Hoskins v R

Case •

[2021] NSWCCA 169

•

21 July 2021

Court of Criminal Appeal


Supreme Court


New South Wales

  • Summary available
Medium Neutral Citation: Hoskins v R [2021] NSWCCA 169
Hearing dates: 5 May 2021
Date of orders: 21 July 2021
Decision date: 21 July 2021
Before: Basten JA at [1];
Brereton JA at [3];
Beech-Jones J at [78]
Decision:

(1)    Extend time for the applicant to file a Notice of Appeal to the date on which it was filed;

(2)    Grant leave to the applicant to appeal against the aggregate sentence imposed on 20 February 2020 by the District Court;

(3)    Allow the appeal; and

(4)   Quash the aggregate sentence imposed in the District Court on 20 February 2020 in respect of sequences 7, 10, 11, and 12, and in lieu thereof:

(a)   impose an aggregate sentence of five years’ imprisonment to commence from 31 January 2019 and expire on 30 January 2024;

(b) pursuant to s 44(2A) of the Crimes (Sentencing Procedure) Act 1999 (NSW), set a non-parole period of three years, and specify that the earliest date the applicant will be eligible to be released on parole is 31 January 2022; and

(c) pursuant to s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW), record that an aggregate sentence is imposed and indicate to the applicant that the sentences that would have been imposed for each offence under separate sentences instead of an aggregate sentence are as follows:

(i)    sequence 11 (reckless wounding of Ms Whitmore): three years, with a non-parole period of two years;

(ii)    sequence 12 (reckless wounding of Ms Charles): three years, with a non-parole period of two years;

(iii)   sequence 10 (affray): one year and six months; and

(iv)   sequence 7 (aggravated break, enter (knowing that a person was in the place) and commit serious indictable offence (assault occasioning actual bodily harm): two years and three months, with a non-parole period of one year and six months.

Catchwords:

CRIME – Appeals – Appeal against sentence – Reckless wounding (two counts) – Affray – Aggravated break and enter and commit serious indictable offence – Whether sentencing judge gave appropriate consideration to offender’s background of social disadvantage – Bugmy v The Queen (2013) 249 CLR 571 – Appeal allowed

SENTENCING – Subjective considerations on sentence – Social disadvantage and hardship – Excellent upbringing with non-biological parents until aged thirteen – Subsequent discovery of and return to biological family – Entry into environment where criminal conduct normalised – Commencement of alcohol and drug abuse – History of offending associated with alcohol abuse – Childhood and adolescent years equally formative – Reduced moral culpability notwithstanding passage of time and intervening custodial sentences

CRIME – Appeals – Appeal against sentence – Extension of time in which to appeal – Whether sufficient explanation for delay – Time required to receive transcripts, advice from counsel, Legal Aid approval, and submissions – Whether arguable case on appeal – Extension granted

Legislation Cited:

Crimes Act 1900 (NSW), ss 35(4), 59(1), 93C(1), 112(2)

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A(c), 5, 10A, 21A, 44(2A), 53A(2)(b), 54B

Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Criminal Appeal Rules 1952 (NSW), r 3A

Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 3.1(3)

Cases Cited:

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

Dungay v R [2020] NSWCCA 209

House v The King (1936) 55 CLR 499; [1936] HCA 40

Ingrey vR [2016] NSWCCA 31

Judge v R [2018] NSWCCA 203

Kennedy v R [2010] NSWCCA 260

Kentwell v R (No 2) [2015] NSWCCA 96

Kliendienst v R [2020] NSWCCA 98

Munda v State of Western Australia (2013) 249 CLR 600; [2013] HCA 38

Perkins v R [2018] NSWCCA 62

R v Fernando (1992) 76 A Crim R 58

R v Hoskins [2020] NSWDC 315

R v Irwin [2019] NSWCCA 133

Taysavang v R; Lee v R [2017] NSWCCA 146

Texts Cited:

Royal Commission into Aboriginal Deaths in Custody, National Report Volume 1 (AGPS, 1991)

Category:Principal judgment
Parties: Douglas Hoskins (Applicant)
Regina (Respondent)
Representation:

Counsel:
P Segal (Applicant)
G Newton (Respondent)

Solicitors:
Brock Partners (Applicant)
Solicitor for Public Prosecutions (Respondent)
File Number(s): 2019/35076
 Decision under appeal 
Court or tribunal:
District Court
Jurisdiction:
Criminal
Citation:

[2020] NSWDC 315

Date of Decision:
20 February 2020
Before:
Priestley SC DCJ
File Number(s):
2019/35076

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 27 August 2019, the applicant pleaded guilty to two counts of reckless wounding and one count each of affray, aggravated break, enter, and commit serious indictable offence, and assault occasioning actual bodily harm. These convictions arose out of a single evening when the applicant, while under the influence of alcohol, performed various acts of violence at multiple residential premises in Coffs Harbour. In respect of the assault occasioning actual bodily harm, the sentencing judge convicted the applicant without penalty. In respect of the other four offences, an aggregate sentence of five years and six months’ imprisonment, with a non-parole period of three years and six months, was imposed.

The sole ground of appeal was that the sentencing judge failed to give correct consideration to the principles in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 (“Bugmy”), namely that an offender’s moral culpability may be reduced by having grown up in an environment of social disadvantage, including alcohol abuse and violence. In the applicant’s case, although his initial childhood was, in his own words, “excellent”, he discovered at age thirteen that he had not been raised by his biological parents. He then reunited with his biological family, and in doing so entered into an environment where criminality and alcohol and drug abuse were normalised. In an attempt to “fit in”, the applicant turned to alcohol and crime, initially in the form of drug and theft offences, but soon offences of violence, which were often fuelled by alcohol. The sentencing judge considered that there was no evidence on which Bugmy principles could be applied, having regard to the positive initial period of the applicant’s upbringing and a perceived lack of evidence of any social disadvantage.

Held (per Brereton JA; Basten JA and Beech-Jones J agreeing), extending time to appeal, granting leave to appeal, allowing the appeal, quashing the sentence imposed in the District Court, and imposing an aggregate sentence of five years’ imprisonment, with a non-parole period of three years: [2], [77], [81].

As to an extension of time:

  1. The applicant’s Notice of Appeal was filed just over two months out of time. An extension should be granted, as there is both an arguable case on appeal and a sufficient explanation for the delay, namely that the applicant’s solicitor required additional time to obtain transcripts, Legal Aid approval, and advice and submissions from counsel: [7]-[8].

As to the sentence appeal:

  1. An offender’s moral culpability is reduced by an upbringing characterised by social disadvantage and exposure to alcohol abuse and violence, in which criminality is normalised. This is particularly so where offending is fuelled by alcohol and the offender’s alcohol abuse reflects the environment in which they were raised. The effects of such deprivation do not diminish over time, notwithstanding intervening custodial sentences, and thus while countervailing factors such as community protection may impact the degree of mitigation, application of the Bugmy principles is not discretionary, and the effects of childhood deprivation must be given full weight. These principles apply to both Indigenous and non-Indigenous communities, although they have particular application to the former, with Indigenous communities continuing to exhibit dislocation resulting from foreign invasion, disruption of culture, and minority racial status. Further, it must be recognised that incarceration has not proved an effective deterrent in the Indigenous context, thus it may be best to err on the side of leniency: [1]-[2] (Basten JA), [41]-[42], [51]-[56] (Brereton JA).

Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37; Kennedy v R [2010] NSWCCA 260; R v Fernando (1992) 76 A Crim R 58, applied.

