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Supreme Court 24 April 2024

R v TB

[2024] NSWSC 447

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

Citation: R v TB [2024] NSWSC 447
Court: Supreme Court of NSW
Date: 24 April 2024
Judge: R A Hulme AJ

Background

TB, a 13-year-old boy at the time of the offence, pleaded guilty to the manslaughter of Jason Galleghan, who died on 6 August 2021 following a prolonged and brutal assault at a residential property in Doonside two days earlier. The offence arose from a plan, orchestrated by an adult woman and an older associate, to lure Jason to the house on the false premise that he had stolen her AirPods. TB had only recently met most of his co-offenders and had no prior connection to the plan.

The assault involved a group of seven people ranging in age from 13 to 32. An adult male delivered the initial attack; TB and four other young persons then assaulted the deceased for approximately 22 minutes. Part of the assault was filmed on mobile phones and posted to social media. Jason sustained multiple blunt force injuries and died in hospital two days later.

Two co-offenders, BL and BE, had previously been sentenced for murder. TB's plea was accepted on the basis of manslaughter by unlawful and dangerous act, on the agreed position that he participated actively in the assault but could not be taken to have intended to cause really serious injury or to have foreseen that a co-offender might intend to cause that level of harm.

  • The appropriate sentence for a juvenile offender convicted of manslaughter by unlawful and dangerous act, where the offence was a serious example of that crime
  • The weight to be given to TB's age (13 years and 3 months), immaturity, background of profound deprivation, and rehabilitative prospects in mitigation
  • Whether special circumstances existed to justify varying the standard ratio between the non-parole period and the balance of term
  • Whether TB should serve the entirety of his sentence as a juvenile offender under the Children (Criminal Proceedings) Act 1987 (NSW)

Decision

Hulme AJ assessed the objective seriousness of the offence as a serious example of manslaughter by unlawful and dangerous act, placing it above the mid-range. The assault was prolonged, involved multiple forms of violence including stomping and slamming the deceased's head into a wall, featured humiliating and gang-related verbal abuse, and was recorded and disseminated on social media. The deceased was entirely defenceless throughout.

Notwithstanding the gravity of the offence, the court gave substantial weight to TB's reduced moral culpability. His extreme youth at the time (13 years and 3 months), immaturity, limited involvement in planning the attack, background of profound deprivation, and genuine remorse all told significantly in his favour. The court accepted that TB had good prospects of rehabilitation.

The court found special circumstances existed, justifying a longer balance of term relative to the standard formula. This was to provide flexibility in managing TB's parole as he matured, consistent with the rehabilitative purposes central to sentencing young offenders. A discount was applied for the early plea of guilty, with the court noting the sentence would have been 10 years without it.

The court also noted that the Crimes (High Risk Offenders) Act 2006 (NSW) would have potential application to TB upon his eventual release, and directed that his solicitor explain the ramifications of this to him.

Orders Made

  • TB convicted of manslaughter
  • Sentenced to a total term of 7 years and 6 months imprisonment, comprising a non-parole period of 4 years and 6 months and a balance of term of 3 years
  • Sentence backdated to commence 5 August 2021 (date of arrest)
  • Earliest eligible parole date: 4 February 2026; total sentence expires 4 February 2029
  • Pursuant to s 19(1) of the Children (Criminal Proceedings) Act 1987, TB is to serve the whole of his sentence as a juvenile offender
  • A copy of Dr Ellis's report (dated 17 March 2024) to be provided to Youth Justice NSW

Key Takeaways

  • Manslaughter is a "serious children's indictable offence" under the Children (Criminal Proceedings) Act 1987 (NSW) and must be dealt with according to law rather than under the general diversionary provisions of that Act.
  • A sentence for a juvenile offender convicted of manslaughter in a serious gang bashing may still attract very significant mitigation where extreme youth, immaturity, profound deprivation, and genuine remorse are established, even where the objective seriousness is assessed as above mid-range.
  • Special circumstances permitting a longer balance of term can be established where a young offender's ongoing maturation means parole flexibility will serve rehabilitative purposes.
  • Proportionality between co-offenders' sentences requires careful calibration of each offender's role, age, involvement in planning, and individual subjective features, rather than mechanical equivalence.
  • Under s 19(1) of the Children (Criminal Proceedings) Act 1987, a court retains the power to order that a juvenile offender serve the whole of a sentence as a juvenile, even where the sentence is a substantial term of imprisonment imposed according to law.

Legislation and Cases Referenced

Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW), ss 6, 19(1), 19(3)(b), Pt 3 Div 4
- Crimes (High Risk Offenders) Act 2006 (NSW)

Cases:
- BP v R [2010] NSWCCA 159; (2010) 201 A Crim R 379
- KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571
- R v BE [2023] NSWSC 1007
- R v BL [2024] NSWSC 51
- R v Hearne [2001] NSWCCA 37; (2001) 124 A Crim R 451
- R v Sione; R v Dawson [2024] NSWSC 378
- TM v R [2023] NSWCCA 185