R v TB

R v TB - [2024] NSWSC 447 - NSWSC 2024 case summary — Zoe

[3]

The assault

Between 4.09pm and 4.20pm Jason was assaulted by Mr Sione while the others watched. Some of them were encouraging the violence. Mr Sione was shouting "Don't fuck with my family". He punched Jason about 20 times and kicked him three or four times to the head.
Messrs Pakau and Oaariki heard the assault from the lounge room. Mr Pakau heard what sounded to him like "just big hits … like body to wall". Mr Oaariki heard a noise "like a bang" and heard Mr Sione saying "fuck, fuckin' gronk".
Two neighbours heard screaming and the sound of items being smashed. There were "blood curdling screams" that "sounded like someone was being used as a punching bag. It kept going for minutes and minutes. It sounded like someone getting flogged."
At some point Jason was stripped of his clothing with only his underwear remaining.
Mr Pakau went into the bedroom and saw Jason against the wall and Mr Sione punching him to his head and body. He grabbed Mr Sione and threw him off Jason. BL and AD tried to get involved in the assault but Mr Pakau stopped them. TB and BE were yelling out at the time. Mr Pakau noticed a bruise on Jason's face.
Messrs Pakau and Oaariki left the property at 4.17pm and Mr Sione left soon after.
TB, AD, BE, BL and MM then started assaulting Jason. Part of the assault was video recorded on mobile phones. This phase of the assault lasted from 4.20pm to 4.42pm with each young person assaulting Jason but not at the same time. Ms Dawson was present and providing encouragement. TB briefly left the house and went into the front yard. It is unclear how long he was there for. At one stage Mr Bartolo went to the bedroom door and saw Jason laying on a mattress on the floor with TB and BL stomping on his chest.
The five young persons ran from the house at 4.42pm. Ms Dawson, Mr Bartolo and Ms Pale also left but returned about 25 minutes later at 5.11pm.
After first going to a person's home nearby, TB and BE went to the station and caught a train.
At 5.40pm TB sent an Instagram message to an unidentified person saying, "I think I killed someone". When asked who it was, he replied that he did not know.
On a train later that night TB and BE had a conversation in which TB said, "We shouldn't have gone that far. We should have left when we were gonna".
Ms Dawson eventually called triple-0 at 5.42pm. She and Mr Bartolo were sitting in the lounge room when the ambulance arrived at around 5.46pm. She pointed towards the bedroom and said, "He's in there". No attempt had been made to assist or resuscitate Jason.
Jason was found to be unconscious and not breathing. Ambulance officers managed to revive him and he was taken to Westmead Hospital. However, he died two days later with the cause of death determined to be "complications of multiple blunt force injuries to the body".

[7]

Objective seriousness of the offence

The Crown submitted that the objective seriousness of the offence was "above the mid-range" whereas the defence submitted that it was "a serious example of the offence of manslaughter via an unlawful and dangerous act".
TB acknowledged that he was an active participant in the assault upon Jason and that it was this, along with the actions of the co-offenders, which caused Jason's death.
The assault was carried out over a prolonged period of time with TB present for most of it. It was carried out by TB and five active co-offenders with Ms Dawson providing encouragement.
Jason was a 16-year-old boy who was grossly outnumbered and cowering at times. He was humiliated by taunting and abuse. He was stripped of his clothing. Portions of the assault were being recorded to share with others.
TB did not play any part in luring Jason to the home which is a factor that distinguishes him from BE and BL. Included in TB's agreed facts is that while Ms Dawson, BE and BL were meeting Jason at the railway station there was conversation and a search for possible weapons involving Mr Sione, MM and AD (and not TB) in preparation for the proposed assault. That is a factor that distinguishes TB from AD, however this passage was excluded from the agreed facts in AD's case.
Because the Crown has accepted TB's plea of guilty to manslaughter, his case is also distinguishable from others because he did not intend or contemplate the infliction of grievous bodily harm and nor is he culpable for the offence of specially aggravated detain for advantage. Nevertheless the Crown submitted that he participated in an act of senseless violence and mob mentality.
It was submitted on behalf of TB that accounts he subsequently gave to a psychiatrist and a Youth Justice caseworker indicated "a level of spontaneity, peer pressure and impulsivity" attached to his participation in the assault. There will be a review of these accounts later but for present purposes I am not prepared to accept either of them.
The submission as to the objective seriousness of the offence made by the defence ("a serious example …") is accepted.
In addition to the objective gravity of the crime and TB's participation in it, it is necessary to consider his moral culpability which is reduced 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 other matters that reduce his moral culpability but first it is necessary to review the evidence concerning his background and personal circumstances.

