Black v The Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0023

HAYLEY JOHANNA DOROTHY BLACK	Appellant
v
THE QUEEN	Respondent

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JUDGES:	T FORREST and EMERTON JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	10 June 2022
DATE OF JUDGMENT:	27 June 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 125
JUDGMENT APPEALED FROM:	[2022] VCC 51 (Judge Lyon)

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CRIMINAL LAW – Appeal – Sentence – Dishonestly obtaining financial advantage by deception from Commonwealth entity and dishonestly causing loss to Commonwealth entity – Appellant received certain disability support pension payments under false representations – Sentenced to 27 months’ imprisonment with recognisance release order after 9 months – Whether manifest excess – Appalling childhood diminished moral culpability – Leave to appeal granted – Appeal allowed – Resentenced to 12 months’ imprisonment with recognisance release order after 130 days – Bugmy v The Queen (2013) 249 CLR 571 applied.

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Counsel
Appellant:		Ms J Swiney
Respondent:		Ms K Breckweg QC
Solicitors
Appellant:	Dane Keenes Legal
Respondent:	Mr S Bruckard, Solicitor for Public Prosecutions (Cth)

T FORREST JA
EMERTON JA:

On 18 May 2022, the Criminal Registrar of this Court granted an extension of time in which to file notice of application for leave to appeal against sentence. On 10 June 2022, we granted leave to appeal and allowed the appeal against sentence, substituting an aggregate sentence of 12 months’ imprisonment, with the appellant to be released after serving 130 days on a recognisance release order.
These are our reasons for allowing the appeal.
The appellant pleaded guilty to two charges of obtaining a financial advantage by deception. On 31 January 2022 in the County Court she was sentenced as follows:

Charge	Offence	Max Penalty	Sentence	Commencement
1	Dishonestly obtaining a financial advantage by deception from a Commonwealth entity, contrary to s 134.2(1) Criminal Code (Cth)	10 years’ imprisonment	27 months’ imprisonment	31 January 2022
2	Dishonestly causing a loss to a Commonwealth entity contrary to s 135.1(1) Criminal Code (Cth)	10 years’ imprisonment	2 months’ imprisonment	31 January 2022
Total Effective Sentence:		27 months’ imprisonment
Recognisance Release period:		To be released after serving 9 months of the sentence of imprisonment on entering a recognisance in the sum of $1,000 to be of good behaviour for a period of 3 years.
Pre-sentence Detention Declared:		Nil
Other Relevant Orders: 1. Reparation order made pursuant to s 21B of the Crimes Act 1914 (Cth) in the sum of $109,043.47.

