Donovan v The Queen

[2021] NSWCCA 323

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Donovan v R [2021] NSWCCA 323

Hearing dates:

8 November 2021

Decision date:

21 December 2021

Before:

Simpson AJA at [1];
Rothman J at [2];
Ierace J at [3]

Decision:

(1) Leave to appeal granted;

(2) Appeal allowed;

(3) Quash the sentence imposed in the District Court on 10 July 2020 and in lieu thereof impose a term of imprisonment of 2 years and 5 months, commencing on 22 May 2020 and expiring on 21 October 2022, with a non-parole period of 1 year, and 7 months, so that the applicant will be eligible for release to parole on 21 December 2021;

(4) Direct that, pursuant to s 158 of the Crimes (Administration of Sentences) Act 1999 (NSW), the applicant be released forthwith.

Catchwords:

CRIME – Appeals – Appeal against sentence – Recklessly inflict grievous bodily harm in company – Affray – Where sentencing judge did not consider applicant’s deprived background to have materially contributed to his offending due to his prior good character – Whether the sentencing judge erred in her consideration of applicant’s moral culpability – Application of Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37

Legislation Cited:

Crimes Act 1900 (NSW), ss 35, 93C

Crimes (Administration of Sentences) Act 1999 (NSW), s 158

Criminal Procedure Act 1986 (NSW), ss 166, 168

Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A

Cases Cited:

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

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

Category:

Principal judgment

Parties:

Byron James Donovan (Applicant)
Regina (Respondent)

Representation:

Counsel:
E McLaughlin (Applicant)
B Baker; E Lambert (Respondent)

Solicitors:
Aboriginal Legal Service (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s):

2019/40535

 Decision under appeal 

Court or tribunal:

District Court

Date of Decision:

10 July 2020

Before:

Harris DCJ

File Number(s):

2019/40535

Judgment

1. SIMPSON AJA: I agree with Ierace J.

2. ROTHMAN J: I agree with Ierace J.

3. IERACE J: The applicant seeks leave to appeal against an aggregate sentence of imprisonment imposed on him by Judge Harris (“the sentencing judge”) in the District Court on 10 July 2020, following pleas of guilty to the following two offences:

1. One count of recklessly inflict grievous bodily harm in company, contrary to s 35(1) of the Crimes Act 1900 (NSW) (“the first offence”). The first offence carried a maximum penalty of 14 years imprisonment and a standard non-parole period of 5 years; and

2. One count of affray, contrary to s 93C of the Crimes Act (“the second offence”). The second offence came before the Court as a related offence pursuant to s 166(1) of the Criminal Procedure Act 1986 (NSW), so that the jurisdictional limit of the Local Court of 2 years imprisonment applied: s 168(3).

4. The applicant was sentenced to an aggregate term of imprisonment of 2 years and 9 months, commencing on 22 May 2020 and expiring on 21 February 2023, with a non-parole period of 1 year and 10 months, so that he will be eligible for release to parole on 21 March 2022. The sentencing judge nominated indicative sentences of 2 years and 6 months imprisonment with a non-parole period of 1 year and 8 months in respect of the first offence, and 2 years imprisonment in respect of the second offence.

5. The applicant sought leave to appeal his sentence on two grounds, although the second was effectively abandoned at the hearing of the appeal and is not further considered. The remaining ground is that the sentencing judge erred in her consideration of the applicant’s moral culpability.

6. The applicant was sentenced with a co-offender, Wendell Milgate. Two of Wendell Milgate’s brothers, Blake and Mitchell Milgate, and another man, Dean Hooper, were also co-offenders and had previously been sentenced in the Local Court.

Factual background

7. The incident from which the offences arose lasted for a few minutes. A description by the sentencing judge drew on a common set of agreed facts and video of the incident captured by closed circuit television (“CCTV”) and is to the following effect.

8. At about 1:20am on 3 February 2019, two adult males, who I will refer to as “victim 1” and “victim 2”, were standing in the car park of a McDonald’s restaurant at Penrith. At around that time, the applicant and the co-offenders walked past the victims. Words were exchanged between the parties and an argument ensued.

9. The argument escalated and resulted in victim 1 and Blake Milgate and Mitchell Milgate “shaping up to fight”. Blake Milgate “threw the first punch” at victim 1 in the car park. The victims tried to distance themselves from the offenders, including the applicant, who followed them around the car park. The victims became separated, but remained in the vicinity of each other.

10. As victim 1 walked backwards, the applicant and his co-offenders walked towards him and threw “shadow punches”. Footage captured by a witness on a mobile phone showed Wendell Milgate punch victim 1 to the face. Victim 1 fell to the ground but immediately “jumped up with his hands up” to defend himself.

