Nasrallah v R

[2021] NSWCCA 207

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

Nasrallah v R [2021] NSWCCA 207

Hearing dates:

14 July 2021

Date of orders:

01 September 2021

Decision date:

01 September 2021

Before:

Bell P at [1]
Price J at [30]
Hamill J at [56]

Decision:

(1) Grant leave to appeal.

(2) Appeal allowed.

(3) Vary the applicant’s sentence to commence on 12 December 2020 so that she will be eligible for release to parole on 12 April 2022 and the total sentence expires on 11 September 2023.

(4) Appeal otherwise dismissed.

Catchwords:

CRIMINAL LAW – sentencing – armed robbery – guideline judgment – twenty year old offender with no convictions – history of trauma and neglect – whether sentencing Judge erred in application of “Bugmy principles” – where the applicant was a victim of violence as a teenager – relevance to assessment of moral culpability – impacts of childhood sexual abuse – resort to drugs – error as to commencement date of sentence – sentence varied – appeal otherwise dismissed by majority

Legislation Cited:

Crimes Act 1900 (NSW), ss 97(1), 195

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 44, 47

Criminal Appeal Act1912 (NSW), s 6(3)

Criminal Procedure Act1986 (NSW), ss 44, 166

Law Enforcement (Powers and Responsibilities) Act2002 (NSW), s 17

Cases Cited:

BT v R [2019] NSWCCA 147

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

Clarke v R [2015] NSWCCA 232

DBW (a child) v Western Australia [2011] WASCA 206

Devaney v R [2012] NSWCCA 285 at [88]

Douglas v The Queen (1995) 56 FCR 465; [1995] FCA 411

DPP (Vic) v Hodgson [2019] VSCA 49

DPP (Vic) v Macarthur [2019] VSCA 71

DPP v Hermann [2021] VSCA

Dungay v R [2020] NSWCCA 209

Gibson v Regina [2019] NSWCCA 221

Hanna v R [2020] NSWCCA 125 at [86]-[88]

Hordern v R [2019] NSWCCA 138

Hoskins v R [2021] NSWCCA 169

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

Ingrey v R [2016] NSWCCA 31

IS v Regina [2017] NSWCCA 116

JL v R [2014] NSWCCA 130

Kennedy v The Queen [2010] NSWCCA 260

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

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

Newman v R [2021] NSWCCA 101

O’Sullivan v R [2019] NSWCCA 261

Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284

Park v R [2020] NSWCCA 90

Park v The Queen [2021] HCA Trans 75

Perkins v The Queen [2018] NSWCCA 62

R v AB (unreported, Court of Criminal Appeal (NSW), 7 July 1997)

R v Anthony George Reid (unreported, Court of Criminal Appeal (NSW), 24 July 1998)

R v AWF (2000) 2 VR 1; [2000] VSCA 172

R v BS-X [2021] ACTSC 160.

R v Cattell (2019) 280 A Crim R 502; [2019] NSWCCA 297

R v CDH [2002] NSWCCA 103

R v Dungay [2020] NSWCCA 209

R v Dunne [2003] VSCA 150

R v Fernando (1992) 76 A Crim R 58

R v Gavel [2014] NSWCCA 56

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

R v Irwin [2019] NSWCCA 133

R v Lattouf (unreported, Court of Criminal Appeal (NSW), 12 December 1996)

R v Millwood [2012] NSWCCA 2

R v MJB [2014] NSWCCA 195

R v O’Donoghue (1988) 34 A Crim R 397

R v Sargeant [1974] 60 Cr App R 74

R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309

R v Van Gelder [2003] SASC 98

Stanton v R [2021] NSWCCA 123

Talbot v The Queen (1992) 34 FCR 100; (1992) 59 A Crim R 383

Texts Cited:

Australian Institute of Family Studies, ‘The Long-term Effects of Child Sexual Abuse’ (2013) 11 CFCA Paper 23

E Nelson et al, ‘Association between Self-Reported Childhood Sexual Abuse and Adverse Psychosocial Outcomes: Results from a Twin Study’ (2002) 59 Archives of General Psychiatry 139

K Kendler et al, ‘Childhood Sexual Abuse and Adult Psychiatric and Substance Use Disorders in Women: An Epidemiological and Cotwin Control Analysis’ (2000) 57 Archives of General Psychiatry 953

M Cutajar et al, ‘Psychopathology in a Large Cohort of Sexually Abused Children Followed Up to 43 Years’ (2010) 34 Child Abuse & Neglect 813

Royal Commission into Institutional Responses to Child Sexual Abuse, Australian Centre for Child Protection, Impacts of Institutional Child Sexual Abuse on Victims/Survivors: A Rapid Review of Research Findings (December 2017) 11

Royal Commission into Institutional Responses to Child Sexual Abuse, Final Report (2017) Vol 3

S Dinwiddie et al, ‘Early Sexual Abuse and Lifetime Psychopathology: A Co-Twin-Control Study’ (2000) 30 Psychological Medicine 41

M Bagaric and G Wolf, “An Argument for Recognising Childhood Sexual Abuse and Physical Abuse as a Mitigating Factor in Sentencing” (2020) 49 Australian Bar Review 227

Category:

Principal judgment

Parties:

Fatma Nasrallah (Applicant)
Regina (Respondent)

Representation:

Counsel:
A Moutasallem (Applicant)
E Wilkins SC (Respondent)

Solicitors:
E Khoury (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s):

2020/65962

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

16 February 2020

Before:

Haesler SC DCJ

File Number(s):

2020/65962

HEADNOTE

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

Fatma Nasrallah (the applicant) was sentenced in relation to one count of armed robbery contrary to s 97(1) of the Crimes Act 1900 (NSW) and one count of damaging property contrary to s 195(1)(a) of the Crimes Act. The evidence established incidents of trauma in the applicant’s youth and there was evidence from a psychologist that she met the diagnostic criteria for post-traumatic stress disorder (“PTSD”). The psychologist said the childhood trauma and PTSD led to suicidal ideation, drug abuse and the offending. The applicant was sentenced by Haesler SC DCJ in the New South Wales District Court in Wollongong on 16 December 2020 to full time imprisonment for a period of two years and nine months, with a non-parole period of one year and four months and a concurrent fixed term of three-months’ imprisonment for the malicious damage to property charge.

The applicant sought leave to appeal against the sentence on four grounds. The issues on appeal were:

(1) Whether the sentencing Judge erred in failing to find “exceptional circumstances” warranting departure from the guideline judgment on armed robbery in Henry and in imposing a full-time gaol sentence (Ground 1).

(2) Whether the sentencing Judge erred in his application of the High Court’s decision in Bugmy v The Queen by failing to give full weight to the applicant’s deprived background (Ground 2).

(3) Whether the sentencing Judge erred in failing to consider the applicant’s submission concerning the undesirability of removing the applicant from her “current therapeutic environment” (Ground 3).

(4) The failure of the sentencing Judge to backdate the sentence to take into account a period of pre-sentence custody not known to the sentencing Judge (Ground 4).

Held, granting leave to appeal and allowing the appeal only in relation to Ground 4 (Bell P and Price J; Hamill J dissenting in relation to Ground 2):

As to issue 1:

(i) There was no independent error established in the failure to find exceptional circumstances justifying departure from the guideline judgment in Henry, in circumstances where the application of the guideline was not contested and there was no challenge to the guideline judgment: [2] (Bell P); [30] (Price J); [77] (Hamill J).

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

Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284 at [105] and Robertson v R [2017] NSWCCA 205 at [89], referred to.

As to issue 2, Bell P and Price J:

(ii) The sentencing Judge took into account the applicant’s personal circumstances and did not fall into legal error in his application of the High Court’s decision in Bugmy v The Queen and his approach was open on the evidence: [6], [19], [23] (Bell P).

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

(iii) There may be a conceptual difference between the type of upbringing addressed in Bugmy, that is “an environment of childhood deprivation in which abuse of alcohol and alcohol-fuelled violence are endemic” and an environment in which a child has been subject to a traumatic event such as an actual or attempted sexual assault or other physical or mental abuse: [11] (Bell P). There may also be a distinction between a history of sustained neglect and the impact of a single traumatic event: [11], [14], [21] (Bell P). The evidence of the applicant’s disadvantage did not “disclose an environment of systemic or endemic abuse, alcoholism or sexual abuse by the applicant’s parents or any particular social disadvantage or deprivation”, distinguishing it from other cases in which Bugmy has been applied: [11], [14] (Bell P). Even if the sentencing Judge, in finding the applicant’s history did not constitute “profound deprivation”, was thereby holding that Bugmy principles were not engaged, her personal circumstances were taken into account and the sentencing discretion did not miscarry: [20] (Bell P).

R v Irwin [2019] NSWCCA 133 at [2], Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37, applied.

DPP (Vic) v Hodgson [2019] VSCA 49 at [76], Perkins v The Queen [2018] NSWCCA 62 at [80]-[81], considered.

(iv) It was neither necessary nor desirable to consider the precise boundaries of the Bugmy principles in the present appeal: [21] (Bell P); [53] (Price J).

(v) The sentencing judge's decision that the applicant's background was not a history of profound deprivation was a finding of fact. The Court's power to review factual findings either on a constrained approach or House v The King approach discussed: [31]-[38] (Price J). There was no argument on appeal as to the correct approach to apply. The sentencing judge did not act upon wrong principle or fail to take into account a material consideration in finding that the Bugmy principles did not apply: [41]-[42] (Price J). Whilst the sentencing Judge's remarks that the applicant's background "pales into insignificance" were "infelicitous", these remarks did not demonstrate that the sentencing Judge acted upon "extraneous or irrelevant matters": [49] (Price J). The material before the sentencing Judge did not mandate a finding that the Bugmy principles were engaged. It was not a binary question. On either the constrained approach or the House approach, the sentencing Judge did not err: [50]-[52] (Price J).

Newman v R [2021] NSWCCA 101, applied.

Hordern v R [2019] NSWCCA 138 and Gibson v Regina [2019] NSWCCA 221 at [4]-[5], considered.

As to issue 2, Hamill J (dissenting):

(vi) There are limits to the utility of categorising offences and an offender’s personal circumstances by reference to previous authorities as it has the capacity to distract from the true task of sentencing and the requirement for individualised justice: [56], [86].

R v Lattouf (unreported, Court of Criminal Appeal (NSW), 12 December, 1996), applied.

Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37, R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111, considered.

(vii) The sentencing Judge erred in failing properly to take into account the history of trauma and neglect in an assessment of the applicant’s moral culpability: [107]. There is an analogy between the type of background discussed in Bugmy and the situation of an offender whose life has been affected by trauma and neglect: [91], [111].

Bugmy v The Queen (2013) 249 CLR 571 at [43]; [2013] HCA 37, Dungay v R [2020] NSWCCA 209 at [153], R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 at [337]-[344] and [270]; [273](c)(ii)-(iii) applied.

(viii) There is no magic in the word “profound” and an offender is not required to establish a history of “profound deprivation” before the relevant principles are engaged: [86], [97]. The focus on whether the deprivation was profound “distracted from the question of the extent to which the applicant’s traumatic teenage years had the capacity to, and did, reduce her moral culpability”: [86], [88], [97], [112].

Hoskins v R [2021] NSWCCA 169 at [57], applied.

R v Nabalarua; R v Quinlan [2017] NSWDC 328 at [146], R v BS-X [2021] ACTSC 160 and DPP v Hermann [2021] VSCA 160, considered.

