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7
Supreme Court 23 August 2023

R v BE

[2023] NSWSC 1007

Assault & violenceHomicide
CRIME SENTENCING JUVENILE OFFENDER MURDER PLEA OF GUILTY YOUTH GANG BASHING OF CHILD

Citation: R v BE [2023] NSWSC 1007
Court: Supreme Court of New South Wales
Date: 23 August 2023
Judge: R A Hulme AJ

Background

The offender, BE, was 14 years and 7 months old at the time of the offence. He pleaded guilty to the murder of Jason Galleghan, a 16-year-old, who was lured to a house at Doonside on 4 August 2021 on the false pretext that he had stolen a pair of AirPods.

Once at the house, the deceased was subjected to a sustained group assault lasting approximately 33 minutes. Multiple offenders, including adults and other young persons, participated. Video recordings captured portions of the attack, which involved punching, kicking, stomping, and the victim's head being forced into a wall. Some recordings were uploaded to Instagram. The deceased was found unresponsive and died as a result of the injuries inflicted.

BE was arrested on 5 August 2021, the day after the offence. He had been in custody since that date. His plea of guilty was entered in the Children's Court, entitling him to a 25% sentence reduction.

  • Whether murder, as a "serious children's indictable offence," must be sentenced according to law rather than under the Children (Criminal Proceedings) Act 1987 (NSW), Part 3 Division 4
  • How to weigh the extreme seriousness of the offence against the reduced moral culpability attributable to the offender's age, background, and immaturity
  • Whether special circumstances existed to justify altering the standard ratio between the non-parole period and the balance of the sentence, given uncertainty about the offender's rehabilitation prospects
  • The applicable discount for BE's guilty plea entered in the Children's Court

Decision

The court confirmed that murder is a "serious children's indictable offence" under the Children (Criminal Proceedings) Act 1987 (NSW) and must be dealt with according to law, not under the regime ordinarily applicable to children's matters. Standard non-parole periods do not apply where the offender is a child. The court also noted that, for reasons discussed with counsel, the judgment has no value as a sentencing comparator except in relation to parity among co-offenders.

Hulme AJ characterised the offence as one of great seriousness: the assault was premeditated, prolonged, involved multiple perpetrators, was inflicted on a helpless and increasingly unconscious victim, and was partially filmed and posted on social media. BE personally struck the deceased 52 times and kicked him on multiple occasions during one recorded segment, and also stomped on the victim.

Despite those circumstances, the court found that BE's moral culpability was reduced by his age, immaturity, and personal background. The court applied the well-established sentencing principle that youthful offenders, by reason of their developmental stage, attract diminished culpability even for very serious crimes. However, the court also noted doubtful prospects of rehabilitation.

The court found special circumstances under section 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), warranting a longer-than-usual balance of term. The rationale was to allow the State Parole Authority greater flexibility in determining when release on parole is appropriate, given present uncertainty about whether BE's rehabilitation prospects might improve as he matures. This approach was consistent with the method endorsed in R v SLD.

Orders Made

  • BE convicted of murder
  • Sentenced to imprisonment with a non-parole period of 10 years and a balance of term of 5 years and 6 months, totalling 15 years and 6 months
  • Sentence backdated to 5 August 2021 (date of arrest)
  • Eligible for release on parole on 4 August 2031; total sentence expires 4 February 2037
  • BE to serve his sentence as a juvenile offender until he attains the age of 21
  • A copy of the psychologist's report to accompany the warrant

Key Takeaways

  • Murder is a "serious children's indictable offence" under the Children (Criminal Proceedings) Act 1987 (NSW) and must be dealt with according to law, meaning the usual children's sentencing regime does not apply.
  • Standard non-parole periods do not apply when the offender is a child, giving the sentencing court greater discretion in fixing the non-parole period.
  • Hulme AJ confirmed that a juvenile offender's age and immaturity reduce moral culpability even for offences of extreme violence, though this principle operates alongside, not instead of, full acknowledgment of the offence's gravity.
  • Special circumstances to extend the balance of term (beyond the proportion ordinarily required) can arise where there is genuine uncertainty about a young offender's rehabilitation prospects as they mature, following the approach in R v SLD [2002] NSWSC 758 and R v SLD (2003) 58 NSWLR 589.
  • A 25% discount applies where a guilty plea is entered in the Children's Court, consistent with the Crimes (Sentencing Procedure) Act 1999 (NSW).

Legislation and Cases Referenced

Legislation
- Children (Criminal Proceedings) Act 1987 (NSW), Part 3 Division 4, ss 6, 19(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), Part 4 Division 2A, s 44(2)
- Crimes (High Risk Offenders) Act 2006 (NSW)

Cases
- R v KT [2008] NSWCCA 51
- R v SLD [2002] NSWSC 758
- R v SLD (2003) 58 NSWLR 589; [2003] NSWCCA 310