Bond v The King

[2023] NSWCCA 78

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Bond v R [2023] NSWCCA 78

Hearing dates:

2 February 2023

Date of orders:

5 April 2023

Decision date:

05 April 2023

Before:

Simpson AJA, Fagan J, Dhanji J

Decision:

Leave to appeal against sentence granted.

Appeal be dismissed.

Catchwords:

CRIME – appeals – appeal against sentence – use of stupefying drugs to commit sexual offences – female complainant aged thirteen – no sufficient evidence of a deprived upbringing to engage Bugmy principles – no evidence that offender’s cognitive deficiency reduced his moral culpability – no evidence that Covid-19 exacerbated the conditions of the offender’s incarceration – appeal dismissed

Legislation Cited:

Crimes Act 1990 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Drug Misuse and Trafficking Act 1985 (NSW)

Poisons and Therapeutic Goods Act 1966 (NSW)

Zreika v R [2012] NSWCCA 44

Cases Cited:

Bugmy v The Queen (2013) 249 CLR 571

Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194

Zreika v R [2012] NSWCCA 44

Category:

Principal judgment

Parties:

Steven Bond (applicant)
Rex (respondent)

Representation:

Counsel:
D Marr SC with C Nowlan (applicant)
E Wilkins SC for the (respondent)

Solicitors:
TD Khouri Solicitors (applicant)
Director of Public Prosecutions (NSW) (respondent)

File Number(s):

2020/46613

Publication restriction:

Section 15A of the Children (Criminal Proceedings) Act 1987 (NSW) applies to prohibit publication of any informational material that identifies or is likely to lead to the identification of the complainant referred to in these reasons.

 Decision under appeal 

Court or tribunal:

District Court NSW

Jurisdiction:

Criminal

Date of Decision:

1 October 2021

Before:

Judge Webber SC

File Number(s):

2020/46613

JUDGMENT

1. SIMPSON AJA: I agree with the orders proposed by Fagan J and with his Honour’s reasons therefor. I also agree with the additional observations of Dhanji J.

2. FAGAN J: The applicant seeks leave to appeal against an aggregate sentence imposed on 1 October 2021 by Weber SC DCJ, following pleas of guilty entered in the Local Court. The offences for which sentence was passed were as follows, with the respective maxima indicated in brackets:

Seq 1: use intoxicating substance to commit an indictable offence, s 38A of the Crimes Act 1990 (NSW) [25 years]. On a Form 1 there were taken into account pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW) the following matters:

Seq 4: sexual touching without consent, s 61KC of the Crimes Act [5 years].

Seq 8: supply cannabis leaf, s 25(1) Drug Misuse and Trafficking Act 1985 (NSW) [2 years].

Seq 9: possess cannabis leaf, s 10(1) Drug Misuse and Trafficking Act [2 years].

Seq 11: supply restricted substance (Temazapam), s 10(3) of the Poisons and Therapeutic Goods Act 1966 (NSW) [2 years].

Seq 2: aggravated sexual assault, s 61J(1) of the Crimes Act [20 years, standard non-parole period 10 years].

Seq 5: production of child abuse material, s 91G(1)(a) of the Crimes Act [14 years, standard non-parole period 6 years]. On a Form 1 the following matters were taken into account:

Seq 7: possess child abuse material, s 91H(2) of the Crimes Act [5 years].

Seq 10: possess restricted substance (Temazapam), s 16(1) of the Poisons and Therapeutic Goods Act [6 months].

Seq 12: supply restricted substance (Melatonin), s 10(3) of the Poisons and Therapeutic Goods Act [2 years].

3. The learned judge nominated the following indicative sentences:

Seq 1: 3 years.

Seq 2: 4 years and 6 months with a non-parole period of 3 years.

Seq 5: 3 years and 6 months with a non-parole period of 2 years and 4 months.

An aggregate sentence of 7 years and 6 months was imposed with a non-parole period of 5 years.

4. The grounds set out in the application for leave to appeal are as follows:

1   Failure to apply the principles stated by the High Court in Bugmy v The Queen (2013) 249 CLR 571 relating to the applicant’s profoundly deprived childhood.

2   The sentencing judge erred in how he took into account the applicant’s mental health and cognitive deficiencies.

5. It was not submitted to the learned sentencing judge that penalty should be mitigated upon the consideration that prison conditions since his arrest on 12 February 2020 had been and would continue to be unusually burdensome by reason of restrictions upon prisoners’ movements and limitations upon gaol visits, imposed of necessity to contain the spread of the Covid-19 virus. The applicant’s counsel applied to this Court, at the conclusion of his submissions, to amend the application to seek leave in respect of an additional ground and for an order permitting him to file additional evidence. The Court allowed an amendment to add the following ground to the leave application:

3   The sentencing judge failed have regard to the impact of Covid-19 when sentencing the applicant.

The parties were granted leave to file evidence and supplementary submissions.