11. At this point, the applicant, Blake Milgate and Mitchell Milgate stood in “a fighting stance” in an attempt to assault both victims. The victims continued to walk backwards around the car park area to distance themselves from the offenders. Blake Milgate then “roundhouse kicked” victim 2 to the right side of the face.

12. Wendell Milgate and Mitchell Milgate focused on victim 1, while Blake Milgate shaped up to victim 2. The applicant and Dean Hooper stood about a metre behind their co-offenders and advanced with them. Having separated the victims, the group focused on victim 1, who had retreated to the southern end of the car park. The group encouraged victim 1 to fight them. As they did so, victim 1 walked backwards and almost collided with a car driving through the car park.

13. When victim 1 was about three quarters of the length of the carpark, the applicant punched him to the head, causing him to fall to the ground without breaking his fall and hit the back of his head on the concrete. He did not move for the remainder of the assault. The applicant immediately moved away from the group and did not participate in any further assaults upon the victims. This was the basis of the offence of recklessly inflicting grievous bodily harm.

14. Immediately after the applicant punched victim 1, Blake Milgate moved towards victim 2. As he did so, Wendell Milgate ran up to victim 1, kicked him in the face and stomped on his head causing it to collide with the concrete again, while he lay “inert, unconscious and completely defenceless”.

15. At that point, victim 2 yelled at the applicant and Wendell Milgate to stop. Wendell, Mitchell and Blake Milgate then “charged” at victim 2, who “had his hands up signalling that he did not want to fight the group”. Despite this, Mitchell Milgate punched victim 2 to the face, causing him to fall to the ground. Blake Milgate kicked victim 2 in the middle part of his body and walked a short distance away. Mitchell Milgate and Wendell Milgate then kicked victim 2 as he lay “curled up” in the foetal position on the ground with his hands and arms covering his head. Wendell Milgate stomped on his head no fewer than four times, only stopping when Mitchell Milgate pushed him away. The offenders then ran from the scene.

The victims’ injuries

16. Two off-duty nurses who were at McDonald’s observed victim 1 lying on the ground, “not moving”. They administered first aid and called Triple-0. They observed victim 1 to be unconscious and not breathing. They were unable to locate his pulse and commenced cardiopulmonary resuscitation (“CPR”). Emergency services arrived shortly afterwards.

17. Victim 1 sustained a traumatic brain injury that involved bleeding and swelling on the brain as well as fractures to his skull, cheekbone, ribs and nose. He was flown by air ambulance to Westmead Hospital, where he remained for nine days, including the intensive care unit for three days and the high dependency unit for three days. After discharge, he was placed under the care of the Acquired Brain Injury Unit for some months. He also underwent post-discharge nasal surgery. He was unable to resume work for three months.

18. Victim 2 was taken to hospital with bleeding, swelling and bruising to his left eye and cheek area.

The applicant’s arrest

19. The applicant attended Penrith Police Station on 6 February 2019. He declined to be interviewed and was charged.

Proceedings on sentence

20. The proceedings on sentence took place on 25 June 2020.

21. Wendell Milgate appeared for sentence at the same time as the applicant, having pleaded guilty to one count of recklessly inflict grievous bodily harm in company and one count of assault occasioning actual bodily in company. A count of affray was taken into account on a Form 1.

The Crown’s evidence on sentence

Sentencing assessment report

22. The sentence bundle tendered by the Crown included a sentencing assessment report by a Community Corrections Officer, Constance Makris, dated 26 March 2020.

23. The report outlined the applicant’s family, education and employment history as follows. At the time of the report, the applicant was residing with his mother, stepfather and siblings in a “stable and supportive environment”. His partner of four years was supportive of him. He had a consistent employment history since leaving school and had completed an apprenticeship as a roof tiler.

24. The applicant told Ms Makris that he was under the influence of alcohol and cocaine at the time of the offences. He said that his level of intoxication inhibited his decision-making and his actions did not reflect his overall ethics or beliefs. Ms Makis stated: “[The applicant] struggled to discuss the violent nature of his offence and expressed disappointment in his actions”. Ms Makris noted that the applicant did not have a history of violent or aggressive behaviour and concluded: “it appears this offence was of a spontaneous nature”.

25. Ms Makris applied the future reoffending actuarial assessment tool known as the Level of Service Inventory – Revised (“LSI-R”) and determined that the applicant had a low risk of reoffending. She assessed the applicant as suitable for community service work.

Report of Professor Ian Seppelt

26. The Crown tendered a report by anaesthetist and intensive care physician, Professor Ian Seppelt, dated 14 February 2019.

