NK v The King

[2025] NSWCCA 73

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

NK v R [2025] NSWCCA 73

Hearing dates:

2 May 2025

Date of orders:

26 May 2025

Decision date:

26 May 2025

Before:

Ball JA at [1];
Fagan J at [2];
Yehia J at [15]

Decision:

(1)   Grant leave to appeal.

(2)   Appeal allowed.

(3)   Quash the sentence imposed in the District Court on 8 December 2023.

(4)   In lieu thereof, sentence the applicant to an aggregate term of imprisonment of 13 years commencing on 25 May 2021 and expiring on 24 May 2034. Fix a non-parole period of 8 years and 9 months. The first date upon which the applicant is eligible for release on parole is 24 February 2030.

Catchwords:

CRIME – Appeals – appeal against sentence – child sexual offences – where child was under the applicant’s authority at a care home – domestic violence offences – whether sentencing judge erred in application of Bugmy principles – whether sentencing judge erred in failing to take into account the applicant’s own history of child sexual abuse – correct approach to application of Bugmy principles – childhood deprivation – moral culpability – purposes of sentencing – giving “full weight” to background of deprivation – appeal allowed – applicant re-sentenced

Legislation Cited:

Crimes Act 1900 (NSW), ss 33B(1), 59(1), 61I, 66C(4)

Crimes (Domestic and Personal Violence) Act2007 (NSW), s 12(2)

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 44(2B)

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

Cases Cited:

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

DR v R (2022) 300 A Crim R 116; [2022] NSWCCA 151

DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156

Dungay v R [2023] NSWCCA 209

Harris v R [2021] NSWCCA 322

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

Jackson v R [2023] NSWCCA 121

Kennedy v R [2022] NSWCCA 215

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

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

Marrah v The Queen [2014] VSCA 119

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

R v AGR (Court of Criminal Appeal, 24 July 1998, unrep)

RG v R [2025] NSWCCA 36

Category:

Principal judgment

Parties:

NK (Applicant)
Rex (Respondent)

Representation:

Counsel:
J Brock and S McGee (Applicant)
E Wilkins SC (Respondent)

Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s):

2021/00147804, 2022/226565

Publication restriction:

Statutory non-publication orders apply in relation to any matter likely to identify the complainants in accordance with s 578A of the Crimes Act 1900 (NSW) and s 15A of the Children (Criminal Proceedings) Act 1987 (NSW). A suppression and non-publication order pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) applies in relation to the identity of the applicant.

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

08 December 2023

Before:

Bright DCJ

File Number(s):

2021/00147804, 2022/226565

HEADNOTE

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

NK (the applicant) sought leave to appeal against the sentence imposed on him by Bright DCJ on 8 December 2023 in the District Court of New South Wales.

The applicant was sentenced following pleas of guilty to two separate sets of offending against two victims. The first set of offending was against a child who was under the applicant’s authority at a Catholic Care home. The applicant entered pleas of guilty to seven counts of aggravated sexual intercourse with a child aged between 14-16 years. The second set of offending was against the applicant’s wife. The applicant entered pleas of guilty to two counts of assault occasioning actual bodily harm, one count of use of an offensive weapon with intent to intimidate, and one count of sexual intercourse without consent.

The sentencing judge imposed an aggregate sentence of 15 years’ imprisonment, commencing on 25 May 2021 and expiring on 24 May 2036, with a non-parole period of 9 years and 9 months, expiring on 24 February 2031.

The applicant relied on two grounds of appeal, namely:

1. The sentencing judge erred in the application of sentencing law to the evidence concerning the applicant’s background of childhood deprivation.

2. The sentencing judge erred in failing to take into account in mitigation the applicant’s own history as a victim of child sexual abuse.

The Court held per Yehia J (Ball JA and Fagan J agreeing), granting leave to appeal against the sentence, upholding the appeal on ground 1 and re-sentencing the applicant:

As to ground 1:

1. The sentencing judge conflated the requirement stated in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 to give “full weight” to the childhood deprivation of an offender with the need in cases of domestic violence to give appropriate weight to general deterrence: per Yehia J at [96] (Ball JA at [1] and Fagan J at [2]-[13] agreeing).

2. It is incumbent upon a sentencing judge to first assess whether a background of deprivation operates to reduce the offender’s moral blameworthiness for the offending. A sentencing judge is then required to consider how the offender’s reduced moral culpability, and the reason for that reduction, bears upon the weight to be attached to the various purposes of sentencing such as general and specific deterrence, protection of the community, retribution and rehabilitation: per Yehia J at [101]-[102] (Ball JA at [1] and Fagan J at [2]-[13] agreeing).

Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37; DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156, applied.

3. Contrary to the approach taken by the sentencing judge, general deterrence does not negate any reduction in the moral culpability of the applicant because of his deprived upbringing. Rather, it is one of a number of countervailing factors that need to be taken into account. The sentencing judge’s approach was erroneous because, notwithstanding acceptance of the applicant’s background and its negative impact on the trajectory of his life, her Honour did not turn her mind to whether and to what extent any reduction in moral culpability was relevant to purposes of sentencing other than general deterrence. A correct analysis based upon the sentencing judge’s findings would have been to recognise a reduction in moral culpability, to weigh that up with all the objective and subjective circumstances and to give effect to such of the statutorily recognised purposes of sentencing as are engaged by the facts, weighing and balancing those purposes where they tend in opposing directions: per Fagan J at [11]-[12] and Yehia J at [104] (Ball JA at [1] agreeing).

Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37; Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38; Kennedy v R [2022] NSWCCA 215, considered.

4. Correct application of the Bugmy principles therefore involves the following considerations. Firstly, a sentencing judge must make an assessment of whether an offender’s background reduces their moral blameworthiness. Secondly, if moral culpability is reduced, a sentencing judge is required to consider the impact of that reduction on the various purposes of sentencing. Thirdly, even where the reduction in moral culpability is offset by virtue of the weight afforded to one or more purposes of sentencing, an offender’s background of disadvantage must be given “full weight”. Ground 1 is made out: per Yehia J at [110]-[114] (Ball JA at [1] and Fagan J at [2]-[13] agreeing).

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

As to ground 2:

1. While the applicant’s own experience of sexual abuse in his childhood was a factor (amongst others) underpinning his diagnosis of PTSD, the evidence does not establish, as a separate mitigating factor, that his own history as a victim of child sexual abuse contributed to the offending such as to reduce his moral culpability (by virtue of that history alone) in respect of the offences. Ground 2 is not made out: per Yehia J at [123], [125]-[126] (Ball JA at [1] and Fagan J at [14] agreeing).

Jackson v R [2023] NSWCCA 121; R v AGR (Court of Criminal Appeal, 24 July 1998, unrep); RG v R [2025] NSWCCA 36, applied.

Judgment

1. BALL JA: I agree with Yehia J.

2. FAGAN J: I have had the advantage of reading Yehia J’s judgment in draft. I agree with her Honour’s conclusion that ground 1 should be upheld and ground 2 rejected. I agree with her Honour’s proposed orders. My additional observations, which follow, rest upon Yehia J’s summaries of the evidence and the remarks on sentence and the arguments on appeal.

3. As her Honour explains in detail, there were two distinct groups of offences. In mid-2019 at the age of 25 the applicant committed five offences of sexual intercourse with KL, a girl of 15 years, while she was under his authority as a staff member at a home for girls operated by Catholic Care. There were two more offences of sexual intercourse with KL in August 2019, while KL was still under the age of 16, at the applicant’s residence after KL had left the care home. Those offences were aggravated by having been committed in company.