  1. While the phrase “profound childhood deprivation” is employed in Bugmy, this is not a threshold test, nor must a causative link between the deprivation and the offending be demonstrated, although if there is such a link then there must inevitably be a reduction in moral culpability: [57]-[61].

Dungay v R [2020] NSWCCA 209, applied; Kliendienst v R [2020] NSWCCA 98; Ingrey v R [2016] NSWCCA 31, considered.

  1. Presently, the applicant’s entry into criminality was precipitated by the discovery of and reuniting with his biological family at age thirteen. He attempted to assimilate into an environment where crime, alcohol and drug abuse, and violence, were normalised, and his offending has henceforth been associated with alcohol abuse, including on this occasion. While he initially enjoyed a stable and secure childhood, the years of adolescence are equally if not more formative – an upbringing does not end at twelve years old. The sentencing judge, while entitled to also consider specific deterrence and community protection, erred by overlooking both the significant identity issues that the applicant’s family revelation would have caused and the impact of his adolescent environment upon his development and moral culpability: [62]-[64].

  2. Per Beech-Jones J: Complaints of an alleged failure to apply the Bugmy principles must establish error of the kind stated in House v The King (1936) 55 CLR 499; [1936] HCA 40. Presently, the sentencing judge’s conclusion that there was “no evidence” to support the applicability of Bugmy was founded “upon a wrong principle”, as it either treated Bugmy as confined to dysfunctional social environments that are only a consequence of endemic alcohol‑related violence, or to be applied only if supported by evidence from the offender, or both. In doing so, the sentencing judge thus also did not take into account a material consideration. Error of the requisite kind is established: [79]-[80].

Judgment

  1. BASTEN JA: I agree with Brereton JA that the sentencing judge, in an otherwise thorough and careful judgment, failed to apply the principles articulated by the High Court in Bugmy v The Queen. [1] Although those principles can apply generally to offenders brought up in circumstances of social disadvantage, they have particular application and are commonly invoked in relation to members of Indigenous communities. That is because, as has been documented by numerous inquiries and research studies, those communities continue to exhibit the dislocation resulting from foreign invasion, disruption of culture and minority racial status. [2] However, they are also the principal victims of alcohol driven violence of the kind exhibited by the applicant, Douglas Hoskins. To downplay the principle of protection of the community, identified as a purpose of sentencing in s 3A(c) of the Crimes (Sentencing Procedure) Act 1999 (NSW), is to diminish both the appearance and perhaps the fact of equal protection of those Indigenous communities. [3] On the other hand, it must be recognised that incarceration has not proved an effective deterrent of anti-social behaviour in these circumstances; its deterrent effect being compromised by lack of insight which is itself a common feature of the circumstances which lessen moral culpability.

    1. (2013) 249 CLR 571; [2013] HCA 37 (“Bugmy”).

    2. See, eg, Kentwell v R (No 2) [2015] NSWCCA 96 at [89]-[92] (Rothman J; McCallum J agreeing) referring to R v Lewis [2014] NSWSC 1127 at [37]-[38] (Rothman J); Royal Commission into Aboriginal Deaths in Custody, National Report Volume 1 (AGPS, 1991) at Chs 1.4-1.5.

    3. See Munda v State of Western Australia (2013) 249 CLR 600; [2013] HCA 38 at [134] (Bell J, in dissent as to the outcome.)

  2. These conflicting considerations place a sentencing judge in a difficult position; their acknowledgement provides little practical assistance in determining an appropriate sentence. The solution to the social problems does not lie in the criminal courts, whose best course may be to err on the side of leniency. In this case, I agree with the orders proposed by Brereton JA.

  3. BRERETON JA: On 27 August 2019, the applicant Douglas Edward Hoskins pleaded guilty, in the Local Court at Coffs Harbour, to five offences contrary to the Crimes Act 1900 (NSW) committed at Coffs Harbour on 31 January 2019, namely that he:

  1. did break and enter the dwelling house of Daphne Hoskins, situated at Wongala Estate, knowing that a person was in the place when he committed a serious indictable offence therein, namely assaulted Luke McDonald thereby occasioning to him actual bodily harm (s 112(2)) (sequence 7);

  2. did assault Ronald Ross thereby occasioning to him actual bodily harm (s 59(1)) (sequence 9);

  3. threatened unlawful violence towards Ronald Ross and others by conduct that would cause a person of reasonable firmness present at the scene to fear for their personal safety (s 93C(1)) (sequence 10);

  4. recklessly wounded Shianne Whitmore (s 35(4)) (sequence 11); and

  5. recklessly wounded Deborah Charles (s 35(4)) (sequence 12).

  1. On committal for sentence to the District Court at Coffs Harbour, he was on 20 February 2020 sentenced by Priestley SC DCJ to an aggregate sentence for sequences 7, 10, 11, and 12, after allowing a discount of 25% for his plea, of five years and six months imprisonment, to date from 31 January 2019 (when he was taken into custody) and expire on 30 July 2024, with a non-parole period of three years and six months expiring on 30 July 2022. Concurrently, his Honour dealt with sequence 9 by way of conviction without penalty, pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“Sentencing Procedure Act”).

  2. The applicant seeks leave, pursuant to Criminal Appeal Act 1912 (NSW), s 5(1)(c), to appeal against the aggregate sentence. Initially, two grounds of appeal were relied upon, namely that:

  1. the sentencing judge erred in not sentencing the applicant in open court and by not orally delivering reasons in public in the courtroom with the applicant present; and

  2. the sentencing judge did not give correct consideration to the Bugmy principles (a reference to Bugmy, considered below).

  1. The first ground arose from the circumstances that at the conclusion of the proceedings on sentence, his Honour indicated that he would provide written reasons, and deliver an oral “precis” in the presence of the applicant, but it was contended that no oral reasons were delivered. When evidence emerged that a substantial “precis” of the reasons had indeed been delivered orally in the presence of the applicant and his lawyer, this ground was abandoned. [4] Accordingly, only Ground 2 requires consideration.

    4. Tcpt, 5 May 2021, p 1(43)-(44).

  2. The applicant filed a Notice of Intention to Appeal within time, on 26 February 2020. Such notice, under the rules applicable at the time, had effect for six months after it was filed. [5] An application to extend time was filed belatedly on 30 October 2020, and the Notice of Appeal on 3 November 2020, just over two months out of time. The applicant thus requires an extension of time, which the Crown opposes on the ground that the appeal is without merit.

    5. Criminal Appeal Rules 1952 (NSW), r 3A. The new rules now stipulate a period of twelve-months: Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 3.1(3).

  3. In my view, there is a sufficient explanation for the delay. According to an affidavit of the applicant’s solicitor, after receiving instructions in June 2020, it was necessary to obtain transcripts, and then a merits advice, which counsel was briefed to provide on 24 July 2020. The remaining transcripts and remarks on sentence were received on 31 July 2020. Counsel delivered an advice on 25 September 2020, which was submitted to Legal Aid on 29 September 2020. Legal Aid approval to complete grounds of appeal and written submissions was received on 8 October 2020, and counsel provided them on 25 October 2020. The appeal was fully argued, and raises an arguable issue concerning the application of the Bugmy principles. Time to file the Notice of Appeal should be extended.

The facts

  1. The following summary is based on the Agreed Facts on which the applicant was sentenced.

  2. During the day of Thursday 31 January 2019, the applicant was consuming alcohol in the company of Stafford Charles, Deborah Charles, and her partner Leo Mercy, at Unit 7/62 Vincent Street, Coffs Harbour, where he stayed from time to time. The unit was occupied by Stafford Charles, while the neighbouring Unit 6, which shares a common driveway with Unit 7, was occupied by Shianne Whitmore, who lived there with her one year old son. The applicant was known to both of them, and Ms Whitmore considered him her uncle (although he is in fact her partner’s cousin).