(ix) A sentencing Judge’s determination of whether an offender’s background amounts to “profound deprivation” is not a finding of fact by which this Court is bound; it is a question of “evaluation, quantification or categorisation”: [114].

Hordern v R [2019] NSWCCA 138 at [20], applied.

Newman v R [2021] NSWCCA 101 at [62], not followed.

As to issue 3:

(x) The proposition underlying this ground cannot be accepted. The sentencing Judge referred to the applicant’s ongoing treatment and expressly noted the importance of rehabilitation in the applicant’s case: [2] (Bell P); [30] (Price J); [115]–[119] (Hamill J).

As to issue 4:

(xi) This ground has been made out, and the sentence should be backdated to take into account the period of pre-sentence custody: [28] (Bell P); [30] (Price J); [114]-[115] (Hamill J). Success on Ground 4 alone does not require the sentencing discretion to be exercised afresh: [28] (Bell P); [54] (Price J); Hamill J not deciding.

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

Judgment

1. BELL P: I have had the benefit of reading the reasons for judgment of Hamill J and gratefully adopt his Honour’s careful summary of the proceedings before the sentencing judge and of the sentencing judgment. My reasons assume a familiarity with that summary.

2. I agree with Hamill J’s reasoning in respect of Grounds 1, 3 and 4.

3. With great respect, I differ from his Honour in relation to Ground 2 which was expressed as follows:

“The sentencing Judge erred in his application of the principles enunciated in Bugmy v the Queen (2013) 249 CLR 571 …

(a)   by failing to find that the evidence of the applicant’s upbringing engaged the principles enunciated in Bugmy;

(b)   by taking into account an irrelevant consideration, namely the background of other offenders unrelated to the proceedings; and

(c)   by failing to give ‘full weight’ to the applicant’s deprived background.” (emphasis in original)

4. As his Honour notes, counsel for the applicant conceded before the sentencing judge that “it may not be open to your Honour to find a level of profound deprivation” but went on to press the submission that the traumatic events of the applicant’s childhood and the impact those events had on the applicant’s life was such that her moral culpability was diminished. ^[1]

   1. Below at [73].

5. This submission was made having regard to the High Court’s decision in Bugmy v The Queen (Bugmy) ^[2] and its reference to “profound deprivation” picked up the language of the plurality in that case. ^[3]

   2. (2013) 249 CLR 571; [2013] HCA 37.

   3. Bugmy at [28], [42], [44] and [46]; see also Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 at [133].

6. For reasons explained below, I consider that the sentencing judge accepted this submission albeit that his Honour did not regard the circumstances of childhood deprivation relied upon in the instant case as being as “profound” as in other cases in which Bugmy has been invoked or as necessarily attracting the Bugmy principles per se. There is no doubt, however, that the sentencing judge had regard to the matters relied upon as mitigatory factors in the overall exercise of his sentencing discretion.

7. The submission made on behalf of the applicant as summarised in [4] above was consistent with the principles in Bugmy as recently explained by Brereton JA in Hoskins v R (Hoskins), ^[4] and which Hamill J has fully set out in his reasons. ^[5] In particular, the submission was consistent with Brereton JA’s observation in Hoskins that “[t]here is no magic in the word ‘profound’, and it is not necessary to characterise an offender’s childhood as one of ‘profound deprivation’ before the principle is engaged.”

   4. [2021] NSWCCA 169 at [57].

   5. Below at [86].

8. Assuming, without deciding, ^[6] the correctness of Brereton JA’s observations in Hoskins as to the Bugmy plurality’s use of the word “profound” in conjunction with deprivation, the use of that word was to emphasise and describe a very high degree of deprivation. There is no doubt some correlation between the nature, degree and extent of an offender’s deprivation as a child and any reduction in the moral culpability that would otherwise attach to the offender’s conduct. As the plurality said in Bugmy, “[a]n Aboriginal offender's deprived background may mitigate the sentence that would otherwise be appropriate for the offence in the same way that the deprived background of a non-Aboriginal offender may mitigate that offender's sentence.” ^[7] Their Honours were there concerned with the significance of “an offender’s background of deprivation in mitigation of sentence”. ^[8] Plainly enough, the nature and degree of an offender’s background of deprivation will vary with the circumstances of each case and is a matter that must be established by evidence. ^[9]

   6. Because the matter was not the subject of any submissions and, as Hamill J notes in his reasons, Hoskins was handed down on the same day as the hearing of this case. The parties, therefore, did not have an opportunity to address what Brereton JA had said about Bugmy in Hoskins.

   7. Bugmy at [37].

   8. Bugmy at [41].

   9. Bugmy at [41].

9. On the other hand, as Bugmy also makes clear, an environmental factor that may lead to a substantial reduction in moral culpability for a violent offence may correspondingly increase the importance of protecting the community from the offender so that, in the sentencing calculus, the existence of particular profound childhood deprivation may not lead to an overall reduction in sentence. ^[10] This does not mean that “full weight” has not been given to Bugmy considerations.

   10. Bugmy at [44]. See also DPP (Vic) v Hodgson [2019] VSCA 49 at [76] (Hodgson); Perkins v The Queen [2018] NSWCCA 62 at [80]–[81].

10. When the plurality in Bugmy spoke of “deprivation” ^[11] and “profound childhood deprivation”, ^[12] their Honours were referring to the deprivation of an environment in which a child was not exposed in a sustained and endemic way to “abuse of alcohol and alcohol-fuelled violence”, ^[13] noting that such an environment will often be the product of extreme social disadvantage in terms of the absence of education, employment and opportunities. ^[14]

    11. At [37], [41].

    12. At [44], [46].

    13. At [40]; see also at [44].

    14. See R v Fernando (1992) 76 A Crim R 58 at 62–63, as quoted by the plurality in Bugmy at [38].

11. An environment of “childhood deprivation” in which “abuse of alcohol and alcohol-fuelled violence” are endemic (the circumstances which were addressed in Bugmy) may be conceptually different from an environment in which a child has been subject to a traumatic event such as an actual or attempted sexual assault or other physical or psychological abuse. There may also be a significant conceptual distinction between circumstances of sustained sexual or other abuse of a child and a single instance of sexual abuse or attempted sexual abuse. ^[15] Whether or not a single instance of sexual abuse or some other traumatic event strictly falls within the scope of the principles enunciated in Bugmy may be debated for, as has been observed, “while courts have applied the Bugmy principle in cases where offenders have had a wide range of adverse childhood experiences, in each instance, the circumstances of the offender’s deprivation occurred over a lengthy period of time and generally within the offender’s family”. ^[16] As Simpson AJA said in Irwin, the “Bugmy principles … are concerned with the impact on sentencing of a history of disadvantage and deprivation” (emphasis added). ^[17] The boundaries of Bugmy have not been clearly or definitively delimited. ^[18]

    15. Examples of cases where Bugmy has been applied to circumstances of sexual abuse in conjunction with an environment of alcohol abuse include DPP (Vic) v Macarthur [2019] VSCA 71 at [33] (Macarthur); Hodgson; and R v Irwin [2019] NSWCCA 133 (Irwin).

    16. See M Bagaric and G Wolf, “An Argument for Recognising Childhood Sexual Abuse and Physical Abuse as a Mitigating Factor in Sentencing” (2020) 49 Australian Bar Review 227 at 235 (Bagaric and Wolf). This article provides a useful survey of decisions applying Bugmy, at 235–236.

    17. [2019] NSWCCA 133 at [2] (emphasis added).

    18. Bagaric and Wolf correctly observe at 234 that the High Court in Bugmy “left considerable room for other superior courts to interpret and speculate about the scope of this mitigatory principle and its relative importance in the sentencing calculus.”

4. That is not to say, however, that the consequences of sexual assault, including a single sexual assault, on a child may not produce profound and highly detrimental impacts on the child so assaulted. ^[19] Nor is it to say that such impacts may not be relevant, by way of mitigation, in the sentencing of a child so abused who subsequently offends, as was held by the Victorian Court of Appeal in R v AWF,^[20] in which Chernov JA said:

“the fact that the appellant was abused as a child was clearly relevant in this case to the appropriate sentencing disposition. That fact bears upon the offender's personal circumstances and thus, goes to the issues of moral culpability and rehabilitation. Obviously, the childhood experience does not excuse the offending conduct. Moreover, what weight is to be given to it is another matter. But that such a factor is relevant to sentencing consideration is, to my mind, clear.” ^[21]

In the same case, Ormiston JA, having made reference to a number of New South Wales authorities in which an offender’s sexual abuse as a child was seen as relevant and taken into account in mitigation of moral culpability, ^[22] observed that:

“One should be careful, however, not to assume that abuse of that kind will automatically lead to some reduction of sentence. Otherwise there might be a plethora of unfortunate experiences put forward as the basis for similar reductions. In general it is not so much the cause that is important: rather it is the consequences which flow from those earlier events. If there is evidence to link them to a condition or state of mind which is a proper basis for viewing the criminality of an offender as less serious and for saying that specific or general deterrence (or both) should have a smaller part to play in the overall sentencing process, then that condition will have a greater relevance and significance.” ^[23]

19. Ibid. See also R v MJB [2014] NSWCCA 195 at [49]; R v Gavel [2014] NSWCCA 56; and Stanton v R [2021] NSWCCA 123 at [67], as quoted by Hamill J at [100]–[102] below.

20. R v AWF (2000) 2 VR 1; [2000] VSCA 172 (AWF).

21. At [34].

22. The cases referred to were R v AB (unreported, Court of Criminal Appeal (NSW), 7 July 1997) (reversed on other grounds in AB v The Queen (1999) 198 CLR 111; [1999] HCA 46); and R v Anthony George Reid (unreported, Court of Criminal Appeal (NSW), 24 July 1998).

23. AWF at [6]. See also R v CDH [2002] NSWCCA 103 at [16]; and R v Dunne [2003] VSCA 150.

13. AWF, a pre-Bugmy decision, was referred to by McCallum J (as her Honour then was) in JL v R. ^[24] There, the sentencing judge, whose decision was upheld, did not accept that the offender’s sexual abuse as a child lessened his moral culpability other than to a minor degree associated with the link between that abuse and the offender’s abuse of alcohol.

    24. [2014] NSWCCA 130 at [38]–[39]. See also R v Van Gelder [2003] SASC 98; and DBW (a child) v Western Australia [2011] WASCA 206.

14. In the present case, the evidence relied upon to attract the operation of the Bugmy principles is set out in the psychologist Mr Albassit’s report, extracted in extensive detail in Hamill J’s reasons. ^[25] That evidence discloses an attempted sexual assault by the applicant’s uncle one month prior to her 14^th birthday and a kidnapping by a person she had met though an internet “chat room”, accompanied by depression, trauma, rebellion and a growing association with older people doing “bad things”, leading to her being sent by her mother to Lebanon to get away from her spiralling lifestyle in Australia. This in turn reinforced feelings of neglect and disengagement. The evidence does not, however, disclose an environment of systemic or endemic sexual, physical or psychological abuse, alcoholism and substance abuse or of any particular social disadvantage or deprivation. In this sense, the applicant’s childhood history, although sad and no doubt traumatic for her, is far removed from cases in which Bugmy has been applied where there has been a history of child sexual or non-physical abuse ^[26] or other environmental dysfunction.