27. Professor Seppelt summarised the injuries to victim 1 as follows:

“Initial imaging demonstrated a haematoma (bruise) in the left parietal region (side of head), a skull fracture in the right parietal bone, and subarachnoid bleeding in the area of the left central sulcus. In addition there were fractures of the nasal bones, extending into the crista galli (below the frontal lobes of brain above the nose), where the olfactory nerve fibres (sense of smell) can be damaged, and there was 6mm traumatic contusion there.

[Victim 1] made a good early recovery, and was assessed by the Brain Injury Unit team as having a moderate traumatic brain injury. He has had long term sequelae from his brain injury, however, including problems with memory and loss of sense of smell and taste.”

28. And later in his report:

“… In addition to other injuries [victim 1] has suffered a traumatic brain injury of moderate severity, with significant long term sequelae impacting his work and quality of life”

29. Professor Seppelt provided an overview of the nature of a traumatic brain injury:

“… an impact to the skull can be manifested as any one (or more) of direct bruising to the brain at the site of impact, direct bruising to the brain at the opposite side to the impact … an axonal shearing injury … and injury secondary to bleeding, either arterial bleeding such as from the middle meningeal artery or venous bleeding from the surface of the brain.

This is relevant as there is a great deal of variability when considering the consequences of a specific blow to the head. A particular blow can seemingly cause a minimal injury to one person, but a lethal injury to another, due to individual variation and subtle differences in the nature of the impact. …

The brain injury must therefore be considered in its entirety. It is not possible, or meaningful, to try to ascribe one part of an injury to one blow and a different part of an injury to a different blow as both can have both local and distant consequences to the brain, and the second blow adds to the injury caused by the first.”

30. Professor Seppelt was asked to consider whether the brain injury occasioned to victim 1 could be apportioned between the applicant and Wendell Milgate or attributed to one or the other. In rejecting that proposition, Professor Seppelt stated:

“[The applicant] is alleged to have struck [victim 1] in the side of the head, and he fell to the ground striking the back of his head on the concrete. This is sufficient to have caused the entire brain injury as described. [Wendell Milgate] is also alleged to have kicked [victim 1] in the face and stomped on his head. This is also sufficient to have caused the entire brain injury as described. In addition the two injuries likely have additive affects, but it makes no difference which came first.

The facial injuries (fractured nose and maxilla) are more likely to have been caused by being kicked in the face, but it is impossible to separate the elements of the brain injury, all of which could have been caused by either of the assailants or a combination of the two.” (emphasis in original)

31. Professor Seppelt thus concluded that the conduct of the applicant and Wendell Milgate was each capable of having caused the grievous bodily harm occasioned to victim 1.

The applicant’s evidence on sentence

32. The case for the applicant included the tender of a psychologist’s report, character references and sworn evidence by him and his mother. Relevantly, the applicant also handed up a chapter of “The Bugmy Bar Book” titled “Childhood Exposure to Domestic and Family Violence”, which was marked for identification in the proceedings.

The psychologist’s report

33. The applicant tendered a report by psychologist Vanessa Edwige dated 14 June 2020. Ms Edwige assessed the applicant in person. His mother attended as a support person.

34. Ms Edwige set out the applicant’s account of his background as follows. He is First Nations man of the Dunghutti people, born and raised in Penrith and the eldest of five children. There was significant domestic violence in the home, which Ms Edwige summarised as follows:

“[The applicant] witnessed his father multiple times ‘smash up the house’ and hurt his mother both mentally and physically. [The applicant] witnessed his father trying to strangle his mother. [The applicant’s father] abused alcohol and was in and out of custody throughout his life. His father went to prison when he was five years old. [The applicant’s father] was physically abusive to [the applicant]. He would hit him across the back of the head and hit him when [the applicant] cried. He would steal [the applicant’s mother’s] debit card and ‘empty out the bank account’ causing the family significant financial hardship. They became reliant on charities to provide food and vouchers for utilities. [The applicant’s mother] left the house with the children and went into hiding when [he] was 12 years old to escape the violence. [The applicant’s mother] was diagnosed with Post Traumatic Stress Disorder (PTSD) in 2010. She suffered significant depression and was medicated for her depression. … [The applicant’s father] continued to harass the family. [The applicant’s mother] took the children to Queensland in 2012 and lived there for two years as she was told that her former husband was now taking ‘ice’ … and that he was going to ‘shoot her’. … [The applicant] reconnected with his father when he obtained his driving license. … He witnessed his father smoke and inject ‘ice’. He witnessed his father threaten people with guns for drugs and money. … ” The applicant attended four schools until midway through Year 9. He had significant absences from primary school, because he did not want to attend. He was referred to the school counsellor in Year 7 due to behavioural difficulties but did not engage with the counselling service because he found it “difficult to talk about how he was feeling”.