  3. On the night of 31 January 2019, the applicant had been at the premises of Ms Whitmore’s aunt Roxanne Prinn at 15 Vincent Street. An argument occurred between Ms Prinn and the applicant; she admonished him for setting a bad example for her nephew, told him “Let’s all run around and stab each other – look how far that got me”, and said “Get out of my house cock sucker”. He left, threatening to stab her as he departed.

  4. Shortly after, the applicant entered Unit 6, where Ms Whitmore was trying to put her son to sleep and the applicant was being too loud. He said, “You’re not my niece”, and she asked him not to get angry and to leave. The applicant left, and moments later Ms Whitmore heard the smashing of glass. She went to her rear yard and onto the driveway, where the applicant was standing, and she confronted him about throwing a bottle at her house. The applicant became loud and abusive and said he did not know who had thrown the bottle. She said “Please don’t lie, I know it was you. Can you please be honest? I know you did do it”.

Sequence 11 - reckless wounding, s 35(4) [6]

6. The Agreed Facts mistakenly cite s 35(2).

  1. At this point, the applicant was about 30cm from Ms Whitmore, and had his hands behind his back. She thought he was going to hit her, but when he moved his hands to his front it was apparent that he was holding a knife, which he raised above his head and lunged at Ms Whitmore, bringing the knife down towards her chest. Ms Whitmore raised her left arm to protect herself and sustained a deep 2cm laceration to the area of her left elbow. She immediately felt pain and the warmth of her blood. She ran screaming onto a shared road, before returning to her home.

  2. Ms Charles and Mr Mercy, who had left the premises, returned at about this time. Mr Mercy stopped his car and Ms Charles exited and entered Unit 7. Mercy, who was sitting in his car, saw the applicant arguing with Ms Whitmore. He saw the applicant throw a punch at her, heard a thud, and believed that the applicant had hit her in the face. Mr Mercy then leaned out of his car window and said to the applicant “Doug, can you calm down mate, there are kids there.”

  3. The applicant followed Ms Whitmore into her unit. A few minutes later, multiple witnesses heard yelling and screaming.

  4. Neighbours administered first aid to Ms Whitmore and an ambulance was called. The laceration was found to extend through the common extensor musculature down to the brachial tendon. The bleeding was unable to be controlled by direct pressure and a tourniquet was applied. She was conveyed, unconscious, to Coffs Harbour Hospital, where she underwent surgery with two internal sutures and three external sutures. She suffered an estimated 500ml of blood loss.

Sequence 12 - reckless wounding, s 35(4)

  1. The applicant was heard screaming inside Unit 7. Mr Charles could not gain access to his unit from the rear, and with others went around to the front to gain entry. Mr Mercy saw the applicant exit the back door of Unit 7, holding two long blades in both hands and screaming “I’m gonna get you, you’se gonna play with me, I’ll get you”. Mr Mercy screamed out to his partner Ms Charles, who was one of those who had gone outside to investigate, in fear. Ms Charles confronted the applicant about his behaviour and tried to settle him, but he slashed out at her with both knives in a crisscross motion, and then came at her with his right hand in a downwards stabbing motion towards her chest. Ms Charles raised her arm and received a 4cm laceration to the bottom of her left forearm, and a small laceration to her left cheek. This was witnessed by Mr Charles. Ms Charles was immediately taken to Coffs Harbour Hospital by her partner. When later examined she was found to have a lacerated tendon requiring six internal and three external sutures. The cheek cut was superficial.

  1. After stabbing Ms Charles, the applicant ran from the location. Neighbours who became aware of the events feared that he might be heading for the home of his mother, Daphne Hoskins, at the Wongala Estate, and one telephoned his mother’s home and warned Ronald Ross that the applicant had stabbed Ms Whitmore and was on his way there. The applicant had had a falling out with his mother some years earlier and they had not spoken for more than five years, although the preceding Saturday the applicant had attended at his mother’s home and made threats against his mother and her daughter Sonya.

  2. A short time after the phone call was received, the applicant arrived at his mother’s home, Number 15 in the Wongala Estate, an Aboriginal Community. Number 15 was occupied by Daphne Hoskins, her partner Luke McDonald, and her fifteen year old granddaughter. Also present at the time were the applicant’s cousin Mr Ross, his partner Emma Wilson, their seven month old child, and Mr Ross’s ten year old sister.

  3. At the door to his mother’s home, he spoke with his her and denied slashing Ms Whitmore with a knife. He became angry and asked his mother if he could come in. He grabbed at the screen door with both hands and pulled it towards himself, which caused it to come off the latch and open. He pushed his mother aside and walked into the kitchen where he was confronted by Mr Ross, who said to him “Oi, oi did you stab Shianne”, to which the applicant responded, “I didn’t stab no slut”.

Sequence 9 - assault occasioning actual bodily harm, s 59(1)

  1. The applicant then lunged at Mr Ross who, believing that the applicant was going to try to choke him, pulled his head back to prevent this from occurring. The applicant’s hands impacted with Mr Ross’s neck, causing a minor scratch. Fearing that the applicant would continue to assault him, Mr Ross punched him to the head with a closed right fist, and the applicant responded with two uppercuts to Mr Ross’s throat. Mr Ross threw the applicant to the ground and the two men wrestled, the applicant repeating “I’ll kill you’se”. Ms Hoskins intervened; Mr Ross got to his feet and ran outside in an endeavour to draw the applicant out of the house and away from those inside. Once outside, Mr Ross turned and said, “Come out here Uncle Doug, out the front”.

Sequence 10 – affray (s 93C(1)).

  1. The applicant got to his feet, opened the cutlery drawer, and, despite the best efforts of Mr Ross’s partner, Ms Wilson, to prevent him, grabbed a black handled serrated steak knife, breaking the drawer in the process, and ran out the door. Mr Ross saw the applicant holding the knife, which the applicant was pointing straight at him. As the applicant approached, Mr Ross yelled to Ms Wilson “Lock the door”. The applicant yelled “Don’t you shut that fucking door”. Ms Wilson attempted to shut the door, but the applicant ran back to the door and endeavoured to hold it open by pushing on it from the outside. While doing this, the applicant was also stabbing the knife between the door and door jamb towards Ms Wilson, who could see the blade coming in and out of the gap. Ms Wilson eventually was able to force the door closed, and she then proceeded to lock the back door.

  2. After the front door was shut on him, the applicant went to the back door, but finding himself locked out, walked around the house to his mother’s bedroom window, where he sliced the screen with a knife and put his head through, saying “Oh, what, you ring the police on me. I’m gonna kill ya, I’m gonna kill ya, I’ll burn your car”. At this time, his mother and Mr McDonald were standing directly inside the bedroom window, in his full view.

Sequence 7 - aggravated break and enter and commit serious indictable offence, namely assault occasioning actual bodily harm (s 112(2))

  1. After cutting the fly screen, the applicant climbed through the open window, still holding the serrated knife he had taken from the kitchen. His mother left the room, leaving her partner Mr McDonald, who tried to restrain the applicant and take the knife from him. The applicant said “You called the cops on me, I hate you. I’m going to kill you”. The two men struggled, falling onto the bed and then the floor. Mr McDonald used both hands to endeavour to control the arm in which the applicant held the knife, while the applicant was on top of him pushing the knife towards him. At one stage the applicant used one hand to choke Mr McDonald, and gouged his left eye, causing redness, bruising, swelling, and pain. Eventually, Mr McDonald was able to remove the knife from the applicant’s grasp by grabbing and bending the blade, incurring a small laceration to his finger. The applicant continued to grab for the knife for a short time, but then jumped up and ran into the hallway, where he was apprehended by police and handcuffed.

