McGuiness v The Queen

[2021] NSWCCA 80

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

McGuiness v R [2021] NSWCCA 80

Hearing dates:

25 November 2020

Date of orders:

23 April 2021

Decision date:

23 April 2021

Before:

Hoeben CJ at CL at [1];
Bellew J at [2];
Wright J at [3]

Decision:

(1)   The applicant is granted leave to appeal.

(2)   The appeal is dismissed.

Catchwords:

CRIMINAL LAW – Appeal – Appeal against sentence – Whether sentencing judge erred by taking into account the fact that the applicant was on conditional liberty in assessing the objective seriousness – Where a fair reading of the sentencing judge’s remarks did not support the conclusion that the applicant’s conditional liberty was taken into account in determining the objective seriousness – Whether sentencing judge failed properly to consider Bugmy principles or the evidence giving rise to the application of those principles – Evidence adequately considered and principles taken into account – Whether sentence manifestly excessive – Comparative cases considered – Leave to appeal granted – Appeal dismissed

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Criminal Appeal Act 1912 (NSW)

Cases Cited:

Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2

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

Buxton v R [2017] NSWCCA 169

Currie v R [2013] NSWCCA 267

Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54

Dixon v R [2019] NSWCCA 85

Dungay v R [2020] NSWCCA 209

Elhassan v R [2018] NSWCCA 118

England v R; Phanith v R [2009] NSWCCA 274

Field v R [2020] NSWCCA 105

Hamed v R [2011] NSWCCA 219

Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45

Ingrey v R [2016] NSWCCA 31

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

Miller v R [2015] NSWCCA 86

Moodie v R [2020] NSWCCA 160

Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39

Nean v R [2019] NSWCCA 164

Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221

Perkins v R [2018] NSWCCA 62

PO v R [2020] NSWCCA 129

Quintero v R; Carvajal v R; Salazar v R [2018] NSWCCA 190

R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111

R v Huynh [2003] NSWCCA 239

R v Irwin [2019] NSWCCA 133

R v Lomas [2004] NSWCCA 46

Singh v R [2020] NSWCCA 353

Vandeventer v R [2013] NSWCCA 33

Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64

Wright v R [2019] NSWCCA 134

Yeung v R [2018] NSWCCA 52

Yousif v R [2014] NSWCCA 180

Category:

Principal judgment

Parties:

Frank McGuiness (Applicant)
Regina (Crown)

Representation:

Counsel:
B Neild (Applicant)
C Young (Crown)

Solicitors:
Aboriginal Legal Service (NSW/ACT) (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s):

2018/228669

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Citation:

[2020] NSWDC 90

Date of Decision:

4 March 2020

Before:

Colefax SC DCJ

File Number(s):

2018/228669; 2018/248963

Judgment

1. HOEBEN CJ at CL: I agreed with Wright J and the orders which he proposes.

2. BELLEW J: I agree with Wright J.

3. WRIGHT J: The applicant, Mr Frank McGuiness, seeks leave to appeal under s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) against the sentence imposed on him by Colefax SC DCJ on 4 March 2020 in the District Court at Campbelltown.

Background

4. On 25 July 2018, the applicant was arrested and charged in respect of offending which occurred on 26 June 2018. He was initially refused bail, however he was subsequently released on conditional bail on 16 January 2019 before being arrested for unrelated offending and refused bail. He has been in continuous custody since 6 March 2019.

5. On 19 July 2019, three days prior to the commencement of his trial, the applicant pleaded guilty in the District Court at Campbelltown to one count of robbery in company, contrary to s 97(1) of the Crimes Act 1900 (NSW), which carries a maximum penalty of 20 years’ imprisonment. The applicant also asked the Court to take into account, on a Form 1, a further offence of attempted aggravated take and drive a motor vehicle with a person in it, contrary to s 154C(2) of the Crimes Act, in combination with s 344A(1) of the Crimes Act, which carries a maximum penalty of 14 years.

6. The sentence hearing was held before Colefax SC DCJ on 25 October 2019 and 4 March 2020, with his Honour passing sentence on the latter of these days. The applicant was sentenced to a term of imprisonment of 7 years and 7 months to date from 11 July 2019 and expire on 10 February 2027, with a non-parole period of 5 years and 8 months expiring on 10 March 2025.

7. Unlike the applicant who pleaded guilty, his co-offender, Mr Trevascus, pleaded not guilty to two counts, one of robbery in company and the other of attempted aggravated take and drive a motor vehicle with a person in it. The co-offender was convicted on both counts and was sentenced on the same day as the applicant. An aggregate sentence of 7 years’ imprisonment, with a non-parole period of 5 years and 3 months, was imposed on the co-offender.

8. The sentence hearings for the applicant and the co-offender took place at the same time and the sentencing judge’s remarks on sentence deal with both the applicant and the co-offender.

Grounds of Appeal

9. The grounds of appeal on which the applicant seeks to rely were articulated as follows:

“1. The sentencing judge erred by taking into account the fact that the applicant was on conditional liberty in assessing the objective seriousness of the offence.

2. The sentencing judge erred by failing to give proper consideration to the Bugmy principles and/or evidence giving rise to the application of those principles.

3. The sentence imposed was manifestly excessive.”

10. In order to assess the merit of these grounds, the learned sentencing judge’s remarks on sentence must be considered in some detail.