4. Over a period of 11 months between June 2020 and May 2021, when the applicant was 26 to 27 years old, he committed against his domestic partner, SK, three assaults, one offence of threatening with a knife with intent to intimidate and one offence of sexual intercourse without consent. SK was about three years younger than the applicant.

5. In ground 1 the applicant asserts that the learned sentencing judge “erred in the application of sentencing law to the evidence concerning the applicant’s background of childhood deprivation”. The ground refers to sentencing considerations addressed in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37. For the purpose of determining ground 1 it is not necessary to survey the very great volume of jurisprudence that has accumulated, in subsequent decisions of intermediate courts of appeal, concerning how the principles stated by the High Court are to be applied. It is sufficient to refer to statements at [43]-[44] in the joint judgment of six of the justices. Their Honours said that the “experience of growing up in an environment surrounded by alcohol abuse and violence” may, among other things, “compromise the person's capacity to mature and to learn from experience”. Further, the “effects of [such] profound childhood deprivation do not diminish with the passage of time and repeated offending” and should therefore be given full weight “in every sentencing decision”.

6. Their Honours said that an offender’s deprived background does not have “the same (mitigatory) relevance for all of the purposes of punishment”. It was noted that the extenuating effect of such a background may pull in an opposite direction to other sentencing considerations. The concluding sentences of [44] are as follows:

An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.

7. For the purposes of ground 1, the critical passage in the learned sentencing judge’s remarks is the following:

I accept that the offender has experienced physical violence and sexual assault during his formative years. I have no doubt that those offences [scil experiences] have had a negative impact on the trajectory of his life. However, in my view they do not warrant a reduction in his moral culpability in accordance with the general principles enunciated in Bugmy v The Queen [2013] HCA 37 at [44], in circumstances where I note the observations of Adamson J in Kennedy v R [2022] NSW CCA 215 at [43] with regard to the importance of general deterrence in relation to domestic violence offending.

8. That passage concerns only the offending against SK, which was referred to throughout the sentence proceedings as domestic violence offending. Immediately following the quoted portion, the sentencing judge set out part of [43] of the judgment of Adamson J in Kennedy v R. Adamson J said that, although childhood deprivation may lead to a reduction in moral culpability and may make the offender an unsuitable vehicle for general deterrence, it will not necessarily do so. Further, her Honour referred to purposes of sentencing other than general deterrence and to what the High Court said in Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 at [54], concerning purposes of sentencing such as vindication of the dignity of the victim and denunciation of the crime, which may have to be given effect notwithstanding that general deterrence is of diminished significance in the particular case.

9. The purposes of sentencing prescribed in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) are as follows:

1. to ensure that the offender is adequately punished for the offence,

2. to prevent crime by deterring the offender and other persons from committing similar offences,

3. to protect the community from the offender,

4. to promote the rehabilitation of the offender,

5. to make the offender accountable for his or her actions,

6. to denounce the conduct of the offender,

7. to recognise the harm done to the victim of the crime and the community.

10. The learned sentencing judge’s reference to “a negative impact on the trajectory of his life” is oblique. More explicit language could usefully have been deployed to describe her Honour’s finding about the relationship, if any, between the applicant’s adverse experiences in early years and the matters with which he was charged. Nevertheless, I agree with Yehia J that the learned judge may be taken, by her chosen form of expression, to have accepted a contributory causal connection between the applicant’s childhood experience of domestic violence and his offending against SK.

11. It has been said by this Court that such a causal link “will inevitably support a finding that such offender’s moral culpability is reduced”: DR v R (2022) 300 A Crim R 116; [2022] NSWCCA 151 at [37] (Bellew J, Ward P and RA Hulme J agreeing). With respect, it was not correct for the trial judge to say that the importance of general deterrence in this case was such that the applicant’s childhood experiences “do not warrant a reduction in his moral culpability”. Reduced moral culpability is one matter to be taken into account in arriving at an appropriate sentence. The degree to which the sentencing purpose of general deterrence should play a part, in all the circumstances of the case, is another. The sentencing purpose of general deterrence does not, in relation to any particular class of offending, necessarily cancel or render irrelevant the fact of reduced moral culpability where that fact is found. Adamson J’s judgment in Kennedy v R does not support such cancellation or irrelevance.

12. In accordance with Bugmy v The Queen at [44] and Munda v Western Australia at [54] a correct analysis based upon the sentencing judge’s findings would have been to recognise a reduction in moral culpability for the offending against SK, to weigh that up with all objective and subjective circumstances and to give effect to such of the statutorily recognised purposes of sentencing as are engaged by the facts of the case, weighting and balancing those purposes where they tend in opposing directions.

13. The above quoted passage is the only part of the remarks on sentence directed to consideration of the applicant’s undisputed childhood exposure to violence and abuse. It follows that the learned judge’s remarks do not disclose that she gave any consideration to the applicant’s adverse background in determining his sentence for the KL offences. Irrespective of whether the learned judge considered that his moral culpability for those matters was reduced by the adversity of his childhood, he was entitled have that adversity considered in a general way as part of his subjective case with respect to the offending against KL: Dungay v R [2023] NSWCCA 209 at [153]. In that additional respect the learned judge “erred in the application of sentencing law to the evidence concerning the applicant’s background of childhood deprivation”, as alleged in ground 1.

14. I agree with Yehia J’s reasons for dismissing ground 2 and do not wish to add anything on that subject. I approach the task of resentencing on the basis of the facts found by the learned judge at first instance, which were open to her, including what I take to be her Honour’s finding that adverse childhood experiences were a contributory cause of the applicant’s offending against SK. I also take into account the evidence of the applicant’s conduct whilst in custody, since he was sentenced and up to the present time. After weighing all those matters I consider that the indicative sentences nominated by the learned sentencing judge and the finding of special circumstances remain appropriate and I adopt them. However, I agree with Yehia J that the aggregate sentence fixed at first instance should be quashed and replaced by an aggregate term of 13 years with a non-parole period of 8 years and 9 months.

15. YEHIA J: The applicant, NK, seeks leave, under s 5(1)(c) of the Criminal Appeal Act 1912 (NSW), to appeal against the aggregate sentence imposed on him by Bright DCJ (“the sentencing judge”) sitting in the District Court of New South Wales at Gosford on 8 December 2023. The aggregate sentence was one of 15 years’ imprisonment commencing on 25 May 2021 and expiring on 24 May 2036, with a non-parole period of 9 years and 9 months. The first date upon which the applicant is eligible for release on parole is 24 February 2031.

16. The applicant was sentenced in respect of two groups of unrelated offences against two victims; one being a child who was under his care at a Catholic Care home (KL) and the other being his wife at the time (SK).

17. In relation to the first victim, KL, the applicant entered pleas of guilty to seven counts of aggravated sexual intercourse with a child aged 14-16 years old, contrary to s 66C(4) of the Crimes Act 1900 (NSW). Five of those offences occurred between 29 March and 3 June 2019, when the victim was living in a Catholic Care home where the applicant was employed as a carer. The circumstance of aggravation was that the victim was under the applicant’s authority. The remaining two offences occurred at the applicant’s home between June to August 2019. The circumstance of aggravation was that the applicant was in company.

18. In relation to the second victim, SK, the applicant entered pleas of guilty to offences committed between June 2020 and May 2021. Those offences were two counts of assault occasioning actual bodily harm, contrary to s 59(1) of the Crimes Act; one count of use of an offensive weapon with intent to commit an indictable offence, namely intimidation, contrary to s 33B(1) of the Crimes Act (with one offence each of common assault (domestic violence) and assault occasioning actual bodily harm taken into account on a Form 1); and one count of sexual intercourse without consent, contrary to s 61I of the Crimes Act (with one offence of possessing child abuse material taken into account on a Form 1).

