Lloyd v R

[2022] NSWCCA 18

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Lloyd v R [2022] NSWCCA 18

Hearing dates:

16 August 2021

Decision date:

11 February 2022

Before:

McCallum JA at [1];
Hamill J at [59];
Cavanagh J at [60]

Decision:

(1) Grant leave to appeal;

(2) Allow the appeal;

(3) Quash the sentence imposed at first instance and in lieu thereof sentence the applicant to a term of imprisonment for 5 years and 3 months with a non-parole period of 3 years and 3 months commencing on 11 April 2020 and expiring on 10 July 2023 and a balance of term of 2 years expiring on 10 July 2025.

Catchwords:

SENTENCING — Appeal against sentence — where sentencing judge accepted that Bugmy principles were enlivened on the evidence — whether judge gave proper consideration to that factor — whether childhood deprivation reduced the offender’s moral culpability

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW), s 32

Crimes Act 1900 (NSW), s 111(3), s 117

Cases Cited:

Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146; [2002] NSWCCA 518

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

Currie v R [2013] NSWCCA 267

Dellow v R [2020] NSWCCA 301

Devaney v R [2012] NSWCCA 285

Dungay v R [2020] NSWCCA 209

Egan v R [2017] NSWCCA 206

Hoskins v R [2021] NSWCCA 169

Luque v R [2017] NSWCCA 226

Markarian v R (2006) 228 CLR 357; [2005] HCA 25

McLaren v R [2021] NSWCCA 12

Nasrallah v R [2021] NSWCCA 207

Prince v R [2020] NSWCCA 268

Pym v R [2014] NSWCCA 182

Qutami v R [2001] NSWCCA 353

R v Millwood [2012] NSWCCA 2

R v Moore (Court of Criminal Appeal (NSW), 12 April 1994, unrep)

Rotner v R [2011] NSWCCA 207

Smith v R [2011] NSWCCA 209

Sypher v R [2020] NSWCCA 336

Wood v R [2019] NSWCCA 309

Texts Cited:

District Court Criminal Practice Note 20

Category:

Principal judgment

Parties:

Kristopher Lloyd (Applicant)
Crown (Respondent)

Representation:

Counsel:
B Neild (Applicant)
M Kumar (Respondent)

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

File Number(s):

2019/390724

Publication restriction:

None

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

16 October 2020

Before:

Grant DCJ

File Number(s):

2019/390724

Judgment

1. McCALLUM JA: The applicant, Kristopher Lloyd, was sentenced in the District Court after pleading guilty in the Local Court to an offence of entering a dwelling house with intent to commit a serious indictable offence (assault occasioning actual bodily harm) in circumstances of special aggravation (intentional wounding) contrary to s 111(3) of the Crimes Act 1900 (NSW). That offence carries a maximum penalty of imprisonment for 20 years. At the applicant’s request, the sentencing judge (Grant DCJ) took into account an additional offence on a Form 1 of larceny contrary to s 117 of the Crimes Act, as allowed under s 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW). That offence carries a maximum penalty of imprisonment for 5 years. After allowing a discount of 25% for the early plea, the judge imposed a sentence of imprisonment for 8 years commencing on 11 April 2020 and expiring on 10 April 2028 with a non-parole period of 5 years expiring on 10 April 2025. The undiscounted starting point for the sentence was accordingly a curious term of 10 years and 8 months.

2. The applicant seeks leave to appeal against the sentence imposed on two grounds:

“1.   The sentencing judge erred by failing to make findings in relation to the operation of the Bugmy principles and/or the evidence giving rise to the application of those principles;

2.   The sentence imposed was manifestly excessive.”

3. I have concluded that the appeal should be allowed for the following reasons.

Circumstances of the offence

4. The facts were agreed and may be summarised as follows. The offences were committed at around 3am on 7 December 2019 in Albury. The victim, Tony Richards, was asleep in his unit when the applicant knocked on the front door and said he had something to deliver. Mr Richards unlocked the screen door and partially opened it. The applicant then entered the premises holding a box-cutter blade and was followed by four or five unknown men.

5. The applicant hit Mr Richards in the back of the head a couple of times before cutting his hands as he raised them to defend himself. The applicant told Mr Richards it was “about the putrid ways you speak to women.” He then asked, “where’s all your shit?” and lashed out towards Mr Richards with the box cutter while the other men searched the unit. At one point, Mr Richards fell to the ground and the applicant kicked him on the left side of his head. Eventually Mr Richards managed to arm himself with two kitchen knives which persuaded the intruders to leave the property. They took a mobile phone in a case containing Mr Richards’s key card and healthcare card, a laptop, a white Samsung tablet, house keys and a backpack containing bike accessories. The theft of those items formed the basis of the Form 1 offence.