35. The applicant attended four schools until midway through Year 9. He had significant absences from primary school, because he did not want to attend. He was referred to the school counsellor in Year 7 due to behavioural difficulties but did not engage with the counselling service because he found it “difficult to talk about how he was feeling”.

36. Ms Edwige noted that the applicant’s youngest sister, who at the time of the report was aged four, was diagnosed with leukaemia at age two. She had spent long periods in hospital and was still undergoing treatment. Ms Edwige considered this had been a significant stress on the family.

37. The applicant reported that he had started drinking alcohol and smoking cannabis at the age of 15. He described himself as a “binge drinker”, consuming a bottle of Jack Daniels and a carton of cruisers once per week. He smoked cannabis to go to sleep, which he had difficulty with since his arrest.

38. Ms Edwige noted that the applicant had no previous mental health diagnoses, although his mother had repeatedly tried to persuade him to attend counselling. The applicant’s mother described him to Ms Edwige as being “emotionally shut off”, which had concerned her over the years.

39. Ms Edwige described the effect of the offending on the applicant as follows:

“Since [the applicant’s] arrest, he has battled with significant anxiety. He has been ostracized from his friends, he has been threatened on Facebook, he rarely leaves the house as he has been threatened in the community and called a ‘black dog’, he feels traumatized by the events that took place and is retraumatized constantly due to the media attention, he lost his job and lost his car as he was not able to make the payments. [The applicant] has significant difficulty sleeping and has flashbacks of the incident which cause him distress. ….”

40. Ms Edwige was unable to determine whether the applicant warranted a mental health diagnosis. She thought it would take “some time for [the applicant] to feel safe enough to expose his emotional vulnerability”. However, in her opinion, there was a link between the applicant’s untreated “significant developmental trauma” and his “behaviour and emotional detachment”:

“… his emotional and behavioural presentation indicates unresolved complex developmental trauma. … [he] presents with behavioural and emotional symptoms that are a direct response to the developmental trauma he experienced as a child and continued throughout his adolescence. He has been exposed to violence throughout his life, parental substance misuse and physical abuse. [The applicant] has never received psychological support for his developmental trauma. It is my opinion that [the applicant’s] behaviour and emotional detachment are a direct result of the trauma and the ongoing trauma he experienced as a child and adolescent.”

41. Ms Edwidge concluded, relevantly:

“[The applicant’s] exposure to adverse childhood events has undoubtedly had a significant impact on his social and emotional well-being. It is my opinion that [he] is a very vulnerable young man who presents with complex developmental trauma. On the basis of his history it is evident that [he] struggles to understand the impact this has had on his social and emotional well-being.

It is my opinion that [the applicant] at the time of the offence exhibited poor decision making and reacted to this event from learned behaviours from his childhood and adolescence. …”

42. Ms Edwige stated that the applicant demonstrated empathy towards the victims and “significant remorse” for his behaviour. He stated that he experienced flashbacks of the incident which caused him considerable distress.

The applicant’s evidence

43. The applicant gave evidence at the sentence hearing. He provided a brief outline of his background which was consistent with the account he provided to Ms Edwige.

44. He said that on the evening of the offence, he went to a friend’s 21^st birthday party where he had “a fair bit” to drink from around 7:30pm. At around 9:30pm, he ingested “one point of a gram” of cocaine which affected him for “about half an hour”. He disagreed that he was affected by the cocaine at the time of the offences, despite the statement in the sentencing assessment report to that effect.

45. The applicant said that, at one point during the night, he and his friends went “elsewhere” to watch the Penrith Panthers. Prior to heading home, they walked to McDonald’s where they were stopped out the front by victim 1, who called out “black dogs”. The group responded “shut up” and walked away. However, victim 1 “came after [them], so [they] turned back” to engage in a “stand-up fight”. The victims were not known to the applicant and his co-offenders.

46. The applicant said that he pursued victim 1 across the length of the car park “to make sure [his] friends was all good”. He stated that victim 1 threw two punches at him which caused him to dislocate his shoulder. He then punched victim 1 in the head in response. He conceded that he punched victim 1 “as hard as [he] could”. He then sought assistance for his dislocated shoulder from his co-offender Dean Hooper, after which they walked “across the park”, leaving victim 1 unmoving on the ground.

47. The applicant said that he had told Ms Makris and Ms Edwige that victim 1 had called him a “black dog”, despite that not being reflected in either of their reports. In cross-examination, he said that he could not recall what he had told Ms Edwige, and conceded that her report referred to him being called a “black dog” in the context of threats on Facebook subsequent to the offences.

48. The applicant expressed concern regarding numerous threats he had received since the offences via social media. I note that an email from the applicant’s mother attaching threatening Facebook posts was tendered into evidence.

49. The applicant stated that as a result of the offences he had been expelled from his football club; he had lost his employment; and his vehicle had been repossessed. The applicant stated that he “felt bad” for the offending.