    25. See at [67]–[69] below.

    26. See at fn 15 above.

15. Thus, for example, in Macarthur, the respondent had been raised in a high-conflict environment with his parents erratically present, frequently arguing and abusing alcohol. When his parents eventually separated, his “oppositional behaviour” increased and he became involved in minor incidents of anti-social conduct. It was during that time, as he was entering puberty, that the respondent was sexually abused. ^[27]

    27. Macarthur at [33].

16. In Irwin, the offender’s personal background was described as follows:

“The respondent grew up in a dysfunctional environment with both parents abusing alcohol and with his father being violent and abusive towards his mother, requiring regular intervention by police. He suffered almost daily exposure to domestic violence and abuse between his parents. He formed a hatred of his father. He reported suffering physical abuse from his father, so much so he could not attend school due to the severity of his injuries. The injuries caused him shame and fear that others knowing about the abuse would result in ‘a hiding’ … the respondent reported to psychiatrist, Dr Furst, that he had been sexually assaulted between the ages of 12-13 years on at least two occasions by an older male who was a family friend. He also reported hearing voices from the age of 18 years, which would ‘come and go’. He had never been treated with antidepressant medication or received formal counselling in relation to sexual abuse victimisation.

His parents separated when he was 11-12 years of age and the respondent was raised by his mother over the following years. He described his mother as a ‘drunk’ and when intoxicated she was abusive towards him.” ^[28]

28. Irwin at [34]–[37].

17. The sentencing judge in the present case drew a contrast between the applicant’s circumstances and those referred to in IS v Regina, where the applicant was the eighth of his parents’ nine children, his upbringing was marked by parental criminal activity, substance abuse, severe and chronic neglect and familial violence within the home and he was itinerant, in and out of care, from the age of seven. ^[29]

    29. [2017] NSWCCA 116 at [26]–[35].

18. Hamill J has accepted the applicant’s submission that the sentencing judge erred by failing to find that the “Bugmy principles” were engaged and in failing to give “full weight” to the applicant’s deprived and traumatic background. His Honour expresses the view that “[t]his error appears to have arisen from placing undue emphasis on the word ‘profound’ and in treating the question of whether there was ‘profound deprivation’ as a kind of threshold test.” ^[30]

    30. Below at [97].

19. I respectfully disagree with this assessment. The sentencing judge simply made the point in the course of his remarks on sentence that the applicant’s case, although sad and tragic, did not disclose a “history of profound deprivation” (emphasis added). ^[31] That conclusion was more than open to his Honour although it was not to devalue “the impact of the particular traumatic events” detailed in Mr Albassit’s report “and the destructive adolescence of this offender”, as the sentencing judge observed. ^[32]

    31. Remarks on sentence at 8 (ROS).

    32. ROS at 8.

20. Even if the sentencing judge, by declining to characterise the applicant’s adolescence as one of “profound deprivation”, was thereby holding that the Bugmy principles were not engaged, for the reasons explained below, I do not consider that his sentencing discretion miscarried or that proper account was not given to the matters relied on in aid of the Bugmy submission.

21. It is neither necessary nor desirable in the present case (because it was not the subject of full argument) to consider the precise boundaries of the Bugmy principles including the extent to which the impact of traumatic events external to and not apparently associated with the offender’s upbringing and immediate or extended family environment (such as the applicant’s kidnapping by someone she met in a chat room) and the occurrence of a single traumatic event (in the present case, the attempted sexual assault by her uncle) engage those principles.

22. The reason why it is not necessary to do so is because the sentencing judge plainly took the traumatic events of the applicant’s adolescence into consideration by way of mitigation in reaching his decision as to the appropriate sentence, in the exercise of his sentencing discretion. ^[33] His Honour described the evidence in relation to the applicant’s background as “sad and tragic” before going on to say “but it is all too common that factors such as this lead to the uptake of illicit drugs among young people.” ^[34] Having noted that the Henry guideline judgment ^[35] meant that he could not take into account as a mitigating factor that the crime was committed while the applicant was affected by drugs, his Honour did acknowledge that “the fact of addiction, how it came about and what is done about it, are relevant, particularly in explaining how a previously law-abiding person did what she did” (emphasis added). ^[36]

    33. Cf, Ingrey v R [2016] NSWCCA 31 at [32].

    34. ROS at 6.

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

    36. ROS at 6.

23. Although the sentencing judge did not regard the applicant’s adolescence as revealing a “history of profound deprivation”, he neither ignored nor diminished its significance, despite what may arguably be regarded as the infelicity of language to which Hamill J refers. ^[37] So much may be seen from the sentencing judge’s statements that “I do not devalue the impact of the particular traumatic events detailed in [Mr Albassit’s] report and the destructive adolescence of this offender”; that “a background is always relevant in matters such as this”; and that “I have sought to give proper effect to all of the mitigatory factors”. This last statement was made in the context of the sentencing judge indicating that the sentence he was imposing was “the absolute minimum that law and justice demand”. ^[38]

    37. Below at [103].

    38. ROS at 8.

24. In R v Dungay, N Adams J, with whom Davies J and I agreed, observed 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.” ^[39]

39. [2020] NSWCCA 209 at [153].

25. Given the synthetic nature of the sentencing process, and the undoubted fact that the sentencing judge did take into account the factual matters in relation to the applicant’s background and adolescence which were relied upon in support of the Bugmy submission, I find no error in the sentencing exercise and see no basis for interfering with it.

26. I am reinforced in that view because of the important point Hamill J makes in his reasons, namely that:

“Sentencing is an instinctive and intuitive process and there is no single, correct outcome. Intermediate courts of appeal pay real deference to the role of the judge at first instance and sentencing judges are afforded a deal of flexibility in determining the appropriate punishment.” ^[40]

40. Below at [82].

27. It follows that, while I would grant leave to appeal, I would reject Ground 2 of the appeal.

28. Although the applicant has failed on Grounds 1–3, the acknowledgement by the Crown in the hearing of the application for leave to appeal that the commencement date of the sentence did not take into account four days of pre-sentence custody to which the sentencing judge’s attention was not directed means that Ground 4 should be upheld and orders made to reflect that matter. This is not, in my opinion, an error of a kind requiring the sentencing discretion to be exercised afresh in accordance with Kentwell v The Queen ^[41] .

    41. (2014) 252 CLR 601; [2014] HCA 37.

29. The orders I would propose are that:

1. Grant leave to appeal.

2. Appeal allowed.

3. Vary the applicant’s sentence to commence on 12 December 2020 so that she will be eligible for release to parole on 12 April 2022 and the total sentence expires on 11 September 2023.

4. Appeal otherwise dismissed.

30. PRICE J: I have had the benefit of reading the judgment of Hamill J. The relevant facts and issues in the appeal are comprehensively covered in his Honour’s judgment. I agree that Grounds 1 and 3 should be rejected and Ground 4 should be upheld. However, I am unable to concur with his Honour’s view that Ground 2 should be upheld.

31. When the sentencing judge decided that the applicant’s background as set out in Mr Albassit’s report was “not a history of profound deprivation”, ^[42] his Honour’s decision was a finding of fact.

    42. ROS p 8.

32. In Newman v R,^[43] N Adams J (with whom Hidden AJ agreed) said at [62]:

“A finding as to whether or not an offender had a childhood of “profound deprivation” is a question of fact. This Court has long taken the approach that it will not review findings of fact made by the sentencing judge unless they were “not open” on the facts or unreasonable.”

43. [2021] NSWCCA 101.

33. This approach which limits the Court’s power to review factual findings made by sentencing judges to findings which were “not open” was founded on the decision of Hunt J in R v O’Donoghue ^[44] and has attracted the label of being “constrained”.

    44. (1988) 34 A Crim R 397.

34. N Adams J went on at [63]-[65] to consider, as has been questioned in Clarke v R ^[45] and Hordern v R (‘Hordern’),^[46] whether requiring applicants to establish a finding was “not open” to a sentencing judge (‘constrained approach’) goes beyond the error identified in House v The King ^[47] of “mistaking the facts”. Her Honour concluded on the facts of the appeal at [66]:

“…whether the appropriate test is mistaking the facts or whether it is that the factual finding was “not open” to the sentencing judge the result is the same”.

45. [2015] NSWCCA 232.

46. [2019] NSWCCA 138.

47. (1936) 55 CLR 499; [1936] HCA 40.

35. In Hordern, Basten JA (with whom Hamill J agreed) was “comfortably satisfied that the constrained approach is clearly wrong and should not be followed”. ^[48]

    48. [2019] NSWCCA 138 at [20].

36. Most recently, in Hoskins v R (‘Hoskins’),^[49] Beech-Jones J stated at [79]:

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

49. [2021] NSWCCA 169.

37. However, Beech-Jones J did not discuss whether the constrained approach in sentencing appeals was not to be followed.

38. In Gibson v Regina,^[50] Bathurst CJ said that it was unnecessary to consider this issue particularly as the point had not been argued on appeal. However, the Chief Justice commented at [4]-[5]:

“[4] In Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 (‘Kentwell’) the plurality pointed out at [35] that notwithstanding the apparent width of s 6(3) of the Criminal Appeal Act 1912 (NSW), “it was settled at an early stage that the appellate court’s authority to intervene is dependent upon demonstration of error”. The plurality went on to make the following remarks at [35]:

“The significance to the function of the appellate court of the distinction between specific error, of any of the kinds identified in House v R, and the conclusion of manifest excess or inadequacy is explained by Hayne J in AB v R. In the case of specific error, the appellate court’s power to intervene is enlivened and it becomes its duty to re-sentence, unless in the separate and independent exercise of its discretion it concludes that no different sentence should be passed. By contrast, absent specific error, the appellate court may only intervene if it concludes that the sentence falls outside the permissible range of sentences for the offender and the offence.”

(see also, Lacey v The Queen (2011) 242 CLR 573; [2011] HCA 10 at [10]-[11].)

[5] In the present case, Grounds 1 and 2 of the Grounds of Appeal relate to assessments made by the sentencing judge in respect of which there is not necessarily a binary outcome. If the decision in Hordern results in the conclusion that the Court is entitled to, if not bound to, substitute its own assessment of such matters for the conclusion reached by the sentencing judge, even if the latter conclusion was open, it would seem to me that approach is contrary to what was said in Kentwell and the authorities cited in the passage from that judgment to which I have referred.”

50. [2019] NSWCCA 221.

39. In the present appeal, the issue was not argued. The Crown’s submission, citing N Adams J in Newman at [62], was that a finding as to whether or not an applicant had a childhood of “profound deprivation” was a question of fact and would not attract the intervention of this Court unless the finding was “not open” on the facts or unreasonable. Hence, the Crown’s argument was founded on the “constrained approach” in sentencing appeals.

40. The applicant’s argument in respect of Ground 2(a) was that the sentencing judge erred in principle by finding that the Bugmy v The Queen (‘Bugmy’)^[51] principles did not apply to circumstances such as the applicant’s; that is, where an offender grew up in an environment of neglect and in her formative years suffered profound traumatic experiences which led her to use illicit substances. The applicant further argued that the finding that Bugmy principles were not engaged was plainly wrong and against the weight of the evidence. The applicant submitted that it was a finding that was not open to the sentencing judge. As to Ground 2(b), the applicant contended that the sentencing judge took into account an irrelevant consideration when attempting to compare her background with that of other offenders dealt with by his Honour including three offenders he had dealt with on the day of sentence. Hence, the applicant’s arguments were a mixture of House error and the “constrained approach”.

    51. (2013) 249 CLR 571; [2013] HCA 37.