Remarks on sentence

11. Colefax SC DCJ commenced his remarks on sentence by noting that the principal offence for which both the applicant and his co-offender appeared for sentence was robbery in company, contrary to s 97(1) of the Crimes Act, for which the maximum penalty was 20 years’ imprisonment. His Honour also noted that there was no standard non-parole period but R v Henry (1999) 46 NSWLR 346 was the relevant guideline judgment.

12. The sentencing judge also noted that the applicant did not, as his co-offender did, appear for sentence in relation to a second principal offence of attempted aggravated take and drive a motor vehicle with a person in it, contrary to ss 154C(2) and 344A(1) of the Crimes Act. Rather, in the applicant’s case, this offence was to be taken into account on a Form 1, when the applicant was sentenced for the robbery in company offence.

13. At this point, it was noted that the applicant had entered a late plea of guilty to the robbery in company offence whereas the co-offender had been found guilty by a jury of both offences.

Circumstances of the offending

14. The learned sentencing judge recorded that at the time of the offending in June 2018, both the applicant and his co-offender were on parole. At around 8:50 PM, the victim, Mr Melia, drove his Audi motor vehicle into a service station in the Sydney suburb of Ruse. While at the service station, the applicant and Mr Melia had a conversation, during which the applicant enquired if Mr Melia would drive him to Leumeah Station if he provided some fuel money. Mr Melia agreed, and the applicant got into the car. They did not, however, go to Leumeah Station. Instead, the applicant made a call on his mobile telephone and as a result the car deviated to an area near the Woodbine McDonald’s, where the co-offender was waiting. He got into the car with the applicant and Mr Melia and the three of them drove around various parts of the Campbelltown area.

15. They drove to Minto Heights and stopped outside a home unit block and the applicant got out of the car, went into the unit block and, after a few minutes, came out. The sentencing judge recorded that what the applicant was doing while in the unit block was not expressly stated on the facts, but the only rational inference from all of the material was that some form of drug transaction was taking place.

16. The sentencing judge was not satisfied that Mr Melia knew about what was going on, although it was accepted that he may well have had his suspicions. It was noted, however, that the co-offender was involved in the journey, on his own admission, to obtain cannabis and heroin.

17. At one point, the vehicle stopped near the Woodbine McDonald’s. Mr Melia no longer wished to involve himself “in this tour of the outer south western suburbs of Sydney” and wanted both the applicant and co-offender out of his car.

18. The sentencing judge then recounted that the applicant insisted on being driven further up a nearby hill, but when Mr Melia refused to do so, the applicant then became aggressive. Without provocation, the applicant launched a physical attack on Mr Melia, throwing multiple punches at his face and ribs from the front passenger seat.

19. The co-offender, sitting in the rear passenger’s seat behind the driver, was also an active participant in this attack. From his rear seat, the co-offender was choking Mr Melia by pulling on his neck chain holding him against his seat restraining him, while the applicant continued to punch him and yell profanities at him.

20. As this was going on, the applicant grabbed the car key, together with Mr Melia’s house key, from the centre console of the Audi. Mr Melia demanded that his keys be returned to him. The sentencing judge noted that at some point as the struggle continued, the three were outside the motor vehicle. His Honour stated that the applicant was the more aggressive participant in the struggle, but noted that the co-offender was present but made no effort to restrain the applicant and his presence in and of itself would have intimidated Mr Melia. It was acknowledged that the co-offender ran away for a time but returned.

21. The sentencing judge recorded that, eventually, bystanders intervened, and the police were called. Mr Melia was taken to Campbelltown Hospital, having sustained a broken nose and a black eye as well as facial swelling and tenderness. However, there was no evidence before the sentencing judge of any long-term or permanent injuries.

Objective seriousness, aggravation and evidence of subjective circumstances

22. After recounting the circumstances of the offending set out above, the sentencing judge’s remarks then contained the following:

“28. The objective seriousness of the offence of robbery in company – for an offence of its kind – it is a midrange offence. In relation to the attempted aggravated take and drive motor vehicle principal offence for [the co-offender] it is slightly above a midrange offence for an offence of its kind.

29. Each principal offence is additionally aggravated by the fact that each of [the applicant and the co-offender] was on parole.

30. And for [the co-offender] the attempted aggravated take and drive motor vehicle offence is additionally aggravated by the use of violence.

31. Neither of [the applicant or the co-offender] gave direct oral evidence in the sentence hearing today. Rather, [their] subjective circumstances have been advanced through a psychological report for each of [them].”

The applicant’s subjective circumstances

23. The sentencing judge found that the applicant was a 31-year-old man of Aboriginal Australian descent and continued:

“[His] early life was clearly a confronting one and falls within the description of a dysfunctional upbringing, which the High Court has directed sentencing judges to take into account in the manner set out in Bugmy v The Queen.”

24. His Honour then expanded upon this noting that the applicant’s parents separated when he was an infant and he spent time being brought up by his extended family. It was noted that the applicant left home when he was 16 and had been independent since that time. The sentencing judge found that at the age of 16 the applicant received injuries from an assault which significantly impacted on his then existing illegal drug use. It was also noted that the applicant had a long criminal history from his mid-teens which seemed to be intimately connected with a long-term drug habit that started when he was 15 involving the abuse of alcohol, cannabis, heroin and ice, as well as legal drugs such as Xanax. Colefax SC DCJ noted that the applicant’s schooling was very limited, having been suspended even at primary school, and that he finished his education during year 10 without completing the School Certificate.