The applicant’s mother’s evidence

50. The applicant’s mother also gave evidence at the sentence hearing. She gave evidence of the applicant telling her the next day that victim 1 had provoked the group by calling out “black dogs” and that victim 1 had “swung at him” and caused him to dislocate his shoulder. He told her that he walked away from victim 1 so that his friend could “pop his shoulder back in”.

51. The applicant’s mother confirmed that the applicant’s father had been violent towards her and that he had been imprisoned for violent offences committed against others. He had threatened her and her children, which prompted her to relocate the family to Queensland.

52. She said that, prior to the incident, the applicant had supported the family by paying bills. He did housework which had enabled her to care for her youngest daughter who had leukaemia. She said that he had been playing rugby league at a high level and had signed a contract to play in the Sydney Shield just before the offences occurred. She said since the incident, his mental health had suffered significantly. He did not sleep at night and they had to “install cameras” outside their home due to the threats made against the family on Facebook.

The applicant’s submission concerning Bugmy v The Queen

53. The applicant’s solicitor submitted that the applicant’s moral culpability was reduced by virtue of his background of childhood deprivation and its relevance to the applicant’s commission of the offences, as outlined and assessed by Ms Edwige in her report. He relied upon the passage from Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [44], often referred to as the “Bugmy principles”, in which the plurality stated:

“43   … 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 … 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. 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.” (footnote omitted)

54. During a discourse with the applicant’s solicitor in oral submissions, the sentencing judge asked:

“… Does the principle in Bugmy relating to exposure to domestic violence in childhood informing the likelihood that an individual may lack impulse control in respect of violence and so violence becomes normalised – does that really apply here, given his prior good character and the fact that the evidence is that he’s actually not a violent person?”

55. The applicant’s solicitor responded that the applicant’s background of disadvantage “changes the calculus” of moral responsibility and had to be considered, although the weight to be attributed to it was discretionary. In the applicant’s circumstances, protection of the community did not arise, so that its effect was entirely mitigatory, to be reflected in the consideration of general deterrence, denunciation and increased the weight to be given to the principle of rehabilitation.

The remarks on sentence

56. The remarks on sentence were delivered on 10 July 2020.

57. The sentencing judge identified the relevant offences and the maximum penalties. Her Honour then set out the factual background, as informed by the agreed facts, CCTV footage and the report of Professor Seppelt.

Objective seriousness

58. The sentencing judge described the offending as “very serious” in which the offenders behaved in a “predatory fashion”, “hunting down” victim 1 in a pack of five across the length of the car park. The sentencing judge noted that, although the applicant was at the rear of the group, he stated in evidence that he was positioned there to make sure his friends were “all good”. He then pushed his co-offender Wendell Milgate “out of the way” so that he could pursue victim 1, whom he “struck … with such force that he fell to the ground in a manner not capable of breaking his own fall”.

59. The sentencing judge was not satisfied on the balance of probabilities that the applicant had been provoked by victim 1 calling him a “black dog”. Her Honour noted that the Court had been informed that victim 1 was not called because his recollection of events had been compromised by the brain injury. Further, there was no reference to a racial slur in the sentencing assessment report, and the reference to the comment in Ms Edwige’s report was subsequent to the offences and not attributed to victim 1. The sentencing judge also noted that victim 1 was of Indigenous heritage and that it was therefore unlikely that he would have insulted the offenders in that way. Regardless, the sentencing judge did not consider that the comment would have mitigated the objective seriousness of the applicant’s behaviour.

60. The sentencing judge was not satisfied that the applicant’s assault of victim 1 was in response to victim 1 having thrown two punches at him. Her Honour noted that there was nothing in the agreed facts to that effect, nor did the applicant disclose as much to the author of the sentencing assessment report or Ms Edwige. Further, the CCTV images did not corroborate his claim that someone had assisted him in popping his dislocated shoulder back into place.

61. The sentencing judge also did not accept the applicant’s evidence that he had only intended to engage in a “stand up punching fight” and, in any event, dismissed the notion of a distinction in seriousness between a stand-up fight and a fight in which a victim falls to the ground as “nonsensical”, since one can still fall to the ground in a stand-up fight.

62. Her Honour was not satisfied that the applicant could be held liable for the act of Wendell Milgate in stomping on victim 1’s head, noting that it was “as [the applicant and Blake Milgate] walked away, with their backs turned towards the victim that Wendell Milgate stomped on the victim’s head”. Further, Wendell Milgate’s act was outside the common purpose of the group.

63. The sentencing judge noted that although victim 1 had sustained substantial injuries for which he may still be recovering, she was not satisfied beyond reasonable doubt that the effect of the offence on the victim was “ongoing”. Taking into account the unplanned nature of the offences, her Honour found the objective seriousness of the first offence to be below the mid-range.