[8]

The offender

There was no oral evidence at the sentence hearing but a volume of documentary material was tendered.
TB was born in Toowoomba, Qld, in May 2008 and, as indicated earlier, he was aged 13 years and 3 months at the relevant time. Counsel succinctly summarised that his formative years involved "serious neglect, trauma, violence and transience". His family were known to the Department of Community Services (now Department of Communities and Justice) since before he was born.
A report of Dr Andrew Ellis, forensic psychiatrist, dated 17 March 2024 includes that TB is of indigenous background from his mother's side and Mãori on his father's side. He was one of five children to his mother. He has had no contact with his biological father. He was taken from his mother's care at age three and first placed with relatives. He was then placed under the care of the Minister and placed with foster families. Some later placements were in hotels with worker supervision rather than with families. He has lived in various locations in country Queensland, New South Wales and suburban Sydney.
In what I take to be a reference to more recent times, TB told Dr Ellis that he barely went to school; he usually stayed at home and hung out with friends. He was frequently involved in fights and had been suspended from school for fighting. He frequently engaged in shoplifting but was never caught. He would set fire to bins and rubbish. He told Dr Ellis he was subject to rascist name-calling for most of his life.
He denied exposure to child sexual abuse or violence although Dr Ellis noted reports that he was subject to violence by his mother and then grandmother leading to his placement under State care.
A Neurosequential Model of Therapeutics (NMT) Assessment Report in October 2017 prepared by Ms Gabrielle Duffy, clinical psychologist and NMT clinician provided the following summary of TB's life up to the age of 9 years: [TB] is a 9½ year old boy with a history of significant developmental trauma from in-utero through to the present. In-utero trauma included exposure to drugs and alcohol, maternal mental health, domestic violence and general chaos. [TB's] early years were marked by significant neglect, maternal mental illness and drug and alcohol misuse, inadequate nutrition and shelter, and being left with multiple caregivers and at times in the care of an only slightly older sibling. [TB] and his brother … were removed from their birth mother's care when [TB] was around 6 years of age, and in April 2014 [TB] was placed in the care of the Minister until age 18. He was placed in a kinship placement but was abused in this placement. A second kinship placement broke down due to behavioural issues earlier this year and following a brief period in Charleville Hospital, [TB] was brought back to NSW where he was placed in a hotel for almost 3 weeks. He was placed with Catholic Care foster carers Alfred and Helen in a short-term placement and long-term carers are currently being sought.
The outcome of the NMT assessment included that TB's greatest area of challenge at that time was in the part of the brain that manages self-regulation and his ability to manage his arousal levels. Consequently, his emotions and behaviour were underdeveloped for his age.
A speech pathology assessment carried out at about the same time determined that TB had a moderate to severe Developmental Language Disorder. Ongoing regular speech pathology management for at least two years was recommended. Another assessment carried out in January 2021 found he had moderately delayed receptive language skills and mild-moderately delayed expressive language skills for his age. It was recommended he receive speech therapy services to help provide him with strategies to improve his oral language skills.
A report prepared in about October 2021 by Ms Jessica Reynolds, Office of the Senior Practitioner, provides a very detailed account of TB's life particularly since he came into care in December 2013 and parental responsibility was given to the Minister on 28 April 2014. Ms Reynolds' review of the records indicated that since that time TB had lived in 18 different homes including with two family members, nine authorised carers and in seven Alternate Care Arrangement (ACA) placements. Ms Reynolds reported: [TB] has spoken about feelings of rejection and people "giving up" on him. [His] experience demonstrates research findings that "effects of placement instability, such as reduced opportunities for bonding and social support, school and neighbourhood changes, continued system involvement and monitoring, and increased anger or anxiety resulting from the loss of multiple caregivers or siblings, could compound any initial behavioural difficulties and result