 'relationship' with a male teacher from the age of 13-15" involving multiple sexual acts including intercourse. The teacher was arrested for abusing a few other boys when he was aged 15. However, when questioned at the time he denied any relationship as he had feelings for the teacher and had been told to protect their "secret".
6. Mr Sione told Dr Chew that he was forcefully coerced into multiple sexual acts with another male teacher when aged 15-18. He did not report this at the time but now has civil proceedings on foot.
7. He told Dr Chew that as an adult he has felt confused about his sexuality. At the age of 18 he told his parents he was gay and "he was kicked out onto the streets". He turned to alcohol and drugs. He drank in a binge drinking pattern and used cannabis regularly. He started using heroin from the age of 19 and methylamphetamine from the age of 23. In the period leading up to the offending he was drinking heavily and using around half a gram of heroin and a gram of methamphetamine daily.
8. He continued using illicit substances (buprenorphine) in gaol, claiming that this was to cope with the difficulties he had experienced. Because the case received significant media attention he had been targeted and there had been a lot of altercations. He is now receiving monthly injections of a medication which has enabled him to cease use of illicit drugs. He is being held in a SMAP classification environment in custody because of the nature of his charges and the issues arising. He is unable to work but "what kept him going was training / exercising daily".
9. Dr Chew diagnosed the following: 1. Substance Use Disorder in remission in a controlled environment. 2. Complex Post Traumatic Stress Disorder in the context of significant developmental trauma. 3. Probable intellectual disability.
10. It appears the last of those matters arises from Mr Sione's account of his experience at school. An intellectual disability could certainly be considered if there was some testing that provided support for it but there is no mention of anything of that nature.
11. Earlier in his report Dr Chew referred to Mr Sione claiming to have "a long history of psychiatric difficulties" including "multiple presentations to hospital with self-harm by cutting and suicidal ideation" and "auditory hallucinations in the context of substance abuse". He also "described a long history of instability of moods, unstable interpersonal relationships, recurrent suicidal ideation, feelings of emptiness, [and] impulsivity. He described a long history of flashbacks and nightmares to past abuse with hypervigilance, avoidance of thinking about the abuse and use of drugs and alcohol to mask his emotional pain." There is no mention of any of this having been verified by reference to any medical records. It is difficult to know the extent to which this account is true. I am prepared to accept that there were some adverse events that occurred in Mr Sione's younger life and they probably had some continuing adverse impact upon his life as an adult. To what degree I am unsure but it probably has some nexus with his resort to drugs and alcohol.
12. After setting out the diagnoses, Dr Chew opined: At the time of the offending he was suffering from these conditions and self-medicated with methamphetamine, cannabis and alcohol. This combination impaired his judgment and contributed to his poor decision making at the time. Treatment of his conditions will improve his prognosis and reduce his risk of reoffending.
13. If Dr Chew had in mind that impairment of judgment and decision-making was a consequence of Mr Sione being under the influence of alcohol and drugs at the time of the offending, that is not a matter that may be taken into account as a matter of mitigation.1 Counsel submitted that the impairment was as a result of a combination of the "conditions" and the intoxication. However, because the history provided to Dr Chew has not been verified or tested, I cannot be sure about drawing any conclusion about the contribution the "conditions" alone made to an impairment of Mr Sione's judgment and decision-making ability.
14. I accept Dr Chew's assessment that accessing treatment for mental health conditions is more difficult in custody and that being in custody is detrimental to mental health. This is a matter rendering custody more onerous although the extent to which Mr Sione needs treatment is unclear. A related factor is the fact that the first year or so of custody was served during the COVID-19 pandemic with the well-known modifications and restrictions on facilities, visits, programmes and services.
15. It is unclear whether being held in a SMAP designated area within the correctional environment also renders the custodial experience more onerous. There is no direct evidence to that effect. It may be that this is why he is unable to work but he is apparently coping adequately by being able to train and exercise to maintain his fitness as Dr Chew observed.
16. Mr Sione has a significant criminal history. It commenced in Queensland when he was aged 18. There are nine occasions in which he was dealt with by the courts in that State between 2008 and 2014, mostly for offences of violence. In 2011 he was fined for two assaults causing bodily harm whilst being armed or in company as well as assaulting or obstructing a police officer. He was fined again for an assault in 2012 and later that year he was imprisoned for a total of 18 months for attempted robbery with the use or threat of violence and two offences of assault occasioning bodily harm whilst in company. He received a term of imprisonment of 6 months in 2014 in the District Court for robbery.
17. The Queensland record also includes non-violent offences which all resulted in non-custodial outcomes.
18. The criminal history in this State commenced when Mr Sione was aged 28. In May 2018 he was placed on a good behaviour bond for assault occasioning actual bodily harm in a domestic context.
19. He was sentenced in May 2019 to imprisonment for 2 years, 7 months with a non-parole period of 1 year, 9 months, for robbery in company. The sentence was backdated to 31 January 2019 to allow credit for pre-sentence custody. He was released on parole on 30 October 2020 and was still on parole at the time of the murder.
20. On 22 February 2021 he was fined for entering a vehicle or a boat without the consent of the owner or occupier and was placed on a 12 month community correction order for larceny. He was subject to that order at the time of the murder. He was also subject to further community correction orders imposed on 27 July 2021 for driving whilst his licence was suspended and driving with the middle range blood alcohol level. He was required to attend upon a Community Corrections office by 3 August 2021 in order to commence the supervision component of those orders.
21. On the night of 4 August 2021 somewhere near Doonside railway station Mr Sione committed offences of robbery and assault. He was sentenced on 11 March 2022 in the Local Court to imprisonment for 11 months with a non-parole period of 6 months dating from 6 August 2021.
22. Mr Sione's custodial history includes a long list of disciplinary infractions which include assaults, fighting and intimidation.

