Kennedy v R

[2022] NSWCCA 215

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Kennedy v R [2022] NSWCCA 215

Hearing dates:

26 September 2022

Decision date:

07 October 2022

Before:

Garling J at [1]; Adamson J at [2]; N Adams J at [58]

Decision:

(1)   Grant leave to appeal.

(2)   Allow the appeal to correct the commencement date of the sentence.

(3)   Set aside the sentence imposed by Williams DCJ on 21 June 2021 and, in lieu thereof, impose a sentence of 7 years imprisonment commencing on 23 April 2019 and expiring on 22 April 2026 with a non-parole period of 3 years and 8 months’ imprisonment commencing on 23 April 2019 and expiring on 22 December 2022.

(4)   The applicant will first be eligible for release on parole on 22 December 2022.

Catchwords:

CRIME — Appeals — Appeal against sentence — Failure to take into account a relevant consideration — whether trial judge erred in limiting consideration of Bugmy and Fernando factors to special circumstances finding — where no such error demonstrated having regard to reasons as a whole

CRIME — Appeals — Appeal against sentence — Failure to take into account a relevant consideration — whether trial judge erred in not finding that lack of planning was a mitigating factor — domestic violence offence — where no error shown

CRIME — Appeals — Appeal against sentence — Re-sentence — calculation error for commencement date of sentence

Legislation Cited:

Crimes Act 1900 (NSW), s 86

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 44

Criminal ProcedureAct 1986 (NSW), s 166

Cases Cited:

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

Cohen v R [2011] NSWCCA 165

Fuller v R [2022] NSWCCA 203

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

Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255

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

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

Olbrich v The Queen (1999) 199 CLR 270; [1999] HCA 54

RvFernando (1992) 76 A Crim R 58

R v Hopkinson; R v Robertson [2022] NSWCCA 80

Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14

Category:

Principal judgment

Parties:

Robert Dwayne Kennedy (Applicant)
Rex (Respondent)

Representation:

Counsel:
T Ramrakha (Applicant)
D Scully (Respondent)

Solicitors:
Legal Aid NSW (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s):

2019/65271

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

21 June 2021

Before:

Williams DCJ

File Number(s):

2019/65271

HEADNOTE

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

Robert Kennedy (the applicant) was convicted at trial by Williams DCJ, sitting as judge alone, of a single count of detaining a person without their consent with intent to obtain an advantage and occasion actual bodily harm contrary to s 86(2)(b) of the Crimes Act 1900 (NSW). On 21 June 2021, Williams DCJ sentenced the applicant to a term of imprisonment of 7 years with a non-parole period of 3 years and 8 months.

The facts of the offending can be briefly summarised as follows. The applicant and the victim had been in an intimate relationship, with some gaps, for about 14 years. There was an Apprehended Domestic Violence Order in favour of the victim.

On the morning of 27 February 2019, the applicant and victim went to the applicant’s father’s unit (where the applicant was living at the time). As soon as they arrived, the applicant demanded the victim’s phone, asking where the “app” was and asking for the PIN to the app. When the victim said she did not know what he was talking about, the applicant hit her on the jaw. The victim began to cry and asked him to stop and told him she was scared and wanted to leave. The applicant kept searching the victim’s phone and kept her car keys so that she could not leave. The applicant then punched the victim in the head and threatened to burn her eyes with a lit cigarette. The victim continued to beg him to let her go.

Later, the victim’s sister dropped the young son of the applicant and the victim at the unit so he could use the toilet. Afterwards, the applicant drove the victim and their son in the victim’s car to the victim’s sister to drop off their son. During this trip, the police pulled over the car but the victim, being scared for her safety, did not say anything to police.

After returning to the unit, the applicant punched the victim’s right arm repeatedly. He clenched his fists and said “if you tell me the truth I’ll let you go. Get in the car”. When the victim said that she did not want to go, the applicant pushed her out of the unit and into the car. He drove her across a river to an area called “Third Island” where he demanded that she tell him “the truth”. The victim begged to be released, to which the applicant responded, “Get the fuck out of the car, you slut” and hit her head again. He pulled her out of the car and kicked her, breaking two of her ribs. He threatened to kill her.

The applicant found a length of timber nearby and used it to strike the victim on her head. He then picked her up, held her by the neck, and threatened to kill her. The victim was so scared that she wet herself. They then drove back to the unit where the applicant continued to make demands regarding the app on the victim’s phone. He then punched her lowered head and her left hand. The applicant told the victim to change clothes and then drove them to the victim’s sister’s place to collect their son.