  2. The applicant did not respond to the police’s request to accompany them, but stood still; he had to be forcibly removed. He had blood on his shirt and appeared to be heavily intoxicated. Once outside, he showed signs of a seizure, and was conveyed to the police station and then by ambulance to hospital, where he was examined and returned to police custody when that was considered suitable.

The remarks on sentence

  1. His Honour addressed the objective gravity of each offence after recounting facts relevant to that offence as set out above, and before turning to subjective matters.

Objective gravity

  1. As to the reckless wounding of Ms Whitmore (sequence 11), his Honour observed that it occurred immediately after the applicant had been confronted about throwing a glass bottle; that engaging in what could easily have been life threatening behaviour was an extreme response to such an allegation; and that the act was against a person who was not expecting it, and who was totally unarmed. His Honour characterised it as “the irrational reaction of a man who acted with total disregard for the well being of [Ms Whitmore]”, and “clearly reckless and very dangerous”. The objective seriousness was assessed as being in the mid-range. [7]

    7. R v Hoskins [2020] NSWDC 315 at [7]-[12] (Priestley SC DCJ) (“Primary judgment”).

  2. As to the reckless wounding of Ms Charles (sequence 12), his Honour observed that the victim was again unarmed, the attack gratuitous, and its high degree of recklessness self-evident. The objective seriousness was assessed as in the mid-range. [8]

    8. Primary judgment at [13]-[15].

  3. As to the assault of Mr Ross occasioning actual bodily harm, his Honour noted that the actual bodily harm was a minor graze to Mr Ross’s neck, and thus a superficial injury. As with the two earlier offences, the offence appeared to have occurred in response to circumstances where a violent response would not usually be anticipated, in that while Mr Ross may have confronted the applicant with an allegation, there was no suggestion of Mr Ross confronting him physically. While the assault led to a fight, and so the event involved “more than simply a lashing out resulting in a scratch”, it was “not much more” than that. The offence occurred in the applicant’s mother’s home. The objective seriousness was assessed as in the low range. [9]

    9. Primary judgment at [16]-[21].

  4. As to the affray, his Honour observed that it occurred at the applicant’s mother’s home, and that while the event was likely only a number of minutes in duration, it comprised a number of components – obtaining the knife, the struggle at the door with stabbing efforts through the doorjamb, running around the house, yelling, and ultimately slicing the flyscreen and death threats – the cumulative effect of which was frightening. The objective seriousness was assessed as in the lower mid-range. [10]

    10. Primary judgment at [22]-[25].

  5. As to the aggravated break, enter and commit serious indictable offence, his Honour noted that the aggravating element was that the applicant was aware that people were present in the dwelling. The manner of the break was dramatic, but it was not done secretly. The “serious indictable offence”, being assault occasioning actual bodily harm, was, in all the circumstances, not relatively serious: Mr McDonald suffered red marks around his throat, bruising to his left eye, and his eye was red and sore. The offence was committed in a way that placed Mr McDonald in significant danger, but not at “a grave risk of death” as referred to in s 21A(2)(ib) of the Sentencing Procedure Act. The objective seriousness was assessed as below the mid-range. [11]

    11. Primary judgment at [26]-[30].

Subjective factors

  1. His Honour noted that, by reason of s 21A(5AA) of the Sentencing Procedure Act, self-induced intoxication was not to be taken into account as a mitigating factor. [12]

    12. Primary judgment at [32].

  2. His Honour referred to the applicant’s “long history of violence, of which the current offending appears to be the most serious, despite a number of terms of imprisonment.” His (adult) criminal history commenced at age eighteen in 1998 with assault and drug charges, and includes (non-exhaustively) driving and drug convictions, as well as break and enter and steal convictions, in 2000; assault occasioning actual bodily harm in 2003; common assault in 2009 and again in 2013; being armed with intent to commit an indictable offence in 2015, for which he was imprisoned for two years with a non-parole period of eighteen months; and a further common assault in 2018. While there were significant periods between 2000 to 2013 of no serious offending, his record disentitled the applicant to any leniency. [13]

    13. Primary judgment at [48]-[49].

  3. His Honour summarised the evidence on subjective issues as follows: [14]

    14. Primary judgment at [34]-[43].

“[34]    Exhibit C is a report from Justice Health, authored by Dr Gordon Elliott, a forensic psychiatrist. Dr Elliott reviewed the prison medical notes of the offender, which revealed concerns as to attempts to self harm in 2018, refusal of medication and aggressive and argumentative conduct. There is a suggestion of his fits being feigned, and of him banging his head in his cell. The notes showed the offender had previously given a history of hearing voices since the age of 15, and of being in a psychiatric unit in 2016. An earlier doctor’s impression was that the offender suffered depression and possibly OCD, but there was no indication for psychiatric treatment.

[35]   The report gives some personal history, including that the offender states he has two sons, 14 and 16 with whom he was in contact when not in prison, but not whilst in prison. He says he is in a relationship and had been receiving the disability support pension based on his epilepsy. According to the offender, he was raised by his aunt, but was unaware why this was so, and it was only after re-establishing contact with his biological family that difficulties began, that is, drinking, cannabis use, and offending behaviour. The offender estimates having spent 10 years in custody.

[36]   Somewhat contrary to what might be expected, the offender maintained his life was stable prior to the offending. The offending gives a version of the lead up to the offending totally unsupported by the agreed facts, involving the offender having “pulled up” some unidentified male for offering drugs to the offender’s 12 year old cousin, with the male then pulling a knife, the offender disarming him, and in the melee, a female (presumably [Ms Whitmore], but perhaps [Ms Charles]) being “accidentally injured”. In light of the agreed facts this is simply fanciful, and shows a total lack of appreciation on the part of the offender of the seriousness of his conduct. The offender denied drug use on the day, and said he had four alcoholic drinks. The offender denied any connection between his drinking habits and his criminal record. The offender denied drug use beyond a long history of using cannabis.

[37]   This report states there is no indication of a major mental illness. It notes that he is prescribed antidepressant medication and that the offender reports a history of mild obsessive compulsive disorder symptoms and mood instability. There is no requirement for intensive psychiatric care.

[38]   The offender tendered a psychologist report dated 9 February 2020, which became exhibit 1. The personal history given is largely consistent with that set out above, but adds an express denial of any exposure to violence or substance abuse whilst in his mother’s care, and also notes his biological mother’s family that he moved to be with in what seems to be his early teenage years engaged in criminal behaviour. The offender feels abandoned by his mother, and the report writer offers that appears to have had a destabilising impact on the offender.

[39]   All the employment of the offender has been “off the books”; given the offender is 40, and given his circumstances, it suggests a minimal work life. The offender said he had what the report describes as a dearth of paid work.

[40]   The offender was also consistent in saying he used no illicit substances beyond cannabis.

[41]   The offender told this report writer he had no recollection of the offending events, a different view than he told the psychiatrist though he did refer to his version of someone trying to give his nephew ice.

[42]   The offender stated that he was not easily angered nor typically aggressive. As the report writer notes, this is not consistent with either the offending or his criminal history.

[43]   The psychologist’s view is that the presentation of the offender was consistent with a mild but long term form of depression. Intervention is recommended, including upon release with New Horizons, a service the offender appears to have previously accessed.”