Summary of the offending

An agreed Crown opening for the plea hearing provides an adequate summary of the offending. We shall reproduce it.[1]
[1]Crown Opening for Plea Hearing, [3]–[20].
The [appellant] has been in receipt of social security benefits since 2009. During the period of offending the [appellant] was in receipt of Disability Support Pension.
Disability Support Pension is payable to eligible persons who have been assessed as having a physical, intellectual or psychiatric condition and as being unable to work more than a specified number of hours per week. The rate of benefit payable is affected by other income received by the person, including income from employment.
During the period of offending, payments of Disability Support Pension were deposited by the Department of Human Services into two Commonwealth Bank of Australia accounts (ending in *677 and *964) held in the name of Hayley Black. Payments into the bank account ending in *677 were deposited from 29 January 2013 through to 6 August 2018, and payments into the bank account ending in *964 were deposited from 7 August 2018 to 8 August 2019.
Overview — Charge 1
On 15 August 2012, the [appellant’s] Disability Support Pension was suspended as a result of the [appellant] informing the Department that she was working more than 30 hours per week. On 29 January 2013, the [appellant] contacted the Department by phone and falsely represented to them that she was no longer working. This was false, because at the time she provided this information, the [appellant] was employed with the Royal Melbourne Hospital.
As a result of the [appellant’s] representation, the [appellant’s] Disability Support Pension was reinstated. Further, as a result of this representation the [appellant] was no longer required to report her income to the Department in order to continue to receive benefits.
Therefore, by reason of her false declaration the [appellant] received payments of Disability Support Pension that she was otherwise not entitled to receive between 29 January 2013 and 14 June 2018. As a result of her false representation that she was no longer working, payment of her Disability Support Pension was restored and she was not placed on any regular reporting requirements, however she was subject to an ongoing legal obligation to advise the Department of any changes to the employment/income information that she had provided to the Department. She failed to do this at any time during the period of the charge.
The [appellant] ceased employment with the Royal Melbourne Hospital on 10 June 2018.
Overview — Charge 2
On 7 January 2019 the [appellant] commenced employment with Livebetter Services Ltd.
During the period between ending employment with the Royal Melbourne Hospital, and commencing employment with Livebetter Services Ltd, the [appellant] was receiving payments of Disability Support Pension.
The [appellant] failed to declare her income from employment from Livebetter Services Ltd to the Department whilst in receipt of Disability Support Pension from 24 January 2019 through to 8 August 2019, and therefore caused a loss to the Department.
Employment
Charge 1
During the period 11 June 2012 through to 10 June 2018, the [appellant] was employed on a full-time basis as a Patient Services Assistant with the Royal Melbourne Hospital. During the period of offending, the [appellant] earned $316,288.61 gross income (an average of $2,217.85 gross income per fortnight).
Charge 2
During the period 7 January 2019 through to 8 August 2019, the [appellant] was employed on a casual basis as a Disability Support Worker with Livebetter Services Ltd. During the period of offending, the [appellant] earned $28,490.96 gross income (an average of $1,899.40 gross income per fortnight).
Income received from the [appellant]’s employment with the Royal Melbourne Hospital and Livebetter Services Ltd was deposited into the Commonwealth Bank of Australia account (ending on *677). This is the same bank account that the [appellant]’s social security benefits were deposited into from the period 26 June 2012 through to 6 August 2018.
Reporting Obligations
During the period of offending, the [appellant] remained subject to an ongoing legal obligation to report an event or change in circumstance, such as changes to her income, including if she commenced earning income or if her income varied. The [appellant] did not report an event or change in her circumstances and as a result, the [appellant] obtained social security payments to which she knew or believed she was either not entitled or only partially entitled.
Overpayment
During the period of offending relevant to charge 1, the [appellant] earned $308,777.01 gross income from employment and declared nil gross income from employment to the Department. During this period the [appellant] received $121,602.51 in social security benefits. The [appellant] was eligible to receive only $12,347.13 of those benefits. Therefore, the overpayment obtained by the [appellant] relevant to charge 1 was $109,255.58.
During the period of offending relevant to charge 2, the [appellant] earned $28,490.96 gross income from employment and declared nil gross income from employment to the Department. During this period the [appellant] received $13,918.50 in social security benefits. The [appellant] was eligible to receive only $2,783.73 for those benefits. Therefore, the overpayment obtained by the [appellant] relevant to charge 2 was $11,134.77.
Therefore, during the total period of offending, the [appellant] earned a total of $337,261.97 gross income from employment and declared nil gross income from employment to the Department. During this period, the [appellant] received $135,521.01 in social security benefits. The [appellant] was eligible to receive only $15,130.86 of those benefits. Therefore, the total overpayment obtained by the [appellant] during the period of offending was $120,390.15.
Record of Interview
As part of the investigation, the Department wrote to the [appellant] on 28 October 2019 inviting her to participate in a formal interview. There was no response to the letter. A formal interview did not take place.