41. It is clear that the sentencing judge gave careful consideration to Mr Albassit’s report. During the proceeding on sentence, the following exchange took place between his Honour and Mr Barrack, the applicant’s then counsel:

“[HIS HONOUR:] But I had trouble finding profound deprivation and I have trouble with the conclusion expressed by Mr Albassit that there is direct and significant correlation between her offending behaviour and her chronic psychiatric, psychological condition, as opposed to the background and psychological conditions being conducive to the uptake of illicit drugs, which drugs do, as a matter of common understanding and expert opinion, influence and impair a person’s judgment. So they’re the bits that I’d like you to address, as long as anything else you want to say.

BARRACK: I’ll begin with the issue of moral culpability. In my submission, as your Honour pointed out, it may not be open to your Honour to find a level of profound deprivation, but obviously the authorities speak about deprivation which doesn’t necessarily arise from alcohol and violence during the childhood. In this case, it really is based in neglect, abandonment and those two specific incidents of significant trauma in her early teens, and the early teens still being a time during which a person’s psychological make-up is being developed on its way towards adolescence and adulthood. I’ll spell out my understanding. I know your Honour already has read the report, but my understanding of the finding or the opinion of Mr Albassit is that there was originally this background of neglect and abandonment; that then was succeeded by these incidents of trauma, which then - the combination of those factors - resulted in feelings of worthlessness and low self-esteem.

And it was in that context that the offender began self-medicating, initially through cannabis and then through stronger drugs, and then ultimately through prescription drugs, specifically Xanax and Valium. That in turn led to essentially an addiction and, as your Honour has read, that she was affected by drugs at the time of the offending, but the drug - the ongoing substance use and Mr Albassit said that - he opined that she’d been suffering from a substance-use disorder for a period--

HIS HONOUR: Up to four years.

BARRACK: --of about four years led to the self-destructive and reckless behaviour.

The reason that I would say that it’s open to your Honour to find that there is a direct correlation - whether or not your Honour then goes on to find that there’s a causal connection, but certainly a correlation and I’d submit a direct correlation, is because this behaviour was so aberrant when you look at this young person’s life. The drug use was not unusual, but the violence is a complete aberration and is explained in a significant way, due to the self-medication leading to self-destructive and reckless behaviour. Those are my submissions in relation to two of the aspects that your Honour’s raised.” ^[52]

52. 16 December 2020, Tcpt, p 6(4-47).

42. Mr Barrack advanced his argument of profound deprivation on “neglect, abandonment and those two specific incidents of significant trauma in her early teens”. Those traumatic incidents were the applicant’s report to Mr Albassit of the attempted sexual assault by her uncle approximately a month before her 14^th birthday and her kidnapping and physical assault by a man when she was 14. The applicant could not recall whether she had been assaulted during the hours she had been detained as her memory of the event, Mr Albassit reported, was “seemingly blocked out”.

43. Mr Barrack further submitted that the sentencing judge should find that there was a “direct correlation” between the profound deprivation and the commission of the offence. This submission was founded on Mr Albassit’s opinion that “there [was] a direct and significant correlation between [the applicant’s] offending behaviour and her ongoing chronic psychiatric/psychological conditions”. ^[53]

    53. Albassit report p 5.

44. Although the focus of Mr Barrack’s argument was on the traumatic events which had occurred when the applicant was 14, the applicant had been sent to Lebanon by her mother when she was 15 to get her away from her Australian lifestyle. Mr Albassit reported that the applicant began using illicit substances at the age of 18. It was his opinion that the applicant had been “exhibiting symptomatology of Post-Traumatic Stress Disorder for approximately seven years” and “symptomatology of Substance Abuse Dependence for approximately four years”. ^[54]

    54. Albassit report p 5.

45. In his ex tempore sentencing remarks which immediately followed oral submissions, the sentencing judge did not accept in the passage quoted at [84] below^[55] that there was a direct correlation between the applicant’s offending and her ongoing chronic psychological conditions. His Honour considered that Mr Albassit’s opinion went to explain the applicant’s use and abuse of illicit drugs. His Honour described the applicant as not being “in a position to think about the consequences to herself, let alone the consequences to others and principles of general deterrence did not prevent this crime occurring.” ^[56] The considerable efforts that the applicant had taken to put that part of her life behind her, the origin and extent of her drug problems, the sentencing judge said, assisted him to assess her prospects for the future.

    55. See [84] of Hamill J’s judgment.

    56. ROS p 6.

46. His Honour went on to decide that the applicant’s background was not a history of profound deprivation which would attract the principles in Bugmy. However, the applicant’s background was not disregarded. His Honour said:

“I do not devalue the impact of the particular traumatic events detailed in that report and the destructive adolescence of [the applicant], her rebellion and drug use and rationale for drug use and associating with negative peers are set out in the report”. ^[57]

57. ROS p 8.

47. In accordance with the arguments advanced in this Court by the parties, the first question is whether the sentencing judge erred in principle by finding that the Bugmy principles did not apply in the applicant’s circumstances.

48. In my view, there is nothing that was said by his Honour, a very experienced sentencing judge, which suggests that he did not understand the pervasive effects that sexual abuse might have on a 14 year old girl. District Court judges are frequently confronted with the task of sentencing offenders who have sexually abused young persons and the harm done to victims is an important factor in the assessment of the objective gravity of the crime. Furthermore, what was said by his Honour could not be taken as excluding young victims of sexual abuse from the application of the principles enunciated in Bugmy. I do not find that the sentencing judge acted upon wrong principle or he failed to take into account a material consideration.

49. I agree with Hamill J that his Honour’s remarks that the “[applicant’s] troubled lifestyle pales into insignificance to the sort of chronic profound deprivation often seen in this Court and frankly seen in three other matters that I have disposed of today” were “infelicitous”. ^[58] However, I am not persuaded that these remarks demonstrate that his Honour was acting upon “extraneous or irrelevant matters”. The detailed attention the sentencing judge gave to all of the material relevant to the applicant’s subjective case suggests otherwise. By these ex tempore remarks, his Honour was endeavouring to place emphasis on his factual finding that Mr Albassit’s report was “not a history of profound deprivation”.

    58. See [103] of Hamill J’s judgment.

50. The material before the sentencing judge did not mandate a finding that the Bugmy principles were engaged. It was not a binary question. It would have been open to the judge to make such a finding. As in many aspects of the difficult task faced by sentencing judges, reasonable minds might differ.

51. His Honour clearly took into account all of the applicant’s subjective case in reaching the sentence that was imposed.

52. I am satisfied that on either the constrained approach or the House approach, his Honour did not err.

53. Since writing this judgment, I have had the advantage of reading Bell P’s judgment. I particularly agree with Bell P’s observations at [8]-[13] above and agree that it is neither necessary nor desirable in the present appeal to consider the precise boundaries of the Bugmy principles.

54. I agree that the error in Ground 4 does not require the sentencing discretion to be exercised afresh.

55. Accordingly, I agree with the orders proposed by Bell P.

56. HAMILL J: In undertaking the difficult task of sentencing offenders or appearing on either side in sentencing proceedings, it is often convenient, and always tempting, to attempt to categorise or pigeon-hole both the type of case and the individual offender. The present appeal provides an example: it is a “Henry case” (because of the nature of the offence and certain personal characteristics of the applicant); ^[59] and the appeal largely centred around the question of whether it was a “Bugmy case” (because of the applicant’s traumatic and dysfunctional childhood). ^[60] Such categorisation is understandable and sometimes helpful, but it must not obscure the true task in sentencing which is to balance the competing objectives of punishment to arrive at a just outcome reflecting the gravity of the crime, its impact on its victims and the individual circumstances of the offender. As Mahoney ACJ put it in R v Lattouf, in a statement which resonates in the applicant’s case, “if justice is not individual, it is nothing”. ^[61]

    59. R v Henry and Others (1999) 46 NSWLR 346; [1999] NSWCCA 111.

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

    61. R v Lattouf (unreported, Court of Criminal Appeal (NSW), 12 December 1996).

57. The applicant committed a very serious crime of armed robbery in company. The offence was out of character and committed when she was 20 years of age and addicted to drugs. The evidence established that her drug addiction and involvement in serious criminal conduct resulted from childhood trauma that manifested in symptoms of post-traumatic stress disorder (PTSD). In sentencing her in the District Court in Wollongong, Judge Haesler SC held that Ms Nasrallah’s case was not sufficiently “exceptional” to avoid a sentence of full-time imprisonment in accordance with this Court’s guideline judgment on armed robbery. ^[62] His Honour also held that the applicant’s childhood “deprivation” was not adequately “profound” to attract the principles discussed by the High Court in Bugmy v The Queen. ^[63] In the result, the applicant was sentenced to full-time imprisonment for a period of two years and nine months with a non-parole period of one year and four months for the armed robbery offence contrary to s 97(1) of the Crimes Act 1900 (NSW). There was a concurrent fixed term of three-months imprisonment for a malicious damage charge contrary to s 195(1)(a) of the Crimes Act, which was committed in the course of the robbery. The non-parole period is due to expire on 16 April 2022.

    62. R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111; Remarks on sentence, 16/12/20 (ROS), p 3.

    63. (2013) 249 CLR 571; [2013] HCA 37; ROS, p 6.

58. The applicant seeks leave to appeal against the sentences imposed on her. She submitted that the sentencing Judge fell into legal error in his response to the evidence of her personal circumstances. In particular, the applicant argued that the finding that there were no exceptional circumstances was “not open” to the sentencing Court and that the sentencing Judge erred in his application of the principles enunciated in Bugmy v The Queen. The respondent contended to the contrary, although fairly raised the fact that the commencement date of the sentence did not take into account four days of pre-sentence custody (which was not brought to the attention of the sentencing Judge). Certain aspects of the applicant’s submissions should be accepted. A different, less severe, sentence is warranted and ought to have been imposed. ^[64] Error having been established; it is necessary to exercise the sentencing discretion afresh. ^[65] In the circumstances as they stand at this stage, and applying a 25% discount for the applicant’s early plea of guilty, I would impose a sentence of 18 months’ imprisonment with a non-parole period of nine months commencing on 12 December 2020. The applicant should be released to parole on 11 September 2021.

    64. Criminal Appeal Act 1912 (NSW), s 6(3).

    65. Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42].

59. These are my reasons for those conclusions.

The facts

The offences

60. The facts of the offences were not in dispute and were outlined in a statement of agreed facts tendered on sentence. The robbery was recorded from various camera angles in closed circuit television footage captured by cameras inside the premises where the offences were committed.

61. The victim was working as a shop attendant at a Caltex service station in Windang near Wollongong at around 7:50pm on 28 February 2020. The applicant’s co-accused, Mouhammad Mehdi, entered the shop area as the victim was walking towards the counter. Mr Mehdi yelled “give me your money”, grabbed the victim by the shoulder and forced him toward the counter and cash register. He was wearing a hooded jacket and wielding a small knife. Seconds later the applicant entered the shop, carrying a metal pole or crowbar, and yelled “[f]uck”. She was also wearing a hooded jacket and her mouth was covered with a piece of fabric. She swung the weapon at shelving and merchandise within the shop causing items to fall to the ground and breaking (or cracking) one of the glass panels of the sliding door. She yelled “give him the money now, give him the money now”. She took up a position at the door preventing the door from closing. Meanwhile, the co-offender forced the victim at knife point to open the cash register. He threatened to “cut” the victim and the victim felt the blade of the knife pushed up against his neck. The co-offender grabbed one $20 note and five or six $5 notes from the cash register and stole eight packets of Peter Jackson cigarettes. He pushed the victim. The applicant and co-offender fled the scene in a black Toyota Corolla. The victim pressed the duress alarm. Based on a review of the CCTV footage, the robbery took place over a period of around one minute.