19. In respect of the offences relating to KL, the indicative sentences were discounted by a combined discount of 40%. In respect of the offences against SK, the indicative sentences were discounted by a combined discount of 30%. The following table sets out the offences, the maximum penalty, the finding of objective seriousness and the indicative sentences.

Offences against KL
Sequence	Offence	Objective seriousness	Maximum penalty	40% discount, indicative sentence
1	Aggravated sexual intercourse with a child aged between 14-16 years (under authority) contrary to s 66C(4) of the Crimes Act (penile-vaginal intercourse)	Above mid-range	Max: 12 years’ imprisonment SNPP: 5 years	Starting term: 6 years Term: 3 years, 7 months NPP: 2 years, 3 months
3	Aggravated sexual intercourse with a child aged between 14-16 years (under authority) contrary to s 66C(4) of the Crimes Act (fellatio)	Top end of mid-range	Max: 12 years’ imprisonment SNPP: 5 years	Starting term: 4 years, 6 months Term: 2 years, 8 months NPP: 1 year, 8 months
10	Aggravated sexual intercourse with a child aged between 14-16 years (under authority) contrary to s 66C(4) of the Crimes Act (penile-vaginal intercourse)	Above mid-range	Max: 12 years’ imprisonment SNPP: 5 years	Starting term: 6 years Term: 3 years, 7 months NPP: 2 years, 3 months
12	Aggravated sexual intercourse with a child aged between 14-16 years (under authority) contrary to s 66C(4) of the Crimes Act (cunnilingus)	Middle of range	Max: 12 years’ imprisonment SNPP: 5 years	Starting term: 4 years Term: 2 years, 4 months NPP: 1 year, 8 months
4	Aggravated sexual intercourse with a child aged between 14-16 years (under authority) contrary to s 66C(4) of the Crimes Act (fellatio)	Middle of range	Max: 12 years’ imprisonment SNPP: 5 years	Starting term: 4 years Term: 2 years, 4 months NPP: 1 year, 8 months
6	Aggravated sexual intercourse with a child aged between 14-16 years (in company) contrary to s 66C(4) of the Crimes Act (penile-vaginal intercourse)	Above middle of range	Max: 12 years’ imprisonment SNPP: 5 years	Starting term: 6 years Term: 3 years, 7 months NPP: 2 years, 3 months
8	Aggravated sexual intercourse with a child aged between 14-16 years (in company) contrary to s 66C(4) of the Crimes Act (penile-vaginal intercourse)	Middle of range	Max: 12 years’ imprisonment SNPP: 5 years	Starting term: 4 years Term: 2 years, 5 months [1] NPP: 1 year, 8 months
Offences against SK
Sequence	Offence	Objective seriousness	Maximum penalty	30% discount, indicative sentence
5	Assault occasioning actual bodily harm contrary to s 59(1) of the Crimes Act (strikes to the victim’s head while pregnant)	Above middle of range	Max: 5 years’ imprisonment	Starting term: 3 years Term: 2 years, 1 month
6	Assault occasioning actual bodily harm contrary to s 59(1) of the Crimes Act (punch to the eye two days after giving birth)	Below middle of range	Max: 5 years’ imprisonment	Starting term: 1 year, 4 months Term: 11 months
9	Use offensive weapon (a knife) with intent to commit an indictable offence (intimidation) contrary to s 33B(1)(a) of the Crimes Act (held knife to the victim’s throat) Taken into account on a Form 1: one offence of assault occasioning actual bodily harm contrary to s 59(1) of the Crimes Act (max penalty: 5 years’ imprisonment) and one offence of common assault contrary to s 61 of the Crimes Act (max penalty: 2 years’ imprisonment)	Above middle of range	Max: 12 years’ imprisonment	Starting term: 4 years Term: 2 years, 9 months
10	Sexual intercourse without consent contrary to s 61I of the Crimes Act (penile-vaginal intercourse while victim was pregnant) Taken into account on a Form 1: possess child abuse material contrary to s 91H(2) of the Crimes Act (max penalty: 10 years’ imprisonment)	Middle of range	Max: 14 years’ imprisonment SNPP: 7 years	Starting term: 6 years Term: 4 years, 2 months NPP: 2 years, 8 months

1. Notwithstanding the same starting term and the same discount, the sentencing judge set an indicative sentence for sequence 8 that is 1 month longer than the indicative sentences for sequences 12 and 4. No issue is taken with this discrepancy.

Notice of Appeal and Grounds of Appeal

20. The applicant filed his Notice of Appeal against sentence on 31 January 2025. The Notice of Intention to Appeal was filed four days out of time. Leave was granted to proceed with the Notice of Appeal.

21. The applicant alleges error on two grounds:

1. Ground 1: The sentencing judge erred in the application of sentencing law to the evidence concerning the applicant’s background of childhood deprivation.

2. Ground 2: The sentencing judge erred in failing to take into account in mitigation the applicant’s own history as a victim of child sexual abuse.

The facts and findings in respect of objective seriousness

22. The applicant’s offending in respect of KL is set out in a document referred to as the “Draft Agreed Facts” dated 15 March 2023. The applicant’s offending in respect of SK is set out in a Statement of Agreed Facts dated 28 June 2023.

23. The sentencing judge summarised the facts, including the relevant context evidence, and made findings in relation to the objective seriousness of each offence. There appear to be some errors or discrepancies in the agreed facts with respect to the dates of SK’s pregnancies, but the sentencing judge proceeded on the basis of the facts as set out below. The applicant did not challenge the summary of the facts or the findings in respect of objective seriousness made by the sentencing judge.

The circumstances of offending in respect of KL

24. KL was born in September 2003. At the time of the offences, she resided at a house provided by Catholic Care, with three other children. The residents were looked after by carers who would rotate every five to six hours. One of the carers was the applicant.

25. The victim was aged between 15 years and 6 months and 15 years and 9 months during the period of the offending. Within a month of taking up residence at the house on 29 March 2019, she commenced a sexual relationship with the applicant. The applicant told the victim to add him on Snapchat, an application that was used as a means of communication.

26. By way of context, the victim reported that she and the applicant “have been fucking every single shift he came on, day or night”. The applicant would tell her what he wanted, and she would do exactly what he asked. By way of example, the applicant would direct her to go into a particular room and get into a certain position and wait for his arrival. The applicant would attend, engage in sexual activity with the victim, and then leave.

27. The victim reported that the applicant would communicate with her via Snapchat and sometimes he would verbally communicate with her if nobody else was present. The victim said that sexual intercourse happened so many times that she could not recall any specific events. During this period, the victim took pictures of herself naked and sent them to the applicant.

Sequence 1 - aggravated sexual intercourse with child over 14 under 16 (under authority)

28. On one occasion, the applicant directed the victim into the bedroom. She complied and lay on the bed with her legs open. The applicant followed the victim into the bedroom. He kissed her and removed her clothes. The applicant performed cunnilingus on the victim and then had penile-vaginal intercourse with her. The act of penile-vaginal intercourse is the conduct constituting sequence 1. The Crown relied upon the uncharged act of cunnilingus as context evidence.

29. The sentencing judge assessed the objective seriousness of the sequence 1 offence as above the mid-range.

Sequence 3 - aggravated sexual intercourse with a child over 14 under 16 (under authority)

30. The victim and the applicant were kissing in the kitchen. They went into another room, described as the “sensory room”. The victim performed fellatio on the applicant, and he ejaculated into her mouth.