Circumstances of offending

6. The applicant was aged 59 years when the offences were committed on 10 February 2020. He is person of very low intelligence and is affected by a traumatic brain injury. In February 2020 the applicant was living independently, with support from the National Disability Insurance Scheme (“NDIS”), in an apartment at Penrith. The complainant was aged 13 years. She lived in a refuge next door to the applicant’s apartment building. The complainant first met the applicant about six months earlier. She and other girls of similar age spent time with the applicant in his apartment, where he provided them with cigarettes and cannabis. She told him she was 13 years old.

7. The complainant went to the applicant’s apartment at about 5:00pm on 10 February 2020. They had communicated by phone and the applicant had told the complainant she should come alone. Upon arrival she consumed alcohol, cannabis, MDMA, some orange powder and some capsules, all of which the applicant supplied. The provision of those intoxicants is the basis of Seq 1. The drugs caused the complainant to pass out. Over the next 3 to 4 hours she lapsed in and out of consciousness. During one brief interval of consciousness she found that her underpants had been removed and the applicant was touching her breasts. She then fell back into unconsciousness and only became fully conscious at about 11:00pm. She then asked the applicant whether they had had intercourse, to which he replied “hundreds of times” and said that he had ejaculated inside her “just a little bit”. Sequence 2 is based upon that admission.

8. The complainant picked up her belongings, ran into the bathroom and telephoned her mother. She said, “I just got raped”. She messaged some friends and informed them where she was and what the applicant that done. The complainant’s mother and friends phoned police. When police attended, the complainant did not fully describe the events of the evening.

9. Two days later the complainant returned to the apartment with the intention of robbing the applicant. He was present. She took his phone and ran from the building. The applicant chased her. After the intervention of a passer by, the applicant recovered his phone. He immediately began deleting material from it. Police later seized the phone and recovered a recently deleted file containing 85 photographic images of the complainant that had been taken on 10 February 2020. They showed her unconscious, undressed and in sexually revealing positions. The images fell within Category 2 of the internationally recognised classification of child pornographic material (Seq 5 and 7). While the complainant was unconscious, the applicant had inserted a torch in her vagina and manipulated it. This was recorded on 61 of the 85 images. One of the images recorded the complainant kissing the complainant on the mouth while she was apparently unconscious (Seq 4).

10. Police searched the applicant’s apartment and found 10g of Temazepam in the form of an orange powder, a number of Melatonin capsules prescribed for the offender and 1.2g of cannabis leaf. Those drugs are the subject of Seq 9-12 inclusive. Seq 8 concerned the supply of cannabis to the complainant.

11. The complainant suffered bruising and abrasions to her body including two purple bruises on her hymen. The victim impact statement was accepted by the learned sentencing judge. The complainant suffered while she was under the influence of the stupefying drugs because she knew she was being sexually interfered with but was unable to move or to shout for help and had to endure the applicant’s sexual acts in a semiconscious but powerless state. The complainant understandably suffered ongoing psychological disturbance at the time of the sentence proceedings.

Applicant’s subjective case

12. In the sentence proceedings the applicant tendered a report dated 1 March 2018 from Ms Massey, neuropsychologist, a report dated 17 September 2018 from Mr Ferris, psychologist, and a report of 1 October 2020 from Mr Watson-Munro, psychologist. The first two reports were primarily concerned with the effects upon the applicant of traumatic brain injury that resulted from a severe assault in January 2017. The applicant also tendered two reports of his Rehabilitation Case Manager, Mrs Doyle. According to Ms Massey, on 9 January 2017 the applicant was found unconscious on the floor of his temporary accommodation, with a Glasgow Coma Scale score of 7. He had sustained extensive facial bone fractures and a subarachnoid haemorrhage in a part of his brain identified as the right Sylvian fissure. When his injuries had been treated and the applicant had sufficiently recovered, he was tested for post-traumatic amnesia which was found to have a duration of 84 days.

13. Mr Watson-Munro’s report was directed to the question whether the applicant was fit to plead, which he was. Only Ms Massey’s report contained any information about the applicant’s early years and even that was scant. He had been placed in the care of foster parents for two years from the age of 11. He completed primary school but with poor attendance. He was placed as a boarder in a high school that catered for children with special needs, where he experienced academic difficulties and exhibited behavioural problems. Ms Massey characterised this as “a history of a disrupted childhood and limited education”. He commenced part-time unskilled employment while still at school and continued with this after leaving at the age of 17½ years. He had been able to retain employment as a warehouse man and labourer over the years prior to January 2017. The applicant had a long-term but tumultuous relationship with a female partner, extending over 23 years prior to 2017. The couple had six children together, all of whom were under the care of the Department of Family and Community Services.