In the meantime, the applicant’s father had called police. On the drive to the victim’s sister’s place, police pulled over the applicant. An officer asked them whether they had had “any dramas” to which the applicant answered, “Nah, mate, nah.” The victim began to cry and nodded her head, which led the officer to ask her to get out of the car. The applicant attempted to drive but it stalled. The applicant was then arrested. The total period of the victim’s detention was from about 8.40am until 6pm.

The applicant sought leave to appeal from his sentence pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) on three grounds: first, that the sentencing judge erred in confining consideration of Bugmy and Fernando issues to special circumstances; second, that the sentencing judge failed to take into account that the offence was not planned; and third, that there was an error in the calculation of the commencement date of the sentence. The error identified in the third ground was conceded by the Crown.

The Court held (Adamson J, Garling and N Adams JJ agreeing), granting leave to appeal against sentence and allowing the appeal to correct the commencement date of the sentence:

1. The sentencing judge’s reasons read as a whole showed that Bugmy and Fernando factors were considered. The sentencing judge’s reference to Munda explained why the circumstances of the present case did not warrant Bugmy factors reducing the significance of general deterrence. It is important that Bugmy factors do not mitigate a sentence such that victims of domestic violence at the hands of offenders who themselves suffered from childhood deprivation are treated as less worthy of protection or that crimes against them warrant less denunciation: [40], [42]-[43] (Adamson J); [1] (Garling J); [58] (N Adams J).

   Munda v State of Western Australia (2013) 249 CLR 600; [2013] HCA 38 applied; Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 discussed; R v Fernando (1992) 76 A Crim R 58 discussed.

   (2)   Whether a factor such as any element of planning mitigates or aggravates the offence depends on the circumstances of the offending. The offending conduct in this case was typified by irrational jealousy brought about by insecurity. As is typical with many domestic violence offences, there was no premeditation. To regard lack of planning as necessarily mitigating without considering the nature of the offending is erroneous. The present case did not warrant a finding that the lack of planning was a mitigating factor: [49], [51]-[53] (Adamson J); [1] (Garling J); [58] (N Adams J).

   Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14 considered.

2. The Crown conceded that the sentencing judge made a slight error in calculating the commencement date of the sentence. Given the error was only one of calculation, this Court ought correct the commencement date but not otherwise proceed to re-sentence [55]-[56] (Adamson J); [1] (Garling J); [58] (N Adams J).

   Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 applied; Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255 applied.

JUDGMENT

1. GARLING J: I agree with the orders proposed by Adamson J and with her Honour’s reasons. I also agree with the additional remarks of N Adams J.

2. ADAMSON J: Robert Kennedy (the applicant) seeks leave to appeal against the sentence imposed on him by Williams DCJ in the District Court at Dubbo on 21 June 2021 of 7 years’ imprisonment with a non-parole period of 3 years and 8 months’ imprisonment. The sentence was imposed after he was convicted at trial (by Williams DCJ as judge alone) for detaining a person without their consent with intent to obtain an advantage and occasion actual bodily harm contrary to s 86(2)(b) of the Crimes Act 1900 (NSW). The person detained was Larissa Peckham, the applicant’s then intimate partner (the victim). The maximum penalty for the offence is 20 years’ imprisonment. There is no standard non-parole period.

3. Her Honour found special circumstances and altered the statutory ratio between the non-parole period and the total term of imprisonment from 75% (s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Act)) to 52.3%.

4. The grounds of appeal in respect of which leave is sought are as follows:

“1.   [Not pressed.]

2.   Her Honour found that ‘Bugmy and Fernando type issues’ had been ‘established to a significant degree’ but erred in limiting consideration of that finding to the finding of special circumstances.

3.   Her Honour failed to take into account the fact that the offence was not planned.

4.   The sentencing judge erred in calculating the commencement date of the sentence.”

5. The applicant sought leave to amend the notice of appeal to add the fourth ground in the course of the hearing of the leave application. The Crown did not oppose leave being granted in respect of the additional ground and accepted that the sentencing judge had made a slip in the calculation which could be corrected by this Court.

6. As Williams DCJ was the trial judge and as the applicant was tried by judge alone, the facts of the offending conduct were contained in her Honour’s reasons for finding the applicant guilty, which were replicated in the remarks on sentence.

The proceedings on sentence

7. At the proceedings on sentence, the Crown tendered the victim impact statement of the victim as well as the applicant’s criminal and custodial histories. The Crown also handed up a certificate pursuant to s 166 of the Criminal ProcedureAct 1986 (NSW), which sought that a breach of an Apprehended Violence Order (AVO) (comprised by the offending conduct) also be taken into account on sentence as a related offence.