6. Mr Richards was taken to hospital by a neighbour where he received surgery to repair tendons, ligaments and nerve damage to his right hand and arm. He also suffered small cuts and abrasions to his eye and lip area and his chest.

7. The applicant was arrested several days later. An examination of his mobile phone revealed that the attack was motivated by a belief that Mr Richards was a sex predator. The applicant thought he had cut the man’s throat (he had not) and was worried that he would be charged with attempted murder. One message sent to a friend said, “I’m getting prepared to do 5 if not more.”

Proceedings on sentence

8. The sentence hearing was short. The judge indicated that he had read the written submissions provided by both parties. The Crown bundle contained the usual material including a statement of agreed facts, the applicant’s criminal records in NSW and Victoria (both of which were lengthy) and a sentencing assessment report.

9. The applicant did not give evidence. His solicitor tendered two documents which were admitted without objection: a report by a psychologist, Emma Hübner, and a hand-written letter by the applicant in which he expressed remorse.

10. The oral submissions were brief, each party essentially relying on the written submissions.

The sentencing judgment

11. The judge gave his reasons ex tempore (that is, orally, immediately upon the conclusion of the sentence hearing). The pressures of a court as busy as the District Court of New South Wales require judges to do so when they can and it is commendable when they do. As noted by the Crown, it is appropriate to keep the fact that reasons were given ex tempore in mind when assessing their adequacy: Currie v R [2013] NSWCCA 267 at [49]-[51] (Johnson J) (Currie). However, that is not to say that ex tempore decisions attract a different standard of review; only that the appellate court should understand that shortcomings such as poor structure, unclear expression or failure to refer to an applicable provision or principle may find their explanation in the degree of difficulty that attends the task of mustering one’s thoughts to present an oral judgment in open court. As Simpson J explained in Rotner v R [2011] NSWCCA 207 at [57] (cited in Currie at [50]), a sentencing judgment delivered ex tempore may “lack the order and precision of language that can be incorporated into a judgment after the luxury of time for consideration, refinement of expression, and polishing.”

12. One common (and understandable) feature of ex tempore judgments is the undigested reproduction of passages of the written material before the judge. As I will explain in the discussion of ground one below, that is a telling feature of the sentencing judgment in the present case.

13. The judge began by recording the offence to which the applicant had pleaded guilty and the Form 1 matter. Purportedly summarising the principles stated in this Court’s guideline judgment in Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146; [2002] NSWCCA 518, his Honour stated that the fact that matters on a Form 1 are to be taken into account “means that greater weight should be given to personal deterrence and retribution.” That is a slight misstatement of the principles explained by Spigelman CJ (with whom the other four members of the bench agreed) in the guideline judgment at [42], which are expressed in more nuanced terms. As I read that passage of the judgment, it does not circumscribe or derogate from the overriding principle that the weight to be given to the competing purposes of sentencing in any individual case is a matter for the sentencing judge having regard to all of the circumstances of the case. It is not the law that the existence of Form 1 matters must necessarily push the appropriate penalty towards the sterner end of the range, any more than it is the law that separate sentences can never be served wholly concurrently. That said, the judge did separately accept the applicant’s submission that the Form 1 matter should not have a “significant impact” on the sentence to be imposed in the present case.

14. A number of factors relevant to sentence were agreed or conceded by the applicant’s solicitor in his written submissions. The judge noted the agreement between the parties that the early plea should attract a 25% discount; the conceded existence of an aggravating factor that the offence was committed while the applicant was on a community correction order (s 21A(2)(j) of the Crimes (Sentencing Procedure) Act 1999 (NSW)) and the fact that the applicant’s lengthy criminal record disentitled him to leniency.

15. As to the objective seriousness of the offence, the applicant’s solicitor accepted that it fell “at or about the mid-range point for this very serious type of offending.” The judge accepted that concession, which he considered to have been properly made.

16. The judge expressed some scepticism as to the contents of the applicant’s letter to the Court but gave him “the benefit of the doubt” and accepted that he had expressed genuine remorse.

17. In light of the contents of the sentencing assessment report (which characterised the applicant’s response to supervision overall as “erratic and unsatisfactory”), the applicant’s solicitor accepted that the applicant’s prospects of rehabilitation were “guarded”. The judge adopted that submission, noting also that the applicant’s own expert psychologist had assessed him as being at a moderate to high risk of reoffending.