64. In relation to the second offence, the sentencing judge took into account the overall behaviour of the applicant in pursuing the victims and their behaviour towards them, in the presence of the public at a family restaurant. Her Honour found the objective seriousness of the second offence to be slightly above the mid-range.

Subjective circumstances

65. The sentencing judge recounted the applicant’s family, education and employment history from Ms Edwige’s report. Relevantly, her Honour stated:

“Ms Edwige reported that [the applicant] is disconnected from his emotions, and that he uses significant avoidance strategies so that he does not experience negative thoughts and feelings. These avoidance strategies, she writes, are a protective measure [the applicant] would have learnt in his childhood after being hit by his father when he cried and seeing his mother emotionally shut down while experiencing his father’s violence. She is of the option that his behaviour and emotional detachment are a direct result of his childhood trauma. She also highlighted that [the applicant] is emotionally immature and has poor self-esteem.

…

Ms Edwige thought that at the time of the offence, [the applicant] exhibited poor decision-making and reacted to the event in accordance with learned behaviours from his childhood and adolescence.”

66. The sentencing judge then considered whether there was a connection between the applicant’s background of deprivation and his commission of the offences. Her Honour stated:

“I raised during the submissions of [the solicitor for the applicant], that given [the applicant’s] prior good character, attested to in the testimonials tendered on his behalf, that it was problematic to draw a connection between [the applicant’s] upbringing and the commission of the offences, particularly in light of the role played by the excessive consumption of alcohol and the apparent herd mentality that provided an undertow to the offences.

It was submitted by [the solicitor for the applicant] that the principles in Bugmy do apply, such that [the applicant’s] moral culpability is reduced and that less weight ought to be given to general deterrence.”

67. The sentencing judge referred to the Bugmy principles, and continued:

“Ms Edwige refers to the impact of considered disadvantage and writes that family violence can create an unpredictable, anxiety provoking, fear engendering environment and that research indicates a child exposed to family violence, in particular a child who witnessed a parent being assaulted, will have difficulties regulating their emotions and have emotional and behavioural issues similar to a child who has been sexually assaulted. She referred to [the applicant] and his family living in a perpetual state of fear and that his father’s unpredictability caused significant stress and anxiety for him and that his mother’s distress would have had a further negative impact on his sense of safety. Referring to his father’s incarceration, she noted that this can interfere with a child’s attachments, disrupt their care and subject a child to shame and stigmatisation. She went on to say that repeated exposure to criminality can normalise it and distort perceptions of acceptable behaviour.

Ms Edwige referred to research demonstrating the strongest link with child abuse was with depression, alcohol and substance abuse, behavioural issues and anxiety related disorders.

68. The sentencing judge then turned to what she identified as the central issue in consideration of the Bugmy submission:

“There can be no doubt that [the applicant] has had a difficult upbringing. The question is, did that have a role to play in the commission of the offences.

Testimonials tendered on [the applicant’s] behalf refer to him as a kind, caring, honest and reliable person with a quiet and gentle disposition and are demonstrative of the out of character nature of the offences. His mother described him as a gentle giant and that this is how he is known to their local community. He has no history of criminal offending or indeed of any anti-social behaviour. There is a positive absence of evidence that [the applicant’s] deprived upbringing had a role to play in the offences he committed. Any nexus between the offences and his upbringing, other than a potential tendency to drug and alcohol abuse, was not addressed by Ms Edwige. By all accounts, [the applicant] was a young man of good character in spite of his disadvantaged upbringing, being able to rise above it, to his credit. His statements to the Community Corrections officer that his level of intoxication inhibited his decision-making and his actions and do not reflect his overall ethics or beliefs and that he was disappointed in his actions support this view. In that sense, the principles of Bugmy do not apply and I do not find that his background materially contributed to his offending, reducing his moral culpability.

That is not to say [the applicant’s] disadvantaged upbringing is not relevant. It clearly is, and according to Ms Edwige, has had an impact on his social and emotional wellbeing and has caused significant symptoms of anxiety and psychological distress and the likely maladaptive responses involving self- medication. These are matters to be factored in as part of the process of instinctive synthesis.”

69. The sentencing judge found the applicant to be genuinely remorseful and his prospects of rehabilitation “reasonable” given his abuse of alcohol and prohibited drugs.

70. Her Honour noted that he had no prior criminal history and that he was therefore “entitled to leniency”. Her Honour also noted the applicant’s early guilty plea and applied a reduction of 25 per cent.

Extra-curial punishment

71. The sentencing judge noted a submission advanced by the applicant to the effect that he had suffered extra-curial punishment in the form of the loss of his potential football career, the loss of his employment as a roof tiler and the threats he received via social media.