The judge’s sentencing reasons

The judge noted that during the offending period covered by charge 1, the appellant received $121,602.51 in benefits, when she was eligible to receive $12,347.13. Thus, the overpayment was $109,255.38. During the offending period covered by charge 2, the appellant received $13,918.50 in benefits, when she was eligible to receive $2,783.73. The overpayment thus was $11,134.77. The total overpayment was $120,390.15.
The judge observed that since detection the appellant had repaid over $11,000.
His Honour concluded that the offending on charge 1 derived its seriousness from the fact that the appellant
consciously and deliberately took steps to deceive the Department into reinstating payments to [her] at a time when [she knew she] was not entitled to such payments. As a consequence of [her] actions, [the appellant] received a large amount of money to which [she knew she] was not entitled; and [she] received those payments over a very long period of time.[2]
The judge considered that the offending on charge 2 was ‘less serious’, being committed over a ‘much shorter period of time and involved [her] receiving far less money by dishonest means’.[3]
[2]DPP (Cth) v Black [2022] VCC 51, [20] (‘Sentencing Reasons’).
[3]Ibid [22].
The judge observed that the cases to which he had been referred[4] all indicated that the ‘dominant sentencing principle to be considered and applied in cases of social security fraud is general deterrence’. His Honour went on to comment:
Usually, cases of sustained and deliberate cheating of the social welfare system attract periods of imprisonment; even after taking into account the circumstances of the offender.
[4]Dickinson v The Queen [2021] VSCA 50; Warden v The Queen [2019] VSCA 2 (‘Warden’); Jorissen v The Queen [2017] WASCA 71; R v Knipe [2017] SASCFC 34; Zaky v The Queen [2015] NSWCCA 161 (‘Zaky’); Aitchison v The Queen [2015] VSCA 348; Huynh v Commonwealth Services Delivery Agency (2014) 288 FLR 219; [2014] SASC 143; De Faria v Western Australia [2013] WASCA 116 (‘De Faria’); DPP (Cth) v Gregory (2011) 34 VR 1; [2011] VSCA 145; DPP (Cth) v Rowson [2007] VSCA 176; R v Alimic [2006] VSCA 273; Saxon v Commonwealth Services Delivery Agency (2004) 88 SASR 382; [2004] SASC 118; DPP v Alateras [2004] VSCA 214; DPP (Cth) v Milne [2001] VSCA 93; Kovacevic v Mills (2000) 76 SASR 404; [2000] SASC 106.
His Honour then set out the appellant’s personal history.[5] We shall summarise it in brief form.
[5]Sentencing Reasons, [25]–[35].
•At the date of sentence the appellant was 31 years old.
•She is the youngest of four children, with three older brothers.
•Her parents separated when she was about 9 years old.
•Her family was not ‘emotionally close’.
•The appellant was sexually abused by her mother’s new partner when she was around 10 years old. She tried to tell her mother but was ignored.
•At 13 she moved out of home with the support of Anglicare and lived intermittently with a friend and her family. The appellant reported (to her psychologist) being sexually abused by her friend’s father when she was between 13 and 17 years of age.
•She completed Year 10 at Lilydale High School and then left.
•During these years she engaged in self-harm and underwent a number of psychiatric admissions to Maroondah Hospital where she was diagnosed with Borderline Personality Disorder and underwent Electro Convulsive Therapy (ECT). She was diagnosed with Bipolar Mood Disorder in 2014.
•The judge accepted that the appellant had often overdosed on Panadol as a teenager, and had made numerous attempts at suicide, including by hanging in 2021.
•She regularly used drugs as a teenager including cannabis and amphetamines (speed). She has not used drugs for a lengthy period.
•She has been largely employed since leaving school including café jobs and as an in-care technician with the Royal Melbourne Hospital.
The judge then summarised the psychological material.[6]
[6]Ibid [40]–[54].
Ms Carla Lechner, clinical psychologist, assessed the appellant on 23 August 2021. Ms Lechner reported that the appellant presented with
a long history of mental health problems arising from a childhood of exposure to Complex Developmental Trauma that has resulted in symptoms of Complex-Post-Traumatic Stress Disorder … [and] Bipolar Mood Disorder.
The appellant also met the criteria of Major Depressive Disorder manifesting as the ‘down’ cycle of her Bipolar Mood Disorder.
Further, the judge had regard to the pre-sentence psychiatric report authored by Forensicare Consultant Psychiatrist Dr Remy Glowinski.[7] Finding that the appellant was ‘a very complex psychiatric case with two significant psychiatric disorders’ (complex post-traumatic stress disorder and bipolar affective disorder type 2), Dr Glowinski continued:
Ms Black described the offending in a manner which suggested passive avoidance rather than premeditated action. She described difficulty opening official correspondence or proactively contacting Centrelink. This behaviour is in keeping with her described pattern of avoiding conflict due to high levels of anxiety… Avoidance behaviours of this severity are a common behavioural manifestation after adverse childhood experiences and in the context of complex PTSD.
I also note that Ms Black experienced severe mood episodes intermittently throughout the period of offending. When depressed she was almost certainly dysfunctional and incapable of dealing with financial matters, including Centrelink. Ms Black also described spending excessive amounts of money when elevated. This suggests a potential causal connection between her bipolar disorder and the offending.
[7]Ibid [54].
In light of the two mental health reports, the judge accepted that the appellant’s mental health issues made it difficult for her to face up to and remedy her deceptive conduct.[8] The judge concluded:[9]
I accept that your mental health issues may in part explain your inability to regulate your lifestyle and to control your overspending, but I am still left with the impression that your offending was largely motivated by greed.
[8]Ibid [55].
[9]Ibid [57].
The judge considered that the appellant’s prospects for rehabilitation were good.[10] He noted that she had no prior convictions; good supportive factors in place including regularly engaging with professionals to manage her mental health issues; her plea of guilty was entered at the earliest time and her efforts to make repayments were true indicators of remorse for her offending.
[10]Ibid [61].
Having summarised the parties’ submissions the judge stated that he considered ‘that a period of imprisonment with a release on an recognizance release order [‘RRO’] is the appropriate sentence to be imposed in this case’.
The judge then said:[11]
Where the difference between the case lies is in the lengths of imprisonment to be immediately served before release on the RRO. That is a critical consideration in this case. [Defence counsel] submits that I should order your immediate release, that is forthwith release without the need for you to serve a period of immediate imprisonment. The Crown submits that an immediate period of imprisonment ought to be imposed.
In the end, I must be wary of being too greatly influenced by sentences imposed in other cases. For example, in the case of Dickinson^[[12]] which was provided to me, this is a recent appeal from a sentence imposed in this court for a relatively similar amount of money. Yet, on a close reading, there are a number of differences between the circumstances of your offending and in that case. I must weigh all the circumstances of your case and arrive at an appropriate sentence that meets the sentencing principles but balances the factors personal to you so far as I may take them into account.
[11]Ibid [65].
[12]Dickinson v The Queen [2021] VSCA 50 (‘Dickinson’).
Finally, the judge stated that he had reduced the overall period of imprisonment and imposed a shorter period of actual imprisonment (as compared to the comparable cases provided to him) in deference to the greater burden of imprisonment consequent upon the appellant’s ‘mental health issues’, as compared to the general prison population. He then said,[13]
However, the burden of your mental health issues may only lead to a relatively modest reduction in your sentence. I must also take into account the other factors personal to you and to which I have already referred in the course of these remarks and these should operate to mitigate the sentence I impose upon you.
The judge then imposed the sentence that is set out at [3] above.
[13]Sentencing Reasons, [67].