  1. Considering these matters, his Honour said: [15]

“[44]   These subjective features of the offender are somewhat uncommon. They suggest to me that the offender has little grasp on reality. If his own history of himself is accepted, this offending appears to have occurred in a period of stability in his life, in a life with little instability beyond being raised (and raised well) by his aunt, and then returning to his mother. The offender’s conduct has the appearance of being partly drug fuelled, but there is no evidence to support that beyond the conduct itself.

…

[47]   The offender also relied on Bugmy and Fernando to suggest that where an offender comes from a community where alcohol abuse and alcohol related violence go hand in hand, and where the alcohol abuse of the offender is a reflection of the environment in which the offender was raised, it should be taken into account as a mitigating factor. The difficulty for the offender here is there is no evidence to support this submission. The offender’s own history suggests quite a different upbringing. I acknowledge that the offender’s history as given by him may be inaccurate, but that is a different thing to assuming the history to be something altogether significantly different.

…

[51]   There is little before the court that suggests any great degree of insight by the offender into the seriousness of his anti-social behaviour, nor is there much to suggest a significant degree of remorse, or even regret. His various accounts of the events to the psychiatrist and psychologist suggest he does not take full responsibility for his actions.

[52]   No submission was made concerning a risk of institutionalisation of the offender, who has now spent approximately 10 years in custody. I have taken this into consideration in determining the non-parole period.” [16]

15. Primary judgment at [44], [47], [51]-[52].

16. A submission had in fact been made in respect of institutionalisation, but as his Honour in event took it into account, nothing turns on this misstatement.

Outcome

  1. His Honour regarded the more relevant purposes of sentencing in the circumstances of the case to be punishment, specific deterrence, and protection of the community, with “a need for supervision upon release for as lengthy a time as may be permissible within the bounds of ensuring proportionality, that is, to ensure that the time in prison reflects the seriousness of this offending.”[17]

    17. Primary judgment at [53].

  2. It was not in issue that the threshold in s 5 of the Sentencing Procedure Act was crossed, in respect of all matters other than the assault occasioning actual bodily harm (sequence 9), which was dealt with by way of conviction without penalty pursuant to s 10A of the Sentencing Procedure Act, having regard to “the very minor nature of the harm” suffered by Mr Ross, the low seriousness of the offence viewed in isolation, and the circumstance that any appropriate sentence option such as an ICO or CCO would be concurrent with the aggregate term of imprisonment to be imposed for the other offences, rendering such an order impractical. [18]

    18. Primary judgment at [54].

  3. For the remaining four matters, his Honour determined to impose an aggregate sentence, indicating notional individual sentences as follows:[19]

    19. Primary judgment at [56]. Although three of the offences (being sequences 7, 11, and 12) have standard non-parole periods, his Honour did not, as required by s 54B(4) of the Sentencing Procedure Act, indicate the non-parole period which he would have imposed in respect of them. However, this does not invalidate the sentence (Sentencing Procedure Act, s 54B(7)), and was not the subject of complaint.

  1. Sequence 11 – reckless wounding – three years;

  2. Sequence 12 – reckless wounding – three years;

  3. Sequence 10 – affray – one year and six months; and

  4. Sequence 7 – aggravated break and enter and commit serious indictable offence – two years and six months.

  1. The aggregate sentence of five years and six months was “largely due to the fact of the offending forming one course of conduct”. The non-parole period of three years and six months is 63.6% of the head sentence, pursuant to a finding of special circumstances founded on the applicant’s need for more than ordinary supervision and counselling after release, and the risk of institutionalisation. [20]

    20. Primary judgment at [58].

Appeal Ground 2

  1. The appeal is from the aggregate sentence imposed in respect of sequences 7, 10, 11, and 12; sequence 9 remains relevant only as context. As Ground 1 was, as has been described above,[21] abandoned, only ground 2 requires consideration.

    21. At [6].

  2. In the proceedings on sentence, the applicant submitted that the case was one in which, “given the applicant’s subjective case and community context”, regard should be had to the “Fernando principles” – a reference to R v Fernando, [22] referred to below, in which Wood J (as the later Chief Judge at Common Law then was) expounded propositions relevant in the context of the sentencing of Aboriginal offenders. [23]

    22. (1992) 76 A Crim R 58 at 62-64 (Wood J) (“Fernando”).

    23. As explained below, these principles, though originally stated in the context of Aboriginal offenders, have been applied to others raised in circumstances of social disadvantage: see below at [52].

  3. With reference to Bugmy,[24] it was submitted that “the experience of growing up in an environment of social deprivation may leave its mark on a person through their life and may compromise the person’s capacity to mature and learn from experience”, and that:

“The offender’s troubled childhood, which began when he returned to reside with his natural mother, became exposed to criminal conduct, is reflected by the fact that he has an extremely lengthy criminal record involving the abuse of alcohol and violence. He also spent time in juvenile custody. These are matters which substantially reduce his moral culpability for the offences. Such factors should accordingly operate to substantially reduce the sentence that would otherwise be appropriate if those factors were not present.”

24. At 594-595 [43] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ).

  1. The sentencing judge dealt with this submission in [47] of the remarks on sentence, which has already been set out above but for convenience is repeated here (with emphasis added):[25]

“The offender also relied on Bugmy and Fernando to suggest that where an offender comes from a community where alcohol abuse and alcohol related violence go hand in hand, and where the alcohol abuse of the offender is a reflection of the environment in which the offender was raised, it should be taken into account as a mitigating factor. The difficulty for the offender here is there is no evidence to support this submission. The offender’s own history suggests quite a different upbringing. I acknowledge that the offender’s history as given by him may be inaccurate, but that is a different thing to assuming the history to be something altogether significantly different.”

25. Primary judgment at [47].

  1. The relevant evidence was as follows.

  2. Dr Elliott, psychiatrist, performed a psychiatric assessment of the applicant at the request of the Court. As to the applicant’s personal history, he reported (emphasis added):

“He told me he was born in Coffs Harbour but raised in Kempsey from infancy and sees Kempsey as his long term home. He told me he grew up with his extended family and sees his cousins as his siblings, before eventually explaining that he was raised by a maternal aunt. He told me he was always unaware why this was the case and why his biological parents were absent from his childhood.

Mr Hoskins claimed that he performed extremely well in primary school and early high school in Kempsey. He denied truancy, but then abruptly told me that he left high school in year eight. He denied ever being suspended or expelled.

Mr Hoskins said his problems began when he re-established contact with his biological family in his early adolescence. He said he moved to Coffs Harbour and commenced drinking and cannabis use and quickly moved to offending behaviour.

…

Mr Hoskins estimated that he has spent a total of 10 years in custody and he once again attributed this to the malign influence of his family. He told me just being near them “gets me into trouble”.”

  1. The applicant tendered a psychological assessment report by Katie Martens, forensic psychologist, who reported (emphasis added):

“Mr Hoskins is a proud Aboriginal man who was raised by his Aunt and Uncle in the Kempsey area of New South Wales. He is uncertain as to why he was not cared for by his biological parents and advised that he had little contact with his mother and father throughout childhood. Further, he advised that he had not realised that his Aunt and Uncle were not his parents until he was 13 years old, at which point he had difficulty coping with the information.

Overall, Mr Hoskins described his childhood as “excellent”. He stated that he was raised with three cousins, whom he refers to as his siblings, and has three biological siblings who were raised in foster care. He denied any experience of maltreatment or abuse when living with his Aunt and Uncle, and advised that he was well supported and felt loved. He denied any exposure to substance abuse or domestic violence. He reported that he was well-behaved and had close relationships with his relatives in this household.