25. In relation to more recent events and his employment, the sentencing judge noted that one of the reasons why his parole was revoked was because he was using ice almost immediately after he was last released from gaol, and that when he had been in the community (which had not been for much of his adult life) he worked doing butchering, fencing and cleaning. His Honour accepted that some 18 months ago the applicant went through the painful loss of a brother and shortly afterwards the death of his father.

26. As to the applicant’s mental health, Colefax SC DCJ accepted that the applicant had had depression for a long period of his life and had, on two occasions, sought to take his own life. It was noted that he did not have a strong support network in the community and that he reported to the psychologist that he had no friends in the community.

27. The support that the applicant did have was found to be from his surviving brother, his mother and several members of his extended family. It was also noted that he had two children from a relationship when he was very young and seemed to have some contact with them and with their mother.

28. The sentencing judge noted that, in custody, the applicant had “impressively completed” a number of courses including the EQUIPS program and the Work and Development Order program.

29. His Honour found that the applicant had expressed remorse to the victim, not only through the contents of the psychologist’s report but also by apologising to him and embracing him when the applicant came across Mr Melia in a shopping centre. It was accepted that the applicant’s expressions of remorse were genuine.

30. In assessing the applicant’s prospects of rehabilitation, the sentencing judge expressly took into account the applicant’s long criminal history and the unprovoked nature of the offence, the courses that the applicant had completed and the love and support of some members of his family as well as the limited social support networks he enjoyed. In all, his Honour regarded the applicant’s prospects for rehabilitation as being guarded.

Sentencing principles

31. After considering the co-offenders subjective circumstances, the learned sentencing judge noted that the sentence to be imposed had to be one that would meet the objectives of specific and general deterrence, promote the rehabilitation of the offenders and protect the community. His Honour noted that some of these principles pulled in different directions.

Start date of the sentence

32. As to the start date of the applicant’s sentence, it was accepted, as the Crown submitted, that the start date should be entirely accumulated to follow on from the sentences that the applicant had to complete for totally unrelated matters and in relation to which he was on parole at the time of the offending for which he was being sentenced.

Discount for guilty plea

33. In relation to the applicant’s late plea of guilty, the sentencing judge found that the law mandated that he was to receive a 5% discount.

Sentence

34. For the offence of robbery in company, taking into account the offence on the Form 1, the applicant was sentenced to a term of imprisonment of seven years and seven months, as noted above. On the basis that the non-parole period to be fixed would be long enough to assist in his rehabilitation, the sentencing judge declined to make a finding of special circumstances. The non-parole period was accordingly set at five years and eight months, expiring on 10 March 2025.

First ground of appeal

35. The applicant’s first proposed ground of appeal was that the sentencing judge erred by taking into account the fact that the applicant was on conditional liberty in assessing the objective seriousness of the offence.

Submissions

36. The applicant contended that the list of aggravating factors in s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Procedure Act) encompasses both subjective and objective considerations and the fact that the offence was committed while the offender was on conditional liberty is a subjective factor and not part of the assessment of the objective seriousness of the offence. In this regard, the applicant relied upon the comments in Elhassan v R [2018] NSWCCA 118 at [13] and [14] and Field v R [2020] NSWCCA 105 at [84].

37. It was then submitted that the structure of [28] to [30] of the remarks on sentence, the use of the word “additionally” and the fact that no reference was made thereafter, when the sentencing judge was dealing with the applicant’s subjective circumstances, to the offence being committed while the offender was on parole, demonstrate that his Honour took that factor into account when assessing objective seriousness. While it was acknowledged that each case would turn on the precise terms of the sentencing judge’s remarks, the applicant submitted that Dixon v R [2019] NSWCCA 85 (Dixon) provided a useful illustration of such an error.

38. It was said that the fact that the applicant’s representative at the sentencing hearing expressly submitted that the objective seriousness of the offence was not increased by it having been committed while the applicant was on parole, meant that the sentencing judge could not have been operating under any misapprehension of the applicant’s position.

39. The Crown submitted that the structure of the sentencing judge’s remarks supported the conclusion that the fact that the offence was committed while the applicant was on parole was not taken into account in determining the objective seriousness of the offending. It was also contended that the situation in the present case could be differentiated from that in Dixon because in that case:

1. the use of the word “it” was ambiguous and could have referred to the finding of objective seriousness and not the offence itself; and

2. the assessment of the objective seriousness in that case was difficult to explain without taking into account the fact that the offence had been committed while the offender was on conditional liberty.

40. There was said to be no similar ambiguity or difficulty explaining the assessment of objective seriousness in the present case. It was also noted that the sentencing judge did not indicate any intention to depart from the submission made to his Honour on the applicant’s behalf that the objective seriousness was not increased by the offence being committed while the offender was on conditional liberty.

41. In all the circumstances, the Crown submitted that the first ground of appeal had not been established.

Consideration

42. Sentencing judges are required to assess the objective seriousness or objective criminality of offending because it is one of the essential elements in the instinctive synthesis sentencing process whereby the judge identifies all the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to what is the appropriate sentence given all the factors of the case: Yeung v R [2018] NSWCCA 52 at [19] and [20] (McCallum J, as her Honour then was, Hoeben CJ at CL and Simpson JA agreeing) citing Muldrock v The Queen (2011) 244 CLR 120; (2011) 212 A Crim R 254; [2011] HCA 39 at [26] and Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [51].