62. At around 8:00pm (according to the facts sheet), ^[66] police noticed the Corolla, which was registered to the applicant, in a nearby suburb. The applicant, the co-offender and his brother were arrested. The police officers located a $20 note and four $5 notes in the co-offender’s tracksuit pants and a number of packets of Peter Jackson cigarettes in the car. The co-offender’s brother was released without charge. The applicant agreed to be interviewed and, when shown the CCTV footage, agreed that she was “wearing the same pants”.

    66. The sentencing Judge referred to the arrest occurring “shortly after” and there was some discussion of the issue at the sentencing hearing. It is not a matter of any relevance to the appeal.

63. Judge Haesler recounted these facts, noting that only a small amount of property was stolen and “there was a real threat of violence to the console operator, but no actual violence was inflicted – physical violence was inflicted on him as the incident finished”. ^[67]

    67. ROS, p 1.

64. The applicant pleaded guilty to the offence of armed robbery under s 97(1) of the Crimes Act and the sentencing Judge referred to the maximum penalty of 20 years’ imprisonment. His Honour said the applicant “has done everything that one would expect of a person of prior good character” and “did not seek to put the Court to undue expense” by contesting the facts or disputing her guilt. ^[68] His Honour allowed a discount of 25% for the early guilty plea. An offence of intentionally damaging property, by smashing things in the shop with the iron bar, was dealt with under s 166 of the Criminal Procedure Act1986 (NSW). Judge Haesler said these were “intimidatory acts” committed in the course of the principal offence and held (correctly) that any sentence for that matter should be served concurrently with that imposed for the armed robbery. ^[69]

    68. ROS, p 2.

    69. ROS, p 2.

The applicant’s personal circumstances

65. The applicant was born in 1999. She was 20 years old at the time of the offence and 21 when she was sentenced. At the time of sentence, she had one conviction on her criminal record. That offence was committed a few months before the robbery offence and involved failing to disclose the identity of the driver or passenger to police as the owner of the vehicle. ^[70] It was a summary offence for which the applicant was fined $1,000. The sentencing Judge treated her as a first offender and accepted that she was a person of good character. ^[71]

    70. Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 17.

    71. ROS, p 3.

66. Letters from the applicant and her mother were tendered along with certificates demonstrating the applicant’s progress towards rehabilitation. A narrative of the applicant’s life was provided in a report from a psychologist, Mr Sam Albassit. While the Prosecutor at first instance, and counsel for the respondent on the appeal, noted that this material was hearsay, the sentencing Judge accepted the evidence and (generally) the opinions provided by the expert. Mr Albassit was not subject to cross-examination and there was no suggestion of exaggeration in the history provided by the applicant as to certain traumatic experiences when she was 13 to 14 years old.

67. The applicant attended Canterbury Girls High School and Condell Park High School. Her early childhood appeared to be uneventful but in her early teenage years she suffered a series of traumatic experiences. Mr Albassit recounted the following history:

“Ms Nasrallah reported that approximately a month before her 14th birthday; her uncle had attempted to sexually assault her. She stated that she was alone in a room with him at the time, but when footsteps were heard he exited the room. Ms Nasrallah stated that she did not report it to anyone, including her family. She said that no one would believe her as she was a ‘brat’ and she’d be perceived as causing more trouble. She was very reluctant to tell her family and also didn’t want to bring shame to her family as he was a ‘respected’ family member. During this discussion her voice got louder and became extremely angry when she was detailing the history of that event.

Ms Nasrallah reported that at the age of 14, she began associating with people that were older, not at school and were doing some ‘bad things’. She said she didn't really understand what they were doing, but she said it felt good to have the freedom to do what she wanted and that her friends were good to her. She stated that she met someone online via a chat room. She said that she agreed to meet with him at his place without hesitation. Ms Nasrallah stated that she didn’t think anything of meeting him. She said she was at a stage in her life where no one asked questions about where she was going and about who she was associating with. She stated that she was kidnapped by the man, held in a room, her phone taken from her and was physically assaulted. She stated that she cannot recall if she was sexually assaulted, as she has seemingly blocked out the memory of the event. She was let go a few hours later but once again, did not inform friends or family about what occurred.

Ms Nasrallah stated that during that year she shut down physically and emotionally. She stated that she missed a lot of her schooling, was suffering from a deep depression and shut out her family and friends. She stated that she did not eat, slept very poorly and her schooling had suffered substantially.

Following that traumatic year, Ms Nasrallah began to rebel at the age of 15. She was acting out and was distancing herself from her family. She was continuing to associate with people who used illicit drugs and was starting to proceed on a path of reckless behaviour and self-sabotage. Her mother made the decision to send her to Lebanon to get away from her lifestyle in Australia. Ms Nasrallah said that her mother only wanted to send her overseas to ‘have a break’ from her. She felt neglected and disengaged. She said that it further exacerbated her circumstances and spiralled her into a deeper depressive state. Ms Nasrallah stated that she wasn’t coping living in Lebanon, had no one to turn to, and was having increasing suicide ideation and subsequently attempted to take her life.

Following a difficult year in Lebanon, Ms Nasrallah returned to Australia. She attended Tafe NSW and completed a Diploma in Day Care. Ms Nasrallah went on to be employed as a Traffic Controller for three years. Although employed, her troubled lifestyle continued. Ms Nasrallah began using illicit substances at the age of 18. She started using cannabis daily. She stated that her drug use was escalating, helping her numb her psychological and emotional pain. She stated that she smoked ‘bud’ to forget and deal with her traumas. She graduated to the use of cocaine and MDMA. She recalled using these substances regularly and heavily. She was ashamed to admit that her use was substantial and excessive. She continued to state that [she] was unable to deal with a lot of her trauma, and escapism was the only way she knew how to cope.

Ms Nasrallah reported that at the age of 20 she began abusing prescription medication. She reported abusing Xanax and Valium. Before too long, she reported that she was living a life of reckless abandonment and was using illicit substances and prescription medications on a very regular basis. She stated that it was that regular that it became the only thing that consumed her.

Ms Nasrallah presented to the emergency department of Bankstown-Lidcombe Hospital on the 24th of May 2018. She was experiencing suicidal thoughts and was a threat to herself. She stated that she had reached a significant low and did not want to live anymore. She struggled with ongoing depressive symptomatology and substance dependence.

In early 2019, Ms Nasrallah’s substance dependence was worsening, and her mental health was significantly deteriorating and sought help through Triple Care Farm - A withdrawal program facilitated by Mission Australia She attended the program for 2½ months before leaving the program. Her reckless and impulsive behaviour continued while she withdrew from the use of substances and then within a short period of time later was once again abusing substances.

Ms Nasrallah was enrolled in the Lifestyles program in 2019. At the time, the coordinator noticed that her mood and demeanour was changing. The Police were called, and Ms Nasrallah was taken to Bankstown-Lidcombe Hospital after concerns were raised in relation to her mental health and safety. The Psychiatrist on duty prescribed her Zoloft 100mg and Seroquel 50mg. She discharged herself from hospital that evening.

Ms Nasrallah was admitted once again to Bankstown-Lidcombe Hospital on the 12th of September 2020 after experiencing suicidal thoughts. She presented as a risk to herself and again received treatment from the triage team, however her compliance thereafter was minimal.

Ms Nasrallah’s most recent admission to hospital came after a relationship breakdown with her husband. She stated that she was with him for approximately two years. She reported that she was married seven months ago, and she left the relationship on the 13th of October 2020. She stated that there was a major altercation with her husband at the time which lead to their eventual separation. The Police [were] called and Ms Nasrallah was held in detention after apprehension under a Section 22. She was declared mentally ill and was taken to a declared mental health facility at Bankstown Hospital as a result on the 14th of October 2020. Once again while discussing the matter in detail Ms Nasrallah’s voice increasingly got louder and became angry.”

The impact of these traumatic experiences on the applicant

68. The applicant’s suicide attempt and admission to hospital provide some insight into the impact of the traumatic events the applicant experienced as a young teenager. At the time of Mr Albassit’s report, Ms Nasrallah tested in the “extremely severe” range for the core symptoms of depression and anxiety. The psychologist provided an opinion that the applicant “has been exhibiting the symptomatology of Post-Traumatic Stress Disorder (“PTSD”) for approximately seven years” and “the symptomatology of Substance Dependence for approximately four years”. The applicant’s symptoms of PTSD were described in the following terms:

“Due to the trauma she experienced in her childhood and early teens she developed a maladaptive pattern of substance use. Ms Nasrallah’s substance use continued despite experiencing ongoing and persistent psychiatric and psychological issues that were caused and exacerbated by the substance use.”

69. Mr Albassit concluded:

“In my opinion there is a direct and significant correlation between Ms Nasrallah's offending behaviour and her ongoing chronic psychiatric/psychological conditions. Her feelings of worthlessness and low self-esteem stemmed from the feelings of neglect and abandonment, during her childhood. She blames herself for her father leaving the family. Those feelings were exacerbated by the traumatic incidents relating to her uncle as well as the kidnapping and assault presented above. She began self-medicating through substance use, namely cannabis, cocaine, and prescription medication. At the time of the offences, Ms Nasrallah was under the influence of illicit drugs which significantly impaired her judgment in relation to the decision to carry out the offences outlined above.

Research suggests a correlation between traumatic experiences and criminal behaviour revealing that offenders present a higher prevalence of Post-traumatic Stress Disorder and associated symptoms when compared with the general population.

Furthermore, there is an association between exposure to trauma (e.g. threatened and physical violence) and perpetration of crime especially in the context of chronic trauma. Ms Nasrallah has a significant chronic history of trauma dating back to her childhood and into her adult life. Exposure to traumatic experiences, especially those occurring in childhood, has been linked to substance use disorders and are highly comorbid with PTSD. Substances create renewed chemical imbalances in the brain or reinforce the old ones which lead to increased emotional instability. The individual may have initially turned to substances to help them forget or suppress their memories and the feelings of anxiety or worthlessness that accompany them. Once an addiction occurs, individuals can experience dramatic mood swings that cause buried feelings of low self-esteem and low self-confidence to rise to the surface, often with overwhelming intensity. In this case, it is significantly relevant to Ms Nasrallah. Her upbringing was displaced and traumatic. Her schooling was disrupted as a result of abuse sustained and significant feelings of worthlessness and poor self-esteem that followed. She turned to substance use as a way to escape and forget. She self-medicated on a regular basis to mollify her significant emotional disturbance. It appears that at the time of the offences Ms Nasrallah was addicted to prescription medication. The addiction led to her subsequent self-destructive behaviour, the subject to the current charges.”

The sentence imposed on the co-offender

70. Mr Mehdi, the applicant’s co-offender, was sentenced by Judge O’Brien to a term of imprisonment of 3 years and 4 months with a non-parole period of 1 year and 8 months. Judge Haesler considered the principle of parity and determined correctly that the applicant should receive a less severe sentence. His Honour found that although the offenders were to be sentenced for their participation in the same joint criminal enterprise, the co-offender “played a more active role in the robbery”, wielded the knife and threatened and assaulted the victim. Mr Mehdi was also the one who took the money from the cash register and the cash was still in his possession when the pair were arrested. His Honour noted that the co-offender had a criminal history and was six years older than the applicant. Further, the applicant presented a compelling subjective case which is the foundation of the present application.

