Bethune v The Queen

[2021] NSWCCA 115

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Bethune v R [2021] NSWCCA 115

Hearing dates:

28 May 2021

Date of orders:

28 May 2021

Decision date:

09 June 2021

Before:

Harrison J at [1]; Adamson J at [2]; Bellew J at [30]

Decision:

(1)   Grant leave to appeal against sentence.

(2)   Allow the appeal.

(3)   Quash the sentence imposed by Weber SC DCJ on 20 March 2020 and, in lieu thereof, impose a sentence of 3 years’ imprisonment to commence on 11 May 2019 and expire on 10 May 2022, with a non-parole period of 18 months to expire on 10 November 2020.

(4)   Direct that the applicant be released forthwith.

Catchwords:

CRIME — Appeals — Appeal against sentence — Application for leave to appeal — Whether sentencing judge failed to assess the applicant’s moral culpability — Omission to undertake assessment of moral culpability in reasons does not always warrant intervention by this Court — Manifest excess established — Sentence was unjust as it was grossly disproportionate with the objective and subjective circumstances

SENTENCING — Appeal against sentence — Re-sentence — Assessment of objective seriousness and moral culpability — Consideration of connection between offending behaviour and childhood trauma — Finding of special circumstances warranted

Legislation Cited:

Crimes Act 1900 (NSW), s 112

Criminal Appeal Act 1912 (NSW), s 5

Cases Cited:

Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37

Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54

Kentwellv The Queen (2014) 252 CLR 601; [2014] HCA 37

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25

Re Attorney Generals Application no 1 under s 26 of the Criminal Appeal Act; R v Ponfield (1999) 48 NSWLR 327; [1999] NSWCCA 435

Category:

Principal judgment

Parties:

Matthew Bethune (Applicant)
Regina (Crown)

Representation:

Counsel:
B Robinson (Applicant)
S Traynor (Crown)

Solicitors:
Smythe Wozniak Lawyers (Applicant)
Solicitor for Public Prosecutions NSW (Crown)

File Number(s):

2019/148202

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

20 March 2020

Before:

Weber SC DCJ

File Number(s):

2019/148202

Judgment

1. HARRISON J: I have had the advantage of reading in draft the judgment of Adamson J. For the reasons set out by her Honour I joined in the making of the orders at the conclusion of the hearing.

2. ADAMSON J: At the conclusion of the hearing of the application for leave to appeal against sentence, the Court agreed on the orders which ought to be made. The orders are set out at the end of these reasons. My reasons for joining in the orders of the Court are as follows.

3. Matthew Bethune (the applicant) seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the sentence imposed by Weber SC DCJ for the offence of aggravated break, enter and commit serious indictable offence, namely, stealing, contrary to s 112(2) of the Crimes Act 1900 (NSW). The maximum penalty for the offence is 20 years’ imprisonment. The standard non-parole period is 5 years. After taking into account a discount of 25% for the applicant’s plea of guilty, the sentencing judge imposed a sentence of five years’ imprisonment, to commence on 11 May 2019, with a non-parole period of three years and nine months. The applicant will become eligible for parole on 10 February 2023.

4. The applicant seeks leave to appeal against his sentence on the following grounds:

“1.   The learned sentencing judge failed to make any assessment of the applicant’s moral culpability.

2.   The sentence was manifestly excessive.”

The proceedings on sentence

5. The Crown tendered an agreed statement of facts, the applicant’s criminal records in New South Wales and Queensland, and his custodial record. The applicant did not give evidence at the sentencing proceedings but relied on expert reports from Dr Richard Furst, psychiatrist, and Emma Hübner, forensic psychologist.

6. Dr Furst reported that the applicant was fearful of his father who ruled with an “iron fist” and was often violent. Both his parents drank heavily. When the applicant was 11 he was sexually abused by a family “friend”. The trauma had a profound impact on him. The applicant became an angry, impulsive teenager who associated with older peers who abused substances. Dr Furst noted that childhood sexual abuse is strongly correlated with mental disorders, such as depression, anxiety, substance abuse, low self-esteem and personality disorders. He found a causal connection between the applicant’s drug dependence and the sexual abuse he had suffered and the offending, which he regarded as “being at least partly the consequence of the long-term impact of his childhood abuse victimisation experience, mitigating to a degree against the seriousness of his offending actions”.