72. The sentencing judge took into account as extra-curial punishment the loss of the applicant’s potential football career; however, her Honour stated that there was insufficient evidence to establish that the loss of his employment and the impact of the threats on social media amounted to extra-curial punishment.

Parity

73. The sentencing judge noted that the applicant’s co-offenders had been sentenced in the Local Court for offences of affray and assault occasioning actual bodily harm in company and that she had regard to the sentences imposed. However, her Honour noted that the first offence of recklessly inflict grievous bodily harm in company attracted “a significantly higher maximum penalty”, as well as a standard non-parole period, and that the second offence of affray was more serious in respect of the applicant and Wendell Milgate.

Covid-19 pandemic

74. The sentencing judge considered the material tendered by the applicant in relation to the effect of the Covid-19 pandemic on prisoners. Her Honour stated that although there was no evidence to suggest that the applicant was particularly vulnerable, she took into account the impact of the virus in a “general way”.

Sentence

75. The sentencing judge noted that the parties had agreed that a sentence of imprisonment was appropriate: Crimes (Sentencing Procedure) Act 1999 (NSW), s 5.

76. Her Honour then considered whether the sentence should be served concurrently or cumulatively, in part or in total. Her Honour found that it was appropriate to impose a sentence in which there was a considerable degree of concurrency but that, in order to reflect the additional considerations related only to the second offence, there must be an element of accumulation.

77. For the first offence, her Honour nominated an indicative sentence of 2 years and 6 months imprisonment with a non-parole period of 1 year and 8 months. For the second offence, her Honour nominated an indicative a sentence of 2 years imprisonment. The total sentence imposed was 2 years and 9 months imprisonment, commencing on 22 May 2020 and to expire on 21 February 2023. The applicant will be eligible for release to parole on 21 March 2022.

78. The sentencing judge declined to direct that the sentence be served by way of an intensive correction order due to the objective seriousness of the offences and the importance of general deterrence and denunciation in offences of this nature.

Submissions of the parties

79. By the time of the hearing, the parties’ respective positions had shifted to a point that one submission was pressed by the applicant, which was conceded by the respondent. That submission was that the sentencing judge had erred in her consideration of the applicant’s moral culpability.

80. The applicant initially submitted that the sentencing judge made two interconnected errors in her consideration of the applicant’s moral culpability. At the hearing, only one was pressed, being that her Honour’s rejection of the applicant’s submission that the Bugmy principles applied was based on an incorrect understanding of Ms Edwige’s opinion concerning the relevance of the applicant’s background to the commission of the offences. Her Honour found that there was “a positive absence of evidence” that the applicant’s deprived upbringing had a role to play in the offences he committed, and that Ms Edwige had not addressed any nexus between the offences and his upbringing, other than a potential tendency to drug and alcohol abuse. The applicant submitted that Ms Edwige had, in fact, expressed those opinions. Consequently, the sentencing judge’s exercise of her sentencing discretion had miscarried, warranting the re-sentencing of the applicant.

81. The respondent conceded that it was open to this Court to find that the sentencing judge erred in finding there was “a positive absence of evidence” that the applicant’s deprived upbringing had a role to play in the commission of the offences. The respondent acknowledged that Ms Edwige had specifically addressed the relationship between the applicant’s childhood abuse and the offences. Accordingly, the respondent accepted that this ground was established.

82. The respondent conceded that it would be open to find that the error was material to the exercise of the sentencing judge’s discretion, in which case it would be necessary for the Court to resentence the applicant.

Consideration

83. As noted at [68] above, in her remarks the sentencing judge found the applicant’s background of profound childhood deprivation to be a relevant consideration, to be incorporated into the process of instinctive synthesis on the formulation of the aggregate sentence. The question of whether it had a more significant bearing on sentence by reducing the applicant’s moral culpability, in the manner approved in Bugmy, was crystallised by her Honour as being whether the applicant’s background of profound childhood deprivation had “a role to play” in his commission of the offences.

84. My understanding of the sentencing judge’s reasoning in rejecting the Bugmy submission, in the passage extracted at [68] above, is essentially that by the time of the offences, when he was aged 19, the applicant’s prosocial behaviour (absent his drug and alcohol abuse) and positive social achievements was evidence of an absence of lasting damage from his “disadvantaged upbringing”; he had been able to “rise above it”. Her Honour said:

“In that sense, the principles of Bugmy do not apply and I do not find that his background materially contributed to his offending, reducing his moral culpability.”

85. The sentencing judge’s reasoning in rejecting the Bugmy submission overlooked the essence of the evidence on which it was based. That oversight is most apparent in this passage from the paragraph extracted at [68]:

“There is a positive absence of evidence that [the applicant’s] deprived upbringing had a role to play in the offences he committed. Any nexus between the offences and his upbringing, other than a potential tendency to drug and alcohol abuse, was not addressed by Ms Edwige.”