In contrast to his seemingly positive childhood, Mr Hoskins reported a sense of feeling abandoned and unwanted by his biological mother. He considered that she had never had affection for him, and when he met her, she had treated him differently to her other children. Shortly after discovering his mother’s identity, Mr Hoskins moved to live with her in Coffs Harbour. He advised that his mother had a permissive parenting style that consisted of a lack of supervision or rules. In this environment, Mr Hoskins commenced acting ou[t] and he advised that he engaged in crime which resulted in numerous periods of detainment in Juvenile Justice Centres. Mr Hoskins denied any exposure to violence or substance abuse whilst in his mother’s care. He did recall that his mother had enjoyed gambling, and that he had assisted her to finance this through the proceeds of criminal acts throughout adolescence. He advised that his biological siblings and extended family had all engaged in criminal behaviour, and thus that criminal conduct was normalized.

Mr Hoskins did not have a close relationship with his father, who passed away when Mr Hoskins was young. He advised that his Uncle had also passed away, along with several of his siblings, which remains a source of sadness and grief. Mr Hoskins reported an enduring close relationship with his Aunt. His relationship with his mother remains a source of conflict for Mr Hoskins, who advised that he continues to feel unwanted by her. Mr Hoskins stated that his maternal family have “chaotic” relationships, characterised by interpersonal violence and verbal conflict. He advised that his past charges related to violence have been due to family disagreements.

In summary, Mr Hoskins’ account of his childhood experiences suggests that he benefitted from supportive and consistent care throughout his early life. The knowledge of the true identity of his biological mother, and subsequent residence in her household appears to have been a significant destabilizing even for Mr Hoskins, whose behaviour deteriorated whilst in her care.”

  1. According to Ms Martens’ report, Mr Hoskins “first consumed alcohol at age 16 with friends and his extended family”, and “he reported fluctuating frequency of alcohol use thereafter”. He first smoked cannabis at age sixteen, with friends and family, and reported that he has typically used cannabis every few days; he said that he thinks that it alleviates the symptoms of his epilepsy, and it also “allows him to fit in with his family”.

  2. Ms Martens concluded (emphasis added):

“In examining Mr Hoskins’ criminal conduct, it is important to note that his entry into criminal conduct was precipitated by discovering the identity of his biological mother at age 13, and subsequently attempting to fit in with his biological family. Within this family unit, criminal conduct was normalised, and he was permitted to truant and engage in substance use with his peers and extended family. Whilst he reports that he had previously engaged well in school, his move to his mother’s care was also associated with a cessation of formal schooling and a subsequent lack of involvement in the paid workforce. Mr Hoskin’s difficulties were exacerbated several years ago, following a physical assault that reportedly resulted in him developing Epilepsy. I was not provided with information regarding previous neurological assessments of Mr Hoskins, however he described a number of symptoms that could be associated with traumatic brain injury and warrant investigation.”

  1. Also before the Court was a reference from a friend, Steven Allen, who had known the applicant for fifteen years, and who offered support when he is released from gaol, which demonstrates a connection between the applicant’s substance abuse and his offending. Mr Allen stated:

“Alcohol is Doug’s worst enemy. When he gets on alcohol and marijuana, that’s when he loses it. When he is not on drugs or alcohol, you couldn’t get a nicer bloke.

…

Doug is a bit of a loner, but when he is alone, that is when I have noticed he is most likely to drink and take drugs. From what I have seen, it is also when he is most likely to break the law.

I have seen him in the past trying hard to stay off the drugs and alcohol and he does pretty well for a period of time, but then something happens which upsets him or depresses him and he gets back on the drugs and alcohol.”

  1. Mr Hoskins’ claim that his problems began in his early adolescence when he re-established contact with his biological family and moved to Coffs Harbour, commenced drinking and cannabis use and proceeded to offending behaviour, is borne out by his juvenile justice record, which commences in 1995, when he was aged fifteen, with offences in Coffs Harbour: initially predominantly related to stealing, and possessing and using cannabis; his first offence of violence appears to have occurred on or about 16 May 1996.

  2. In Bugmy, the High Court summarised and endorsed the propositions stated by Wood J in Fernando, as follows (footnotes omitted, emphasis added): [26]

    26. Bugmy at 592-594 [37]-[39] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ).

“[38]   The propositions stated in Fernando are largely directed to the significance of the circumstance that the offender was intoxicated at the time of the offence. As Wood J explained, drunkenness does not usually operate by way of excuse or to mitigate an offender’s conduct. However, his Honour recognised that there are Aboriginal communities in which alcohol abuse and alcohol-related violence go hand in hand. His Honour considered that where an offender’s abuse of alcohol is a reflection of the environment in which he or she was raised it should be taken into account as a mitigating factor. To do so, he said, is to acknowledge the endemic presence of alcohol in Aboriginal communities and:

‘the grave social difficulties faced by those communities where poor self-image, absence of education and work opportunity and other demoralising factors have placed heavy stresses on them, reinforcing their resort to alcohol and compounding its worst effects.’

[39]   The other respect in which Wood J proposed that an offender’s Aboriginality may be relevant to the sentencing determination is in a case in which because of the offender’s background or lack of experience of European ways a lengthy term of imprisonment might be particularly burdensome. In each of these respects, the propositions enunciated in R v Fernando conform with the statement of sentencing principle by Brennan J in Neal v The Queen:

‘The same sentencing principles are to be applied, of course, in every case, irrespective of the identity of a particular offender or his membership of an ethnic or other group. But in imposing sentences courts are bound to take into account, in accordance with those principles, all material facts including those facts which exist only by reason of the offender’s membership of an ethnic or other group. So much is essential to the even administration of criminal justice. That done, however, the weight to be attributed to the factors material in a particular case, whether of aggravation or mitigation, is ordinarily a matter for the court exercising the sentencing discretion of first instance or for the Court of Criminal Appeal.’”

  1. The High Court endorsed the explanation of Fernando provided by Simpson J (as her Honour then was) in Kennedy v R:[27]

“Properly understood, Fernando is a decision, not about sentencing Aboriginals, but about the recognition, in sentencing decisions, of social disadvantage that frequently (no matter what the ethnicity of the offender) precedes the commission of crime.”

27. [2010] NSWCCA 260 at [53] (Simpson J).

  1. Specifically, the High Court stated that: [28]

“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.”

28. Bugmy at 594 [40] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ).

  1. In that context, the Court stated that the effects of profound deprivation do not diminish over time and are to be given full weight in the determination of the appropriate sentence in every case: [29]

“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.”

29. Bugmy at 594-595 [42]-[43] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ).

  1. However, while, “[b]ecause 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”, this does not mean “that an offender’s deprived background has the same (mitigatory) relevance for all of the purposes of punishment”: [30]

“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.”

30. Bugmy at 545 [44] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ).

  1. Subsequent decisions of this Court have confirmed that “[a]pplication of the Bugmy principles is not discretionary”,[31] although countervailing factors such as the protection of the community may affect their impact. [32]

    31. R v Irwin [2019] NSWCCA 133 at [3] (Simpson AJA) (“Irwin”).

    32. Dungay v R [2020] NSWCCA 209 at [138] (N Adams J; Bell P and Davies J agreeing) (“Dungay”); Ingrey v R [2016] NSWCCA 31 at [35] (Hoeben CJ at CL; Adams J and Fullerton J agreeing) (“Ingrey”).