31. The sentencing judge determined that this offence was at the top end of the mid-range of objective seriousness.

Sequences 10 and 12 - aggravated sexual intercourse with child over 14 under 16 (under authority)

32. The applicant and the victim were on a couch while another worker was in the office of the care home. The applicant told the victim to go into the sensory room where he had penile-vaginal intercourse with the victim. These are the facts constituting sequence 10. The Crown also relied upon the victim performing fellatio on the applicant as context evidence.

33. The sentencing judge found this offence to be above the mid-range of objective seriousness.

34. Sequence 12 relates to the applicant performing cunnilingus on the victim. The Crown relied upon the applicant digitally penetrating the victim as context evidence. The victim had to keep a lookout for the other carer who was working in the office. This offence was assessed as being at the middle of the range of objective seriousness.

Sequence 4 - aggravated sexual intercourse with child over 14 under 16 (under authority)

35. On a different night, the applicant directed the victim to go to the front door of the care home and sit on her hands and knees. He stood in front of her and the victim performed fellatio on the applicant. There were other people in the care home at the time and the victim described this incident as one of the “most risky” incidents.

36. The sentencing judge found that the objective seriousness of this offence was at the middle of the range.

Sequences 6 and 8 - aggravated sexual intercourse with child over 14 under 16 (in company)

37. Sometime between June and August 2019, the applicant, a co-offender and the victim had sexual intercourse at the applicant’s home. The victim described the co-offender as “a lot skinnier” than the applicant and “older and balding”. The co-offender would have been 35 years old at the relevant time. The applicant engaged in penile-vaginal intercourse with the victim while the co-offender was present in the room. Once the applicant stopped, the co-offender engaged in penile-vaginal intercourse with the victim whilst the applicant remained in the room. The applicant and the co-offender both ejaculated inside the victim’s vagina.

38. The sentencing judge assessed the objective seriousness of sequence 6 as above the middle of the range, and sequence 8 as in the middle of the range.

Complaint

39. The victim disclosed the applicant’s conduct to her partner and the matter later came to the attention of police once she disclosed the offending to a doctor and to her carer in May 2021, following the doctor’s diagnosis that the victim had chlamydia and genital herpes. The victim participated in interviews with police on 5 May and 10 May 2021. She supplied police with 13 screenshots and 13 videos of messages between herself and the applicant which were of a sexual nature. The applicant was arrested on 25 May 2021.

The circumstances of the offending in respect of SK

40. At the time of the offending against SK, she was 25 years old and had been married to the applicant since 13 May 2021. They had been in a relationship for over three years prior to getting married. They have two children born in February 2020 and January 2022.

41. SK described the relationship as normal before she became pregnant. The relationship changed when she fell pregnant with their first child at the end of 2019. The victim and the applicant would argue about the applicant’s family. During these arguments he was often aggressive. By way of background, SK reported that during sexual intercourse, the applicant was rough with the victim. He would often choke her during intercourse saying things like, “Oh, but you liked it”.

42. SK did not report the abuse because she was scared of what the applicant would do and he would apologise to her, saying he would not do it again. The victim regularly took photographs of her injuries sustained as a consequence of the applicant’s assaults upon her.

Sequence 11 - common assault (Form 1 matter attached to sequence 9)

43. While driving to the victim’s mother’s house in June 2020, the applicant, who was driving, and the victim, seated in the front passenger seat, commenced arguing. About halfway through the journey, the applicant hit the victim in the right ear. The victim photographed the injury the next day.

Sequence 5 - assault occasioning actual bodily harm

44. On 5 September 2020, the victim (who was over halfway through her pregnancy) and the applicant were arguing because the victim did not want the applicant’s mother visiting all the time once the child was born. The applicant hit the victim to the right side of her face connecting with her right ear. After about an hour, the victim went to the lounge room to talk to the applicant. He started yelling and struck her to the left cheekbone, having followed her into the bedroom. This blow caused her to fall onto the floor. The victim felt that her cheek was throbbing, sore and swollen. The applicant straddled the victim and pinned her arms down. She could not defend herself.

45. Following the incident, the applicant began acting “nice” to the victim and offered her some ice, later texting her, “Come to bed and put ice on it”.

46. The sentencing judge assessed the objective seriousness of this offence as above the middle of the range. An important factor in that assessment was that the victim was 20 weeks’ pregnant and the offending was an episode of domestic violence.

Sequence 6 - assault occasioning actual bodily harm

47. The victim gave birth in February 2021. On 10 February, the applicant and the victim were home when an argument commenced because the victim believed the applicant’s family members were possessive of the child. During the argument the applicant punched the victim in the right eye. She felt pain and a bruise developed immediately under her right eyebrow.

48. The sentencing judge assessed the objective seriousness of this offence as being below the middle of the range.

Sequence 9 - use weapon with intent to intimidate

49. Sometime after their child was born, the victim and the applicant were in their bedroom arguing. The applicant pushed the victim to the ground and yelled at her, “I’m going to kill you!”. The victim said, “No, you’re not”. The applicant retrieved a knife from the kitchen, described as 30cm long with a black handle. The victim was still lying on the ground when the applicant held her down by the shoulders, placing the knife against her neck with the edge of the blade pressing against her skin. The applicant then left the room.

50. The sentencing judge took into account the nature of the implement, the threat to kill and the fact that the offending was an episode of domestic violence, in assessing the objective seriousness of the offence as above the middle of the range.

Sequence 7 - assault occasioning actual bodily harm (Form 1 offence attaching to sequence 9)

51. Sometime in the first half of 2021, the victim and the applicant argued about the care for their child. The applicant took the child to his mother’s house and did not return until the following day. The arguments included the applicant locking the victim out of the house and punching her multiple times to the face while she was seated on the lounge.

Sequence 10 - sexual intercourse without consent

52. In May 2021, when the victim was in the early stage of pregnancy with their second child, she was unwell and in bed. The applicant kept asking her for sex after she had told him that she was not feeling well. He climbed on top of her and pinned her down with one arm with the other hand around her neck. She could feel the pressure although was still able to breathe. The victim was crying and tried to push the applicant off her, repeatedly saying, “I don’t want to”.

53. The applicant held the victim down with his hand still around her neck and spat on the victim’s face. The victim was afraid that she would be hurt and did not resist. The applicant inserted his penis into the victim’s vagina, while she was still protesting. The applicant continued for about five minutes before he climbed off the victim. She could see that he had ejaculated in her vagina. The victim asked the applicant, “What did you do to me?” and “You raped me”. The applicant said, “But you kind of liked it”.

54. The sentencing judge was satisfied that the applicant had actual knowledge of the victim’s lack of consent. Her Honour had regard to the violence used by the applicant during the commission of the offence and the degrading conduct towards the victim constituted by holding her down and spitting in her face. The sentencing judge also took into account the fact that the applicant had ejaculated in the victim’s vagina and that this was offending which constituted an episode of domestic violence. The sentencing judge assessed the objective seriousness of the offence as being at the middle of the range.

Sequence 8 - possession of child abuse material (Form 1 matter attaching to sequence 10)

55. After the applicant’s arrest, a forensic examination was conducted of his mobile phone. Examiners located 29 images and 2 videos of child abuse material.

Aggravating factors

56. In respect of all the offences involving SK, the sentencing judge took into account, as an aggravating factor, that the offending occurred in the home of the victim.

57. Similarly, in relation to sequences 1, 3, 4, 10 and 12 against KL, the sentencing judge took into account that the offending occurred in the home of the victim as an aggravating factor. Her Honour was not satisfied to the requisite standard that the offending was planned such as to establish an aggravating factor.