43. The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending: Muldrock v R (2011) 244 CLR 120; [2011] HCA 39 at [27].

42. In this case, the fact that the offence was committed while the applicant was on parole, and thus on conditional liberty, was a matter personal to the applicant. Accordingly, that factor was relevant as a subjective consideration but not as part of the assessment of objective seriousness of the offence: Elhassan v R [2018] NSWCCA 118 at [14] (McCallum J, as her Honour then was, Simpson AJA and Fullerton J agreeing) and the authorities there cited.

43. On a fair and not overly critical reading of [28] to [31] of the sentencing judge’s remarks on sentence, in the context of the remarks as a whole, it does not appear to me that his Honour took into account the fact that the offence was committed while the applicant was on conditional liberty when making his assessment of objective seriousness. That assessment was made in [28] and it was supported by the material in the preceding paragraphs.

44. This was not a case like Dixon where the assessment of objective seriousness could not adequately be explained without the matters personal to the particular offender being taken into account. In that case, the offender was being sentenced for entering a dwelling with intent to commit a serious indictable offence of larceny, in circumstances of aggravation, namely, where he knew there was a person present within the dwelling. The Chief Justice observed at [51] to [54]:

“51. More importantly, it seems to me difficult to see how the sentencing judge could have concluded that the objective seriousness of the offence was between the middle and low range, without taking into account as aggravating factors that the offender was on parole and his long criminal history.

52. I have set out the facts above. The offence could hardly be described as planned. Once the appellant saw the victim he attempted to crawl backwards. It is not clear whether this was because he was scared of being crushed by the door or because he saw the victim.

53. The applicant then left. The subsequent confrontation and the threats seemed to follow from the victim following the applicant with a baseball bat and ultimately seeking to apprehend him. This is not to criticise the victim, but merely to take into account the context in which the offence and the offence on the Form 1 occurred.

54. When one takes this context into account and the express finding by the sentencing judge of the applicant’s reduced moral culpability, it is difficult to see how he reached his conclusion as to the objective seriousness of the offence, without taking into account the fact that the applicant was on conditional liberty at the time it was committed and the applicant’s criminal history.”

47. The sentencing judge’s conclusion in the present case that the objective seriousness of robbery in company by the applicant was “a midrange offence” “for an offence of its kind” was open on the basis of the material in the paragraphs preceding [28] and without taking into account the fact that the applicant was on parole at the time. There was no ground of appeal that this assessment of objective seriousness was not open in the present case.

48. In addition, in Dixon, the specific language used in the remarks on sentence was ambiguous. The relevant wording, as set out in [22] of Dixon, was:

“In terms of the objective seriousness of the principal offence, it is somewhere equidistant between the middle and the bottom of the range. It is certainly not at the bottom of the range.

It is aggravated by the fact that at the time of the offence, the offender was on parole. Further, by having regard to the offender’s long criminal history, Veen (Number 2) is engaged.”

49. Bathurst CJ noted that “the word ‘it’ in the second paragraph of the passage of the judgment of the sentencing judge, … ,could refer to the objective seriousness or the principal offence” and said that in his view the sentencing judge commenced to deal with the other matters required to be considered by s 21A of the Sentencing Procedure Act in the paragraph which followed those quoted above.

50. There was no similar ambiguity in the present case. Nor was there any reason to think that the sentencing judge was still dealing with objective seriousness when he said what was contained in [29] to [31] and what followed in his remarks. The fact that the sentencing judge did not indicate any intention to depart from the applicant’s submission, that objective seriousness was not increased by the offence being committed while the offender was on conditional liberty, is consistent with my conclusion.

51. For those reasons, I would not uphold the first ground of appeal, if leave to appeal were granted.

Second ground of appeal

52. The second ground of appeal sought to raise the issue of whether the sentencing judge erred by failing to give “proper consideration to the Bugmy principles and/or evidence giving rise to the application of those principles”.

Submissions

53. The applicant acknowledged that Colefax SC DCJ had referred to Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 (Bugmy) and the applicant’s “dysfunctional upbringing” in his remarks on sentence. The applicant’s contention under the second ground of appeal was, in effect, that this was not sufficient and the sentencing judge was required to, but did not:

1. set out his understanding of the Bugmy principles;

2. make reference to “the specific instances of disadvantage set out in the report of Ms Godbee”, the psychologist; and

3. provide an indication of the way in which the “dysfunctional upbringing” of the applicant was to be taken into account on sentence in accordance with the Bugmy principles.

54. The applicant, while acknowledging that each case depends on its own facts and circumstances, submitted that some guidance could be obtained from decisions of this Court in Miller v R [2015] NSWCCA 86, Quintero v R; Carvajal v R; Salazar v R [2018] NSWCCA 190 and Perkins v R [2018] NSWCCA 62.

55. The applicant contended that the circumstances of the present case were similar to those in Miller where it was held that a material consideration had been overlooked and the full extent of the applicant’s personal history and circumstances were not taken into account. In addition, it was noted that the sentencing judge did not refer to the evidence of a direct or indirect causal link between the applicant’s deprived background and substance abuse and his offending, and that there were no findings in relation to the applicant’s moral culpability.

56. These failures by the sentencing judge were said to have been confirmed by the severity of the sentence imposed on the applicant.