18. His Honour accepted that the applicant’s drug addiction and cycle of offending amounted to special circumstances warranting a longer non-parole period than that indicated by the statutory ratio. He noted in that context that, if the applicant did not “break the cycle”, he would become institutionalised.

19. It may be accepted that a number of the factors relevant to sentence pointed to a requirement for a relatively stern sentence. However, against them, the applicant presented a compelling subjective case. The judge’s alleged failure to engage with that case is the subject of ground one, to which I now turn.

Ground one: application of Bugmy principles

20. Ground one is that the sentencing judge erred by failing to make findings in relation to the operation of the Bugmy principles and/or the evidence giving rise to the application of those principles: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 (Bugmy).

21. At the proceedings on sentence, the applicant’s solicitor submitted that the principles stated by the High Court in Bugmy were enlivened and that the sentence imposed should accordingly be “ameliorated to reflect what, on any objective view, was a very deprived childhood and adolescence which, in turn, on any objective view, carries with it a causal connection with this offender’s ongoing offending, drug abuse issues, relationship issues and so forth.” The prosecutor’s submissions to the sentencing judge were silent on the issue. Certainly, it was not suggested that the applicant’s undoubtedly deprived childhood was not a relevant factor.

22. There was evidence to support the applicant’s submission in the report of the psychologist, Ms Hübner, whose opinion was unchallenged. Ms Hübner set out the relevant history under the heading “psychosocial background”. It is appropriate to set out that part of the report in full:

“1.   Mr Lloyd was born in Adelaide on 29/04/1988, and he is 32 years old. He is the only child of his parents’ union. He has an older maternal brother and sister, and a younger maternal half-sister, and two younger half-brothers. He could recall his siblings’ names but not their ages.

2.   Mr Lloyd’s mother separated from his biological father before his birth. He was raised by his mother and had never met his father. He believed that one of his mother’s next partners broke his arm when he was age three, and another sexually abused him when he was five years old.

3.   Mr Lloyd alleged that another of his mother’s partner’s, who he identified as his stepfather, was also emotionally and physically abusive towards him. This abuse included being ‘flogged’ with a belt and bamboo stick and tied to a tree in the back yard for days at a time for such things as failing to eat his school lunch. He also witnessed his stepfather physically assaulting his mother on several occasions. When asked about his relationship with his mother, Mr Lloyd said, with a tone of disdain, that she was a ‘compulsive liar’ who adamantly denied his claims of being abused.

4.   At age nine, Mr Lloyd moved with his family from Adelaide to Canberra. They remained there for a year and then moved to Albury Wodonga. Mr Lloyd recalled that he soon began to ‘run away’ from home and that his mother eventually abandoned him at a local police station. The Department of Human Services subsequently placed him into secure welfare.

5.   Mr Lloyd advised that since then he had been homeless, suffered from chronic substance dependence and cycled in-and-out of custody for much of his life. When asked about his period in custody, he said the Juvenile Detention was “like home” and a place where he ‘finally received love’. He also noted that, although an adult prison could be a ‘bad place’, he had managed to adjust to incarceration over time.”

23. In a separate part of the report, under the heading “summary and clinical opinion”, Ms Hübner gave a careful explanation, plainly drawing on her extensive education and clinical experience, of the likely impact of such matters. Again, having regard to the importance of this issue, it is appropriate to set out the relevant part of the report in full:

“35.   Mr Kristopher Lloyd is 32-year-old man who was assessed for the current matters. The history that he provided was of exposure to multiple deleterious factors during childhood. This included alienation from his biological father, sexual and physical abuse perpetrated by his mother’s subsequent partners, geographical and education instability, and disrupted maternal attachment. He was also physically and emotionally abandoned by his mother at age ten and placed into secure welfare.

36.   Children with deprived backgrounds, such as Mr Lloyd’s, have difficulty developing executive functioning skills; resulting in a reduced capacity to plan ahead, inhibit inappropriate behaviours and self-reflect. They can have lower academic skills, reduced social competence, and higher levels of Attention Deficit Hyperactivity Disorder and behaviour problems. This is consistent with Mr Lloyd’s early learning and behavioural problems and with his reports of having been diagnosed with an Intellectual Disability, Opposition Defiance Disorder and Attention Deficit Hyperactivity Disorder at 13 years old.

37.   As an adolescent, Mr Lloyd spent time with peers with whom he drank alcohol, used drugs and committed crime and he spent periods in juvenile detention. Instead of deterring his problematic behaviour, it appears that juvenile detention provided him with the structure and emotional support that he lacked within the community. With time and ongoing exposure to negative social influences, it also appears that Mr Lloyd developed antisocial personality trait that perpetuated drug use and offending.