The applicant’s subjective case

58. The applicant’s subjective case was before the sentencing judge by way of an amended psychiatric report prepared by Dr Christopher Bench, dated 3 October 2023.

59. The applicant was 29 years old at the time of sentencing. He had a “very limited criminal history”.

60. The applicant was one of eight children and discovered that he was Indigenous, from Worimi Country, at the age of 16. His parents separated when he was 12 months old due to domestic violence in their relationship. The applicant’s father died when the applicant was aged 15. He remained close to his mother and was close to his stepfather from an early age. The applicant reported to Dr Bench that: “I was beaten by my dad and my mum … mum would beat me with a wooden spoon”.

61. The applicant reported that at the age of 14 he was sexually assaulted by a religious education teacher on three occasions and was going through civil litigation. The abuse involved oral sex, genital fondling and digital penetration.

62. He did not complete year 12 due to being injured in a serious motor vehicle accident. After leaving school, the applicant worked at McDonald’s and then at a hardware store before commencing work as a disability support worker and youth worker for several years. He separated from his wife when he was arrested.

63. The applicant was 17 years old when he was involved in the motor vehicle accident which resulted in a head injury with a loss of consciousness. He spent approximately three months in hospital as a consequence of the motor vehicle collision. He subsequently suffered a stroke, reporting ongoing difficulties including mild left-sided weakness and difficulties with his attention, concentration and hypertension.

64. The applicant’s first contact with mental health providers was at the age of five when he was diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) and treated with Ritalin. He reported ongoing symptoms of ADHD before his arrest and continued to be treated with Ritalin.

65. The applicant attended counselling with a grief counsellor following the death of his father and grandmother in close succession, when he was 16 years old. He reported difficulties with grief, anger, mild depression, tearfulness and being isolative and withdrawn. He also experienced suicidal ideation. The applicant consulted with a psychologist over a period of two years and was diagnosed with mild depression.

66. The applicant reported increased depression following the motor vehicle accident. He said, “I felt like I’d lost everything”, “I didn’t want to do anything”. He reported that he had no energy, he hated the world and suffered from insomnia. His sex drive was non-existent. He had decreased appetite and noted that he just wanted to lay in bed all day. The applicant was treated with anti-depressant medication.

67. At the age of 25, the applicant was diagnosed with Major Depressive Disorder. He was admitted for a period of nine days to the Calvary Mater Hospital where he was again treated with anti-depressant medication. He made two suicide attempts at the age of 25 and 26. On one occasion he tried to kill himself by taking an overdose of anti-hypertensive medication. At the age of 26 he took an overdose of various medications. He was again diagnosed with Major Depressive Disorder and there was a change in his medication.

68. The applicant reported that due to the traumas he had experienced, he had difficulties regulating his anger. He reported chronic difficulties with lethargy and the onset of nightmares after the motor vehicle accident. The applicant reported that he would wake up with “panic attacks”, his heart racing, sweating, being unable to sit still and being angry. He was first diagnosed with Post-Traumatic Stress Disorder (PTSD) as part of his civil litigation.

69. In relation to his substance abuse history, the applicant commenced drinking alcohol at the age of 10. He reported a history of alcohol blackouts. He commenced using cannabis when he was 19 years old, although had not used cannabis in more recent years. Following the motor vehicle accident, he commenced using prescription opiates. There is some inconsistency in the history of the use of prescription opiates. The applicant reported the abuse of prescription opiates daily from the age of 17 years until the time of his arrest. However, Dr Bench noted that the applicant had said on another occasion that he had no opiates for approximately six months prior to his arrest.

70. The applicant told Dr Bench that he had inadvertently downloaded the child abuse material which he thought was “regular porn”. In respect of the sexual offending against KL, the applicant told Dr Bench, “I was a carer. I was looking after her … she was fifteen at the time”. The applicant acknowledged, “I knew it had to stop … I informed her it had to stop … she moved to another residential address and we never saw each other again.”

71. When asked specifically about the offending between June and August 2019 with the co-offender, the applicant told Dr Bench, “it was a threesome … he went and picked her up. She came back to my place … I had sex with her and he had sex with her … I drove her home. That’s about it.”

72. The applicant told Dr Bench that he felt:

“disgusted … the fact I’ve done that. I have a niece that age and I frequently wonder about how I would feel if something like that happened to her … she might not have a decent life now … my job was to care and protect her and I did the complete opposite … I’m extremely remorseful … I’m going to do everything in my power to ensure I don’t do it again”.

73. The applicant said that the sexual offence against his wife started out as “mucking around” and that he had gone “too far”. The applicant said that he felt terrible for his wife and that he was really disappointed in himself. In relation to the violence, the applicant said, “I escalated to breaking point and I started to lash out … I can’t control my temper”.

74. The applicant reported that he felt “terrible” for SK. He stated:

“I’m disappointed, really disappointed. I never thought I’d be a person to hurt a woman … I’m ashamed, really ashamed … I’ve let my sons down. I’ve let [SK] down. I’ve let my family down”.

The opinion of Dr Bench

75. Dr Bench opined that the offender had Opioid Use Disorder in sustained remission, Major Depressive Disorder with anxious distress recurrent, ADHD, PTSD and Borderline Personality Disorder in the context of difficulty controlling his anger. Dr Bench noted that the applicant “reported a lifelong pattern of difficulties with regard to instability of interpersonal relationships, self-image and affects”.

76. Dr Bench was of the view that the applicant met the diagnostic criteria for Borderline Personality Disorder given the applicant’s report of impulsivity especially in the form of sexual activity, substance abuse and violence. The applicant also reported recurrent suicidal behaviour and gestures with marked mood lability and chronic feelings of emptiness.

77. Dr Bench opined that, “[c]learly, the serious motor vehicle accident and/or the physical and sexual abuse as a child would all meet [the diagnostic criteria] for Posttraumatic Stress Disorder”.

78. On the question of whether the applicant’s mental health conditions contributed to the offending, he concluded:

“[The applicant’s] Post Traumatic Stress Disorder and Borderline Personality Disorder could be seen to have potentially played a contributory role to his engagement in the offending behaviour, especially the violent offending. The defendant freely acknowledged that he has had great difficulties with regard to anger management dating back to childhood. Irritability and anger management difficulties are symptomatic of both Posttraumatic Stress Disorder and Borderline Personality Disorder. His anger and difficulties controlling his anger have thus likely played a significant role in his engagement in the violent offending.”

79. Dr Bench made several recommendations in respect of the applicant’s treatment including referral to a sex offender treatment plan program.

Findings of the sentencing judge on the applicant’s subjective case

80. The sentencing judge noted the applicant’s expressions of remorse and took them into account. Her Honour said that it was difficult to assess the applicant’s prospects of rehabilitation given that he had not undertaken any treatment in respect of his sexual offending or his anger management issues, although it was noted that the applicant had completed a Positive Lifestyle Program in custody. The sentencing judge was unable to find that the applicant is unlikely to reoffend.

81. The sentencing judge accepted that the applicant had spent 160 days in lockdown because of the COVID-19 pandemic. It was accepted that the significant impact of the pandemic on correctional facilities made conditions in custody more onerous. This was a factor her Honour took into account.

