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Court of Criminal Appeal 14 June 2024

BE v R

[2024] NSWCCA 100

Assault & violenceHomicide
19 — COVID

Citation: BE v R [2024] NSWCCA 100
Court: NSW Court of Criminal Appeal
Date: 14 June 2024
Judge(s): Kirk JA; Davies J; Sweeney J

Background

The applicant was 14 years and 7 months old when he participated, alongside ten others, in the assault and killing of a 16-year-old boy at a residential address in Doonside. The victim had been lured to the location under false pretences. Three video recordings made by the assailants during the assault were tendered by the Crown at the sentencing hearing.

The applicant pleaded guilty to murder, which carries a maximum penalty of life imprisonment. The sentencing judge, RA Hulme AJ, imposed a term of 15 years and 6 months imprisonment with a non-parole period of 10 years, including a 25 percent discount for the early guilty plea. The applicant was ordered to serve his sentence as a juvenile offender until he turned 21.

Seeking to reduce that sentence, the applicant applied to the Court of Criminal Appeal on seven grounds. The Court granted leave to appeal but dismissed all grounds.

  • Whether the sentencing judge erred in rejecting the applicant's claim that he had attempted to persuade co-offenders to stop the assault, and whether that rejection involved a breach of the rule in Browne v Dunn
  • Whether the sentencing judge correctly assessed the objective seriousness of the offence
  • Whether the applicant's ADHD had a causal connection to the offending and reduced his moral culpability
  • Whether the sentencing judge was required to make allowance for the harsher conditions of custody caused by COVID-19
  • Whether the head sentence and the non-parole period were each manifestly excessive

Decision

Ground 1 (Browne v Dunn and attempt to stop the assault): The Court found it was reasonably open to the sentencing judge to conclude that the applicant had not conveyed genuine concern for the victim during the assault. Because no breach of Browne v Dunn had been raised below, the applicant needed to demonstrate a significant miscarriage of justice, which he could not do. The Court noted any breach was borderline at best, and that even accepting the applicant had tried to dissuade his co-offenders, that would have made little difference to his culpability.

Ground 2 (objective seriousness): The sentencing judge did not err in finding the murder was objectively serious. The applicant's mental intent, which extended to causing grievous bodily harm rather than death, did not necessarily make his role less heinous than those of co-offenders who intended to kill. Factors relevant to reduced moral culpability had been properly taken into account separately, as they should be, rather than as part of the objective seriousness assessment.

Ground 3 (ADHD): The Court held that the existence of any link between the applicant's ADHD and his offending was a matter for the sentencing judge to determine on the evidence. It observed that it was difficult to characterise the applicant's role in a planned, sustained group assault as impulsive conduct consistent with ADHD-related behaviour.

Grounds 4, 5 and 7 (COVID-19, head sentence and non-parole period): The Court rejected the COVID-19 ground, noting the evidence on this point was scant and that the restrictions the applicant faced in custody were largely attributable to his own poor behaviour. On the question of manifest excess, the Court observed that the applicant's submissions tended toward inviting a different sentencing outcome rather than identifying legal error. Although the sentence was described as stern, the Court found it was not unreasonable or plainly unjust given the sustained and brutal nature of the killing of a defenceless child. The sentencing judge had already made a meaningful reduction in the non-parole period ratio, from 75 percent to 64.5 percent, reflecting a finding of special circumstances.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A breach of the rule in Browne v Dunn that was not raised at first instance requires the applicant to demonstrate a significant miscarriage of justice before an appellate court will intervene; a borderline or marginal breach is unlikely to meet that threshold.
  • Factors bearing on an offender's reduced moral culpability, such as youth, background, or cognitive impairment, are properly considered separately from the objective seriousness of an offence; they do not automatically diminish that objective assessment.
  • In dismissing the ADHD ground, the Court of Criminal Appeal confirmed that the connection between a diagnosed condition and the specific offending conduct is a factual matter for the sentencing judge, and is not established merely by the diagnosis itself.
  • Where COVID-19 conditions of detention are raised in mitigation, scant evidence and a custodial record attributing restrictions to the offender's own conduct will not compel a sentencing court to make a formal allowance.
  • A significant discount for a guilty plea, a finding of special circumstances, and an order to serve time as a juvenile offender do not preclude a lengthy sentence where the offence involves a sustained, planned, and fatal group assault on a vulnerable victim.

Legislation and Cases Referenced

Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW), ss 6, 15E, 19(1)
- Criminal Appeal Act 1912 (NSW), s 5DA
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 23, 44(2), 54D(3)

Cases:
- Browne v Dunn (1893) 6 R 67
- R v BE [2023] NSWSC 1007 (sentence under appeal)
- R v Birks (1990) 19 NSWLR 677
- R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704
- MWJ v The Queen [2005] HCA 74; (2005) 80 ALJR 329
- Mulato v R [2006] NSWCCA 282
- Knight v Maclean [2002] NSWCA 314
- AH v R [2013] NSWCCA 32
- Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
- Munda v Western Australia [2013] HCA 38; (2013) 249 CLR 600
- AL v R [2017] NSWCCA 34; (2017) 266 A Crim R 1
- Obeid v R [2017] NSWCCA 221; (2017) 96 NSWLR 155
- DS v R; DM v R [2022] NSWCCA 156; (2022) 109 NSWLR 82
- CC v R; R v CC [2021] NSWCCA 71; (2021) 289 A Crim R 453
- Lloyd v R [2022] NSWCCA 18