57. The Crown submitted that, at the sentencing hearing, neither the principles in Bugmy nor their application in the present case were in dispute. Further, it was noted that Colefax SC DCJ did refer expressly to the psychologist’s report and obviously accepted that evidence, referring specifically to some of the material contained in that report. As to his Honour’s consideration of the applicant’s moral culpability, the Crown recorded that, at the sentence hearing, the applicant had submitted that the applicant’s moral culpability was reduced, and this was not contested by the Crown. It was also noted that his Honour expressly accepted that the co-offender’s moral culpability was reduced because of his upbringing that attracted the Bugmy principles, thus indicating that the sentencing judge understood how the principles should be applied.

58. Finally, the Crown drew attention to the principle that when ex tempore reasons are delivered, as in this case, this should be borne in mind when assessing the adequacy of reasons.

Consideration

59. The High Court in Bugmy considered the impact of profound childhood deprivation when sentencing for offending as an adult. At [44], French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ held:

“Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving "full weight" to an offender's deprived background in every sentencing decision. However, this is not to suggest, as the appellant's submissions were apt to do, that an offender's deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.” (footnote omitted)

60. The application of the Bugmy principles is not discretionary or optional where the circumstances attracting the operation of the principles are established: R v Irwin [2019] NSWCCA 133 at [3] (Simpson AJA); Ingrey v R [2016] NSWCCA 31 at [35] (Hoeben CJ at CL, M Adams and Fullerton JJ agreeing). Nonetheless, where the effect of profound childhood deprivation is taken into account to reduce moral culpability, there may be countervailing factors, including protection of the community, which reduce or eliminate that effect: Ingrey at [35].

61. N Adams J (Bell P and Davies J agreeing) explained the operation of the Bugmy principle in Dungay v R [2020] NSWCCA 209 as follows at [139] to [141] and [153]:

“139. Although Bugmy factors must be given “full weight” in every sentencing decision, this does not mean that they need to be given the same weight in every case. The extent to which the applicant’s moral culpability is reduced will vary in each case and sometimes it will not be reduced at all but instead taken into account in other ways. The purposes of sentencing are numerous and often difficult to apply when the objective and subjective factors seem to point in different directions, as the High Court observed in Bugmy at [44]. Although these purposes are well known, they warrant reproduction here.

140. Section 3A of the Sentencing Act provides that:

‘The purposes for which a court may impose a sentence on an offender are as follows—

(a) to ensure that the offender is adequately punished for the offence,

(b) to prevent crime by deterring the offender and other persons from committing similar offences,

(c) to protect the community from the offender,

(d) to promote the rehabilitation of the offender,

(e) to make the offender accountable for his or her actions,

(f) to denounce the conduct of the offender,

(g) to recognise the harm done to the victim of the crime and the community.’

141. If there is a basis for a finding that an offender’s moral culpability is reduced then the purpose of general deterrence (s3A(b)) may be of less significance, although the need to protect the community may be higher (s 3A(c)). Each case will turn on its own facts.

…

153. 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.”

62. As noted above, Colefax SC DCJ’s remarks on sentence included the statement that:

“34. [His] early life was clearly a confronting one and falls within the description of a dysfunctional upbringing, which the High Court has directed sentencing judges to take into account in the manner set out in Bugmy v The Queen.”

63. Thus, it is clear that it was accepted that the Bugmy principle applied in the present case. The evidentiary basis for this acceptance was disclosed in [31] of the remarks, where it was observed that the applicant had not given evidence but his subjective circumstances “have been advanced through a psychological report”. That was a reference to the report of Ms Megan Godbee of 11 September 2019, which was before the learned sentencing judge.

64. That his Honour considered the specific contents of this psychological report was demonstrated by the fact that his remarks on sentence included not only the findings that the applicant was a 31 year old Aboriginal man and that his early life was a confronting one and involved a dysfunctional upbringing, but also the following findings, all derived directly from Ms Godbee’s report:

1. that the applicant’s parents separated when he was an infant: [35] of the remarks;

2. that he was brought up by his extended family: [35] of the remarks;

3. that he left home when he was 16 and at that age he was assaulted and injured which significantly impacted upon his existing illegal drug use: [36] and [37] of the remarks;

4. that he had a long-term drug habit, including alcohol, cannabis, heroin and ice, as well as legal drugs such as Xanax, starting when he was 15: [38] of the remarks;

5. that his long criminal history from his mid-teens was intimately connected with his drug habit and his last parole was revoked because of drug use: [38] of the remarks;

6. that his schooling was very limited including being suspended while at primary school and leaving in year 10 without completing the School Certificate: [39] of the remarks;

7. that he had not spent much of his adult life in the community but when he did, he worked doing butchering, fencing and cleaning: [40] of the remarks;

8. that the loss of his brother 18 months ago was painful, and his father died shortly after: [41] of the remarks;

9. that he has had depression for a longer period of his life and on two occasions sought to take his own life: [42] and [43] of the remarks;

10. that he does not have a strong support network or friends in the community: [43] of the remarks;

11. that he has the support of his surviving brother, mother and several extended family members: [44] of the remarks;

12. that he has two children from a relationship when he was young, and he has contact with them and their mother: [44] of the remarks;

13. that whilst in custody he has completed the EQUIPS program, among others: [45] of the remarks; and

14. that he expressed remorse through the psychologist’s report: [46] of the remarks.

65. In a number of instances, Ms Godbee gave more detailed information concerning, and elaborated upon, those matters identified in the preceding paragraph. Nonetheless, a failure to repeat in detail all of Ms Godbee’s comments and opinions does not demonstrate relevant error. It is beyond dispute that his Honour read Ms Godbee’s report, took its contents into account and made findings based upon accepting her evidence.