82. The sentencing judge accepted that the applicant had experienced physical violence and sexual assault during his formative years and expressed a view that those experiences had a negative impact on the trajectory of his life. However, the sentencing judge was not of the view that the applicant’s experience of physical and sexual abuse during his formative years reduced his moral culpability. Her Honour came to that conclusion relying on Kennedy v R [2022] NSWCCA 215 (“Kennedy”) at [43] (per Adamson J, Garling and N Adams JJ agreeing), where the importance of general deterrence in domestic violence offending was emphasised. Her Honour’s reasoning on this aspect was expressed in the following terms:

“I accept that the offender has experienced physical violence and sexual assault during his formative years. I have no doubt that those offences have had a negative impact on the trajectory of his life. However, in my view, they do not warrant a reduction in his moral culpability in accordance with the general principles enunciated in Bugmy v R [2013] HCA 37 at [44], in circumstances where I note the observations of Adamson J in Kennedy v R [2022] NSWCCA 215 at [43] with regard to the importance of general deterrence in relation to domestic violence offending. Adamson J stated as follows:

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

83. The reference in Kennedy to Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 is simply a reference to a consideration of the judicial role in sentencing and judges’ awareness that “if they consistently impose sentences that are too lenient or too severe, they risk undermining public confidence in the administration of justice and invite legislative interference in the exercise of judicial discretion” (emphasis added, per McHugh J at [82]). It is for this reason that judges attempt to impose sentences that accord with legitimate community expectations.

84. The sentencing judge accepted that in relation to the domestic violence offences, the offending was “causally connected” to the applicant’s mental health issues. As a result, the sentencing judge moderated the significance of general deterrence and retribution. Her Honour also found that the applicant’s mental health issues made his time in custody more onerous.

85. Lastly, the sentencing judge made a finding of special circumstances warranting a variation of the statutory ratio between the non-parole and the parole period pursuant to s 44(2B) of the Crimes (Sentencing Procedure) Act 1999 (NSW). Her Honour did not specify on what basis the finding of special circumstances was made. Instead, her Honour, under the heading “Special Circumstances”, simply said that she accepted the submissions made on behalf of the offender that she would find special circumstances “in circumstances where it is the [applicant’s] first time in full-time custody”.

86. The written submissions filed on behalf of the applicant in the sentence proceedings urged a finding of special circumstances on the basis that this was the first time the applicant was in custody and given the “onerous conditions he has experienced during the Covid-19 pandemic”. There was no reference made to special circumstances by the applicant’s counsel, at sentence, during the oral submissions.

Ground 1: The sentencing judge erred in the application of sentencing law to the evidence concerning the applicant’s background of childhood deprivation

87. The applicant contends that there has been a misapplication by the sentencing judge of the principles in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 (“Bugmy”). The applicant submitted that the Remarks on Sentence (ROS) do not deal with the application of Bugmy other than where the sentencing judge concluded that the applicant’s background of childhood deprivation, though accepted, did not warrant a reduction in his moral culpability because of the importance of general deterrence in domestic violence offending.

88. This was not a case where the sentencing judge decided that no reduction in moral culpability was justified because there was no causal connection between the applicant’s childhood background and the offending. The sentencing judge accepted that the “physical violence and sexual assault during his formative years … no doubt … have had a negative impact on the trajectory of his life”. Dr Bench’s unchallenged and accepted opinion was that the applicant’s mental health issues arose by reason of his childhood experiences.

89. The applicant submitted that childhood deprivation can assume a mitigating effect on multiple aspects of sentencing, not just general deterrence. The applicant contended that the ROS demonstrate no consideration otherwise of the impact of the accepted Bugmy features of the applicant’s subjective case on specific deterrence, the need for rehabilitation, his risk of reoffending or special circumstances.

90. The applicant submitted that a background of childhood deprivation and a causal connection between it and, at least, the domestic violence offending, having been accepted, the sentencing judge should have concluded that the applicant’s moral culpability was reduced for that offending, even if the same factual finding of childhood deprivation did not also serve to reduce the significance of general deterrence because of the domestic violence nature of the offending against SK.

91. The respondent submitted that there was a lack of evidence in the present case from which a “causal connection” with the offending could be attributed to Bugmy factors when those factors were considered in isolation. The respondent further submitted that the evidence in the present case of the relevance of the applicant’s childhood experiences was to his mental health conditions, which gave rise to the sentencing judge’s amelioration of the sentence in respect of general deterrence and retribution.

92. The respondent took issue with the applicant’s submission that the sentencing judge failed to consider Bugmy principles in respect of specific deterrence, prospects of rehabilitation and special circumstances. There was no evidence before the sentencing judge warranting any mitigation in penalty on account of specific deterrence and it was open to conclude that there were difficulties in assessing the applicant’s rehabilitation prospects because he had not yet received treatment for his anger management issues.

93. The respondent noted that her Honour did find special circumstances. The applicant has not identified House v The King (1936) 55 CLR 499; [1936] HCA 40 error in this regard. The applicant’s legal representative on sentence made no submissions to the sentencing judge in respect of any link between specific deterrence and a finding of special circumstances. The finding of special circumstances was confined to the fact that this was the applicant’s first time in custody and having regard to the onerous conditions due to the COVID-19 pandemic.

94. The respondent’s submissions appeared to contain an internal inconsistency. On the one hand, it was submitted that the applicant’s background of sexual abuse and the motor vehicle accident were not the “result of the type of deprived childhood the subject of Bugmy principles”. On the other hand, the respondent submitted that the sentencing judge did take into account the “Bugmy evidence”, by finding that those factors contributed to the applicant’s mental health conditions which warranted a reduction in the weight to be given to general deterrence and retribution in respect of the domestic violence offences.

95. I pause to observe that it is accepted on this appeal that the reference to “domestic violence offences” in the ROS, was a reference to the offences against SK. In the outline of the Crown’s submissions on sentence, dated 1 November 2023, and relied upon by the Crown in the sentence proceedings, the Crown sought an order pursuant to s 12(2) of the Crimes (Domestic and Personal Violence) Act2007 (NSW), that a domestic violence offence be recorded as such on the criminal history of the applicant upon conviction in relation to the offences against SK only.

Consideration

96. There is a difficulty with the approach the sentencing judge took to the principles stated in Bugmy in that her Honour conflates the requirement stated in Bugmy to give “full weight” to childhood deprivation in determining the moral culpability of the offender for the offence in question with the need in cases of domestic violence to give appropriate weight to general deterrence in fixing the sentence to be imposed.

97. Kennedy is not authority for the proposition that a sentencing judge can refuse to reduce moral culpability simply because of the importance of general deterrence. In Kennedy, the sentencing judge had in fact taken into account the applicant’s childhood deprivation in a number of respects: in finding that it contributed to the offending conduct, and when addressing general deterrence, specific deterrence, the need for rehabilitation, the risk of reoffending and special circumstances. Adamson J (Garling and N Adams JJ agreeing) noted that the remarks were “redolent with references to the applicant’s childhood deprivation and the problems it has caused him in adult life” (at [42]).

98. However, having found that the applicant had suffered significant childhood deprivation which had contributed to the offending, the sentencing judge in Kennedy found that nonetheless both general and specific deterrence were entitled to significant weight.

99. In considering the relevance of the effects of profound childhood deprivation, the Court (per French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ) in Bugmy said:

“[43] The Director's submission should be accepted. The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person's capacity to mature and to learn from experience. It is a feature of the person's make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending.

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

100. The assessment of moral culpability is made by reference to matters subjective to an offender. That assessment is not made by a consideration of factors removed from an offender’s subjective circumstances. An offender’s moral culpability may be reduced by reason of a background of deprivation, mental health conditions and youth. In some cases, there will be an interplay between several subjective factors that may have a cumulative effect on the reduction of moral culpability.