The proceedings and submissions on sentence

71. Most of the material tendered on sentence was provided to Judge Haesler in advance. At the outset of the sentencing hearing, his Honour indicated that he had read the evidentiary material and written submissions. This included the report of Mr Albassit and the submissions of counsel then appearing for the applicant. The written submissions relied on Bugmy and observed, “[t]he circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way”. ^[72] Implicit in the written submissions was the assertion that the applicant’s moral culpability was reduced as a result of her childhood trauma and its psychological impact. The submissions went on to say, “the effects of profound deprivation do not diminish over time” (emphasis added). ^[73]

    72. Bugmy v The Queen (2013) 249 CLR 571 at [40]; [2013] HCA 37.

    73. Cf Bugmy v The Queen (2013) 249 CLR 571 at [44]; [2013] HCA 37.

72. The sentencing Judge said at the commencement of the hearing:

“I had trouble finding profound deprivation and I have trouble with the conclusion expressed by Mr Albassit that there is a direct and significant correlation between her offending behaviour and her chronic psychiatric, psychological condition, as opposed to the background and psychological conditions being conducive to the uptake of illicit drugs, which drugs do, as a matter of common understanding and expert opinion, influence and impair a person’s judgment.” ^[74]

(Emphasis added.)

74. Tcpt, 16/12/20, p 6.

73. Counsel conceded that “it may not be open to your Honour to find a level of profound deprivation” (emphasis added) but went on to press the submission that the traumatic events of the applicant’s childhood and the impact those events had on the applicant’s life was such that her moral culpability was diminished. ^[75] It was submitted that the violence in the offence was a “complete aberration” from the applicant’s character. ^[76] It was conceded that a sentence of imprisonment was the only possible outcome, but that the sentence should be less than three years and ordered to be served by way of an intensive corrections order (“ICO”). The Prosecutor’s response was very fair and somewhat enigmatic. The following exchange took place:

“[PROSECUTOR]: […] Last but not least, your Honour, I know there’s been some discussion but my friend – again yes the threshold has been crossed. If your Honour was to impose an intensive corrections order, the Crown would merely submit that that would be at the lowest end of the range when it comes to matters of this kind. And your Honour has that discretion.

HIS HONOUR: I read your submissions as being no, it couldn’t be an ICO. It’s just too serious.

[PROSECUTOR]: Yes, it’s too serious, your Honour. It’s too serious.” ^[77]

75. Ibid.

76. Ibid.

77. Tcpt, 16/12/20, p 13.

74. The sentencing Judge concluded that no sentence other than one of full-time imprisonment was appropriate but imposed the sentence he considered to be the least possible punishment in the circumstances.

Ground 1: The sentencing Judge erred in failing to find that exceptional circumstances existed such as to enable his Honour to properly impose a sentence other than that of full-time custody

75. This ground was argued on the basis that it was separate and independent of the second ground which related to an asserted error in Judge Haesler’s approach to the applicant’s traumatic experiences as a child. However, there is considerable overlap and interrelation between the grounds. If it is accepted that that the sentencing Judge erred in his application of the so-called “Bugmy principles” (ground 2), it may follow that any such error infected his Honour’s finding that there were no “exceptional circumstances” justifying a departure from the guideline judgment in R v Henry, and his conclusion that the applicant had to be sent into full-time custody. It is impossible to know whether the sentencing Judge would have found “exceptional circumstances” and imposed a less severe sentence had his Honour taken a different approach to the evidence relating to the applicant’s childhood trauma.

76. The practical reality of the applicant’s situation now is that success under ground 1 will not change the fact that she has “had the humiliation of hearing prison gates closing behind her”. ^[78] At the time of the hearing of the appeal, Ms Nasrallah had spent seven months and seven days in gaol. Counsel appearing on the appeal accepted that it was not necessary in those circumstances to determine whether an ICO was the more appropriate sentence and that, if the appeal was allowed, the appropriate course was to impose a sentence of full-time imprisonment that would result in the applicant’s imminent release to a period of parole. The sentencing legislation does not allow an ICO to commence other than on the day it is imposed. ^[79] A sentencing judge must, of course, take into account any period of pre-sentence custody. ^[80] There is some controversy as to whether this Court, in re-sentencing, can impose an ICO dating back to the date of commencement of a sentence imposed by the District Court. ^[81] However, it is unnecessary to engage with that controversy in this case, because it is not suggested by the applicant that the Court should now impose a sentence to be served by way of an ICO.

    78. R v Sargeant [1974] 60 Cr App R 74 at 77.

    79. Section 71(1) of the Crimes (Sentencing Procedure) Act provides that “[a]n intensive correction order commences on the date on which it is made.”

    80. Crimes (Sentencing Procedure) Act 1999, s 47(3) and see, for example, R v Newman; R v Simpson [2004] NSWCCA 102; (2004) 145 A Crim R 361 at [24]-[25] and R v Youkhana [2005] NSWCCA 231 at [10].

    81. See R v Edelbi [2021] NSWCCA 122 and the cases discussed at [78]-[81].

77. I am not satisfied that Judge Haesler fell into an independent error in deciding that an ICO was not an appropriate sentencing option. It is clear that his Honour was guided by the submissions of counsel and the concession that the guideline judgment on armed robbery applied to the applicant’s case. The guideline judgment established, or re-iterated, the general proposition that sentences other than full-time imprisonment should be “few and far between” and that such sentences would only be appropriate “in the most exceptional circumstances”. ^[82] There was no challenge to this aspect of the guideline judgment in the advent of cases referred to below at [79]. In R v Henry, Spigelman CJ identified a “category of case which is sufficiently common for purposes of determining a guideline”. ^[83] The features of that typical case were:

“(i) Young offender with no or little criminal history;

(ii) Weapon like a knife, capable of killing or inflicting serious injury;

(iii) Limited degree of planning;

(iv) Limited, if any, actual violence but a real threat thereof;

(v) Victim in a vulnerable position such as a shopkeeper or taxi driver;

(vi) Small amount taken;

(vii) Plea of guilty, the significance of which is limited by a strong Crown case.” ^[84]

82. R v Henry and Others (1999) 46 NSWLR 346; [1999] NSWCCA 111 at [113] and [118].

83. R v Henry and Others (1999) 46 NSWLR 346; [1999] NSWCCA 111 at [162].

84. Ibid.

78. Spigelman CJ held at [165] that “sentences for an offence of the character identified above should generally fall between four and five years for the full term”. Spigelman CJ subsequently clarified that this guideline related to “a guilty plea of limited value”. ^[85]

    85. R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 at [161].

79. It was accepted both at first instance and on appeal that the decision in R v Henry was a binding authority and was applicable to the applicant’s case. There was no suggestion that the guideline judgment imposed an “unlegislated judicially created constraint on the sentencing discretion”: Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284 at [105] applying the judgment of Simpson JA in Robertson v R [2017] NSWCCA 205 at [89].

80. Judge Haesler referred to the judgment in R v Henry saying:

“The Court of Criminal Appeal indicate that in the ordinary case of an armed robbery – and this tragically is an ordinary case – sentenced at the low end of the range would be in the vicinity of four years following a late plea. Other decisions of the Court of Criminal Appeal indicated that only in exceptional circumstances should persons who commit offences such as this, even a first offender and a person with potential, receive other than a full-time custodial sentence.” ^[86]

86. ROS, p 3.

81. His Honour went on to note that the guideline was calculated to ensure consistency in the application of principle and that it was but one factor to be taken into account by way of “guidance”. His Honour noted the guideline judgment was not “prescriptive”, that such judgments were “guidelines not tramlines”, and that “every offence and every offender requires individualised treatment”. ^[87] His Honour took into account the applicant’s prior good character, her significant achievements rehabilitating herself, but also noted that robbery was “a crime against real people” which could have a “terrible impact” on its victims and cause fear in the community more broadly. ^[88] The sentencing Judge said he took into account the applicant’s background and history of trauma and accepted that the offence was an “aberrant act” on her part. ^[89] However, even taking into account “all of the mitigatory factors” he concluded that the sentence of full-time imprisonment upon which he settled was the “absolute minimum that law and justice demand”. ^[90]

    87. ROS, p 4.

    88. ROS, pp 2 – 3.

    89. ROS, p 8.

    90. ROS, p 10.

82. While I am of the view that the Prosecutor’s initial concession at first instance was correct, and that it would have been “open” in the applicant’s particular circumstances to have imposed an ICO, I cannot conclude that his Honour’s decision to impose a full-time gaol sentence was not open to him in the relevant sense. Sentencing is an instinctive and intuitive process and there is no single, correct outcome. Intermediate courts of appeal pay real deference to the role of the judge at first instance and sentencing judges are afforded a deal of flexibility in determining the appropriate punishment. Judge Haesler applied the guideline judgment and reached the conclusion that he did. I can discern no legal error in his Honour’s approach.

83. While the failure to give “full weight” to the applicant’s history of trauma (if such a failure is established) may have impacted on the conclusion that the case was not “exceptional” for the purpose of the application of the guideline judgment, I propose to follow counsel’s lead and consider that issue separately. Putting that issue aside and giving due acknowledgment to the powerful submissions made by counsel in both this Court and the District Court, I remain unpersuaded that ground 1 should be upheld.

Ground 2: The sentencing Judge erred in his application of the principles enunciated in Bugmy v the Queen (2013) 249 CLR 571.

Particulars

(a) by failing to find that the evidence of the applicant’s upbringing engaged the principles enunciated in Bugmy.

(b) by taking into account an irrelevant consideration, namely the background of other offenders unrelated to the proceedings; and

(c) by failing to give “full weight” to the applicant’s deprived background.

84. In the judgment on sentence – which, it must be remembered, was delivered ex tempore immediately after the conclusion of the submissions – Judge Haesler said:

“She has opened up to Mr Albassit, psychologist, about some traumatic incidents in her past and he has formulated an opinion that the history as given to him meets the criteria for post-traumatic stress disorder and substance dependence disorder. He concludes, in his professional opinion, that there is a direct correlation between her offending and her ongoing chronic psychological conditions. With respect, his professional opinion really goes to why she took up the use and abuse of illicit drugs, her rebellion, as he calls it, the impact of challenges and trauma.

Although he mentions things – terms such as neglect – again with respect, and acknowledging everyone is different, the offender’s troubled lifestyle pales into insignificance to the sort of profound deprivation often seen in this Court and frankly seen in three other matters that I have disposed of today. It is sad and tragic, but it is all too common that factors such as this lead to the uptake in illicit drugs among young people. And as the Court in Henry made clear, I cannot take into account a mitigating factor that the crime was committed while subject to drugs. But the fact of addiction, how it came about and what is done about it, are relevant, particularly in explaining how a previously law-abiding person did what she did. But to understand their state of mind at the time and the lack of capacity to exercise sound judgment, it can explain the impulsivity of the offence and the limited planning involved, the failure, despite principles such as general deterrence and the Henry guideline having operated for over 20 years. This offender was not in a position to think about the consequences to herself, let alone the consequences to others and principles of general deterrence did not prevent this crime occurring. Her drug use and all of the considerable efforts that she has taken to put that part of her life behind her, the origin, the extent of her drug problems, do help me assess her prospects for the future.” ^[91]

96. The impact of violence and sexual offences on victims is well understood and documented. In R v MJB, Adamson J observed “that the damage done to children who are victims of sexual assault by adults was well known and could be assumed”. ^[104] The pervasive effects of child sexual abuse were again acknowledged in R v Gavel:

“[C]hild sex offences have profound and deleterious effects upon victims for many years, if not the whole of their lives: R v CMB [2014] NSWCCA 5 at [92]. Sexual abuse of children will inevitably give rise to psychological damage: SW v R [2013] NSWCCA 255 at [52]. In R v G [2008] UKHL 37; [2009] 1 AC 92, Baroness Hale of Richmond (at [49]) referred to the ‘long term and serious harm, both physical and psychological, which premature sexual activity can do’. The absolute prohibition on sexual activity with a child is intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity: Clarkson v R [2011] VSCA 157; 32 VR 361 at 364 [3], 368–372 [26]–[39].” ^[105]

104. [2014] NSWCCA 195 at [49] (per Adamson J, Hoeben CJ at CL and Fullerton J agreeing).