7. Ms Hübner concluded that the applicant’s upbringing placed him at risk of developing “personality pathology” and “emotional dysregulation, substance abuse and criminal behaviour”. She noted that he had experienced emotional dysregulation since childhood, which he dealt with by abusing substances. This led to his developing “ingrained personality pathology, that perpetuated his tendency to abuse drugs.”

8. The applicant’s counsel also tendered a letter from the applicant which was addressed to the Court, in which he acknowledged that there was little scope for the court’s discretion, having regard to the seriousness of the offence and his “extensive criminal record”. He asked for assistance outside his “current peer group” to “break free of this cycle”. He asked the Court to “take into consideration the CDTCC [Compulsory Drug Treatment Correctional Centre] program at Parklea CC [correctional centre].” It was common ground at the sentence hearing that this option was not available because of the applicant’s location on the Central Coast.

9. The parties had provided written submissions to the Court. The sentence hearing was brief as there was no oral evidence. The Crown submitted against a finding of special circumstances. The applicant’s counsel confirmed that no such finding was sought. His Honour proceeded to deliver sentencing remarks ex tempore at the conclusion of the hearing.

The sentencing remarks

10. His Honour made findings in accordance with the agreed facts, which established the following.

11. On 10 May 2019, the applicant was present at the home of Daniel Taunton in Wamberal. In the afternoon, the applicant departed Mr Taunton’s home, leaving his possessions there. When Mr Taunton woke the following morning, he noticed that some of his belongings were missing. He spoke to his neighbours, who had also noticed that some of their belongings were missing. Mr Taunton opened the applicant’s bag and found some of the missing items.

12. When the applicant returned to Mr Taunton’s home, Mr Taunton confronted him. The applicant immediately admitted that he had taken the items and showed Mr Taunton where they could be found. The items located by the applicant also included those which he had taken from the neighbours’ property. The applicant was arrested and made admissions to the police. All of the stolen items were recovered. The breaking and entering of the neighbours’ residence involved pushing a flyscreen to allow entry, which amounted to minimal damage.

13. It was common ground, as his Honour found, that the applicant’s criminal history and the circumstance that the offence was committed in the home of the victim while the victim was present were aggravating. His Honour also accepted that the circumstance that the damage caused by the offence was not substantial was a mitigating factor, as was the circumstance that the offence was not part of a planned or organised criminal activity. His Honour quoted the submissions made on the applicant’s behalf, with apparent approval, that the applicant had, in substance, gone “wandering” next door, where he entered the home and committed the offence while he was “off his head”. His Honour observed that it “was hardly a high point in the history of criminal offending”.

14. His Honour agreed with the Crown’s submission that the objective seriousness of the offence was “below the midrange”.

15. His Honour, when addressing the applicant’s subjective circumstances, noted that he was 47 and had had a difficult childhood (which involved violence and sexual abuse), which had caused him to self-medicate. His Honour referred to the applicant’s “almost lifelong problem with alcohol and other substance abuse.” The sentencing judge noted that the applicant’s criminal history, which he described as “lamentable”, disentitled him from leniency. His Honour noted that, of the past 20 years of his life, the applicant had spent all but 18 months in custody. His Honour referred to Dr Furst’s report. His Honour assessed the applicant’s prospects of rehabilitation as “in the guarded to poor range.”

16. His Honour referred to the parties’ “unstated premise” that the only appropriate penalty was a form of imprisonment. His Honour found that the sentence to be imposed would provide a “reasonable opportunity for the offender to undertake courses to address his problems both within the custodial environment, and while he is on parole”.

Ground 1: alleged failure to assess moral culpability

17. The applicant argued that his Honour had failed to assess moral culpability and that this failure had led his Honour to disregard the substantial disadvantage in the applicant’s background which reduced his moral culpability for the offence.

18. Allowance ought to be made for the circumstance that the sentencing judge gave his reasons ex tempore shortly after the sentencing hearing had concluded. Although the assessment of moral culpability is regarded as an important part of the sentencing process, and ought be reflected in the reasons, it is not always the case that an omission to undertake such an assessment will result in intervention by this Court. But for the second ground (which has been made out), I would not have been inclined to intervene in relation to the first ground. However, the trial judge’s failure to assess moral culpability may have led to his Honour failing to appreciate the applicant’s moral culpability and may explain, what I am persuaded is, a manifestly excessive sentence.

Ground 2: alleged manifest excess

19. In order to succeed in making out the ground of manifest excess, the applicant must establish that the sentence was “unreasonable” or “plainly unjust”: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25] (Gleeson CJ, Gummow, Hayne and Callinan JJ). The question whether a sentence is of such a kind is a conclusion concerning the result, which does not require the demonstration of any patent error in the sentencing process: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6] (Gleeson CJ and Hayne J).