  2. Although the High Court used the term “profound childhood deprivation” when referring to its enduring effects, what was said to require consideration was “an offender’s deprived background”. There is no magic in the word “profound”, and it is not necessary to characterise an offender’s childhood as one of “profound deprivation” before the principle is engaged. The principle is that social disadvantage may reduce an offender’s moral culpability, especially where the offending is in the nature of impulsive or learned responses to situations, arising from the circumstances of social disadvantage. Thus the Bugmy principles may not operate to reduce moral culpability in a case where careful planning and premeditation is involved, such as cultivation and drug supply matters. [33] However, engagement of the principles does not depend on the establishment of a causative link between the circumstances of deprivation and the offending. [34] As N Adams J explained in Dungay: [35]

“Having regard to these principles, it seems to me that although the effects of childhood deprivation are to be given full weight in every sentencing decision, that does not mean that moral culpability must be reduced in every case. Full weight can be given to such a childhood in other ways as part of the process of instinctive synthesis. Although a causal link may not be required, it also seems to be that if such a link exists then inevitably there will be a reduction in an offender’s moral culpability: Kliendienst v R [2020] NSWCCA 98. On the other hand, the absence of such a link does not mean that the Court does not give full weight to a childhood of profound deprivation if that is established on the evidence.”

33. Dungay at [143]-[146] (N Adams J; Bell P and Davies J agreeing); Taysavang v R; Lee v R [2017] NSWCCA 146 at [42] (Simpson JA, McCallum and Fagan JJ).

34. Irwin at [116] (Walton J; Simpson AJA and Adamson J agreeing); Judge v R [2018] NSWCCA 203 at [30]-[32] (White JA; Bellew J and Wilson J agreeing); Perkins v R [2018] NSWCCA 62 at [77] (White JA), [100] (Fullerton J), cf [42] (Hoeben CJ at CL, contra).

35. At [153] (N Adams J; Bell P and Davies J agreeing).

  1. In Kliendienst v R, this Court applied the Bugmy principles in the context that the offender’s impulsive resort to violence when frustrated was, in effect, a learnt response from his childhood:[36]

“His Honour provided detailed reasons in this matter and made numerous references to the applicant’s difficult and violent upbringing, but the fact remains that there is no mention of the principles in Bugmy, nor to the question of the applicant’s moral culpability in the sentencing reasons. Contrary to the submission of the Crown, this case could be considered a classic Bugmy case where the “sins of the father” have resulted in the applicant turning to violence when frustrated. His inability to control that impulse reduces his moral culpability. Although it was not squarely put to his Honour that the Bugmy principles were relevant, they are nonetheless applicable when there is uncontested evidence that the factual basis for raising them is present.”

36. [2020] NSWCCA 98 at [68] (N Adams J; Simpson AJA and Rothman J agreeing).

  1. In Ingrey, [37] this Court applied the principles in circumstances where the applicant was raised in an environment where his extended family were involved in a criminal milieu, to the influence of which he was exposed from a young age (emphasis added):

“It is true that his Honour fully reviewed the applicant’s subjective case. Included in that review was a detailed statement of the history received and conclusions reached by Ms Wyzenbeek. That material made it clear that an important part of the applicant’s background history was that his extended family were involved in a criminal milieu and that from a young age, the applicant was exposed to that influence. Despite being aware of those matters, his Honour appears to have disregarded them when exercising the sentencing discretion.”

37. Ingrey at [31] (Hoeben CJ at CL; Adams J and Fullerton J agreeing).

  1. Before us, the Crown sought to distinguish Ingrey, on the basis that Mr Ingrey:

  1. had a lengthy history of offending dating back to early childhood and had been “in and out of custody” since aged about eight;

  2. “witnessed much domestic and other interpersonal violence within his extended family and the broader community”;

  3. finished school at age thirteen, was unable to read and write, and was of low intelligence;

  4. first consumed alcohol at age ten, regularly drinking from that time until he was eighteen; and

  5. started smoking cannabis at age thirteen, and did so regularly until seventeen, when he gave up cannabis and commenced using amphetamines.

  1. These differences, however, do not affect the essential point that exposure as a child to the influence of an extended family involved in a criminal milieu is relevant, because it can warp a child’s moral compass and create conditions in which anti-social behaviour becomes normalised. In my opinion, this is just as true, if not more so, when aged thirteen to sixteen as at earlier ages: the years of adolescence are in many respects formative.

  2. As will be recalled, there was expert evidence from Ms Martens that the applicant’s entry into criminal conduct was precipitated by the discovery, at age thirteen, that his aunt and uncle were not his biological parents, and then by attempting to fit in with his biological family, in which criminal conduct was normalised and he was permitted to truant and engage in substance use with his peers and extended family. While, until he was thirteen, the applicant apparently enjoyed a secure and stable upbringing, that is subject to the very important qualification that, then unbeknownst to him, those raising him were not his biological parents. Discovery of that fact alone is likely to have a significant impact and create major identity issues for an adolescent. That discovery was immediately followed by exposure from that age to his biological family, and though his mother did not expose him to substance abuse or violence, he was, during the crucial formative years of his adolescence, living in an environment in which the use of alcohol, stealing, and violence were normalised. In those circumstances and that environment, it is unsurprising that he would commence “acting out” and adopt the lifestyle of his extended biological family, in order to gain acceptance. He commenced to use alcohol. Mr Allen’s evidence suggests that the applicant’s offending historically appears to be associated with alcohol abuse. His offending on 31 January 2019 involved a series of irrational, erratic, impulsive, and excessive responses to situations, when under the influence of alcohol.

  1. In respect of the applicant’s history, his Honour observed that (emphasis added): “If his own history of himself is accepted, this offending appears to have occurred in a period of stability in his life, in a life with little instability beyond being raised (and raised well) by his aunt, and then returning to his mother”. [38] In rejecting the applicability of Bugmy and Fernando, his Honour stated: “The offender’s own history suggests quite a different upbringing”. [39] These observations appear to overlook the significance of the discovery that those who had initially raised him were not his parents, and the identity issues that this would inevitably have triggered; and the applicant’s experience following return to his biological family from age thirteen onwards, and its impact on the trajectory of his life. Although at one point in the course of submissions, his Honour noted that after his “excellent” childhood with his uncle and aunt, “Then he seems to have spent some time with his biological mother, and things don’t seem to have gone as well after that”, referring to his school attendance deteriorating, and “a heightened degree of criminality going on in that household as opposed to his aunt’s”, [40] his Honour’s remarks on sentence do not address this issue. They focus on his childhood until the age of twelve, and do not consider what happened thereafter. An upbringing does not end at twelve.

    38. Primary judgment at [44].

    39. Primary judgment at [47].

    40. Tcpt, 13 February 2020, p 15(2), (6)-(10).

  2. In my view, the momentous discovery that those in whose care he was initially raised were, contrary to his then life view, not his parents; the inevitable identity issues that would have resulted; the applicant’s experience following return to his biological family from age thirteen onwards, including “acting out” to fit in with his biological family and his exposure to their anti-social ways; and his introduction to the use of alcohol in that environment, are circumstances amounting to social disadvantage which, consistently with Fernando and Bugmy, bear on the assessment of the applicant’s moral culpability for the offending of 31 January 2019, particularly given the association of that offending with alcohol abuse, and the origins of that abuse in the period after he moved to live with his mother. The impact of social disadvantage, the manner in which it is taken into account, and the weight to be attached to it, is diverse. In this respect, I agree with the observations of Basten JA. Bugmy makes clear, however, that it must be given full weight, notwithstanding the passage of time and the intervention of other custodial sentences. [41] Though his Honour was entitled to consider the extent to which the circumstances of the applicant’s youth mitigated his moral culpability, and whether there were offsetting considerations such as specific deterrence and the need to protect the community, it ought not have been entirely disregarded, and his Honour erred in doing so.