38.   The presence of Intellectual Disability and Attention Deficit Hyperactivity Disorder heightens an individual’s risk for substance use and offending. The ongoing use of substances when Mr Lloyd was within the community may have complicated the management of such conditions and contributed to his offending (for example, through increased impulsivity and problem-solving deficits). However, formal neuropsychological assessment is required to confirm the current presence of these disorders.

39.   Mr Lloyd lived alone at the time of the index offences. He was single and unemployed and abusing methamphetamines daily. It appears that his involvement in the index offences is, in part, related to his substance dependence. When under the influence of substances, he is likely to be increasingly disinhibited and to display poor judgement.

40.   Although Mr Lloyd reported a history of episodes of drug-induced psychosis, it was not apparent from his recall of events that these symptoms caused him to offend. There was no report of ‘voices’ directing his behaviour, or of him offending because of delusional beliefs. Nonetheless, symptoms of drug-induced psychosis can include disorganised thoughts, emotional lability, and violent and erratic behaviours. Therefore, if these symptoms were present, they may have contributed to his involvement in the index offences.

41.   Using the SAQ, Mr Lloyd was found to be at Moderate to High risk of reoffending; with his risk being related to his criminal history, antisocial personality traits, alcohol and drug abuse, and associated with antisocial peers. While his criminal history is a static risk factor that cannot be changed, his antisocial personality traits, choice of associates and substance use are factors that can potentially be modified during treatment. His commitment to treatment and supervision could help to reduce his current high level of recidivism risk.

42.   On a separate measure of problem with anger management, Mr Lloyd’s score was also significant. However, research data has not identified this as a reliable indicator of risk of recidivism, so it is not included in calculating the overall risk level. Nonetheless, under-controlled anger is a potentially dangerous personality attribute that can have negative consequences for him and others. Thus, his anger should also be a focus of psychological treatment.

43.   Regarding protective factors against recidivism, Mr Lloyd appeared motivated to make positive changes in his life and willing to attend further alcohol and drug treatment. He also acknowledged the need to remove antisocial associates from his life to maximise his chances of success.

44.   Lastly, Mr Lloyd has spent a considerable amount of his life in custody and runs the risk of becoming institutionalised. He may become dependent upon the external constraints offered by prison and lose the capacity to rely on internal organisation and self-imposed personal limits to guide his actions and restrain his conduct. When released from prison, he may no longer know how to refrain from doing things that are harmful or self-destructive. This could contribute to an ongoing cycle of recidivism and reincarceration. Therefore, he requires additional support prior to and post-release to facilitate his successful transition into the community.”

24. The Crown did not challenge that evidence or seek to be heard against the submission.

25. In his sentencing judgment, the judge said:

“I am satisfied that the Bugmy principles have been enlivened. The offender has experienced social deprivation. He has had a terrible life, raised in a household surrounded by alcohol abuse, violence and sexual abuse. He was abandoned by his mother in his early teens. The effects of profound childhood deprivation do not diminish with the passage of time and repeated offending. Full weight should be given to the offender’s background in every sentencing decision: Bugmy v The Queen (2013) 249 CLR 571 at [44].”

26. The applicant contends that, although the judge there accepted that the Bugmy principles were “enlivened”, his Honour erred in the application of those principles in two ways, first, by not considering and determining whether there was a causal connection between the applicant’s deprived upbringing and his offending behaviour and secondly by failing to consider whether those circumstances reduced his moral culpability and so moderated the weight to be given to personal and general deterrence.

27. The proper analysis may be that the first point is subsumed within or an aspect of the second. Evidence of a deprived background is of itself a relevant factor in the sentencing task: R v Millwood [2012] NSWCCA 2 at [69] (Simpson J, with whom Bathurst CJ and Adamson J agreed) (Millwood). The prevailing view appears to be that it is not necessary to establish the existence of a causal connection with the offending before having regard to Bugmy factors: see Dungay v R [2020] NSWCCA 209 at [136]-[153] (N Adams J) and the decisions discussed by her Honour.