105. R v Gavel [2014] NSWCCA 56 at [110].

100. In Stanton v R, Beech-Jones J (Cavanagh and Harrison JJ agreeing) noted:

“The court is entitled to have regard to the well-known fact that the victims of child sexual assault very frequently suffer long-term, and serious, psychological consequences. Moreover, those consequences are not limited to the obviously, at face value, more serious offences.” ^[106]

106. [2021] NSWCCA 123 at [67].

101. The Royal Commission into Institutional Responses to Child Sexual Abuse (“RCIRCSA”) also contributed to the understanding of the impacts of child sexual abuse with the release of its final report and recommendations in 2017. ^[107] The Commission’s conclusions, based on a body of academic research and the experiences of witnesses called in the course of the lengthy hearings and private sessions, analysed the adverse and multifaceted effects of child sexual abuse on “survivors”. ^[108] The impacts on participants in the RCIRCSA were summarised as follows:

“After mental health, relationship difficulties were the impacts most frequently raised by survivors in private sessions, including difficulties with trust and intimacy, lack of confidence with parenting, and relationship problems. Education and economic impacts were also frequently raised.

For many people, these diverse impacts are interconnected in complex ways, making it difficult to isolate the specific impacts of child sexual abuse. These interconnected impacts can be experienced at the same time or consecutively, as a cascade of effects over a lifetime. For instance, we heard from many survivors that they developed addictions after using alcohol or other drugs to manage the psychological trauma of abuse, which in turn affected their physical and mental health, sometimes leading to criminal behaviour and relationship difficulties.” ^[109]

107. Royal Commission into Institutional Responses to Child Sexual Abuse, Final Report (2017) Vol 3.

108. See also: Australian Institute of Family Studies, “The Long-term Effects of Child Sexual Abuse” (2013) 11, CFCA Paper, 23; Royal Commission into Institutional Responses to Child Sexual Abuse, Australian Centre for Child Protection, Impacts of Institutional Child Sexual Abuse on Victims/Survivors: A Rapid Review of Research Findings (December 2017) 11; Margaret C Cutajar et al, ‘Psychopathology in a Large Cohort of Sexually Abused Children Followed Up to 43 Years’ (2010) 34 Child Abuse & Neglect 813; Kenneth S Kendler et al, ‘Childhood Sexual Abuse and Adult Psychiatric and Substance Use Disorders in Women: An Epidemiological and Cotwin Control Analysis’ (2000) 57 Archives of General Psychiatry 953; Elliot C Nelson et al, ‘Association between Self-Reported Childhood Sexual Abuse and Adverse Psychosocial Outcomes: Results from a Twin Study’ (2002) 59 Archives of General Psychiatry 139; Stephen H Dinwiddie et al, ‘Early Sexual Abuse and Lifetime Psychopathology: A Co-Twin-Control Study’ (2000) 30 Psychological Medicine 41.

109. Royal Commission into Institutional Responses to Child Sexual Abuse, Final Report (2017) Vol 3, 11.

102. This Court has echoed RCIRCSA conclusions that “what was previously regarded as low level sexual abuse can have catastrophic effects on children” in several decisions: BT v R [2019] NSWCCA 147 at [11] and see, for example, O’Sullivan v R [2019] NSWCCA 261 at [14], R v Cattell (2019) 280 A Crim R 502; [2019] NSWCCA 297 at [111].

103. The sentencing Judge’s remark that the applicant’s subjective case of childhood trauma and neglect “pales into insignificance” by comparison with other cases in the list was infelicitous because of its capacity to suggest that the Court underestimated the gravity of the impact of the applicant’s trauma. It is not difficult to imagine the response of this Court (or a sentencing court) to a submission on behalf of a perpetrator that the impact of an attempted rape on a 13 year old victim “pales into insignificance” by reference to other, more serious, cases.

104. Further, the comparison to other cases heard by the sentencing Judge on the day of the applicant’s sentencing hearing is impossible for this Court to evaluate or for the applicant to comprehend unless she was present and paying attention to the other matters in his Honour’s list. She could not know how her traumatic experiences “pale[d] into insignificance” by comparison.

105. However, it must be remembered that his Honour was dealing with a number of cases in a very busy list and delivered his sentencing judgment ex tempore. I would not consider his passing reference to the other cases in the list that day as indicative of legal error. Without more, I do not accept that Judge Haesler fell into error in what might be considered to be an unfortunate choice of language. However, the matter tends to confirm the conclusion that his Honour fell into error in his approach to the applicant’s childhood trauma.

106. The sentencing Judge gave earnest consideration to the case and was troubled by the outcome upon which he settled. His Honour said as much at the conclusion of the judgment on sentence:

“It gives me no pleasure to impose a custodial sentence and a full-time custodial sentence, but the crime was so serious that the purposes of sentencing could not be met by an intensive corrections order. Ms Nasrallah must go into gaol. She must go to gaol for a period – and the period of time I have sought to given proper effect to all of the mitigatory factors will be the absolute minimum that law and justice demand.” ^[110]

110. ROS, p 10.

107. As with the earlier remarks, his Honour was focused on the objective seriousness of the crime but did not appear properly to take into account the reduction of the applicant’s moral culpability arising from her traumatic experiences as a child and their psychological impact on her development and choices. I am satisfied that this was a legal error of the kind asserted by ground 2(a) and 2(b) in the amended grounds of appeal. As I have said in dealing with ground 1, the error established under ground 2 makes it difficult to assess the contention that it was “not open” to his Honour to conclude, in the face of the guideline judgment on armed robbery, that the only appropriate sentence was one of full-time imprisonment. However, had the reduction in moral culpability been taken into account in the various ways referred to by Wood CJ at CL in R v Henry, his Honour may have reached a different conclusion.

108. Error having been established under ground 2 it is unnecessary to speculate on that question as it falls to this Court to exercise the sentencing discretion afresh in accordance with the High Court’s decision in Kentwell v The Queen, ^[111] and to determine whether a lesser sentence is warranted and ought to have been imposed. ^[112] Before addressing that question, it is convenient to dispose of the remaining two grounds of appeal briefly.

     111. (2014) 252 CLR 601; [2014] HCA 37.

     112. Criminal Appeal Act 1912 (NSW) s 6(3).

Response to majority judgments

109. Since circulating a draft of this judgment, I have had the opportunity of reading the draft judgments of Bell P and Price J. I have considered carefully the conclusions and reasons of my senior colleagues but remain of the opinion that Ms Nasrallah’s appeal should be allowed and that she should be re-sentenced. I should indicate, in summary form, the reasons for my respectful disagreement.

110. The observations of Brereton JA in Hoskins are correct. As Brereton JA said there is no magic in the word profound and the use of the expression “profound deprivation” in Bugmy v The Queen was not employed as a threshold test to the application of relevant principles concerning an assessment of an offender’s moral culpability. Those observations should be followed unless they are clearly wrong. ^[113] This approach accords with that taken by Simpson AJA in Hanna v R [2020] NSWCCA 125 at [86]-[88]; (2020) 102 NSWLR 244. ^[114] Brereton JA’s comments have already been followed by a single Judge of the Supreme Court of the Australian Capital Territory: R v BS-X [2021] ACTSC 160.

     113. Cf Bell P at [7]-[8].

     114. Her Honour followed the decision of the majority in the case of Park v R [2020] NSWCCA 90; (2020) 282 A Crim R 551 in spite of agreeing with the dissenting judgment of Fullerton J in that case. Simpson AJA had prepared her reasons before the publication of the decision in Park v R by a differently constituted bench. Park v R was subsequently the subject of a grant of special leave: Park v The Queen [2021] HCATrans 75.

111. In my respectful opinion, the majority judgments underestimate the psychological impact of the applicant’s traumatic experiences – (the attempted rape and the kidnapping at aged 13-14) and sense of abandonment and isolation (being sent by her family to Lebanon at 14-15) – and their relevance to an assessment of her moral culpability. The applicant met the diagnostic criteria for PTSD and the expert provided an unchallenged opinion of a “direct and significant correlation between Ms Nasrallah’s offending behaviour and her ongoing chronic psychiatric and/psychological conditions”. Judge Haesler’s observations about this evidence, which I have set out and to which Price J refers, ^[115] did not impact on the relevance of the evidence to the issue of the applicant’s moral culpability. ^[116] Further, I am respectfully unable to agree with the implication that a “history” of deprivation or trauma may require a “sustained” period of abuse or neglect. ^[117] The relevant consideration is the impact of the childhood trauma on the applicant’s development and the course her life took as a result. It is this that informs a proper assessment of the offender’s moral culpability. This is not to extend or “to consider the precise boundaries of the Bugmy principles.” ^[118] Rather it is to recognise the analogous situation of an offender whose life was shaped by childhood trauma, an analogy recognised as long ago as the decision in R v Henry. ^[119]

     115. Price J at [45]. Judge Haesler’s remarks are set out above at [84].

     116. The observations of Allsop P relating to unchallenged psychiatric evidence in Devaney v R [2012] NSWCCA 285 at [88] are pertinent.

     117. Bell P at [11], [14] and [21].

     118. Bell P at [21]; Price J at [53].

     119. R v Henry at [337]-[344] (Simpson J) and cf [270], [273](c)(ii)-iii) (Wood CJ at CL).

112. As the recent Victorian case of DPP v Hermann demonstrates, the individual circumstances in which an offender’s personal history and mental health issues might inform their moral culpability are diverse and sometimes overlapping. ^[120] To refer to two passages in the judgment of five-member bench:

“[14] In assessing an offender’s ‘moral culpability,’ the sentencing court is making a moral judgment on behalf of the community about the degree of blameworthiness to be attached to the offender for the offending conduct. Determining how harshly a particular offender is to be judged — and punished — often requires a close examination of the personal circumstances and background of the offender and an exploration of factors which may explain the offending conduct. To the extent that offending conduct can be seen to reflect the operation of factors which are beyond the offender’s control, the harshness of the moral judgment is likely to be moderated.

[…]

[46] It is the mark of a humane society that the moral judgment expressed through sentencing should take account of the lifelong damage that may result from exposure to violence or abuse or parental neglect in an offender’s formative years.”

120. DPP v Hermann [2021] VSCA 160 at [11]-[14], [35]-[46] (regarding childhood deprivation and dysfunction) and [49]-[51] (regarding mental impairment).

113. While the principles referred to by the President concerning “the protection of the community from the offender” are well established, ^[121] they are not matters of any great moment in the present case because the sentencing Judge acknowledged the applicant’s genuine remorse, her “progress towards rehabilitation” and held that “there is no need to further deter this offender”. This was not a case where the matters affecting the proper assessment of the offender’s moral culpability also gave rise to a concern that she represented an ongoing danger to the community.