8. The applicant’s counsel tendered, relevantly, a report of Dr Sathish Dayalan, forensic psychiatrist dated 22 January 2020 and two character references. There was no oral evidence at the sentence hearing.

9. Both the Crown and the applicant’s counsel relied on written submissions which were augmented by oral submissions.

10. The applicant’s counsel submitted that the objective seriousness of the offending was “no higher than midrange” notwithstanding that the period of detention was 9 hours and 20 minutes. He submitted that the acts of violence perpetrated against the complainant were “not sustained” and were “sporadic” and that the conduct was not planned and did not involve the use of a weapon (other than a stick which he found on Third Island, an isolated place where he had taken the victim). The applicant’s counsel relied on the circumstance that although the applicant had committed domestic violence offences against the victim in the course of their 14-year relationship, none of the previous offences was a “serious personal violence offence”.

11. The applicant’s counsel relied on the report of Dr Dayalan and noted the applicant’s drug and alcohol history as well as his personal and family history. He described the applicant as a 30-year old Aboriginal man from a background of extreme disadvantage who told Dr Dayalan that he had a “chaotic childhood”; his parents were poor; and his father had mental health issues (schizophrenia, and alcohol and cannabis abuse). He submitted that the applicant had witnessed domestic violence from a young age and began to spend more time away from home. He abused drugs and alcohol from a young age. He was also sexually abused while in the juvenile justice system (in respect of which he is claiming damages in civil proceedings). The applicant’s counsel also referred to the death of the applicant’s brother, Lyle, who was only 16 years old, which caused the applicant’s mental state to deteriorate. This occurred shortly before the offending conduct. He submitted that the applicant had insight into the offending.

12. The Crown submitted that the applicant’s purpose in detaining the victim was to “humiliate and degrade”. He submitted that when the applicant’s jealousy was triggered, he exerted control and dominance over the victim by taking her phone and her car keys, making her afraid and humiliating her so that she was left in no doubt that he was in control. The Crown submitted that the objective seriousness of the offence was above mid-range. The Crown submitted that the offence was a significant escalation of the applicant’s prior offending and that the weight to be given to both specific and general deterrence was high.

13. The Crown submitted that although the applicant’s childhood may have been deprived, he continued to have a level of support from his parents and had contact with both of them on the day of the offence.

14. At the conclusion of the sentence hearing on 20 May 2021, her Honour reserved her decision and listed the matter for sentence on 21 June 2021.

The remarks on sentence

The facts of the offending

15. A summary of her Honour’s findings relating to the offending conduct is as follows.

16. The applicant and the victim had been in an intimate relationship, with some gaps, for about 14 years. There was an Apprehended Domestic Violence Order in favour of the victim.

17. On the morning of 27 February 2019, the applicant and the victim went to Coonamble to buy cigarettes, following which they went to the applicant’s father’s unit (where the applicant was living at the time). As soon as they arrived at the unit, the applicant demanded the victim’s phone. When she handed it to him, he demanded to know where the “app” was and the PIN to the app. When the victim indicated that she did not know what he was talking about, he hit her on her jaw. She began to cry and asked him to stop because she wanted to leave. He pushed her onto the bed. She told him that she was scared and wanted to go. The applicant kept searching the victim’s phone and kept hold of her car keys so that she could not leave.

18. The applicant punched the victim in the head and then held up an ignited cigarette and said, “If you don’t start telling me the truth about the app, the day isn’t going to end well. I’ll burn your eyes out with my cigarette.” The victim continued to beg him to let her go.

19. The victim’s sister dropped the young son of the applicant and the victim at the unit so that he could use the toilet. Afterwards, the applicant drove the victim’s car, in which the victim and their son were passengers, to return their son to the victim’s sister. On the way, the police pulled over the car. The victim was so scared for her safety and that of her son that she did not say anything to police.

20. After dropping off their son, the applicant and the victim returned to his father’s unit. The applicant punched the victim’s right arm repeatedly. He clenched his fists and said, “if you tell me the truth I’ll let you go. Get in the car.” When the victim said that she did not want to go, he pushed her out of the unit and into the car. He drove her across a river to an area called “Third Island” where he demanded that she tell him “the truth”. She continued to beg to be released. He responded, “Get the fuck out of the car, you slut.” He hit her head again and pulled her out of the car onto the ground. He kicked her with such force that the impact broke two of her ribs. He threatened to kill her.