28. As Simpson J explained in Millwood, the relevance of a deprived background is in the assessment of moral responsibility:

“I would reject the proposition [that there was little in the circumstances of the offender that assisted him by way of mitigation]. I am not prepared to accept that an offender who has the start in life that the respondent had bears equal moral responsibility with one who has had what might be termed a ‘normal’ or ‘advantaged’ upbringing. Common sense and common humanity dictate that such a person will have fewer emotional resources to guide his (or her) behavioural decisions. I should not be taken as implying that such a person bears no moral responsibility; but I consider that the DPP's submission significantly underestimates the impact of a dysfunctional childhood. Indeed, it sits uneasily with the immediately preceding acknowledgement that his upbringing had been ‘tragic and dysfunctional’. That his background is a relevant consideration affording some (although limited) mitigation is entirely consistent with the approach taken by Wood J (as he then was) in R v Fernando (1992) 76 A Crim R 58, a decision which has repeatedly been followed in this Court. If that were not so, there would be no purpose in sentencing courts receiving, as they invariably do, evidence concerning the personal background of offenders.”

29. However, in the present case, the applicant specifically submitted that there was a causal connection and that submission was supported by the evidence. Accordingly, that issue was raised as a discrete aspect of the sentencing task.

30. The Crown submitted that this ground should be dismissed because the judge “made a clear finding that Bugmy applied and gave effect to that finding.” It was submitted that, although his Honour did not explicitly address moral culpability, it is clear from “a full and fair reading” of the judgment that the judge was “satisfied that the applicant’s social disadvantage reduced his moral culpability.” I respectfully disagree.

31. It is trite that the correct method of sentencing (instinctive synthesis) requires the judge to identify all the factors that are relevant to the sentence, discuss their significance and then make a value judgment as to what is the appropriate sentence given all the factors of the case: Markarian v R (2006) 228 CLR 357; [2005] HCA 25 at [51] (McHugh J) (Markarian).

32. The judge did record a finding (set out above) that the Bugmy principles were enlivened. It follows that his Honour accepted that a background of childhood deprivation was established on the evidence and was a factor relevant to the sentencing task. The question is whether that factor was properly taken into account, that is, whether the judge considered the extent to which the accepted circumstances of deprivation contributed to the cause of the offending or otherwise reduced the applicant’s moral culpability, moderating the weight to be given to personal and general deterrence.

33. The Crown sought comfort on that issue from other judgments in which this Court has accepted that moral culpability was properly considered notwithstanding a failure to record a specific finding on the issue, including my decision in Egan v R [2017] NSWCCA 206 at [37] and also the decisions in Wood v R [2019] NSWCCA 309 at [123] (Hoeben CJ at CL); Prince v R [2020] NSWCCA 268 at [47] (Beech-Jones J) and Dellow v R [2020] NSWCCA 301 at [45] (Leeming JA) (Dellow). Each of those decisions turned on a consideration of the substance of the sentencing judge’s reasons in the particular case. To invoke them to inform the analysis of a different statement of reasons reflects a misconception of the operation of precedent. The decisions relied upon by the Crown have no precedential value for present purposes other than to establish that the question whether Bugmy principles were properly considered is one of substance rather than form: Dellow at [45]. As Basten JA explained in Sypher v R [2020] NSWCCA 336 at [2], the question whether a matter was properly taken into account is not an issue that can be determined by reference to precedent:

“There is no doubt that the judge set out, and therefore had regard to, relevant evidence in respect of these matters. In some cases it will be possible readily to infer that the setting out in reasons for judgment of mitigatory circumstances will permit the court to be satisfied that those factors were properly taken into account - see, eg, Wood v R [2019] NSWCCA 309 at [121]-[123]. However, whether such an inference should be drawn in a particular case does not depend upon precedent, but on a proper analysis of the circumstances of the case and the judge's reasons.”

34. Based on my analysis of the circumstances of the present case and the judge’s reasons, I am satisfied that the applicant’s childhood deprivation was not properly taken into account. The degree of deprivation in this case can only be described as profound, although I respectfully agree with the views of Brereton JA and Hamill J that there is no magic in that word: Nasrallah v R [2021] NSWCCA 207 at [87] (Hamill J) citing Brereton J in Hoskins v R [2021] NSWCCA 169 at [57].

35. While taking care to record the Bugmy principle (that the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending), the judge in the present case did not in fact give any meaningful consideration, let alone “full weight”, to the significance of that factor. I have reached that conclusion for the following reasons.

36. First and most obviously, nowhere did his Honour discuss the effects of childhood deprivation or the significance of that factor: cf Markarian at [51]. He did not discuss the applicant’s moral culpability for the offence or whether it was lessened on account of the disadvantages of his upbringing.