in a steady increase in criminality risk over time". In his eight years in care, [TB] was only taken back to his country one time. During his three months in Dubbo, he was able to connect with his family and community on a daily basis. There are no concerns about [his] behaviour during his time on country. This is in stark contrast to the struggles he experienced in managing his emotions when living in all other care settings. [TB's] story is one of disconnection, isolation and loneliness. He is a young boy seeking to know his culture, family and community to help him understand his own identity. The inability of DCJ and Family Spirit to meaningfully connect [him] to people who loved him and provide him with a place to call [home?] has led to tragic circumstances. Every effort needs to be made to change, where possible, the trajectory for [TB]. This will mean Aboriginal led, culturally capable practice with [TB] and his family to reconnect him to family, community and culture wherever [he] may be living.
Dr Ellis said the following about TB's background: His background is marred by significant risk factors for developmental disorders. He may have been exposed to alcohol in utero, which could predispose to developmental problems with speech and language, attention, hyperactivity, impulsivity, general cognition and developmental social reciprocity. This was further complicated by direct exposure to violence and then abandonment by caregivers. He was then dislocated from familiar environments and moved between professional and surrogate family caregivers on a frequent basis through his life. This lack of stability would have compounded the risk for the conditions described.
TB was seen by Dr Irene Chuah, consultant paediatrician, on 3 March 2021. In reporting to a general practitioner, Dr Chuah noted that since last seen in December, TB had changed placements and had commenced with a new carer the previous day. He had also started Year 7 at Epping Boys High School and so far there were no concerns having been raised by his teachers. He had stopped taking his medications two or three weeks ago and felt better as a result. Dr Chuah opined: I think it would be prudent to wait for a school report later this year to see any difficulties [TB may be] having in class and how he is settling in. [TB] certainly has a number of vulnerabilities that impact on his behaviour, mood and learning abilities which are exacerbated by frequent changes in his primary carer and isolation from family and culture. This is on a background of early childhood trauma and out of home care.
Ms Reynolds' report described what then ensued. TB moved in with the new carers on 1 March 2021 which was eight months earlier than planned. This couple had sought funding to build a granny flat in the rear yard for their adult son to live in so that TB could have a bedroom in the house. Because of TB's earlier than expected arrival it was necessary for him to sleep on the floor in the living room. Nevertheless, he settled well in this living arrangement; he was attending school each day, engaged in football and in activities with the family.
In late April or early May TB was interviewed by police in relation to a report that in September 2020 he had sexually assaulted a girl of the same age as himself (12). Ms Reynolds said it was unclear what support, if any, was provided to TB in this interview. He was named as a person of interest in an application for an apprehended violence order and was required to attend court. His behaviour escalated after this experience. He stopped engaging in school and began to withdraw from sports. The foster care agency involved was advised by the carers that they were no longer able to care for TB. On 3 June 2021 he moved out and returned to living in an ACA placement.
Ms Reynolds reported that between June and August 2021 TB withdrew from services and supports. He would frequently leave his placement and would not return at the agreed time. He would respond to calls and texts but his location was at times unknown. He was not attending school or engaging with his therapeutic staff. He was spending time with other young people in the Western Sydney area and had begun to use alcohol and cannabis.
The foster care agency caseworker and two previous foster carers tried to maintain a relationship and provide support. However he was coming to the attention of police due to reports of him being missing and his socialisation with other young people.
In July 2021, TB transitioned to a placement with a community-based organisation. Ms Reynolds reported that he would regularly run away and not return or would return outside of curfew hours. His supports, including two previous foster carers, were unable to visit him due to COVID restrictions. He went missing for four days prior to his arrest on 5 August 2021. In the Background Report it is advised this placement was at Five Dock, TB was the only child there, and he was absent "almost every night".