This appeal

The single ground of appeal was expressed as follows:
The sentence is manifestly excessive.
The appellant’s written submissions rehearsed the submissions made on the plea. Counsel focussed on the appellant’s mental health and the judge’s finding that it was ‘largely motivated by greed’. Counsel endeavoured in written submissions to draw a nexus between the appellant’s mental health and her offending throughout the relevant period.
Counsel further submitted that the judge did not address the likely impact of a period of imprisonment upon the appellant. This was said by counsel to amount to a ‘compelling reason why the appellant should have been released immediately’.
The respondent’s written submissions reminded us of the applicable sentencing principles. These are uncontroversial. In summary:
•General deterrence is the primary sentencing consideration for fraud offences.
•Where the fraud is deliberate and sustained, general deterrence will ordinarily require a term of imprisonment. This is so even if the fraud is committed in circumstances of significant personal disadvantage or the offending is relatively unsophisticated and lacks aggravating features, including procuring multiple benefits or use of a false identity, or if the fraud is committed for another’s gain.
•When general deterrence is to be given pre-eminent weight in the sentencing exercise, personal mitigating factors, for example prior good character, age and prospects of rehabilitation, must be given less consideration than would otherwise be the case.[14]
•In assessing the seriousness of the offending and the level of criminality involved, the amount of money involved is a significant factor, for it is ‘an indication of the extent to which an offender is prepared to be dishonest and to flout the law’.[15]
•Offences relating to the social security system are widespread, relatively easy to commit and can pass unnoticed. A social security system relies on the honesty of its recipients. Fraud creates a heavy burden on the Australian government’s revenue, the community and taxpayers. Those who abuse the system can engender public loss of confidence in the social security system and create the risk of demonising those who genuinely need such assistance.[16]
•Further, fraud can undermine the integrity of the social security system and may lead to the imposition of additional checks, which would make the delivery of services slower and more cumbersome, disadvantaging genuine applicants.[17]
[14]Dickinson [2021] VSCA 50; Jansen v The Queen [2021] WASCA 160; R v Knipe [2017] SASCFC 34, [23]; R v Jafari [2017] NSWCCA 152, [52], [97]; Kovacevic v Mills (2000) 76 SASR 404; [2000] SASC 106; DPP (Cth) v Page [2006] VSCA 224 (‘Page’); R v Ellery [2012] VSC 349, [33]; DPP (Cth) v Gregory (2011) 34 VR 1; [2011] VSCA 145; DPP (Cth) v Milne [2001] VSCA 93; R v Aller [2004] NSWCCA 378; R v Hurst [2005] QCA 25 (‘Hurst’); DPP (Cth) v Rowson [2007] VSCA 176; R v Nguyen & Phan [1997] 1 VR 386; McGuinness v R [2008] NSWCCA 80, [44]; De Faria [2013] WASCA 116, [159]; Zaky [2015] NSWCCA 161, [49].
[15]R v Hawkins (1989) 35 A Crim R 430, 435 (Lee J, Newman and Loveday JJ agreeing). See also Page [2006] VSCA 224, [45]; Warden [2019] VSCA 2.
[16]De Faria [2013] WASCA 116, [78]; Hurst [2005] QCA 25.
[17]Ralph v Nawrojee [2003] WASCA 5, [25].