37. Secondly, although his Honour set out the history of childhood deprivation recorded by Ms Hübner, he skipped over the part of her report in which, bringing to bear her considerable expertise, she discussed the effects of profound childhood deprivation and the significance of that factor in the present case. His Honour summarised the contents of the report sequentially and in parts verbatim; it may be inferred that he turned through the document as he delivered the judgment. On page 5 of the judgment, he quoted a statement made by the offender as to his current feelings regarding the offences. That statement appears at par 29 of the report. In the next sentence, his Honour referred to a finding recorded at par 41 of the report (that the applicant was found to be a moderate to high risk of re-offending) and next to a single sentence at par 44 of the report (that the applicant has spent a considerable amount of his life in custody and runs the risk of becoming institutionalised). His Honour otherwise made no reference to the critical discussion at pars 35 to 44 of the report (set out above) where Ms Hübner gave her clinical opinion of the impact of the applicant’s background on his social competence and ability to function.

38. Thirdly, having omitted any reference to the relevant discussion in the report of Ms Hübner, the judge evidently brought to bear his own opinion as to moral culpability, which had no regard to the significance of childhood deprivation. After expressing scepticism as to the truthfulness of the applicant’s letter to the Court, his Honour said, “he says he wants to live a sober and healthy life. He has not done so to date.” That remark implicitly attributed the applicant with the same capacity as any person to address his chronic drug addiction, an addiction that had its origins in his introduction to alcohol at the age of ten, the age he was when his mother abandoned him after he had been physically and sexually abused by her various partners. It overlooked Ms Hübner’s explanation that children with deprived backgrounds such as the applicant’s have difficulty developing executive functioning skills resulting in a reduced capacity to plan ahead, inhibit inappropriate behaviours and self-reflect. It overlooked her opinion that the applicant’s ongoing exposure to negative social influences (which was hardly a matter of choice at the age of ten) resulted in his developing antisocial personality traits that perpetuated his drug use and offending.

39. Fourthly, the judge undertook no analysis of the tension between the competing purposes of sentencing in this case. His Honour asserted the need to send “a strong message” to the community of Albury that “if you invade a home you will be sent to gaol for a considerable period of time.” His Honour continued:

“Home invasion strikes at the rule of law and the fabric of society. People need to feel safe in their homes. Home invasion is the first step to anarchy and the destruction of society.”

40. As noted by Hamill J in McLaren v R [2021] NSWCCA 12 at [74] (citing the decision of Blanch J in R v Moore (Court of Criminal Appeal (NSW), 12 April 1994, unrep)), it is important for judges to maintain an unemotional approach to the sentencing exercise. The relevant question is what term of imprisonment is the appropriate one. Apart from appealing to emotion, the remarks set out above tend to confirm the judge’s failure to consider the applicant’s deprived upbringing. If the spectre of anarchy was the concern, consideration should have been given to the anarchy that prevailed in the applicant’s home during his formative years or the destruction, through a combination of mistreatment and neglect, of any real opportunity for him to develop the skills required for a healthy, functional life. The remarks indicate instead that the judge implicitly assumed the applicant to be an appropriate vehicle for general deterrence, overlooking the clear evidence in Ms Hübner’s report to suggest otherwise. Wherever one stands on the policy debate about general deterrence, that purpose of sentencing is not understood to require sentencing judges to send a strong message to would-be criminals that they should avoid a dysfunctional childhood.

41. Finally, after sentencing the applicant to a term of imprisonment with a non-parole period of five years, the judge concluded by asserting that the applicant had “some foresight into his likely sentence” when he sent the text message stating that he was “getting prepared to do five.” The remark was gratuitous and inappropriate. Had his Honour given any real consideration to the life experience of this man or the importance of supporting his recovery, he would not have encouraged such fatalism.

42. I make these observations in the context that, in the principal passage addressing the Bugmy submission, the judge accepted the factual premise of that submission. Accordingly, this Court can and should proceed on the same factual basis. The reason I raise the issue is that, elsewhere in the judgment, his Honour said, “this is a self-report without any confirmatory evidence, although his prior history clearly indicates that this man has had a long history of drug abuse.” The import of those remarks is unclear. Ms Hübner’s report was tendered without objection and admitted without qualification. The history given to her by the applicant was relevant because it provided the basis on which she was able to give evidence of assistance to the Court. That is not to say that the judge was obliged to accept the facts asserted without critical analysis. However, in the absence of any objection by the Crown, to the extent that the judge was minded to doubt the facts stated, procedural fairness required that his Honour identify any such doubt so as to give the applicant an opportunity to address it.