66. For these reasons, I do not accept the applicant’s contention that the sentencing judge failed to give proper consideration to the evidence in support of the application of the Bugmy principle.

67. Nor is it the case that his Honour failed to give proper consideration to the Bugmy principle when dealing with the applicant. From a review of the proceedings on sentence, it appears that the content and application of the Bugmy principle were not in issue before the sentencing judge. Indeed, the sentencing judge expressly noted that the Bugmy principle was engaged in the applicant’s case in [34] of his remarks on sentence, which has been quoted above. Furthermore, when addressing the co-offender in the remarks on sentence, his Honour said at [50]:

“[The co-offender] also had a dysfunctional upbringing, attracting the Bugmy principle; that is, [his] moral culpability is reduced because of that upbringing.”

68. This comment discloses his Honour’s understanding of the Bugmy principle as it was relevant to the matter before him. In the context of the proceedings on sentence as a whole, it appears that the sentencing judge considered how the effects of profound childhood deprivation might affect the sentences to be imposed on both the applicant as well as the co-offender. The fact that his Honour did not, when dealing with the applicant in his ex tempore reasons, include a quotation from Bugmy or restate the principle does not, in my view, establish that the relevant principle was not given effect to by the sentencing judge in relation to the applicant in this case, particularly having regard to the circumstances in which remarks on sentence are delivered in the District Court (see for example the observations quoted by Johnson J in Currie v R [2013] NSWCCA 267 at [50] and [51]).

69. Moreover, the sentence imposed on the applicant was not such in my view as to indicate that the sentencing judge must have made the errors contended for under the proposed second ground of appeal. The reasons for so concluding overlap with the reasons relating to the proposed third ground of appeal, which is dealt with below.

70. For these reasons, I reject the second proposed ground of appeal.

Third ground of appeal

71. The applicant’s third proposed ground of appeal was that the sentence imposed was manifestly excessive. There was no dispute in substance as to the principles to be applied when considering such a ground. The applicant relied on the summary of the principles in Buxton v R [2017] NSWCCA 169 at [79] to [81].

Submissions

72. The applicant acknowledged that, in Buxton at [81], it was held that:

“intervention on the ground of manifest excess is not justified simply because the result arrived at is manifestly different from the result in other cases”.

73. Nonetheless, it was submitted that previous decisions lent support to the applicant’s proposition that the sentence imposed on him was manifestly excessive and in this regard the applicant relied upon the comments by this Court in Moodie v R [2020] NSWCCA 160 at [81] to [89]. The applicant drew attention to the sentences imposed, given the circumstances, in each of: Nean v R [2019] NSWCCA 164; R v Huynh [2003] NSWCCA 239; England v R; Phanith v R [2009] NSWCCA 274; Yousif v R [2014] NSWCCA 180; Hamed v R [2011] NSWCCA 219; and, R v Lomas [2004] NSWCCA 46.

74. The applicant then contended that, even if there is no patent error, the Court should be satisfied that the sentencing judge overstated the objective seriousness of the offence and gave insufficient regard to the subjective circumstances of the offender which led to a sentence generally reserved for more serious offences of this nature by persons with similar criminal antecedents and subjective circumstances to those of the applicant being imposed. As a result, it was submitted that the sentence was manifestly excessive.

75. The Crown, in its submissions, noted the limitations on the usefulness of comparative cases and referred to the comments of this Court in Wright v R [2019] NSWCCA 134, Vandeventer v R [2013] NSWCCA 33 and PO v R [2020] NSWCCA 129.

76. In addition, the Crown pointed to distinguishing features in respect of each of the comparative cases relied upon by the applicant which made them materially different from the present case. Finally, it was said that the sentence imposed on the applicant was not unreasonable or plainly unjust taking into account: the maximum penalty; the objective seriousness of the offending; the offence taken into account on the Form 1; the nature of the violence and the role of the applicant; the fact that the applicant was on conditional liberty at the relevant time; the applicant’s criminal record; the applicant’s guarded prospects of rehabilitation; the need to take into account general and specific deterrence as well as protection of the community; the discount of 5% for the late plea of guilty; the applicant’s subjective case; his genuine remorse; and, the features which distinguished the matter from the guideline judgement in R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111.

Consideration

77. A ground of appeal contending that a sentence is manifestly excessive engages the well established principles usefully summarised in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443]. In the present case, the applicable principles include:

1. to succeed in showing that a sentence is manifestly excessive, the applicant must establish that the sentence was “unreasonable” or “plainly unjust”: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25]; Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]; Singh v R [2020] NSWCCA 353 (Singh) at [47]; and

2. even where it is not apparent from the remarks on sentence that the sentencing judge has made some error of principle, intervention will be warranted where it can be concluded that the sentence imposed was so far outside the range of sentences available that there must have been error: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64  (Wong) at [58]; Singh at [47].

78. These principles reflect the fact that, while sentencing of offenders is generally a matter of discretionary judgment, justice requires reasonable consistency in sentences, within the tolerance required by the necessary scope for individual discretion: Wong at [7] (Gleeson CJ). In this regard, what is sought is not “numerical equivalence” but consistency in the application of relevant legal principles so that like cases are treated alike and different cases differently: Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 (Hili) at [48] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2 (Barbaro) at [40] (French CJ, Hayne, Kiefel, Bell and Gageler JJ).