     121. Bell P at [9].

114. In relation to the judgment of Price J, I record my respectful disagreement with the proposition that the categorisation of childhood deprivation as “profound” or “not profound” constitutes a “finding of fact” by which this Court is bound. ^[122] Insofar as the comments of N Adams J in Newman v R [2021] NSWCCA 101 at [62] are to the contrary, I have concluded that those statements are plainly wrong and ought not to be followed. Further, as the judgment of Hoeben CJ at CL shows, the expert evidence in Newman v R only established “possible symptoms” of ADHD. ^[123] The relevant findings of fact on sentence in this case concern the occurrence of the traumatic events and the expert evidence of their impact on the applicant. The exercise of determining whether the facts give rise to “profound deprivation”, apart from being an unnecessary distraction, is an exercise in evaluation, quantification or categorisation rather than a process of fact finding. To dismiss an appeal on the basis that a finding of “profound deprivation” is a finding of fact gives rise, in a particularly acute way, to the situation against which Basten JA warned in Hordern v R [2019] NSWCCA 138 at [20]:

“In circumstances where the liberty of the individual is at stake, there is no reason to deliberately perpetuate error, once identified. The administration of criminal justice does not require this Court to conclude that an offender must serve a longer sentence than would have been imposed, absent a factual error by the sentencing judge.”

Ground 3: The sentencing Judge erred in failing to consider a submission made by the applicant as to the undesirability of removing the applicant from her current therapeutic environment

122. Price J at [31].

123. Newman v R [2021] NSWCCA 101 at [31]-[32] and [48]-49].

115. I am unable to accept the proposition underlying the third ground of appeal. As the respondent submitted the sentencing Judge specifically referred to the fact that the applicant was “receiving treatment for depression and anxiety” ^[124] and that “every effort has been made [by the applicant] to show that this offence was an aberrant act and that she can lead a law-abiding life in the community”. ^[125]

     124. ROS, p 5.

     125. ROS, p 8.

116. His Honour also noted the submission to which this ground relates and seemingly accepted it. His Honour said in his judgment:

“To send this offender to gaol would carry the risk that negative associations with person in gaol will set back her prospects of leading a normal community life. It is notorious that those who go to gaol come out more likely to return to gaol than those who avoid gaol altogether.” ^[126]

126. ROS, p 9.

117. In a part of the remarks where his Honour referred to the various objectives of sentencing his Honour said “[h]ere, her progress toward rehabilitation must and should be recognised”. ^[127]

     127. ROS, p 9.

118. In view of these various remarks it is clear that his Honour considered the submission concerning the undesirability of removing the applicant from the therapeutic environment which she had established and thrived in during the period when she was in the community, on bail, awaiting sentence.

119. Ground 3 must be rejected.

Ground 4: The sentencing judge erred in failing to take into account 4 days of pre-sentence custody served by the applicant.

120. This ground was added on the hearing of the appeal and arose from the following parts of the respondent’s written submissions:

“It appears to the respondent that the commencement date of the applicant’s sentence did not take into account the 4 days the applicant spent in custody before entering into bail.

While it seems that the applicant was granted conditional bail by police when she was charged with the index offences (see Exhibit A, committal documents), an updated custodial history obtained since sentence shows that she remained in custody for a total of 4 days between her arrest on 28 February 2020 until entering into bail on 2 March 2020. The respondent will file and apply to read at the hearing affidavit evidence annexing the updated custodial history.

The sentencing judge was made aware at sentence by the applicant’s legal representative of the fact that the applicant was in cells before being released on bail. She refers to this in her letter of remorse and it was discussed during the proceedings. However the Crown on sentence mistakenly told the court that the applicant has not spent time in custody before being sentenced and this was not corrected by her legal representative at sentence. There is at present no ground of appeal raising this issue. If it were to be successfully raised, taking into account that 4-day period of pre-sentence custody, the applicant’s sentences for sequences 1 and 2 would normally be backdated; in this case to commence on 12 December 2020.

Absent any other error vitiating the sentencing discretion, and assuming a ground of appeal in respect of this matter was successful, this Court may correct such a mistake by adjusting the commencement date of the applicant’s sentence without the need to engage in a full re -sentencing process afresh: Refaieh v R (2018) A Crim R 245 at [83] applying Kentwell v The Queen (2014) 252 CLR 601 at [42] and Lehn v R (2016) 93 NSWLR 205 at [72]. See also CA v R [2019] NSWCCA 93 at [71]-[72] and Jibran v R [2020] NSWCCA 86 at [129].” ^[128]

128. Respondent’s written submissions at [61] – [64].

121. As the parties agreed, this amended ground must be upheld and any sentence imposed on re-sentencing should be ordered to commence on 12 December 2020.

Re-sentencing: is a different, less severe, sentence warranted?

122. Objectively, the offence was very serious as the facts described earlier in the judgment demonstrate. This is reflected by the available maximum penalty (20 years) and the enduring application of the guideline judgment in R v Henry in which it was held that a penalty other than one of full-time imprisonment could only be appropriate in a truly exceptional case. The applicant’s case met each of the criteria, other than the last, in the often-encountered category of case described by Spigelman CJ in R v Henry at [162]. A range of 4 to 5 years (for the total sentence) was identified at [165] however as the Chief Justice explained (at [169]), “aggravating and mitigating factors will justify a sentence below or above the range”. The applicant’s plea was early and valuable. His Honour identified such things as youth and rehabilitation efforts as relevant matters. None of the aggravating features discussed at [170] were particularly applicable to the applicant’s case.

122. The applicant’s subjective case was powerful and compelling, even if it did not fit within the descriptor of “exceptional”. In my view it was exceptional but that is a matter upon which minds might reasonably differ. The applicant was a first offender who was unlikely to offend again in view of her current family support, which was expressed in the letter from her mother. I have already described her traumatic experience of twice being a victim when she was aged 13 and 14 years old and the impact of this when she was, or felt, abandoned and neglected and sent off to Lebanon. Her suicidal ideation and attempt at self-harm were the direct result of these events and her resort to drugs a few years later was not the result of a completely “free choice”. ^[129] She has made substantial strides towards rehabilitation and like the appellant in the case of R vSargeant ^[130] it can properly be said:

“This young [woman] does not want prison training. It is not going to do [her] any good. It is [her] memory of the clanging of the prison gates which is likely to keep her from crime in the future.” ^[131]

129. R v Henry and others (1999) 46 NSWLR 346 at [196]; [1999] NSWCCA 111.

130. (1974) 60 Cr App R 74.

131. R v Sargeant (1974) 60 Cr App R 74 at 78.

124. I accept that the principles discussed by the High Court in Bugmy, and the approach to drug addiction articulated by Wood CJ at CL and Simpson J in R v Henry (extracted at [93] – [95] above) are engaged. The applicant’s moral culpability for her crimes is significantly reduced. This in turn impacts upon the weight to be given to the various purposes of punishment.

125. The sentencing Judge indicated that “when criminals are caught committing such offences, the community will lose trust in the courts if they do not punish crimes and punish them severely”. ^[132] So much can be accepted but, as the Acting Chief Justice pointed out in R v Lattouf:

“[T]here are other interests to which the sentencing process must have regard; there are other objectives which the sentencing process must seek to achieve. Paramount amongst these is the achievement of justice in the individual case. To see the sentencing process as involving no more than stern punishment for each offender is not merely simplistic; it damages the public interest. A sentencing process which is seen by the public merely as draconian and not just will lose the support of those whom it is designed to protect. If a sentencing process does not achieve justice, it should be put aside. As I have elsewhere said, if justice is not individual, it is nothing.” ^[133]

132. ROS, p 3.

133. R v Lattouf (unreported, Court of Criminal Appeal (NSW), 12 December 1996).

126. Mahoney ACJ also said:

“But, in addition, a sentencing process must be capable of discriminating between cases. There is, as I have said, a public interest in punishment. But if the desire to punish results in a person who would otherwise not become a confirmed criminal becoming such, that sentencing process is inconsistent with the public interest.

It is to be recognised that imprisonment may convert a person who will not be a persistent criminal into one who is. Particularly is this so where the person to be sentenced is a first offender of a comparatively young age whose family circumstances are such that he may, with assistance, not become a criminal. It would be wrong to the individual and costly to the community not to attempt the rehabilitation of such a person.” ^[134]

134. R v Lattouf (unreported, Court of Criminal Appeal (NSW), 12 December 1996).

127. I refer to these observations in the context of exercising the sentencing discretion afresh. In no way are these comments directed to the approach taken by the sentencing Judge who was openly conscious of the requirement for individualised justice and the potential negative impacts on the applicant, and in turn the community, in sending this young offender to gaol.

128. The applicant conceded that the threshold created in s 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW) is crossed; no sentence other than one of imprisonment is appropriate in view of the objective gravity of the crime. However, like Judge Haesler, I have reached the conclusion that the sentence should be the “absolute minimum that law and justice demand”. ^[135] I have reached a different conclusion as to what that “absolute minimum” is and have concluded that a less severe sentence is warranted and ought to have been imposed.

     135. ROS, p 10.

129. I have considered the sentence imposed on the co-offender in determining the appropriate sentence to be imposed on the applicant. This Court was not provided with the sentencing remarks of Judge O’Brien, so it is impossible to compare the personal circumstances of the two offenders. However, having reviewed the CCTV footage, it is evident that the co-offender had a more active and violent role in the robbery, threatening the service station attendant using a knife. The co-offender was 26 years old at the time of the robbery, while the applicant was 20. His criminal record included several driving offences, offences of violence against police officers and an offence of destroy or damage property. The applicant’s relative youth, combined with her lack of any serious criminal convictions, are factors that increase the weight to be given to rehabilitation. Equally, punishment and deterrence have a more limited role to play in the applicant’s case.

130. I would confirm the fixed term of three months imposed for the offence of intentionally damaging property. That is academic because, for the reasons given by Judge Haesler, the sentence should be wholly concurrent with the sentence for the armed robbery.

131. As to the armed robbery, I would commence with a sentence of two years imprisonment and reduce that sentence by 25% to reflect the utilitarian value of the applicant’s plea of guilty. That results in a sentence of 18 months. As I indicated earlier, the question of whether an ICO is an appropriate sentencing option is now otiose because the applicant has been in gaol for a period exceeding seven months. That period, along with an earlier period of pre-sentence custody the subject of ground 4, should be taken into account by backdating the sentence. As I have said, the parties agree the sentence should commence on 12 December 2020. Like the sentencing Judge, I would find special circumstances pursuant to s 44 of the Crimes (Sentencing Procedure) Act. I would make the non-parole period 50% of the total sentence. That results in a total of sentence of 18 months with a non-parole period of nine months

132. For those reasons, I would make the following orders:

1. Grant the application for leave to appeal against sentence.

2. Allow the appeal.

3. Quash the sentence imposed by the District Court and in lieu thereof sentence the applicant to a non-parole period of nine months commencing on 12 December 2020 and expiring on 11 September 2021 with a balance of term of nine months commencing on 12 September 2021 and expiring on 11 June 2022.

4. Confirm the concurrent fixed term of three months for the intentionally damage property charge dealt with under s 166 of the Criminal Procedure Act 1986 (NSW). That term is ordered to have commenced on 12 December 2020 and to have expired on 11 March 2021.

5. The applicant is to be released to parole at the expiration of the non-parole period.

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Endnotes

Amendments

13 October 2021 - Issue with footnote numbering rectified.

Decision last updated: 13 October 2021