43. The judge’s remark that part of the history was “self-report without any confirmatory evidence” echoes a concern expressed in the decision in Qutami v R [2001] NSWCCA 353 (Qutami). In that case, Smart AJ made a “general observation” at [58] that “very considerable caution should be exercised” in relying upon statements made by a prisoner to a psychiatrist or a psychologist when the prisoner does not give evidence. His Honour said, “in many cases only very limited weight can be given to such statements” and continued at [59]:

“There has been a noticeable and disturbing tendency of more recent years for prisoners on a sentence hearing not to give evidence and to rely on statements made to experts. Prisoners should realise that if this course is taken great caution will be exercised in respect of the weight, if any, given to those statements.”

44. Spigelman CJ agreed with those observations at [79]. The third judge, Simpson J, was silent on the issue. Her Honour agreed with the orders proposed by Smart AJ but did not express her agreement with his Honour’s reasons.

45. Smart AJ’s general observation in Qutami is sometimes mistaken for a principle. It is not. If it were, it would be a wrong principle which required correction. Leaving aside the fact that the rules of evidence do not apply to proceedings on sentence unless the court so directs, the weight to be given to particular kinds of evidence in such proceedings cannot be pre-empted as a matter of principle. The weight and cogency of the evidence is always a matter for the individual assessment of the sentencing judge.

46. The current practice of the District Court is to require any report prepared by a mental health expert to be served in advance of the sentence hearing: District Court Criminal Practice Note 20, cl 15. The clear purpose of that practice is to afford the Crown an opportunity to consider whether to accept or challenge the contents of such reports. In cases where a report is not challenged, the correct approach is as stated by Allsop P (with whom Price J agreed at [101]) in Devaney v R [2012] NSWCCA 285 at [88] (cited by Hamill J in Luque v R [2017] NSWCCA 226 at [116] and Fullerton J in Pym v R [2014] NSWCCA 182 at [79] (Hoeben CJ at CL and Price J agreeing at [1] and [2]):

“It is one thing to discount admissible statements made to a psychiatrist or psychologist if the offender is not prepared to give evidence to the same effect: Qutami at 377 [58]-[59] and 380 [79] and [83] and Palu at 184-185 [40] and 175 [1] and [2] (although care needs to be taken not effectively to exclude admissible evidence by a process going beyond an assessment of weight); it is quite another to lessen the effect of the opinion of a professional psychiatrist, without cross-examination, when that opinion is based on history. In most cases, a psychiatrist will form a diagnosis from what is said to her or him; that is the very nature of the professional expertise being deployed. Part of the professional skill of the psychiatrist is the assessment of the history - how it accords with hypothesised and formed views of the professional. To say that the applicant was manipulating the psychiatrists is to criticise the professional opinions of the psychiatrists and should be put to them. The sentencing judge should not have diminished the weight of the psychiatrists who came to the view that the applicant had some insight into his condition.”

47. I would particularly endorse his Honour’s observation that care needs to be taken not to exclude admissible evidence “by a process going beyond an assessment of weight”. Where the report of a mental health professional is admitted without objection, qualification as to its use or cross-examination of the author, no principle of law requires the sentencing judge to exercise “very considerable caution” before relying on its contents absent evidence from the offender. It is by no means beyond debate that the court is the only forum in which a reliable medical history can be obtained. To sweep aside the considered opinions of medical experts with clinical experience in taking psychosocial histories and assessing their significance is, with respect, a lawyerly arrogance.

48. I do not suggest that occurred here. Notwithstanding the small degree of doubt expressed by the sentencing judge, his Honour ultimately accepted the factual premise of the Bugmy submission. For the reasons set out above I am satisfied that, having done so, his Honour then failed to consider and determine whether the applicant’s deprived upbringing contributed to the cause of his offending or otherwise reduced his moral culpability. Accordingly, I am satisfied that ground one is made out. It follows that the sentence must be set aside and the applicant re-sentenced by this Court.

Ground two: manifest excess

49. In that circumstance it is not necessary to address ground two, save to say that my conclusion as to ground one is fortified by my view that, while the offence was serious, an undiscounted sentence of 10 years and 8 months was unduly stern in all the circumstances of the case.

Re-sentence

50. As noted above, a number of factors relevant to sentence were agreed or conceded by the applicant in the sentence proceedings and were not revisited in the appeal. It is accordingly appropriate to sentence the applicant on the basis of the findings of the sentencing judge as to objective seriousness and aggravating and mitigating factors, all of which are recorded above. I would also accept, as did the trial judge, that the Form 1 offence should have little impact on the sentence to be imposed.