14. Ms Massey ascertained that the applicant had sustained previous head injuries in his mid-teens and mid-20s – between about 1975 and 1985. Medical records showed a history of physical and mental health complaints, including hearing loss, chronic pain, cognitive difficulties and thought disturbances. Ms Massey estimated that his level of intellectual functioning prior to the January 2017 head injury had been in the “borderline impaired to low average range”. She said that many of the results from testing the applicant in January and February 2018 were within “pre-injury expectations” but some results in the areas of information processing, memory and executive functioning were “well below normal levels and significantly below [pre-injury] expectations”. She also said this:

His cognition is likely to be further impacted when his distress levels are elevated. […] The cognitive changes suggested on the assessment are likely to make it difficult for [the applicant] to return to his pre-injury levels of functioning.

15. Ms Massey did not identify any consistent psychological symptoms. She reported as follows:

At times [the applicant] reported significant symptoms of depression, anxiety and stress, while at other times he described a very happy mood. He described some difficulty adjusting to his injury and feeling overwhelmed.

16. In her report dated 31 January 2019 Ms Doyle noted that the applicant:

has continued to struggle with his mental health with ongoing volatile moods, suicidal ideation and threats of self-harm when agitated or distressed […]. [The applicant] has threatened to hang himself, stab himself or jump from his balcony. On one occasion he jumped from his carer’s car in traffic. When upset [he] hyperventilates, becomes much less steady on his feet and is difficult to calm.

17. Neither Mr Ferris’ report nor the reports of Mrs Doyle made any reference to the applicant’s developmental history or personal background. Mr Watson-Munro’s only observation on that subject was the following:

He described a complex clinical and developmental history, which has been galvanised by a serious and potentially life-threatening assault upon him, which occurred on 9 January 2017, resulting in substantial organic brain damage. His injury has had a lasting impact upon his cognition, referable to judgment, consequential thinking and memory.

18. The applicant’s written and oral submissions in the sentence proceedings were directed to “the offender’s mental disability as it impacts in the sentence process in accordance with Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194”. No endeavour was made to persuade his Honour that the applicant’s childhood background had involved profound deprivation or adverse influences of such a nature that his capacity for moral judgment or self-regulation had been compromised.

19. The applicant had a prior conviction for sexual offences committed in November 1990: one count of indecent assault and two counts of sexual intercourse with a person between the ages of 10 and 16 years. The complainant was a 13-year-old girl. The applicant was sentenced to an effective term of 4 years imprisonment with a non-parole period of 2 years. Judge Weber SC considered that the past offending disentitled the applicant to leniency with respect to the matters now under consideration. His Honour was not satisfied that the applicant had shown genuine remorse or insight concerning the present offending, even by the entry of his pleas of guilty or by the terms of a letter of apology that he had written to the Court. That conclusion was open to his Honour and has not been challenged on appeal. The learned judge allowed a 25% discount for the applicant’s early plea.

Ground 1 – failure to apply Bugmy v The Queen principles

20. For the purpose of considering the applicant’s ground 1, the following passages from the judgment of French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ in Bugmy v The Queen are pertinent:

[40]   […] The circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way.

[41]   […] Nonetheless, the appellant's submission that courts should take judicial notice of the systemic background of deprivation of Aboriginal offenders cannot be accepted. It, too, is antithetical to individualised justice. Aboriginal Australians as a group are subject to social and economic disadvantage measured across a range of indices [source reference omitted], but to recognise this is to say nothing about a particular Aboriginal offender. In any case in which it is sought to rely on an offender's background of deprivation in mitigation of sentence, it is necessary to point to material tending to establish that background.

[42]   […] The Director acknowledges that the effects of profound deprivation do not diminish over time and he submits that they are to be given full weight in the determination of the appropriate sentence in every case.

[43]   The Director's submission should be accepted. 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.