Mr Sione's moral culpability

1. Because of the uncertainty about the reliability of Mr Sione's account to Dr Chew I am not persuaded that there can be any diminution of his moral culpability.
2. Even assuming the account given to Dr Chew is completely correct and as a consequence Dr Chew's opinions based on it could be accepted in their entirety, this is not at the level of "profound childhood deprivation" referred to in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [44]. There might have been some reduction in Mr Sione's moral culpability but only to a slight degree.

Other aspects concerning the sentencing of Mr Sione

1. The Crown has indicated that Mr Sione was arrested on the night of 4 August 2021 but released the following day. He was then arrested on 6 August 2021 and has remained in custody since. For the sake of simplicity, I will regard him as having been in continuous custody since 4 August 2021.
2. His custodial history shows that on 25 August 2021 his parole in respect of the sentence imposed in May 2019 was revoked and he was required to serve the balance of the sentence (3 weeks, 6 days) from 6 August 2021 until 1 September 2021. That period, as well as the period in which he was on remand but serving the 6 month non-parole period of the sentence imposed on 11 March 2022, must be taken into account when determining the extent by which the sentence to be imposed today should be backdated to take into account pre-sentence custody.
3. The position in relation to pre-sentence custody then is that Mr Sione has effectively been in custody since 4 August 2021 and for the first 6 months it coincided with him serving sentences for other matters. There is discretion to backdate his sentence to anywhere in the range of 4 August 2021 to 4 February 2022. Counsel submitted that there should be no accumulation, however, having regard to the principle of totality I propose a small degree of accumulation.
4. The fact that Mr Sione was in the community on conditional liberty (parole and three community correction orders) is an aggravating factor. Moreover, that, as well as his history of violence, make it understandable that there was no submission that he was unlikely to reoffend and having good prospects of rehabilitation.

Whether to impose a life sentence

1. The Crown submitted that Mr Sione's case was one for the imposition of a life sentence. It is mandatory to impose a life sentence upon a person convicted of murder if the court is satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence: s 61(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW). A court may nevertheless impose a sentence of imprisonment for a specified term: s 21(1) of that Act.
2. Submissions in support of this proposition were developed at the hearing this morning. I accept some of the points that were made but not all, particularly that which sought a finding that Mr Sione had "gathered the juvenile offenders around him" and thereby had a responsibility for exerting control over their behaviour (see as well the written submissions at [55]). I am satisfied he played an influential role but the evidence does not go so far as to establish something of this nature.
3. I am not satisfied that the conditions requiring the imposition of a life sentence are satisfied. It could be otherwise if there was an intention to kill and/or if Mr Sione had played a continuing role in the assault through to its completion but that is not the case.