TB told Dr Ellis that prior to entering custody he was living in a hostel room. He was off all prescription medication and had been for some months. He had been moving around a lot. He was attending school infrequently. He had not seen a mental health or general health professional for some months.
He gave an account to Dr Ellis about his involvement in the assault upon Jason which conflicts with that which he gave to the author of the Youth Justice NSW Background Report. He told Dr Ellis he was living in a hostel, not going to school and spending most of his time alone playing video games. He was not taking any medication and not attending any counselling. On 3 August 2021 he saw BE at a railway station. BE suggested they go to the Perigee Close home. When they arrived he found everyone was drinking and smoking cannabis. Apart from BL who he had seen before he did not know anyone else. He joined in the drinking and smoking. He stayed awake all night.
On the morning of 4 August 2021 the others were talking and on their phones. He heard people saying, "we are going to get him". Everyone shook Jason's hand when he arrived. Some of the people took him to another room and began to bash him. TB was on the lounge. One of the others mentioned that they would get TB if he did not join in with the assault. He thought the assault was tied up in "postcode wars" between rival gangs. He was worried there would be consequences if he did not join in. He agreed with the description of his behaviour when Dr Ellis read from the statement of facts.
TB said that he feels like "shit" because as a result of his actions he had "killed someone's child". He claimed if he was sober his actions would have been "100% different". In future he would need to stay away from negative influences, stop using alcohol and drugs and stay out of areas where crime is common.
In the Background Report he is said to have claimed he was unaware Jason was going to be assaulted until he heard yelling and other loud noise coming from the room. He was feeling fearful at the time but did not know what was going on. He walked to the door to leave but was pulled back by someone. Someone at the property told him that Jason was a rapist which made him feel angry. He thought, "Why do people do stuff like that". Based on what he had been told and his views about rape offenders he decided to assault Jason so that he would not rape again. Initially he thought that he should not hurt Jason because he would get in trouble with the law.
After the assault he attempted to help Jason to his feet so he could leave. TB was motivated by concern for the victim as he believed he was hurt and TB did not want to "get into trouble". He said a co-offender struck Jason who fell to the ground. TB then chose to leave to avoid getting into trouble. He said he gave consideration to Jason's welfare once he left the property but decided to travel to Bathurst with two of his co-offenders to avoid police detection.
These two accounts of what motivated TB to join in the assault upon Jason are irreconcilable. There is nothing that supports one in preference to the other. It was submitted that to the extent there are any inconsistencies in some of the events leading up to and following the event this should be viewed in light of TB's youth, his cognitive functioning, the difficulties he has demonstrated in talking about the events, the passage of time, and the fact that some events were not explored in the interview with Dr Ellis. That may be so but it leaves these two accounts with questionable reliability. Because of this and the fact that they are untested I am not prepared to accept them.
Dr Ellis diagnosed TB as suffering from complex post-traumatic stress disorder, attention deficit hyperactivity disorder and conduct disorder. He said that while conduct disorder leads to disregard for consequences rather than lack of awareness of consequences: [I]t is likely that his symptoms of PTSD and ADHD impaired his ability to perceive events and control impulses at the time of the attacks on the victim. This impairment is a clinically significant, exaggerated response to external events. His beliefs that he might come to harm from others if he did not participate are consistent with impulsive decision-making. His participation in attacks that were filmed and then placed on social media also indicates impulsive and non-consequential decision-making.
The diagnoses made by Dr Ellis are the similar to those made by Dr Chuah as recorded in the Background Report.