[44]   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 [citation omitted]. 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. The evidence before the sentencing judge provided no foundation for engagement of these principles. In support of ground 1 the applicant refers only to Ms Massey’s report that he was placed in foster care for two years from the age of 11 and that he boarded at a special needs school throughout his high school years. That evidence went nowhere near establishing, on the balance of probabilities, the kind of adverse childhood environment that the High Court referred to in Bugmy v The Queen. There is no basis upon which the learned judge could have found that the applicant’s upbringing left him with deficits of moral direction and self-control that should mitigate his sentence. Further, there were significant elements of planning and premeditation in the applicant’s offences. He instructed the complainant to come to his apartment alone, he drugged her for the purpose of sexually molesting and photographing her, his criminal conduct while the applicant was asleep continued for some hours. The offences were not committed impulsively or as a result of diminished capacity for self-control. They were not carried out in response to frustration or provocation. The learned judge expressly referred to those features of the case and found that the applicant’s conduct “was quite intentional”.

22. No doubt for the very good reason that there was no evidence to support a submission based upon Bugmy v The Queen, the applicant’s counsel did not make one at first instance. The applicant’s case before the learned judge was of an entirely different nature. Far from suggesting lifelong deficits of moral or behavioural control, the applicant sought to establish that it was the brain injury acquired in January 2017 that had compromised his mental capacity. The applicant cannot be permitted to change his case on appeal in this manner: Zreika v R [2012] NSWCCA 44 at [77]-[82].

23. Ground 1 should be rejected.

Ground 2 – account taken of mental disorders, cognitive deficiency

24. At first instance the applicant’s counsel submitted in writing that the way in which his “mental disability” should be taken into account was as follows:

[It] impacts in the sentence process in accordance with De La Rosa:

a   A potential moderate reduction in his moral culpability.

b   He is an inappropriate vehicle for general deterrence.

c   His custodial sentence would be more onerous than that for a prisoner without his condition, unless he is continuously held in an appropriate custodial situation – he is currently held in the “Additional Support Unit”.

d   Specific deterrence is problematic given his impaired cognitive and memory abilities.

e   There is no suggestion that his condition is such that it results in a need for an increased sentence for the protection of the public.

25. After hearing oral submissions the learned sentencing judge recorded the following position with respect to the applicant’s mental problems:

At the end of the day, the parties were in agreement as to how the offender’s mental state was to be considered in the sentencing synthesis. [Counsel] for the offender accepted that there was no evidentiary basis for a submission that the offender’s mental health issues were causally related to his offending. […]

The Crown submitted [and defence counsel agreed] that the offender’s mental condition remained relevant to the sentencing task in the following ways, as going to:

1   The offender’s prospect of rehabilitation;

2   Community protection;

3   Specific deterrence; and

4   Special circumstances.

In relation to specific deterrence, the Crown submitted [and defence counsel agreed] that the compromised capacity of the offender to comprehend what was going on around him, including the fact that he was being sentenced, rendered him a person in respect of whom specific deterrence loomed large.

26. In support of ground 2 the applicant submits that, despite acceptance by his counsel and the sentencing judge that his mental health problems were not causally related to the offending, nevertheless “because of the applicant’s cognitive deficiencies his moral culpability was reduced [and] general deterrence was of less importance”. In oral submissions at first instance the Crown expressly submitted, inter alia, that “the offender’s moral culpability is not reduced by virtue of his mental condition”. When defence counsel shortly thereafter expressed “substantial agreement” with the Crown’s submissions on mental health, he made no exception concerning impact upon moral culpability or general deterrence. The learned judge was correct in recording the common position of the parties as quoted above, without reference to the point now sought to be made about moral culpability and general deterrence. In accordance with Zreika v R, the applicant cannot be permitted to depart from the position taken at first instance in this respect.

27. In any event, in oral submissions to this Court the applicant’s counsel was not able to identify any evidence of cognitive deficiency in a faculty that would be relevant to moral understanding or moral culpability. He made only generalised reference to evidence in the psychologists’ reports that the applicant has cognitive limitations with respect to managing his financial affairs and that he requires many hours of support from NDIS caseworkers to manage his affairs while living independently. Further, quite apart from the dearth of expert evidence to support diminished moral culpability, the applicant’s frantic endeavours to recover his phone and delete images from it and his letter of apology to the Court are two aspects of the evidence that run directly counter to any such diminution.

28. In further support of ground 2 the applicant submits that his Honour failed to take into account item c of the considerations that his counsel had put forward in writing, namely, more onerous experience of custody. It is correct that his Honour did not expressly refer to that matter. However, there was no evidence that the applicant’s cognitive deficits or other mental characteristics would make his time in custody additionally burdensome. There is no basis upon which a finding on the balance of probabilities could have been made about this. The applicant did not tender evidence about conditions of incarceration in the Additional Support Unit at the Metropolitan Special Programs Centre.