Background and personal circumstances of Kayla Dawson

1. Evidence in the case for Ms Dawson on sentence was confined to three reports by Ms Lisa Zipparo, neuropsychologist, and an affidavit by Ms Dawson. Ms Zipparo's reports include a history taken from Ms Dawson as well as an extensive review of earlier records and reports.
2. Ms Dawson was born in January 2002 and was aged 19 at the time of the murder. She had no contact with her father. Her mother placed her (and it would seem her younger sister) in the care of her paternal grandmother when she was aged 3. Her mother died soon after from a drug overdose. Despite this she told Ms Zipparo she had a good upbringing, saying "my nan looked after us". This appears to have unravelled when Ms Dawson was 16 and her grandmother's partner died. She started smoking cigarettes and cannabis and her behaviour deteriorated to the point of her grandmother taking out an AVO against her. She does not get on with her sister and has little contact with her.
3. Ms Dawson has a daughter aged 4. She described the child's father as a "former partner" who "used to bash me". She misses her daughter a great deal and has not seen her since she has been in gaol. The child is in the care of cousins and Ms Dawson had plans for them to adopt her, believing they would provide the best upbringing.
4. Ms Dawson left school at the end of Year 10. She said that in high school she was placed in "special classes". She described having basic reading skills but needed help to understand written information. She has never worked or undertaken vocational training. She described living "in and out of refuges" and associated with people living "off the streets". She has survived on welfare benefits or perhaps a disability pension (she could not recall). At the time of her arrest she was receiving NDIS support in the community.
5. Information derived from a 2020 report (by Ms Penny Bugden) included that Ms Dawson participated in a supported education program in primary school and was diagnosed with a mild intellectual disability in 2010. In 2012 she was diagnosed with mild conductive hearing loss and was noted to have difficulties with daily living skills such as tying her shoelaces, dressing, handwriting and toileting. In 2014 she was diagnosed with Tourette's, ADHD, and ODD by a psychiatrist. In high school she was placed in a special education program in 2015 and left at the end of 2018. Her finances were being managed by the NSW Trustee and Guardian. The diagnosis of mild intellectual disability was confirmed in this report.
6. Another 2020 report (by Dr Lucy Cho) included that Ms Dawson was exposed to illicit drugs in utero and required morphine and phenobarbitone after birth. She was noted to have the following adaptive functioning issues:

• mild conductive hearing loss;
• deficits in cognitive and adaptive functioning;
• vulnerable to coercion, intimidation, and emotional and sexual abuse;
• highly vulnerable to exploitation;
• unable to live independently without significant support;
• needs assistance with communication needs (reading and writing) and managing daily affairs; and
• needs support to plan and attend healthcare appointments and with financial management

1. She was noted to have the following behavioural difficulties:

• impulsive behaviour;
• attentional difficulties;
• unstable relationships;
• conduct issues resulting in forensic involvement;
• physical and verbal aggression; and
• suicidal ideation and self-harm.

1. Treatment by way of medication was helpful for her diagnosis of Tourette's but she could not afford it while in the community. She had also been medicated for ADHD when at school but not subsequently. She smoked cannabis and cigarettes in her teens but denied other illicit drug use. She drank alcohol excessively - "every day if I could".
2. Ms Zipparo's own testing revealed Ms Dawson was in the Extremely Low range of intellectual functioning. Formal assessments of her intellectual ability in 2010, 2019 and by Ms Zipparo in 2023 were consistent in showing she met criteria for Mild Intellectual Disability, placing her in the bottom 1-2 per cent of the population for intellectual capacities. Further material from the evidence of Ms Zipparo, and her reports, appears in the verdict judgment (at [298]-[311]) which will not be repeated in full. Aside from returning low scores in relation to intellectual abilities, Ms Zipparo found Ms Dawson experienced severe impairment of executive functioning and severe memory and learning impairments.
3. It is undeniable that Ms Dawson has a cognitive impairment. The defence case at trial was that the partial defence was established on the basis that her capacity to control herself was substantially impaired. I was not satisfied on the balance of probabilities that it was impaired to the degree of "substantially". It remains, however, an issue that is highly significant in the assessment of sentence. On the issue of her capacity to control herself, Ms Zipparo wrote: Ms Dawson has a history of impulsive and disinhibited behaviour and emotional dysregulation underpinned by her many neurodevelopmental disorders. Ms Dawson suffers from Tourette's Syndrome which by its nature is a neurological disorder of uncontrollable tics and vocalisations. She has ADHD which at its core is a disorder of impulse control and attention. She has an intellectual disability which at its core is a disorder of learning and understanding. Finally she likely suffers from complex PTSD which is a trauma disorder characterised by disordered relationships, disrupted sense of self, and poor emotional regulation. To add to this complicated picture, at the time of the offences, Ms Dawson said she was unmedicated because she was unable to afford her medications. Ms Dawson therefore had a number of factors at the time of the crime that impaired her ability to make rational decisions and control her behaviour.
4. Dr Adam Martin, psychiatrist, accepted Ms Zipparo's findings as to Ms Dawson's executive functioning, that she had a degree of frontal lobe impairment, and is not particularly intelligent. He accepted the diagnosis of mild cognitive impairment.
5. Ms Dawson has a criminal history which commenced in the Children's Court at around the time she turned 17. She made regular appearances in that Court with arrests on 10 occasions over the ensuing 11 months. Offences included assaults, assault occasioning actual bodily harm, contravening apprehended domestic violence orders, entering inclosed lands without lawful excuse, theft, and possessing a prohibited drug. Sentencing outcomes involved dismissals with cautions and good behaviour bonds.