21. The applicant saw a length of timber nearby and went to pick it up. He returned and struck her on the head with the stick. He picked her up from the ground, held her by the throat and said, “I swear on my kids and Lyle [his late brother], I am going to kill you.” The victim was so scared that she wet herself. She told him what she had done. He let go of her throat and drove her back to his father’s house. He said, “Today is not going to end well. Just tell me the truth.” He slapped her on her right cheek. They went inside his father’s unit.

22. The applicant continued to make demands regarding the app on the victim’s phone. He approached her again and punched her lowered head and her left hand. The applicant noticed that other family members had left the unit and expressed concern that one of them would call police. He directed her to change her clothes (as she had wet herself). He and the victim left the unit through the bedroom window. The applicant drove the victim in her car to her sister’s place to collect their son.

23. In the meantime, the applicant’s father had called Triple-0. At 6.04pm the police pulled over the applicant’s car. An officer asked them whether they had had “any dramas”, to which the applicant answered, “Nah, mate, nah.” The victim began to cry and nodded her head. Police asked her to get out of the car. The applicant attempted to drive the vehicle but it stalled. The victim got out of the car with her son. The applicant was arrested.

24. When the police asked the victim what had happened, she answered, “He went crazy.” She showed them her injuries. The victim asked police who had called them because she wanted to thank whoever had done so.

25. The period during which the victim was detained was from about 8.40am until 6pm.

The victim impact statement

26. The sentencing judge summarised the victim’s statement. The remarks on sentence included the following:

“[The victim] says that she has been asked to make the statement and to say how she felt on the day and how it affected her. She said, ‘It was very scary’, and she thought that she was going to die that day. But until the time she started to write the victim impact statement she tells the Court that she had actually blocked everything out from that day because she did not want to accept what had happened to her. She said the pain of reliving that day to her was too much and something that she did not want to do. But she said she felt it was important to move forward and hopefully to ease some of what she referred to as the emotional scarring that that had left her with.

She said that day, back in February 2019, was the most terrifying thing she had ever experienced. To endure so many hours of so much abuse both physical, mental and emotional, was something that no-one can imagine, nor would you want to. She said the impact from that day had left her with anxiety for which she is now being treated with medication. She also referred to the constant what ifs. What if her children had to grow up without a mother? It hurt her so much too even think about that. She said Coonamble was a place that she used to enjoy going to. Her older sister and her eight children live there. Her mother-in-law is now buried there, but she felt she was unable to visit Coonamble because the thought of going there brought back so many horrible memories of that day. She said when she went back to Coonamble after the incident she was overcome with fear and felt physically sick to the point of dry reaching. Her anxiety was at an all-time high and she was always on edge still thinking what if, and she is also very mindful that that was where the offender’s family lived.”

The applicant’s subjective circumstances

27. In the remarks on sentence, her Honour noted that the applicant was 30 and had two children, aged 10 and 8. Prior to his arrest, he was living with his father. Her Honour outlined his background as follows:

“With respect to the psychiatric history, Dr Dayalan reports that the offender described a chaotic home environment in his childhood. There were 11 children to his parents’ union and they struggled with poverty. They struggled to put food on the table and clothes on the children’s backs. The offender told Dr Dayalan that the children had to share clothes and beds. The offender’s father suffered from schizophrenia and abused alcohol and cannabis. His mother, too, had problems with alcohol. His parents argued a lot and the offender witnessed domestic violence. When he was 14 he confronted his father when he saw the his father had assaulted his mother. As he got older, he started spending more time away from home to avoid the chaos at home, and fights between his parents.

He had been subject to negative peer influence and began smoking cannabis from the age of 12. He also engaged in criminal behaviour from an early age which resulted in repeated incarcerations. Whilst detained in a juvenile justice centre, he was sexually assaulted by one of the officers over a period of two to three weeks. The offender blamed himself for the sexual assault, albeit he was only a child himself. He had not disclosed that sexual assault to anyone until recently because of his sense of guilt and shame associated with that abuse. He had received counselling for that in which he was told that the abuse was not his fault, and he was, accordingly, trying to reframe his interpretation of that traumatic experience.

Dr Dayalan reports that the offender relayed a history of depressive and anxiety symptoms intermittently since childhood. He had admitted to serious contemplation of suicide since the age of 15 after the sexual abuse upon him. He had bought some rope with the intent to hang himself when he was 19. The offender had continued to ruminate about the sexual assault into his adulthood and admitted to increasing problems with anger management. When he was 22 he realised he could no longer function due to his mental health symptoms and consulted a psychologist. He benefited from sessions and continued to use mindfulness exercises that he had learnt. He has also been prescribed antidepressant medications, mirtazapine, which he had continued to use for a few years with a good result.