51. It remains to assess the effect of the applicant’s childhood deprivation and whether it contributed to the cause of his offending or otherwise reduces his moral culpability for the offence.

52. Based on the contents of Ms Hübner’s report, I accept that the applicant’s deprived childhood is a very substantial cause of his chronic drug addiction and, in turn, his recidivism. Ms Hübner explained the path. The applicant was exposed to multiple deleterious factors during childhood. That is likely to have impaired his executive function, his intellectual and academic function and his capacity for self-control, in turn producing the likelihood of several diagnosable behavioural disorders. Ongoing contact with the criminal justice system and exposure to negative social influences contributed to the development of antisocial personality traits that perpetuated his drug use and offending. To borrow the words of Simpson J in Millwood, he cannot be said to bear “equal moral responsibility with one who has had what might be termed a ‘normal’ or ‘advantaged’ upbringing.” His childhood deprivation has plainly diminished his capacity to guide his behavioural decisions.

53. The sentencing task is notoriously difficult in such cases because the purposes of sentencing pull in opposite directions. The level of violence in this case was considerable. The victim, Mr Richards, must have been terrified. The choice of weapon and the manner of its use are such as to indicate that punishment, retribution and specific deterrence must be given some weight.

54. The difficulty is that, as stated by the psychologist and accepted by the judge, the applicant has had such chronic engagement with the criminal justice system in his cycle of addiction and offending that he is at risk of becoming institutionalised. That risk and the chronicity of his cycle of addiction and offending indicate that rehabilitation should be a high priority for this offender. Once it is recognised that his moral culpability is reduced, if the promotion of rehabilitation is not given substantial weight, we risk punishing him for having a dysfunctional childhood.

50. While it has not been necessary to consider ground two, some guidance (albeit limited) can be derived from one of the so-called comparable cases relied upon by the applicant in support of that ground, the decision of this Court in Smith v R [2011] NSWCCA 209. The offender in that case pleaded guilty in the District Court to an offence of breaking and entering with intent to commit a serious indictable offence in circumstances of special aggravation contrary to s 113(3) of the Crimes Act. That offence carried a maximum sentence of 20 years imprisonment, the same as in the present case. As here, it involved a fair degree of violence and there was a Form 1 offence (a common assault). Smith was sentenced, in round figures, to imprisonment for 6 years and 9 months with a non-parole period of 5 years (the sentencing judge did not round the figures but the Court said he should have). The discount for the plea was 15%. As in the present case, the invasion of the victim’s home was motivated by a decision to punish the victim for his conduct towards a woman. The offender had a relatively strong subjective case. After finding error, the Court resentenced the offender to imprisonment for 4 years and 3 months with a non-parole period of 3 years.

51. The applicant provided an affidavit which indicates that he has done well in gaol. That impression is broadly supported by the affidavit of his solicitor annexing his prison records, which record that he is receiving medical treatment including medication for his mental health. As a prisoner, he is described as being “always keen and helpful.” He states in his affidavit that his mental health is now the best it has ever been and that he has, for the first time, worked (in Textiles) and earned money. He concludes:

“I have everything going for me now with my improved mental health, work experience, supportive girlfriend and renewed contact with my son. If I don’t make the most of these things by changing my behaviour now, I will be in and out of gaol for the rest of my life and I don’t want that.”

57. In my assessment, this is a case in which substantial weight should be given to the purpose of sentencing of promoting rehabilitation. The appropriate undiscounted sentence is a term of imprisonment for 7 years. The discount of 25% to reflect the utilitarian value of the plea gives a sentence of imprisonment for 5 years and 3 months. It is clear that the applicant will require a lengthy period of support and supervision. That need affords special circumstances for departing from the statutory ratio of the non-parole period to the balance of term. I would fix the non-parole period at 3 years and 3 months, allowing for 2 years of supervision on parole.

58. For those reasons, I propose the following orders:

1. grant leave to appeal;

2. allow the appeal;

3. quash the sentence imposed at first instance and in lieu thereof sentence the applicant to a term of imprisonment for 5 years and 3 months with a non-parole period of 3 years and 3 months commencing on 11 April 2020 and expiring on 10 July 2023 and a balance of term of 2 years expiring on 10 July 2025.

59. HAMILL J: I agree with the orders proposed by McCallum JA and can add nothing to her Honour’s comprehensive and persuasive reasons.

60. CAVANAGH J: I have had the considerable benefit of reviewing the judgment of McCallum JA.  I agree with the orders proposed and with her Honour’s reasons.

**********

Decision last updated: 11 February 2022