Ms Dawson's moral culpability

1. There is a clear causal connection between Ms Dawson's neurological deficits combined with her psychological immaturity and the offending. She lacked the capacity to reason, as an ordinary person might, as to the wrongfulness and the potential consequences of her conduct. I accept the submission that this substantially lessens her moral culpability. The consequence of this finding is that less weight will be given to general deterrence, retribution, and denunciation.

Other aspects concerning the sentencing of Ms Dawson

1. Another consequence of Ms Dawson's mental condition is that her custodial experience is, and will continue to be, more onerous for her than is usual. She is less well equipped to deal with the various challenges and hardships associated with serving a prison sentence. The impact of COVID restrictions have also been taken into account.
2. The trial of Ms Dawson was conducted with efficiency, aided by the fact she did not dispute that the Crown case established she was guilty of murder and confined the issue in dispute to the partial defence of substantial impairment. This will be taken into account in her favour.
3. Ms Dawson has accepted responsibility for her actions and has acknowledged the loss caused. This is the position now; it is certainly not the position she held in the immediate aftermath of the events. I accept that it is probable she is now genuinely remorseful.
4. Whether Ms Dawson is unlikely to reoffend and has good prospects of rehabilitation is problematic. It was acknowledged in submissions on her behalf that her cognitive deficits are permanent. Consequently, findings in her favour on these issues cannot be made.

Parity

1. I have previously sentenced BE, BL, AD and TB: R v BE [2023] NSWSC 1007; R v BL [2024] NSWSC 51; R v AD [2024] NSWSC 444; R v TB [2024] NSWSC 447. There are a multitude of differences between each case and the present ones. These include the nature of the offenders' participation in the assault, their mental state, stated reasons for involvement, the objective gravity of their offence, whether there were pleas of guilty or not guilty, age, criminal history (if any), general subjective circumstances, diagnoses of mental conditions and whether causally related to the offending, moral culpability, and statutory mitigating factors including any discounts allowed. BE and BL were each sentenced for murder by reason of their involvement in the assault with an intent to inflict grievous bodily harm. The agreed basis of AD's liability was constructive murder whereas TB was sentenced for manslaughter.
2. I have reviewed each of the sentencing judgments as well as the sentences imposed, including the starting point before discounting and findings as to special circumstances. I have also reviewed the judgment of the Court of Criminal Appeal in BE v R [2024] NSWCCA 100.
3. In relation to Ms Dawson, an obvious difference is age but not to the same extent as with Mr Sione. There is also her mental condition and its mitigating effect as described earlier. Her level of participation in the assault was distinctly different in that she played a key role in setting it up and was present during most of it, providing encouragement to those actively involved. Her offending was on the basis of her participation in an extended joint criminal enterprise with foresight of the possibility of grievous bodily harm being caused.
4. It was submitted for Ms Dawson that "the starting point for the offender's sentence should be closer to that of AD than that for BE and BL". I accept this.
5. In relation to Mr Sione, age is more obviously a difference as is his psychologically dominant standing in the group. The objective seriousness of his offence is as high or higher than for others and his moral culpability is not reduced. There are few subjective matters of significance.

Purposes of sentencing

1. I confirm that I have had regard to the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act. I have factored in adjustments in relation to some of the matters as indicated in these remarks.

Special circumstances

1. Counsel for Ms Dawson sought a finding of special circumstances and a reduction in the non-parole proportion of her sentence. I accept she will need an extended period of parole supervision (which the Parole Authority may make available if the circumstances are thought appropriate) to monitor the appropriateness of her living and social arrangements in the community.
2. No submission was made in support of a finding of special circumstances in Mr Sione's case. I have nevertheless considered the issue but can see no basis to make such a finding. Having regard to the nature, circumstances, and gravity of his offence the non-parole period should be no less than the usual statutory proportion.

Crimes (High Risk Offenders) Act

1. The Crimes (High Risk Offenders) Act 2006 (NSW) has potential application to both offenders and so the implications of this should be explained to them by their legal representatives.

Richard Sione

1. Convicted. Sentenced to imprisonment with a non-parole period of 24 years and a balance of term of 8 years. That is a total sentence of 32 years. The sentence is to date from 4 October 2021. Mr Sione will become eligible for release on parole upon the expiration of the non-parole period on 3 October 2045. The report of Dr Gerald Chew, psychiatrist, is to be forwarded to Corrective Services NSW.

Kayla Dawson

1. Convicted. Sentenced to imprisonment with a non-parole period of 13 years and a balance of term of the sentence of 7 years. That is a total sentence of 20 years. The sentence is to date from 8 August 2021. Ms Dawson will become eligible for release on parole upon the expiration of the non-parole period on 7 August 2034. The three reports of Ms Lisa Zipparo, neuropsychologist and the report of Dr Adam Martin, psychiatrist, are to be forwarded to Corrective Services NSW.

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