79. In seeking consistency, regard must be had to what has been done in other cases: Hili at [53]; Moodie v R [2020] NSWCCA 160 at [87]. However, recording what sentences have been imposed in other cases is useful if, but only if, it is accompanied by an articulation of what are to be seen as the unifying principles which those disparate sentences may reveal: Wong at [59]; Wright v R [2019] NSWCCA 134 at [52] and the authorities there cited. In Barbaro, the High Court summarised the proper approach, at [41], as follows:

“... in seeking consistency sentencing judges must have regard to what has been done in other cases. Those other cases may well establish a range of sentences which have been imposed. But that history does not establish that the sentences which have been imposed mark the outer bounds of the permissible discretion. The history stands as a yardstick against which to examine a proposed sentence. What is important is the unifying principles which those sentences both reveal and reflect. ...”

80. In the present case, the sentence imposed on the applicant was imprisonment for 7 years 7 months with a non-parole period of 5 years 8 months. The offence for which he was sentenced was robbery in company, which carries a maximum penalty of 20 years’ imprisonment. The sentence was determined taking into account, on a Form 1, a further offence of attempted aggravated take and drive a motor vehicle with a person in it, which carries a maximum penalty of 14 years’ imprisonment. The sentencing judge’s findings as to the circumstances of the offending, its objective seriousness and the subjective circumstances of the applicant were not the subject of specific challenge on this appeal, beyond what was inherent in the first and second proposed grounds.

81. As noted above, the applicant put forward the following cases, said to be comparable, in support of the submission that the sentence imposed on him was manifestly excessive: Nean v R [2019] NSWCCA 164 (Nean); R v Huynh [2003] NSWCCA 239; England v R; Phanith v R [2009] NSWCCA 274; Yousif v R [2014] NSWCCA 180; Hamed v R [2011] NSWCCA 219; and, R v Lomas [2004] NSWCCA 46.

82. In Nean, this Court found that a number of grounds of appeal were established, but concluded that no lesser sentence than that imposed by the judge at first instance was warranted and that the indicative sentences should be as stipulated by the sentencing judge. The offender was sentenced to an aggregate sentence of 8 years and 9 months with a non-parole period of 5 years in respect of four counts of robbery in company and one count of police pursuit. An offence of stealing a motor vehicle was taken into account on a Form 1 in relation to count 1, being the first robbery in company. The offending took place on one occasion at the location where the victim in count 1 lived with his young partner and members of his family. A 10% discount was allowed in relation to count 1 because of the plea of guilty on arraignment. The indicative sentence for count 1 was imprisonment for 6 years. Taking into account the 10% discount, the notional starting point for the count 1 offence was 6 years and 8 months. There was no ground of appeal in Nean contending that the aggregate sentence was manifestly excessive.

83. The applicant’s submission was that count 1 in Nean was a relevantly similar offence to that for which the applicant was sentenced, with each sentence taking into account a relevantly similar Form 1 offence.

84. The circumstances of the count 1 offending in Nean were that the offender, armed with a knife, took a leading role in making demands of and threats to the victim but that it was the co-offender who inflicted the physical violence upon the victim. The value of the property taken was small although not insignificant from a sentimental point of view. The offending was found to be aggravated because it took place in the victim’s home and in the presence of a child of 16 years. The victim received injuries to his face, a bleeding nose, a swollen lip, and scratches and bruises to his upper arms, chest and back but declined to go to hospital. It was held that the offence fell within the mid-range of objective seriousness.

85. Matters of aggravation were that the offender was on bail at the time of the offences and was also the subject of warrants for his failure to appear at court. His criminal record contained convictions for serious personal violence.

86. The offender’s subjective circumstances included that he was 34 years old, and his dysfunctional family and antisocial subculture meant that the considerations discussed in Bugmy were relevant. The offender gave evidence at the sentence hearing, expressed remorse and indicated that gaol had taught him that he needed to stay away from the wrong people and get off drugs. He completed a Chemical Handling Certificate (a vocational training program certificate) and an EQUIPS Addiction Course while in custody. It was accepted that his prospects of being rehabilitated were very poor and that he was more likely than not to reoffend upon his release. Special circumstances were found on the basis of the risk of institutionalisation and the need for a greater period on parole to assist in his rehabilitation.

87. The applicant did not specifically identify any principles which had been applied in Nean in arriving at the indicative sentence for count 1 or the aggregate sentence, which should have been, but were not, applied in the applicant’s case. Nor were any other unifying principles identified. The nature and circumstances of the offending in the two cases was not strikingly similar. Nor was the role of the applicant in this case limited to making threats with no infliction of violence, as in Nean in relation to count 1. Further, it is difficult, if not impossible, to form any properly informed assessment of how the dysfunctionality and deprivation in the applicant’s upbringing compared with those same factors in Nean. Further, in Nean, the offender gave evidence, including expressing remorse and explaining the effect of gaol upon him. The applicant did not give evidence before the sentencing judge.

88. In my view, Nean does not provide any basis for concluding that the sentence imposed in the present case was plainly unjust or unreasonable. Nor was there a basis to conclude that some error of principle must have been made by the sentencing judge in the applicant’s case in light of this Court’s judgment in Nean.