101. It is incumbent upon a sentencing judge to first assess whether that background operates to reduce the offender’s moral blameworthiness for the offending. For example, the exposure to domestic and family violence or alcohol and drug use, during an offender’s formative years, may operate to normalise that conduct such as to have an impact upon their capacity to reason, appreciate the full wrongfulness of their actions, control their conduct, understand the consequences of their offending, and may impair their capacity for emotional regulation, and increase immaturity and impulsivity.

102. A sentencing judge is then required to consider how the offender’s reduced moral culpability, and the reason for that reduction, bears upon the weight to be attached to the various sentencing factors such as general and specific deterrence, protection of the community, retribution and promotion of rehabilitation: DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156 at [92]-[93] (per Beech-Jones CJ at CL, N Adams and Cavanagh JJ). A reduction in moral culpability may also have an impact upon other sentencing considerations including but not limited to a finding of special circumstances.

103. A reduction in moral culpability does not automatically translate to a reduced sentence: Harris v R [2021] NSWCCA 322 per Dhanji J at [89] (Simpson AJA and Ierace J agreeing). A sentencing judge is required to have regard, as far as is relevant, to countervailing factors which may include the protection of the community and the need for the sentence to vindicate the dignity of the victim and reflect the community’s disapproval of the offending: Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 at [54] (per French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ); Marrah v The Queen [2014] VSCA 119 at [16] (per Redlich and Tate JJA).

104. Contrary to the approach taken by the sentencing judge, general deterrence is not a matter that negates any reduction in the moral culpability of the applicant because of his deprived upbringing. Rather, it is one of a number of countervailing factors that needs to be taken into account in fixing an appropriate sentence. The approach adopted by the sentencing judge was erroneous in a material way because, notwithstanding acceptance of the applicant’s background and its negative impact on the trajectory of his life, her Honour did not turn her mind to whether and to what extent any reduction in moral culpability was relevant to purposes of sentencing other than general deterrence. This was more than simply an infelicitous way of expressing the relevant principles. The failure to first assess the applicant’s moral culpability (by reference to his background) resulted in a failure to consider whether that background impacted upon the sentence in several respects including denunciation, specific deterrence, and the need for rehabilitation, for all the offences.

105. Under the heading “The relevance of the offender’s mental health”, the sentencing judge referred to Dr Bench’s opinion that the applicant’s anger management issues and irritability are symptoms of PTSD and Borderline Personality Disorder, accepting that there was a causal connection between the applicant’s mental health issues and the domestic violence offences. In respect of those offences only (committed against SK) the sentencing judge moderated the significance of general deterrence and retribution.

106. It was open to the sentencing judge to find (as she did) that the applicant’s mental health condition materially contributed to the domestic violence offences, thereby reducing the significance of general deterrence and retribution. However, in limiting herself to a consideration of general deterrence to reason that the applicant’s moral culpability should not be reduced, it is unclear as to how her Honour took into account the applicant’s background in any way in determining the appropriate sentence in respect of all of the offences.

107. The reference by the sentencing judge to having taken into account the applicant’s “subjective circumstances”, together with the objective seriousness of each offence, the purposes of sentencing, the maximum penalty and the relevant standard non-parole periods, does not demonstrate how the sentencing judge took into account the applicant’s background and the negative impact it had on the trajectory of his life, in determining the appropriate penalty in relation to the offences against KL.

108. In respect of the offences against KL, it is clear that the applicant’s background was not taken into account to reduce his moral culpability or in assessing the significance of general deterrence and retribution. It was not taken into account as a basis for a finding of special circumstances, noting that the sentencing judge found special circumstances for the reasons relied upon by the applicant’s counsel in the sentence proceedings. Those reasons were set out in the written submissions on sentence which reveal that the reasons for urging a finding of special circumstances were limited to the fact that this was the first time the applicant was in custody and the onerous conditions existing during the COVID-19 pandemic.

100. The error in applying the Bugmy principles meant that the sentencing judge refused to reduce moral culpability for reasons outside the scope of that assessment and resulted in a failure by the sentencing judge to have regard to the applicant’s background in determining the appropriate penalty for the offences against KL.

101. In my view the correct application of the Bugmy principles involves the following considerations. Firstly, a sentencing judge must make an assessment of whether an offender’s background reduces their moral blameworthiness, bearing in mind that the High Court in Bugmy said, “… a background of that kind may compromise the person’s capacity to mature and to learn from experience. It is a feature of the person’s make up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending” (at [43]).

102. This assessment is made by reference to matters subjective to the offender. An offender’s moral blameworthiness cannot be assessed by reference to factors unrelated to an offender, such as the purposes of sentencing.

103. Secondly, if moral culpability is reduced, a sentencing judge is required to consider the impact of that reduction on the various purposes of sentencing. For instance, a reduced moral culpability may mean that the extent to which the conduct is denounced is less than in a case where the offender has a “normal” or “advantaged” background. On the other hand, the reduction in moral culpability may be offset by the weight afforded to general deterrence and/or the protection of the community.

104. Thirdly, even where the reduction in moral culpability is offset, wholly or in part, by virtue of the weight to be afforded to one or more purposes of sentencing, an offender’s background of disadvantage must be given “full weight” in “every sentencing decision”: Bugmy at [44].

105. Having found error, I am of the view that ground 1 is made out.

Ground 2: The sentencing judge erred in failing to take into account in mitigation the applicant’s own history as a victim of child sexual abuse

115. The applicant’s complaint under Ground 2 relates to the failure by the sentencing judge to consider whether the applicant’s moral culpability, specifically for the child abuse offences against KL, should be reduced on the basis of his own history as a victim of child sexual abuse being a contributing factor.

116. Although the submissions on behalf of the applicant on sentence did not specifically refer to the way in which the evidence of the applicant’s history of sexual abuse should be accounted for in the sentencing exercise, that evidence was a clear feature of the applicant’s subjective case.

117. The applicant submitted that in light of Dr Bench’s opinion that the applicant’s PTSD did potentially play a contributing role in all of the offending the subject of the sentence, and that the applicant’s condition was in part the result of his own experience of child sexual abuse, a sufficient contributory impact was established, warranting a reduction in moral culpability.

118. While not a mitigating principle which counsel for the applicant drew to the sentencing judge’s attention, it is contended by the applicant that this was a matter of such significance in the sentencing exercise that it ought to enliven the Court’s jurisdiction on the basis that the sentencing judge failed to take into account a relevant consideration.

119. The respondent submitted that the sentencing judge did take into account the applicant’s history of being sexually abused as a child (having accepted Dr Bench’s opinion) by moderating the significance of general deterrence and retribution. The sentencing judge also found that the applicant’s mental health conditions would make his time in custody more onerous and took that factor into account in determining the appropriate sentence.

Consideration

120. The applicant’s background and the diagnosis of PTSD and Borderline Personality Disorder were interrelated. Childhood deprivation, often involving multiple traumas, may often cause mental illness or impairment such as PTSD. In other cases, a mental health condition may not arise. As Rothman J (Leeming JA and McNaughton J agreeing) observed in Jackson v R [2023] NSWCCA 121, at [53]:

“Where a person has suffered such childhood deprivation and also suffers mental illness, the Court is required to take account of each of those circumstances and not to elide the two quite separate issues. Of course, where it can be shown that the psychiatric condition was caused by the childhood deprivation and/or trauma to which, otherwise, the Bugmy principles would apply, it is also necessary to ensure that there is no double counting for what is, in effect, the same issue.”