[9]

Post arrest

The Background Report was prepared by a Caseworker with Youth Justice NSW, Mr Scott Wood, and is dated 29 November 2023. (An account of some subsequent events will follow.)
TB had been transferred from Reiby Youth Justice Centre to Cobham Youth Justice Centre in November 2023 as a result of an instance of misbehaviour. A caseworker at Reiby advised that this was atypical as his behaviour there had been excellent.
TB was enrolled in Year 9 at Cobham, having completed Years 7 and 8 while at Reiby. There were positive reports from teachers at both places as there were in relation to his engagement with counselling and therapy. He had also impressed with his participation in a program addressing anti-social behaviour in Aboriginal young people and he had earned selection to participate in a program for Pacific Islander young men and women in custody with his behaviour in both programs being reported as of a high standard. He had participated in various other cultural programs and a mentoring program.
Contact with family has been maintained with video calls and in-person visits. He has also been supported by continued contact with former foster carers, Ms Denise Lavell (who he refers to as "Mum") and Ms Michelle Gibson together with Mr James Te Huna who provided TB with Mãori cultural mentoring.
TB told Mr Wood that he hopes to live with his maternal grandfather in Brewarrina after release. He does not plan on socialising with any of the peer group with which he was associating before his arrest and moving to Brewarrina will help with this. It was noted that while there had been some improvement, development of peer refusal skills will remain an area of need for TB.
Mr Wood referred to a report that TB was exposed to alcohol and cannabis usage in the home at age 5 when he was living with his mother and stepfather. He told Mr Wood he had first used alcohol and cannabis at the age of 12 but his stated intention is not to use either for the rest of his life.
TB is reported to have spoken about the death of Jason and the impact that his offence has had upon Jason's family. He is reported as having identified the loss of a child as the primary impact, stating that the family is likely to be upset and angry. If given the opportunity to speak with them he said he would apologise for his actions, stating that he "didn't mean for it to go that far".
Mr Wood concluded his report by saying that while TB had demonstrated improvement in prosocial attitudes and beliefs, further intervention is required to consolidate this progress and to address his attitudes about the usefulness of violence. Youth Justice will continue to provide offence-focused programs for TB in custody and when he re-enters the community.
TB's solicitor sought an update of his progress since the Background Report had been prepared. A Youth Justice caseworker advised by email that he has continued to progress well at Cobham in terms of behaviour and engagement with educational, vocational, cultural and recreational programs. His classification in the Incentive Scheme Program regressed following the misbehaviour incident that prompted his transfer to Cobham but it has since been restored to the highest possible level due to his prosocial behaviour.

[10]

Principals 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 TB. 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.

[11]

Reduced moral culpability

TB's moral culpability is reduced because of his age for the reasons given earlier (at [40]). In this respect, counsel emphasised the statement from R v Hearne [2001] NSWCCA 37; (2001) 124 A Crim R 451 at [27] that "the younger the offender, the greater the weight that might be afforded to the element of youth".
Moral culpability is also reduced because of aspects of TB's upbringing which, to repeat counsel's summary, was beset by "serious neglect, trauma, violence and transience". There was also cultural disconnection. Put another way, TB's moral culpability is reduced on account of his background of profound deprivation that continued up until the time of the offence. Allied to this is the mental health diagnoses of complex PTSD and ADHD, the symptoms of which were found by Dr Ellis to have likely impaired TB's ability to perceive events and control impulses at the time of the offence.
There was debate at the sentence hearing about a passage in the Crown's written submissions (at [51]) 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 boy 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 to control impulses and self-regulate. The offence, insofar as TB 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, TB'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. Because TB was prepared to join in such an event, notwithstanding his rehabilitation prospects there remains a need for an element of specific deterrence.

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (23 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (7)

Cited By (2)