89. Similar comments can be made concerning the sentences for robbery in company imposed in:

1. R v Huynh [2003] NSWCCA 239. In that case, the sentence for robbery in company was reduced from 8 years to 6 years 6 months with a non-parole period of 4 years. The basis for this reduction was essentially explained by G James J as follows at [20]:

“That being said when I turned to the actual facts of the offender’s involvement in the offence of robbery it can be seen that it did not include his performing the role of threatening the victim explicitly and it did not include his involvement in any direct application of corporal violence, even to the extent of his personally taking the victim’s property. … However, I have come to the conclusion, notwithstanding the able submissions put by the learned Crown Prosecutor, that the sentence of eight years for the robbery in company offence was well in excess of that governed by the exercise of a sound discretion having regard to the offender’s role and the objective circumstances of that offence, notwithstanding the applicant’s prior record and that the offence had been committed on parole.”

The more direct and violent role of the applicant in the present case cannot properly be regarded as similar to that of the offender in Huynh.

2. England v R; Phanith v R [2009] NSWCCA 274 (Phanith). In Phanith, the offender Phanith was sentenced to imprisonment for 6 years with a non-parole period of 4 years 6 months, in respect of a robbery in company with seven matters taken into account on a Form 1. On appeal, there was no ground that the sentence was manifestly excessive and the appeal was dismissed on other grounds. As to whether the sentence in Phanith indicated that the applicant’s sentence in the present case was manifestly excessive, it can be noted that Howie J held at [29]:

“The matters on the Form 1 were serious and had to have a significant impact upon the ultimate sentence imposed. As against a maximum penalty of 20 years imprisonment and in light of the seriousness of the conduct for which the applicant was before the Court, the sentence was in my opinion a lenient one.”

3. Yousif v R [2014] NSWCCA 180. In that case, the offender pleaded guilty to one count of robbery in company and was sentenced to imprisonment for 4 years, 3 months and 10 days with a non-parole period of 2 years, 1 month and 20 days. This was said to have been equivalent to 57 months before the discount for the plea of guilty was applied. The only ground of appeal was that the offender had a justifiable sense of grievance due to the disparity in the sentence imposed upon the offender and that imposed upon his co-offender, which had a starting point of 60 months. The offender’s submissions were to the effect that given that his co-offender initiated the offence, produced a knife during the robbery, was in his mid-twenties and did not have a disadvantaged background, the starting point for the sentence imposed on the offender should have been significantly lower than the starting point for the co-offender. The appeal was dismissed having regard to the backdating of the commencement date of the offender’s sentence, the modest difference in the criminality of their offending, the substantially stronger subjective case of the co-offender and the very generous finding of special circumstances made in favour of the offender. No unifying principle was identified or could be drawn out of the reasoning in Yousif that would establish that the sentence in the present case was so far outside the range of sentences available that there must have been an error or that it was unreasonable or plainly unjust.

4. Hamed v R [2011] NSWCCA 219. In that case, the offender was sentenced to imprisonment for 8 years with a non-parole period of 5 years for one count of robbery in company. His appeal against his sentence on the ground of manifest excess was dismissed. The sentencing judge had found that the offending involved a fair amount of planning, was committed in company and while the offender was on parole. The objective seriousness was found to be “above the mid-range”. The applicant’s subjective circumstances were not considered in any detail. Special circumstances had been found based upon the offender’s continuing rehabilitation directed to addressing his drug problems and as well his psychological need for treatment and the fact that he would be required to be in protective custody or, at least, in circumstances of non-association whilst in custody. Once again, it is difficult, if not impossible, to discern any unifying principles from this judgment that supported the applicant’s third proposed ground of appeal.

5. R v Lomas [2004] NSWCCA 46. The offender in that case pleaded guilty to one offence of robbery in company and was sentenced to imprisonment for 7 years with a non-parole period of 5 years. In doing so, the sentencing judge took into account another offence of robbery in company committed approximately three and a half years prior. This Court rejected the contention that the sentence was manifestly excessive. James J said at [21]:

“In my opinion, the overall sentence of seven years imposed by his Honour was clearly not manifestly excessive. The principal offence of robbery in company on 16 April 2002 was much more objectively serious than the type of offence of armed robbery described by the Chief Justice in R v Henry, which the Chief Justice said should attract a term of imprisonment of four to five years. It was a serious circumstance of aggravation that the offence had been committed soon after the applicant had been released on parole under sentences for the same kind of offence. The sentencing judge would have been entitled to increase the sentence to some extent for the serious offence of robbery in company which was to be taken into account. The applicant’s subjective features were not, in my opinion, such as to attract any leniency.”

90. In the circumstances of the present case, it appears to me that the sentence imposed on the applicant was not unreasonable or plainly unjust in light of the relevant sentencing principles and considerations, the circumstances of the offending, the applicant’s subjective case and even having regard to the yardstick provided by the cases referred to above. While not at the lenient end of the range, the sentence in the present case was not outside the range of available sentences.

91. Furthermore, the applicant did not submit that the sentence imposed was at odds with the guideline judgment of R v Henry applicable for offending of this category, and which was explicitly referenced by the sentencing judge.

92. For these reasons, I do not accept that the applicant has made out his third proposed ground of appeal.

Orders

93. As the proposed grounds of appeal were arguable, the applicant should be granted leave to appeal. Nonetheless, for the reasons given above, none of the grounds of appeal was made out and, thus, the appeal should be dismissed.

94. Accordingly, the orders I propose are:

1. The applicant is granted leave to appeal.

2. The appeal is dismissed.

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Decision last updated: 23 April 2021