Two years prior to the authorship of this report, the offender’s younger brother, Lyle, had died from a motor vehicle accident. His brother was only 16 years of age. That incident and the loss of Lyle had understandably caused the offender and his family members a lot of distress. His mental health significantly deteriorated following Lyle’s death and his ruminations about past traumatic events increased.”

28. Her Honour summarised the effect of these events on the applicant and the connection between his circumstances and the offending as follows:

“Dr Dayalan reports that the offender probably had a biological predisposition for substance use problems and a psychiatric disorder, given the strong family history of such disorders. His early childhood experiences with poor parental supervision and exposure to substances in the home environment further contributed to his use of substances from an early age with personality vulnerabilities that predisposed him to emotional and behavioural dysregulation.

At the age of 15 years he had been subject to institutional sexual abuse and unfortunately he perceived guilt and shame associated with that abuse, and that had stopped him from seeking appropriate counselling for that. He found it less threatening to use substances to manage his psychiatric symptoms stemming from the traumatic event of the sexual abuse. Increased irritability was identified as one of the symptoms of post-traumatic stress disorder, though the extent of the symptoms reported by the offender did not qualify for such a diagnosis. He, nevertheless, according to Dr Dayalan, presented with a number of symptoms associated with PTSD, such as ruminations of a traumatic event, negative alterations in mood and cognition, impaired sleep and increased irritability.

The use of substances and his psychiatric symptoms including increased irritability were important contributing factors to his repeat offending behaviour. There were deficits in his social and life skills because he spent a significant period of time in institutions, and those deficits impacted on his functioning in the community and assisted his desire to return to correctional centres where he felt that he functioned better.

Given his biological and psychological vulnerability to psychiatric disorders, Dr Dayalan was of the opinion that the offender had noted a deterioration in his mental state following the sudden and unexpected death of his younger brother. The symptoms reported by the offender included low mood, impaired sleep, changing appetite and associated weight gain, reduced

mood, reactivity, low self-esteem and a sense of hopelessness about the future. A history of suicidal intent was noted but not in recent years. The history provided and the offender’s presentation during assessment, according to Dr Dayalan, were consistent with a diagnosis of major depressive disorder as per the DSM-5. Dr Dayalan was also of the opinion that the offender suffered from cannabis and stimulant use disorder that was currently in remission because he was in custody.

Incarceration appears to have inadvertently increased his risk of reoffending by facilitating institutionalisation and contributing to sexual abuse in his adolescence. The offender had recently overcome his hesitation to discuss that sexual abuse and was keen to receive psychological and psychiatric treatment; however, his current placement in custody had limited his access to appropriate counselling and rehabilitation.

Dr Dayalan tells me he is of the opinion that the offender would be regarded to have a high risk of reoffending when looking at the various static and dynamic risk factors associated with recidivism.”

29. The sentencing judge noted the applicant’s submission that the conduct was not planned and did not form part of any organised criminal activity.

30. Her Honour recorded the applicant’s submissions that his childhood disadvantage led to “depression, anxiety, suicidal thoughts, sexual abuse, drug and alcohol abuse and anger management issues” which, “coupled with jealousy and insecurity” led to the offending.

Other relevant matters addressed in the remarks on sentence

31. Her Honour was satisfied that the applicant’s use of the stick to assault the victim aggravated the offending but that the presence of a child did not (as their son was present for only a short period of the offending). Although her Honour considered that it would have been open to her to find that the fact that the offending occurred in the applicant’s father’s house, where the victim stayed for some periods, aggravated the offending, her Honour did not find it to be an aggravating factor as it had not been raised as such.

32. When addressing general deterrence, her Honour referred to Munda v State of Western Australia (2013) 249 CLR 600; [2013] HCA 38 (Munda) as authority for the proposition that sentencing for domestic violence must take general deterrence into account in a “significant way”. Her Honour also found that there was a real need for specific deterrence “given the fact that this is not an isolated occasion of offending upon the same victim.”

33. Her Honour said further:

“With respect to special circumstances, there are a number of issues that have formed the Court’s view with respect to a finding of special circumstances.  I am well aware that the offender is a young, indigenous man.  When he returns to the community from custody, I am of the view he will need significant support to help his integration into the community.  I am of the view that there is a well-established need for him to have support with his mental health issues, particularly borne out of his drug and alcohol dependencies which are both long standing.  There is also, in my view, a significant need to have assistance with grief management and bereavement management given the unresolved grief for the loss of Lyle.