At the appeal hearing it was pointed out by the Court to both counsel that whilst there was a legitimate focus on the appellant’s mental ill-health at the plea hearing, this appeared to dominate the matters put in mitigation and tended to obscure other factors that also were capable of impacting upon the appellant’s moral culpability. We indicated that in particular we were concerned that the appellant’s appalling childhood and early adolescence experiences had been overlooked as a discrete factor that could impact upon her moral culpability, regardless of any nexus to the offending. We referred to the seminal case of Bugmy v The Queen,[18] where the majority of the High Court explained the relevance of childhood deprivation to the sentencing process.[19] Significantly, such deprivation is relevant because the offender’s moral culpability for the offence being considered is likely to be less than that of an offender whose childhood had not been marred in this way. The respondent accepted that the principles set out in Bugmy were relevant to the sentence which ought to have been imposed on the appellant but appeared not to have been given consideration by the sentencing judge. The respondent accepted that it would be open to this Court to adjust the head sentence and the recognisance release period, however some form of imprisonment was appropriate.
[18](2013) 249 CLR 571; [2013] HCA 37 (‘Bugmy’).
[19]Ibid 594–5 [43]−[44] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ).
As we have mentioned, the appellant’s childhood and adolescence were blighted by neglect and sexual abuse. To reiterate, the appellant’s parents separated when she was eight or nine years old. Her mother re-partnered within a year of the marital breakdown. The appellant was subjected to very regular sexual abuse by her mother’s partner, from about the age of 10. Her mother was dismissive of her daughter’s accounts, and ignored the attempted intervention of one of the mother’s friends. The abuse only ceased after about a year when her mother broke up with her then-partner. The appellant was in Year 5 when the abuse commenced and, in her words to the Forensicare Consultant Psychiatrist, became ‘rebellious and feral’ at about that time. By the age of 13, the adolescent appellant had moved out of home with the support of Anglicare. She went to live with a contemporary friend’s family and was again sexually abused persistently over a four-year period to the age of 17. Unsurprisingly the appellant’s mental health suffered and she used drugs, mostly cannabis and amphetamines, during this period. She self-harmed regularly from age 12 or 13, and later had several hospital admissions at Maroondah Hospital where ECT was carried out. She attempted suicide on several occasions.
None of these depressing facts were disputed on the plea and all were accepted by his Honour in his conscientious recitation of the appellant’s circumstances.
At no stage was it submitted to the judge by either defence counsel or the prosecutor that this dreadful childhood deprivation could, as a stand-alone factor, operate to diminish the appellant’s moral culpability insofar as both charges were concerned, and that it was unnecessary to demonstrate any causative nexus between the relevant deprivation and the offending conduct.
Although the judge fully summarised these circumstances[20] and stated that in addition to the appellant’s mental health issues that he ‘must also take into account the other factors personal to [the appellant] and to which [he has] already referred … [which] should operate to mitigate the sentence’ imposed, it is unclear to us that the judge’s assessment of the appellant’s moral culpability was moderated on account of her deprived childhood experiences as a victim of neglect and sexual abuse.
[20]Sentencing Reasons, [25]–[34].
As we have stated it is settled law that in cases of significant early life deprivation an offender’s moral culpability is likely to be less than for an offender from a less deprived background.[21] In Bugmy, the Court also stated:[22]
The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person’s capacity to mature and to learn from experience. It is a feature of the person’s make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending.
Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving ‘full weight’ to an offender’s deprived background in every sentencing decision. However, this is not to suggest, as the appellant’s submissions were apt to do, that an offender’s deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult.^[[23]] An offender’s childhood exposure to extreme violence and alcohol abuse may explain the offender’s recourse to violence when frustrated such that the offender’s moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.
