Citation: R v AD [2024] NSWSC 444
Court: Supreme Court of New South Wales
Date: 24 April 2024
Judge(s): R A Hulme AJ
Background
AD was 13 years and 11 months old when he participated in the murder of Jason Galleghan, a 16-year-old, at a residential property in Doonside on 4 August 2021. The victim had been lured to the address by a co-offender who believed he had stolen her AirPods. What followed was a prolonged and brutal group assault involving several young persons and an adult.
The assault lasted approximately 33 minutes inside the house. Parts of it were filmed on mobile phones and uploaded to Instagram, where one recording received approximately 170,000 views. Jason Galleghan was left unconscious and badly injured; paramedics were not called for about 50 minutes after the assault ended. He died in hospital two days later from complications of multiple blunt force injuries.
AD pleaded guilty to murder on the basis of constructive murder. The prosecution accepted that it could not establish beyond reasonable doubt that AD intentionally inflicted grievous bodily harm, or that he contemplated the intentional infliction of grievous bodily harm by others. The foundational offence was specially aggravated detention for advantage, namely the opportunity to assault and humiliate the victim.
Legal Issues
- What sentence is appropriate for a child offender convicted of murder, having regard to the objective gravity of the offence?
- How should the offender's age, immaturity, background, and prospects for rehabilitation affect the sentence?
- Whether standard non-parole periods for murder apply to a child offender, and how the sentence should be structured to allow for parole flexibility as the offender matures
- Whether the offender should serve his sentence as a juvenile offender under the Children (Criminal Proceedings) Act 1987 (NSW)
- What weight should be given to the guilty plea and the offender's remorse?
Decision
Hulme AJ treated the offence as one of serious objective gravity. The assault was prolonged, brutal, and carried out by multiple attackers against a defenceless victim who had been lured to the location under false pretences. The fact that part of the assault was recorded and posted to social media was an aggravating feature. The court noted that AD personally punched, kicked, and stomped on the victim, at one point forcing the victim to state his name before kicking him in the face with sufficient force to drive his head into a wall.
Despite the severity of the offence, the court gave substantial weight to AD's youth and immaturity. Reduced moral culpability on account of age is a well-established principle in sentencing child offenders, and the court found that AD's background, which was described as tainted by unfortunate circumstances, further reduced his culpability. The court also accepted that AD was remorseful and that he had reasonable prospects of rehabilitation and avoiding reoffending.
The court identified special circumstances warranting a departure from the standard non-parole period ratio. Greater flexibility in the parole structure was appropriate to allow for supervised transition back into the community as AD matures. A further basis for special circumstances arose from the requirement that AD serve his sentence as a juvenile offender until he turns 21, pursuant to section 19(1) of the Children (Criminal Proceedings) Act 1987.
The court also noted that the Crimes (High Risk Offenders) Act 2006 (NSW) has potential application to AD upon his eventual release, and directed that his solicitor explain those ramifications to him.
Orders Made
- AD convicted of murder
- Sentenced to a total term of 14 years and 4 months imprisonment, comprising a non-parole period of 9 years and 3 months and a balance of term of 5 years and 1 month
- Sentence reduced from a starting point of 18 years
- Sentence to date from 5 August 2021, with parole eligibility on 4 November 2030 and total sentence expiry on 4 December 2035
- Pursuant to section 19(1) of the Children (Criminal Proceedings) Act 1987, AD is to serve his sentence as a juvenile offender until he attains the age of 21
- Copies of the two reports of Dr Katie Seidler to be provided to Youth Justice NSW
Key Takeaways
- Standard non-parole periods for murder do not apply where the offender is a child, giving the sentencing court greater flexibility to calibrate the sentence to the individual offender's circumstances.
- A child offender's reduced moral culpability on account of immaturity remains a significant mitigating factor even in cases of extreme objective gravity, and an adverse background may further reduce that culpability.
- Under section 19(1) of the Children (Criminal Proceedings) Act 1987, a child offender sentenced for a serious indictable offence such as murder may be ordered to serve the sentence as a juvenile offender until the age of 21, which itself constitutes a basis for finding special circumstances in structuring the sentence.
- Constructive murder, where the death occurs during the commission of a serious foundational offence, does not require proof that the accused intended or contemplated the infliction of grievous bodily harm; the Crown accepted that standard could not be met here, and the plea was accepted on that basis.
- Proportionality across co-offenders sentenced for the same killing requires careful attention to individual differences, including each offender's role in the offending, age, background, and rehabilitation prospects.
Legislation and Cases Referenced
Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW), ss 6, 19(1), 19(4), Pt 3 Div 4
- Crimes (High Risk Offenders) Act 2006 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 4, Div 2A
Cases:
- R v BE [2023] NSWSC 1007
- R v BL [2024] NSWSC 51
- R v Sione; R v Dawson [2024] NSWSC 378
- BP v R [2010] NSWCCA 159; (2010) 201 A Crim R 379
- KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571
- TM v R [2023] NSWCCA 185