I am also of the view that he needs significant counselling with respect to help him address the sexual assault that he suffered at the Riverina Juvenile Justice Centre.  I am also of the view that he needs assistance to address the longstanding drug issues preferably by way of residential rehabilitation.  I am also of the view that the offender needs assistance to establish vocational skills to help him achieve the goals that Mr Jones and Mr Rutherford speak to me that the offender holds.  I am also of the view that Bugmy issues and Fernando type issues are established to a significant degree.”

[Emphasis added.]

34. Her Honour assessed the objective seriousness of the offending conduct as “the upper end of the mid-range” and noted:

“I have no doubt that the taking of the victim to Third Island was also done to further scare her and remove her from any possible source of help.”

35. The sentencing judge found that the offending stopped only because the applicant’s father called the police.

The grounds of appeal

Ground 2: alleged error in confining consideration of Bugmy and Fernando issues to special circumstances

36. Before addressing this ground, it is necessary to define what is meant by “Bugmy [referring to Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37] and Fernando [referring to R v Fernando (1992) 76 A Crim R 58] issues” in order to assess to what extent they were taken into account other than in relation to special circumstances.

37. In Bugmy, the High Court held that the effects of an offender’s profound childhood deprivation do not lessen with time and should be given full weight when sentencing the offender. The Court also held that those effects do not necessarily serve to mitigate an offender's sentence given the conflicting purposes of punishment, such as rehabilitation and personal and general deterrence, which must be balanced in each individual case. In R v Fernando, which was approved in Bugmy, this Court relevantly held that social disadvantage is relevant to sentencing in several respects.

38. The applicant’s principal submission in support of ground 2 is that her Honour erroneously confined her consideration of Bugmy factors to the finding of special circumstances when these factors were relevant to the sentence as a whole and not merely to the ratio between the non-parole period and the total term. He relied on the position of the highlighted sentence referring to “Bugmy issues and Fernando type issues” to show that these factors were only taken into account in the context of special circumstances.

39. The Crown accepted that Bugmy issues were centrally engaged in the present case because the applicant’s childhood deprivation had contributed to the offending and therefore warranted some reduction in the applicant’s moral culpability. The Crown submitted that the highlighted finding (in the passage extracted above) was a stand-alone finding which applied generally to the sentencing exercise. Further, it submitted that Bugmy issues were addressed comprehensively in the reasons and were taken into account in several respects, as indicated by her Honour’s reasons.

40. I have extensively extracted passages from the remarks on sentence above to demonstrate the extent to which her Honour took into account Bugmy issues when sentencing the offender. Her Honour found a causal connection between the applicant’s deprived childhood and the offending conduct. Her Honour also referred to Munda, which bears on general deterrence.

41. In Munda, the appellant was sentenced for the manslaughter of his de facto spouse, who died from a traumatic brain injury occasioned by his punching her and ramming her head against a wall after an argument. The sentencing judge took into account in mitigation the appellant’s subjective circumstances, including that he was indigenous and had been exposed to alcohol abuse and family violence since childhood. The Western Australian Court of Appeal found the sentence to be manifestly inadequate but dismissed the appeal as it was not persuaded that the residual discretion to intervene ought be exercised. On appeal to the High Court, the appellant argued that the Western Australian Court of Appeal had failed to give proper regard to Mr Munda’s antecedents and personal circumstances. The High Court by majority (French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ) upheld the decision of the Western Australian Court of Appeal and held that, although an offender’s circumstances of severe social disadvantage were relevant, the same sentencing principles must be applied in every case irrespective of an offender’s identity or membership of an ethnic or other group.

42. The sentencing judge’s reference to Munda was sufficient to explain why although, in some cases, Bugmy factors may lessen the significance of general deterrence, they did not have that effect in the present case. I consider that her Honour’s reasons, when read fairly as a whole, indicate that her Honour took into account the applicant’s childhood deprivation in a number of respects: in the finding that it contributed to the offending conduct and when addressing general deterrence, specific deterrence, the need for rehabilitation, the risk of re-offending and special circumstances. Indeed, the remarks are redolent with references to the applicant’s childhood deprivation and the problems it has caused him in adult life.