[21]Bugmy (2013) 249 CLR 571, 594 [40] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ); [2013] HCA 37.
[22]Ibid 594–5 [43]−[44] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ).
[23]Veen v The Queen [No 2] (1988) 164 CLR 465, 476 (Mason CJ, Brennan, Dawson and Toohey JJ).
In Director of Public Prosecutions v Herrmann, this Court explained that it is unnecessary to establish a nexus between significant childhood deprivation and the offending under consideration:[24]
The decisions of this Court also reaffirm the need for an appropriate evidentiary foundation before an offender’s disadvantaged background can be taken into account.^[[25]] Depending on the extent and quality of the evidence, it may or may not be possible to establish a ‘nexus’ or ‘realistic connection’ between the offending and the relevant background circumstances.^[[26]]
The significance of the ‘general’ approach enunciated in Bugmy is that the relevance of deprivation to sentencing does not depend on proof of such a nexus. As Victoria Legal Aid pointed out in its helpful submission as amicus curiae, ‘the impact of disadvantage is complex, multilayered, non-linear and not easily “diagnosed” or measured’. The High Court’s recognition that serious childhood deprivation is likely to make an offender less morally culpable than ‘an offender whose formative years were not marred in that way’^[[27]] reflects the principle of equal justice. As Dawson and Gaudron JJ said in Postiglione v The Queen:
Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them.^[[28]]
It is the mark of a humane society that the moral judgment expressed through sentencing should take account of the lifelong damage that may result from exposure to violence or abuse or parental neglect in an offender’s formative years. As the present case graphically illustrates, childhood trauma can permanently damage — and seriously distort — a person’s view of the world around them and their understanding of social norms. Thus, in Freeburn v The Queen [No 2], it was accepted that the offender’s ‘background, of deprivation and abuse, played a material role in shaping his responses, and thus in his offending’.^[[29]] In Snow, the Court drew attention to ‘the impact on the decision-making of individuals of growing up, and living, in circumstances of prolonged and widespread social disadvantage’.^[[30]]
[24][2021] VSCA 160, [44]–[45] (‘Herrmann’).
[25]DPP v Terrick (2009) 24 VR 457, 469 [46.7] (Maxwell P, Redlich JA and Robson AJA); [2009] VSCA 220.
[26]Ibid 468 [46.2]–[46.3].
[27]Bugmy (2013) 249 CLR 571, 594 [40] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ); [2013] HCA 37.
[28](1997) 189 CLR 295, 301; [1997] HCA 26.
[29][2020] VSCA 176, [51] (Kyrou, Kaye and Emerton JJA).
[30]DPP v Snow [2020] VSCA 67, [79] (Maxwell P, Beach JA and Croucher AJA).
We consider that the appellant’s childhood and adolescent experiences amply justified a reduction in the evaluation of her moral culpability. As we have said it is unclear to us whether this in fact occurred, given the non-existent ventilation of Bugmy considerations on the plea and this solitary passage concerning moral culpability from the judge’s sentencing reasons: ‘I consider that your moral culpability for your offending on Charge 1 is not particularly reduced by your mental health issues’.[31]
[31]Sentencing Reasons, [59].
Notwithstanding that the principle of deterrence remains an important sentencing factor, the presence of the mitigating factors that we have set out, including importantly the principles explained in Bugmy and Herrmann, led us to conclude that the sentence imposed on charge 1 was manifestly excessive. We reached this conclusion after taking into account sentences imposed in similar cases and referred to in the ‘Table of Comparatives’ tendered by the Crown on the plea.[32]
[32]See Dickinson [2021] VSCA 50; Yarak v The Queen [2008] NSWCCA 298; Ord v The Queen (2008) 186 A Crim R 475; [2008] NSWCCA 162; Johnsson v The Queen [2007] NSWCCA 192; R v Thomson [2009] SASC 237; Buggy v The Queen [2006] ACTCA 20.
We resentenced the appellant to an aggregate sentence of 12 months’ imprisonment, to be released after serving 130 days by giving recognisance in the sum of $100 to be of good behaviour for three years.
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[2022] VSCA 125

27 June 2022