121. In R v AGR (Court of Criminal Appeal, 24 July 1998, unrep), James J (with whom Mason P and Grove J agreed) said at 13:

“In my opinion, if it is established that a child sexual assault offender was himself sexually abused as a child, and that that history of sexual abuse has contributed to the offender’s own criminality, that is a matter which can be taken into account by a sentencing judge as a factor in mitigation of penalty as reducing the offender’s moral culpability for his acts, although the weight which should be given to it will depend very much on the facts of the individual case and will be subject to a wide discretion in the sentencing judge.”

122. The relevant principles were most recently summarised in RG v R [2025] NSWCCA 36 where I found as follows (Davies and Lonergan JJ agreeing):

“[78] To be clear therefore, in my view, the following propositions can be distilled from the authorities:

(i) Firstly, for a history of childhood abuse to be taken into account as reducing an offender’s moral culpability for his acts, an offender must establish on a balance of probabilities the fact of the abuse.

(ii) Secondly, an offender must establish on a balance of probabilities that the history of abuse was a contributing factor in the offender’s own offending conduct (emphasis added).

(iii) Thirdly, a history of sexual abuse will not automatically lead to reduction of sentence. The important consideration is the consequences which flow from the earlier events.

(iv) Fourthly, the weight which should be given to the history of sexual abuse will depend very much on the facts of the individual case.”

123. The applicant’s experience of having been sexually abused as a child was one of several factors underpinning the diagnosis of PTSD. The applicant’s dysfunctional background was a relevant consideration in the application of the Bugmy principles for the reasons set out above. However, I am not of the view that the evidence in this case warranted a finding that the applicant’s experience of sexual abuse contributed to his offending against KL such as to reduce his moral culpability (by virtue of that history alone) in respect of those offences.

124. The applicant did not give evidence in the sentence proceedings. He did however report to Dr Bench the circumstances which existed at the time of his offending conduct. In the period of the sexual offending, the applicant reported that he was compliant with his medication. He was consuming very little alcohol. He noted that his partner was pregnant at the time which was a “significant stressor”. The applicant described his mood during this period as “up and down … good days and bad days” and reported that his libido remained high throughout. The applicant acknowledged that he was the victim’s carer and that she was only 15 at the time of the offending, explaining that, “… we started flirting. One thing led to another … It got to a point I should have stopped it and said it was inappropriate … it escalated from there into a sexual relationship for the next couple of weeks”.

125. While the applicant’s own experience of sexual abuse in his childhood was a factor (amongst others) underpinning the diagnosis of PTSD, the evidence does not establish, as a separate mitigating factor, that his own history as a victim of child sexual abuse contributed to the offending against KL.

126. Accordingly, Ground 2 is not made out.

Re-sentence

127. Where error is established, it is the duty of this Court to exercise the sentencing discretion afresh, taking into account the purposes of sentencing and the factors that the Crimes (Sentencing Procedure) Act, and any other Act, or rule of law, require or permit: see Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42].

128. My assessment of the objective seriousness of each offence is in accordance with that of the sentencing judge. Each set of offences demonstrates serious criminal offending.

129. Like the sentencing judge, I accept that the applicant experienced physical and sexual assault during his formative years. In addition, the applicant experienced a serious motor vehicle accident when he was only 17 years old. He suffered a head injury and a subsequent stroke which resulted in symptoms that included impaired attention and concentration.

130. The applicant was diagnosed with ADHD at the age of five and during his lifetime, has been diagnosed with both mild depression and Major Depressive Disorder. At the age of 25, he was admitted to the Calvary Mater Hospital where he remained for nine days.

131. I find that the experiences of the applicant during his formative years have had a negative impact on the trajectory of his life such as to warrant a degree of reduction in his moral culpability in accordance with the general principles enunciated in Bugmy. The reduction in moral culpability ameliorates the weight to be afforded to denunciation. The applicant’s conduct does not attract the same degree of denunciation as similar conduct committed by an offender with a “normal” or “advantaged” background.

132. However, the weight to be afforded to general deterrence, specific deterrence and the protection of the community is not reduced, having regard to the serious nature of the offending. The offences committed against SK involved persistent domestic violence offending which included physical assaults on multiple occasions.

133. The offending against KL occurred at a time when the applicant was employed as a carer at the group home where she was residing. KL was aged between 15 years and 6 months and 15 years and 9 months during the relevant period and was under the authority of the applicant in circumstances where he exploited the victim for his own sexual gratification during the course of his employment.

134. An affidavit affirmed by the applicant on 11 April 2025, an affidavit affirmed by the applicant’s solicitor, Mr Julian Stevens on 16 April 2025 and an affidavit sworn by the respondent’s solicitor, Mr Steven Thomson on 22 April 2025 were read on the usual basis and without objection. I have made reference to the content and annexures of those affidavits below.

135. Since the applicant was sentenced on 8 December 2023, the applicant has had one custodial infringement of damage/destroy property on 17 February 2025. The misconduct report records that the applicant was observed on CCTV to “stomp on several plants including seedlings and small shrubs resulting in several branches being broken”. The applicant stated that he was “out in the garden mucking around with a friend and … stepped on one of the plants”. The applicant received a 28-day good behaviour bond.

136. Since entering custody, the applicant has worked in the kitchen and in recycling but lost his job after the misconduct charge. A case note dated 7 August 2024 records that the applicant “is a good work[er] and [compliant] inmate [who] works well with others”.

137. The applicant has maintained regular contact with family members while in custody and states that they are “really supportive”. The applicant deposes that his mother has been having health issues in recent months, including suffering a heart attack. It has been difficult for the applicant to be unable to support his mother and stepfather.

138. The applicant deposes that he has struggled with his mental health since entering custody, including increased nightmares. He has been referred to see a psychologist and is on a waitlist. The applicant is currently taking an antidepressant and medication to treat his PTSD. While in custody, the applicant has been processing his trauma related to the sexual abuse he suffered as a child, which has been a difficult experience.

139. The applicant has completed some programs while in custody, including a Positive Lifestyle Program with the Salvation Army, a food safety course, and a religious Crossroads program. No courses relating to the applicant’s offending have been made available to him yet, but the applicant has expressed willingness to participate in such courses when they become available to him closer to his earliest possible date for release.

140. The applicant’s willingness to participate in rehabilitative courses and his relatively positive conduct in custody are matters that point to some prospects of rehabilitation. Any assessment as to the likelihood of reoffending is heavily contingent upon the treatment he engages in whilst in custody. That treatment should not be limited to his mental health conditions but extend to anger management.

141. I am of the view that after applying the relevant combined discounts, the same indicative sentences apply to each offence, as set out in the table above (at [19]). There will be a degree of notional accumulation reflected in the aggregate sentence. In determining the extent of that notional accumulation, I have had regard to the principle of totality. Having applied the relevant principles, I have determined that an aggregate sentence less than that imposed by the sentencing judge is warranted.

142. I make a finding of special circumstances warranting a variation of the statutory ratio. I make that finding for the reasons set out by the sentencing judge. In addition, I have taken into account the applicant’s mental health conditions, which are in large part caused by his dysfunctional background. The applicant will require an extended period on parole to ensure that treatment for those conditions is continued in the community.

143. Accordingly, I propose the following orders:

1. Grant leave to appeal.

2. Appeal allowed.

3. Quash the sentence imposed in the District Court on 8 December 2023.

4. In lieu thereof, sentence the applicant to an aggregate term of imprisonment of 13 years commencing on 25 May 2021 and expiring on 24 May 2034. I fix a non-parole period of 8 years and 9 months. The first date upon which the applicant is eligible for release on parole is 24 February 2030.

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Endnote

Decision last updated: 02 June 2025