43. It is implicit in the applicant’s submission that, had Bugmy factors been taken into account on, say, general deterrence, the sentencing judge would have regarded general deterrence as of lesser weight. However, this proposition cannot be made out. Although childhood deprivation may lead to a reduction in moral culpability and may make the offender an unsuitable vehicle for general deterrence, it will not necessarily do so. As is apparent from Munda, it is important that Bugmy factors do not mitigate a sentence such that victims of domestic violence at the hands of offenders who themselves have suffered from childhood deprivation are treated as less worthy of protection or that crimes against them warrant less denunciation. General deterrence is not merely aimed at signalling to potential offenders that if they commit the crime, they will suffer the penalty imposed on the index offender, with a view to deterring such offences (a potentially dubious proposition for so-called crimes of passion, as addressed in the passage extracted below from Munda at [54]). It has another dimension – to maintain public confidence in the administration of justice: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [82] (McHugh J).

44. This second aspect of general deterrence may have particular importance when sentencing for offences with respect to domestic violence, as explained by the majority in Munda at [54]-[55]:

“54   It may be argued that general deterrence has little rational claim upon the sentencing discretion in relation to crimes which are not premeditated. That argument has special force where prolonged and widespread social disadvantage has produced communities so demoralised or alienated that it is unreasonable to expect the conduct of individuals within those communities to be controlled by rational calculation of the consequences of misconduct. In such cases it may be said that heavy sentences are likely to be of little utility in reducing the general incidence of crimes, especially crimes of passion. That having been said, there are three points to be made in response. First, the proper role of the criminal law is not limited to the utilitarian value of general deterrence. The criminal law is more than a mode of social engineering which operates by providing disincentives directed to reducing unacceptably deviant behaviour within the community. To view the criminal law exclusively, or even principally, as a mechanism for the regulation of the risks of deviant behaviour is to fail to recognise the long-standing obligation of the state to vindicate the dignity of each victim of violence, to express the community’s disapproval of that offending, and to afford such protection as can be afforded by the state to the vulnerable against repetition of violence. Further, one of the historical functions of the criminal law has been to discourage victims and their friends and families from resorting to self-help, and the consequent escalation of violent vendettas between members of the community.

55   A consideration with a very powerful claim on the sentencing discretion in this case is the need to recognise that the appellant, by his violent conduct, took a human life, and, indeed, the life of his de facto spouse. A just sentence must accord due recognition to the human dignity of the victim of domestic violence and the legitimate interest of the general community in the denunciation and punishment of a brutal, alcohol-fuelled destruction of a woman by her partner. A failure on the part of the state to mete out a just punishment of violent offending may be seen as a failure by the state to vindicate the human dignity of the victim; and to impose a lesser punishment by reason of the identity of the victim is to create a group of second-class citizens, a state of affairs entirely at odds with the fundamental idea of equality before the law.”

45. Thus, although the sentencing judge plainly found that the applicant had suffered significant childhood deprivation which had contributed to the offending, her Honour nonetheless found that both general and specific deterrence were entitled to significant weight.

46. For these reasons, I am persuaded that her Honour has taken into account Bugmy and Fernando factors in several ways in arriving at the sentence which was imposed. Her Honour’s consideration of the relevance of these matters was not confined to special circumstances. Ground 2 has not been made out.

Ground 3: alleged failure to take into account that the offence was not planned

47. It was argued on behalf of the applicant that, although her Honour noted his submission at the sentence hearing that the offending was not planned, her Honour did not expressly address the submission or make a finding as to whether it was or was not planned. Thus, the applicant argued, he did not know (and this Court could not know) from the reasons whether his lack of planning had been taken into account as a mitigating factor or not.

48. The relevance of the matters listed in s 21A(2) of the Act as aggravating and s 21A(3) of the Act as mitigating depends on the circumstances of the offending. Further, it is noteworthy that s 21A(2)(n) provides that it is an aggravating factor that “the offence was part of a planned or organised criminal activity”, whereas s 21A(3)(b) provides that it is mitigating that “the offence was not part of a planned or organised criminal activity”. Because aggravating factors must be proved beyond reasonable doubt and mitigating factors need only be proved on the balance of probabilities (Olbrich v The Queen (1999) 199 CLR 270; [1999] HCA 54 at [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ)), there will be cases where a Court cannot be satisfied to the requisite standard that an offence was planned or not.

49. Whether such a factor mitigates or aggravates the offence, or neither, depends on the circumstances of the offending.

50. In the present case, there was no suggestion that the onset of the detention was other than spontaneous and impulsive. It was obviously a case where there was no planning. It appears that something triggered the applicant’s jealousy and he reacted by taking the victim’s phone and car keys and assaulting her, all the while interrogating her about an “app”. The only element of “planning” which the sentencing judge found was that the applicant had taken the victim to Third Island because it was remote. This was not taken into account as an aggravating factor as it had not been contended for as such by the Crown.