    41. Bugmy at 594-595 [42]-[43] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ).

Re-exercise of the sentencing discretion

  1. The Court must therefore re-exercise the sentencing discretion in respect of Sequences 7, 10, 11, and 12.

  2. The Crown submitted that no lesser sentence than that imposed by the sentencing judge was warranted, having regard to the applicable maximum penalties and standard non-parole periods; the multiplicity of victims; that each victim was unarmed, while the applicant was armed with a knife; that each offence was unprovoked; that the reckless wounding involved reckless behaviour which was threatening and dangerous, with the wounds to two victims requiring surgery; that the offences were aggravated by being committed in or in the precincts of homes; that the victims must have been terrified; that the applicant’s long history of offending, including violence, disentitles him to leniency; that the applicant did not demonstrate any insight or remorse; and that if Bugmy principles did operate in his favour, they were counterbalanced by the need for specific deterrence.

  3. Like the sentencing judge, I consider punishment, specific deterrence, and protection of the community as the most relevant purposes. I agree with the Crown submission that specific deterrence is an important consideration. However, I do not see that a difference of a year or so in a sentence of this length makes much difference from the perspective of protection of the community.

  4. There was no challenge to his Honour’s assessment of the objective gravity of each offence, which I would adopt. Nor is there any dispute that the applicant is entitled to a 25% discount for his early plea of guilty.

  5. While there is no evidence of remorse, his recollection of the events could have been affected by the seizure which he was observed, immediately following the events, to have been experiencing. While the applicant’s lengthy record disentitles him to leniency, and while self-induced intoxication is not in itself a mitigating factor, in my opinion his drunken rampage on the night in question was a reflection of the environment in which he had spent his formative teenage years, and this reduces his subjective moral culpability. Like the sentencing judge, I take into account the risk of institutionalisation, given that the applicant has spent approximately ten years in custody.

  6. The offending forms a single course of conduct and it is appropriate to impose an aggregate sentence, as his Honour did. Like his Honour, I would find special circumstances in the desirability for extensive and prolonged supervision upon release, in the risk of institutionalisation, and in the Bugmy considerations.

  7. Although the other offences carry a greater maximum penalty, on the facts the most serious offences were the two reckless woundings (sequences 11 and 12), each of which carries a maximum penalty of seven years’ imprisonment, and a standard non-parole period of three years. Objectively, both were “mid-range”. Were I imposing separate sentences, I would in each of sequences 11 and 12 set a non-parole period of two years and an additional term of one year, being a total of three years each. The non-parole period is less than the standard non-parole period on account of the subjective Bugmy considerations and the 25% discount for the plea, and to give effect to the finding of special circumstances.

  8. The affray offence carries a maximum penalty of ten years’ imprisonment; there is no standard non-parole period. Objectively, it was in the low mid-range. Were I imposing a separate sentence, I would set a non-parole period of one year and an additional term of six months, a total of one year and six months.

  9. The offence of aggravated break and enter (knowing that a person was in the place) and commit serious indictable offence (assault occasioning actual bodily harm) carries a maximum penalty of twenty years’ imprisonment, and has a standard non-parole period of five years. Objectively, it was below mid-range. Were I imposing a separate sentence, I would set a non-parole period of one year and six months, and an additional term of nine months. The non-parole period is less than the standard non-parole period by reason that the offence is below mid-range, on account of the subjective Bugmy considerations and the 25% discount for the plea, and to give effect to the finding of special circumstances.

Conclusion and resentence

  1. The total of the indicative sentences mentioned above, totally accumulated, is nine years and nine months. The longest individual indicative sentence is three years, with a non-parole period of two years.

  2. It is necessary to have regard to considerations of totality, accumulation, and concurrency. The aggregate sentence is intended to reflect the total and overall criminality involved, having regard to the need for specific deterrence and protection of the community, as well as to the Bugmy considerations.

  3. This was a single course of conduct, although it involved, relevantly, four episodes. While it must have been terrifying for the victims, it is best described as a course of irrational, erratic, impulsive, and excessive responses to situations, when under the influence of alcohol. While his self-induced intoxication is not in itself a mitigating factor, it is linked to his social disadvantage as a youth, which is. In my judgment, the appropriate aggregate sentence is imprisonment for five years, with a non-parole period of three years.

  4. Accordingly, I propose the following orders:

  1. extend time for the applicant to file a Notice of Appeal to the date on which it was filed;

  2. grant leave to the applicant to appeal against the aggregate sentence imposed on 20 February 2020 by the District Court;

  3. allow the appeal; and

  4. quash the aggregate sentence imposed in the District Court on 20 February 2020 in respect of sequences 7, 10, 11, and 12, and in lieu thereof:

  1. impose an aggregate sentence of five years’ imprisonment to commence from 31 January 2019 and expire on 30 January 2024;

  2. pursuant to s 44(2A) of the Crimes (Sentencing Procedure) Act1999 (NSW), set a non-parole period of three years, and specify that the earliest date the applicant will be eligible to be released on parole is 31 January 2022; and

  3. pursuant to s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW), record that an aggregate sentence is imposed and indicate to the applicant that the sentences that would have been imposed for each offence under separate sentences instead of an aggregate sentence are as follows:

  1. sequence 11 (reckless wounding of Ms Whitmore): three years, with a non-parole period of two years;

  2. sequence 12 (reckless wounding of Ms Charles): three years, with a non-parole period of two years;

  3. sequence 10 (affray): one year and six months; and

  4. sequence 7 (aggravated break, enter (knowing that a person was in the place) and commit serious indictable offence (assault occasioning actual bodily harm): two years and three months, with a non-parole period of one year and six months.

  1. BEECH-JONES J: The circumstances of the offences, the relevant parts of the sentencing judgment and the submissions in support of ground 2 of the application are set out in the judgment of Brereton JA.

  2. Complaints made to this Court about an alleged failure by a sentencing judge to apply the principles stated in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 must be considered in the context of the necessity for an applicant for leave to appeal against sentence to establish an error of the kind stated in House v R (1936) 55 CLR 499 at 504 to 505 (“House”). Thus, it is not sufficient to simply say that insufficient weight was given to an applicant’s social disadvantage unless that demonstrates or supports the contention that the sentence was manifestly excessive. Otherwise, any attempt to invoke Bugmy principles must be based on evidence.

  3. In rejecting any application of the principles stated in Bugmy to the applicant’s case, the sentencing judge stated that there was “no evidence” to support the submission that the applicant came “from a community where alcohol abuse and alcohol related violence go hand in hand and where the alcohol abuse of the offender is a reflection of environment in which the offender was raised” (see [47] of the sentencing judgment set out at [35] above). However, there was a considerable body of evidence before the sentencing judge to the effect that, after the applicant was reunited with his biological mother, siblings and extended family, he was exposed to alcohol and drug abuse (at [45], [47] and [50]) and raised in an environment where criminal behaviour was normalised (at [46] to [48]). In concluding that there was “no evidence” to support the submission made, the sentencing judge appears to have either treated Bugmy as confined to dysfunctional social environments that are only a consequence of endemic alcohol‑related violence or proceeded on the basis that a submission invoking Bugmy should only be considered if it is supported by evidence from the offender (or both). On either view, the sentencing judge acted “upon a wrong principle” and did not take into account “some material consideration” (House at 505). For that reason, I agree that ground 2 is made out.

  4. I agree with the approach of Brereton JA to resentencing and the orders his Honour proposes.

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Endnotes

Decision last updated: 21 July 2021

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