29. I would reject ground 2.

Ground 3 – the impact of Covid-19 on conditions of imprisonment

30. The applicant filed an affidavit of his solicitor affirmed 9 February 2023, attaching three documents that describe in general terms measures that were adopted in New South Wales prisons during 2020 and 2021 to reduce the spread of the Covid-19 virus amongst inmates, Corrective Services staff and others who may be in contact with inmates or staff. The solicitor also deposed as follows:

I have been unable to obtain instructions from the applicant about any particular hardship experienced by him because of Covid-19.

31. The Crown filed an affidavit of the solicitor in the Office of the Director of Public Prosecutions who has carriage of the Crown’s response to this application for leave to appeal. The solicitor made enquiries of the three Corrective Centres in which the applicant has been housed. He received the following information:

1. The applicant was at Amber Laurel Corrective Centre for four days immediately following his arrest. [This period is so short that, whatever Covid-19 measures were in force, they could not be significant to the overall burden of the applicant’s sentence].

2. He was housed at the Metropolitan Reception and Remand Centre Silverwater for 38 days between 16 February 2020 and 25 March 2020. The manager of that centre advised, by email on 13 February 2023, that “covid was not present within MRRC during that period in time, therefore [the applicant] would have been managed as per normal procedures”.

3. From 25 March 2020 until the present the applicant has been housed in the Metropolitan Special Programs Centre, which is “a hospital-like setting” in which inmates are “usually restricted in what they can do in any event because of their disabilities and limited mental capacity”. There were several lockdowns during 2020 on account of staff shortages when prison officers contracted the virus. However, at those times inmates within the MSPC “were still free to move about within the facility and could call for assistance if required”. On two occasions the applicant has been isolated due to being a direct contact, each time for periods in conformity with the isolation regime that applied to the broader community.

32. It is not necessary to consider the issue of principle concerning whether leave to appeal on this ground should be granted having regard to whatever may have been the circumstances of omission of the point from the submissions made at first instance. It is not necessary to examine whether, or to what extent, the evidence could have been tendered in the District Court if reasonable diligence had been exercised. It is not necessary to categorise the evidence in the two affidavits as either “new” or “fresh”, according to the usual criteria that are applied to evidence tendered on appeal. Ground 3 can be simply disposed of on the basis that the evidence is incapable of establishing on the balance of probabilities that the Covid-19 epidemic has exacerbated the burden of the applicant’s sentence. Ground 3 should be rejected.

Orders

33. I propose that leave to appeal against sentence be granted but that the appeal be dismissed.

34. DHANJI J: I agree with the orders proposed by Fagan J.  With respect to the first ground relied upon by the applicant, as his Honour points out, in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37, the plurality, at [41], made clear that “[i]n any case in which it is sought to rely on an offender’s background of deprivation, in mitigation of sentence, it is necessary to point to material tending to establish that background”. In the present case, there was no such evidence. Even it were accepted that the circumstances of the applicant’s upbringing were such as to commonly involve some level of deprivation there was simply no evidence of this in the applicant’s case.

35. With respect to ground 2 there was no issue the applicant suffered a cognitive deficiency.  That cognitive deficiency was, in my view, relevant to the weight to be given to general deterrence.  However, the sentencing judge, in addition to adopting the joint position of the parties as set out by Fagan J (at [25]), when referring to the purposes of sentencing, including general deterrence, said “I do not consider that general deterrence looms as large as might otherwise have been the case, given the brain injuries which the offender has suffered.”  It is therefore clear that his Honour reduced the weight to be given to general deterrence.  With respect to moral culpability, on the evidence before him, the sentencing judge was not obliged to find the applicant’s moral culpability was reduced as a result of the relationship between his cognitive deficits and the offence.  The applicant had a prior offence involving sexual offending against a child which pre-dated his traumatic brain injury.  While this did not rule out a relationship between the applicant’s functioning and the offence, it suggested a need for evidence of greater clarity to support such an argument.  The state of the evidence explains why no such argument was put at first instance.  Finally, with respect to this ground, as Fagan J points out, there was no evidence the applicant suffered, or was likely to suffer, more difficult conditions in custody as a result of his deficits.

36. With respect to the applicant’s third ground, the impact of Covid-19 on his conditions of imprisonment, the solicitor’s affidavit, as set out by Fagan J, is somewhat ambiguous.  It states that the solicitor has been “unable to obtain instructions about any particular hardship” experienced by the applicant with respect to the issue.  It is not clear whether the solicitor has had difficulty in communicating with the applicant or that the applicant has instructed that he suffered no particular hardship.  Either way the ground is not made out.  It is not necessary to consider what may have caused the applicant’s experience to be different to what has been commonly experienced by prisoners in the State’s gaols throughout the pandemic. 

**********

Decision last updated: 05 April 2023