47. As is apparent from the detailed factual findings in the remarks on sentence, her Honour was well aware of how the offending started (without warning, as far as the victim was concerned) and how it ended (by reason of the apprehension of the applicant whose father had called the police). The lack of planning at the outset may be accepted but it is difficult to see how it could mitigate an offence which was typified by irrational jealousy brought about by insecurity and manifested by the taking of control, unlawful detention and physical assault of the victim and his threats to kill her. Indeed, the passage set out from Munda at [54] indicates that it is typical of offences of domestic violence committed by persons such as the applicant that they are not “premeditated”. Thus, lack of planning in this context is of negligible, if any, significance.

48. Further, to regard lack of planning as necessarily mitigating and planning as necessarily aggravating is erroneous. As Gleeson CJ, McHugh, Gummow and Hayne JJ said in Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14 at [22]:

“Many matters that must be taken into account in fixing a sentence are matters whose proper characterisation may lie somewhere along a line between two extremes. That is inevitably so. The matters that must be taken into account in sentencing an offender include many matters of and concerning human behaviour. It is, therefore, to invite error to present every question for a sentencer who is assessing a matter which is to be taken into account as a choice between extremes, one classified as aggravating and the opposite extreme classified as mitigating. Neither human behaviour, nor fixing of sentences is so simple.”

53. In the present case, the lack of planning, at least at the outset, was not necessarily mitigating, although a positive finding of planning (for example, had the applicant left a knife at Third Island in advance of taking the victim there) would have aggravated the offending. The subparagraphs in s 21A(2) and (3) of the Act are not to be applied in a formulaic or artificial way: R v Hopkinson; R v Robertson [2022] NSWCCA 80 at [2] (Leeming JA) and [111] (Rothman J). There are some cases in which a lack of planning will be mitigating and others where it will not be.

54. The applicant’s childhood deprivation tended to make him volatile and spontaneously aggressive in his responses. This did not make his lack of planning mitigating in the circumstances of the present case. While it would have been preferable for her Honour to have addressed the applicant’s submission that the lack of planning mitigated the offence, this was a matter of little or no moment given the course of the offending conduct, as described in her Honour’s detailed reasons: for another example of a case where the omission to address a submission did not lead to the ground being made out, see Cohen v R [2011] NSWCCA 165 at [52] (Simpson J, Allsop P and Buddin J agreeing). I am not persuaded that ground 3 has been made out.

Ground 4: conceded error in calculation of commencement date

55. It was common ground that, due to a slight error in calculation, her Honour ordered that the sentence commence on 27 April 2019 when it ought to have been back-dated (having regard to periods of pre-sentence custody) to 23 April 2019. This ground has been made out.

56. It was accepted that, as ground 4 concerned only an error of calculation, if it were the only ground made out, this Court ought correct the commencement date but not otherwise proceed to re-sentence: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42] (French CJ, Hayne, Bell and Keane JJ); Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255 at [72] (Bathurst CJ, Beazley P agreeing), [125] (R A Hulme J), [129] (Schmidt J) and [141]-[142] (Wilson J); Fuller v R [2022] NSWCCA 203 at [69]-[70] (N Adams J, Brereton JA and Adamson J agreeing).

Proposed orders

57. For the reasons given above, I propose the following orders:

1. Grant leave to appeal.

2. Allow the appeal to correct the commencement date of the sentence.

3. Set aside the sentence imposed by Williams DCJ on 21 June 2021 and, in lieu thereof, impose a sentence of 7 years imprisonment commencing on 23 April 2019 and expiring on 22 April 2026 with a non-parole period of 3 years and 8 months’ imprisonment commencing on 23 April 2019 and expiring on 22 December 2022.

4. The applicant will first be eligible for release on parole on 22 December 2022.

58. N ADAMS J: I agree with the orders proposed by Adamson J for the reasons provided. As the High Court observed in Munda, the application of the Bugmy principles in domestic violence matters requires the court to balance those factors against the court’s obligation to vindicate the dignity of victims of such violence. In the present matter, having regard to factors such as the maximum penalty of 20 years imprisonment, the finding of objective seriousness as “the upper end of the mid-range”, that the sentencing followed a trial (rather than a plea of guilty) and the applicant’s extensive criminal history I am well satisfied that the sentencing judge significantly ameliorated the sentence on account of the applicant’s deprived childhood.

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Decision last updated: 07 October 2022