20. The starting point for the sentence was, before allowance was made for the discount of 25% for the plea of guilty, 6 years and 8 months. I regard this as being so grossly disproportionate with the objective and subjective circumstances of the present case as to be unjust.

21. The present case is significantly less serious than the “typical” case identified in the guideline judgment of this Court for offences under s 112(1) of the Crimes Act in Re Attorney Generals Application no 1 under s 26 of the Criminal Appeal Act; R v Ponfield (1999) 48 NSWLR 327; [1999] NSWCCA 435 (Ponfield). In Ponfield, Grove J (Spigelman CJ and Sully J agreeing) noted that the fact that s 112 of the Crimes Act covered breaking and entering for the purposes of “committing a felony” (now, the wording is “commits any serious indictable offence”) necessarily meant that it covered a very wide range of offending. Although the usual serious indictable offence is stealing, or larceny, there are many more serious offences which are covered by s 112(1). For this reason, as Grove J explained in Ponfield at [19], the maximum penalty of 14 years’ imprisonment was “less than usually useful as an indicator”.

22. The offending in the present case was unplanned (to the point of being impetuous), haphazard, easily detectable (and easily reversed as no attempt was made to hide the property which had been taken), irrational (since the items taken would not appear to have been readily transferrable for cash or drugs) and self-defeating (since the applicant also took items from the person who was his temporary host, as well as from the host’s neighbours). No violence was involved and the victims sustained neither fear nor trepidation. Further, the applicant’s moral culpability was relatively low as his background and criminal history (which were inextricably related through substance abuse) meant that his capacity to refrain from such offences was significantly reduced. Although no specific submission was made in the Court below, by reference to Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37, that the applicant’s moral culpability was reduced by reason of his tumultuous upbringing and formative years, this inference plainly arose from the reports of Dr Furst and Ms Hübner and ought to have been taken into account by his Honour as part of his Honour’s assessment of the subjective material.

23. For these reasons, I am satisfied that ground 2 has been made out.

Re-sentencing

24. It is, accordingly, necessary for this Court to re-sentence the applicant: Kentwellv The Queen (2014) 252 CLR 601; [2014] HCA 37.

25. It is not necessary to restate the facts which were agreed as they have been set out above. I accept the opinions of Dr Furst and Ms Hübner to the effect that the applicant’s unfortunate upbringing disposed him to substance abuse, which has led to his substantial criminal record. His periods of incarceration would appear to have achieved neither specific deterrence nor rehabilitation. What is required to reduce the risk of further offending is residential drug rehabilitation in the community.

26. I assess the objective seriousness of his offending as near the bottom of the low range for the reasons given in respect of ground 2 above. The applicant’s moral culpability is also low, given his subjective factors and his apparent inability to refrain from self-destructive behaviour. I accept the opinions of Dr Furst and Ms Hübner as to the connection between his offending behaviour and childhood trauma, which included child sexual abuse. It is an aspect of justice that courts take into account, when sentencing, difficulties experienced by an offender before the offender was old enough to make responsible choices. Justice demands that allowance be made for life’s adversities, particularly when, as here, they have deprived the offender, from a very young age, of any real opportunities in life.

27. It was common ground in this Court that it would be open to find special circumstances on re-sentence. I consider a finding of special circumstances to be warranted because of the applicant’s demonstrated need for rehabilitation. In my view, the statutory ratio ought be adjusted such that the non-parole period is 50% of the total term.

28. As the sentence which this Court imposed has a non-parole period which has already expired, it was necessary to order that the applicant be released forthwith.

29. The reasons given above are my reasons for agreeing with the following orders of the Court, which were made at the conclusion of the hearing:

1. Grant leave to appeal against sentence.

2. Allow the appeal.

3. Quash the sentence imposed by Weber SC DCJ on 20 March 2020 and, in lieu thereof, impose a sentence of 3 years’ imprisonment to commence on 11 May 2019 and expire on 10 May 2022, with a non-parole period of 18 months to expire on 10 November 2020.

4. Direct that the applicant be released forthwith.

30. BELLEW J: I have had the advantage of reading in draft the judgment of Adamson J. For the reasons set out by her Honour I joined in the making of the orders at the conclusion of the hearing.

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Decision last updated: 09 June 2021