86. As noted at [41] above, Ms Edwige did identify a link between the applicant’s childhood exposure to abuse and the offences, namely, that his poor decision-making and reaction to the situation in the McDonald’s car park resulted from learned behaviours from his childhood and adolescence.

87. Ms Edwige explained how the violence that the applicant witnessed and experienced in his childhood home, the consequent emotional shutting-down of his mother and her post-traumatic stress disorder (“PTSD”) and his fears for her safety impacted on his development through his primary and high school years to the present and continuing, in spite of his current prosocial family support. As noted in the passages extracted at [34] above, she referred to the applicant’s father’s alcohol abuse and the applicant having witnessed him injecting methylamphetamine and using a gun to obtain drugs, and the applicant’s own his drug and significant alcohol abuse since the age of 15.

88. Ms Edwige found a nexus between the applicant’s childhood trauma and his current mental health; his high anxiety level, emotional detachment, immaturity, his difficulties in interpersonal relating and his poor self-esteem.

89. I conclude that the ground of appeal is established. The sentencing judge’s finding that there was an absence of evidence to the effect that the applicant’s upbringing “had a role to play in the offences he committed” and that Ms Edwige had not addressed whether there was such a nexus, were contrary to the uncontradicted evidence tendered at the sentence hearing. The sentencing judge’s exercise of her discretion miscarried, warranting that leave to appeal against the aggregate sentence be granted, the appeal be upheld and that the applicant be re-sentenced: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42].

Resentence of the applicant

90. I accept the expert opinion of Ms Edwige as to manner in which the applicant’s childhood trauma has affected his development, behaviour and capacity to relate interpersonally, which in turn informed his decision-making and reactions in his commission of the offences and his ingestion of drugs and alcohol beforehand. For those reasons, the applicant’s moral culpability is reduced, warranting a reduction to be made to the application of general deterrence.

91. I would fix the objective seriousness of both offences as slightly less than mid-range in respect of both offences and the less-involved nature of his role in the affray offence.

92. As to the applicant’s prospects of rehabilitation, this Court has the advantage of evidence as to how the applicant has fared during his imprisonment thus far. In an affidavit read on the hearing of the application, the applicant referred to work qualifications he has obtained in custody. He is employed outside prison, working a 10 hour shift five or six days per week, returning to custody each day after work. He has engaged in Indigenous cultural programs that he found to be “really powerful” in assisting him to gain understanding of issues that led to his offending.

93. Excerpts from notes created by Corrective Services officers were tendered. They confirm the applicant’s progress in prison. There are positive comments about his work ethic, his “polite and courteous” manner and his cooperative nature.

94. I find that the applicant’s prospects of rehabilitation are enhanced from what they were at the time of the sentence hearing. I characterise them as positive.

95. I would make the same findings as her Honour in respect of the remaining relevant matters on sentence. I note the importance of not losing sight of the purposes of sentencing that are identified in s 3A of the Crimes Sentencing Procedure Act; to ensure that the offender is adequately punished, the need for specific and general deterrence, the protection of the community, to denounce the offender’s criminal conduct, to recognise the harm done by the offences and to hold the offender accountable for them.

96. I note the seriousness of the first offence in particular, that resulted in victim 1 losing consciousness and having no pulse. Had it not been for the good fortune of the nurses being present and their intervention, the outcome could have been far more serious than it already was.

97. I would impose an aggregate term of imprisonment of 2 years and 5 months, commencing on 22 May 2020 and expiring on 21 October 2022, with a non-parole period of 1 year, and 7 months, so that the applicant will be eligible for release to parole on 21 December 2021. I nominate indicative sentences of 2 years and 3 months imprisonment with a non-parole period of 1 year and 6 months in respect of the first offence, and 1 year 8 months imprisonment in respect of the second offence.

98. As the aggregate sentence is for a period less than 3 years, the applicant is entitled to immediate release on parole pursuant to s 158 of the Crimes (Administration of Sentences) Act 1999 (NSW).

Orders

99. I propose the following orders:

1. Leave to appeal granted;

2. Appeal allowed;

3. Quash the sentence imposed in the District Court on 10 July 2020 and in lieu thereof impose a term of imprisonment of 2 years and 5 months, commencing on 22 May 2020 and expiring on 21 October 2022, with a non-parole period of 1 year, and 7 months, so that the applicant will be eligible for release to parole on 21 December 2021;

4. Direct that, pursuant to s 158 of the Crimes (Administration of Sentences) Act 1999 (NSW), the applicant be released forthwith.

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Decision last updated: 21 December 2021