Ridgeway v The King

[2024] NSWCCA 152

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Ridgeway v R [2024] NSWCCA 152

Hearing dates:

09 August 2024

Date of orders:

21 August 2024

Decision date:

21 August 2024

Before:

Ward P at [1];
Wilson J at [2];
Sweeney J at [69]

Decision:

(1) Extend the time in which to bring an application for leave to appeal until 28 May 2024;

(2) Grant leave to appeal;

(3) Dismiss the appeal.

Catchwords:

CRIME – appeal against sentence – domestic violence offences – application of principles in Bugmy v the Queen (2013) 249 CLR 571; [2013] HCA 37 – whether weight given to childhood deprivation wrongly reduced by sentencing judge – relevance of considerations of the seriousness of the offence

CRIME – appeal against sentence – leave to appeal out of time sought

Legislation Cited:

Crimes Act1900 (NSW), ss 33, 94

Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 14

Criminal Appeal Act 1912 (NSW), s 5

Criminal Procedure Act 1986 (NSW), s 166

Crimes (Sentencing Procedure) Act 1986 (NSW), ss 9, 44

Cases Cited:

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

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

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Jake Ridgeway (Applicant)
Rex (Respondent)

Representation:

Counsel:
S Fraser (Applicant)
E Wilkins SC (Respondent)

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

File Number(s):

2020/00190236

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

2 August 2021

Before:

Pickering SC DCJ

File Number(s):

2020/00190236

JUDGMENT

1. WARD P: I agree with Wilson J.

2. WILSON J: In April 2021 the applicant, Jake (or Jacob) Ridgeway, entered pleas of guilty to four charges, two of which were indictable offences that were subsequently committed for sentence to the District Court sitting at Taree. He was sentenced for those offences and the remaining two related matters, being summary offences that were before the court on a certificate pursuant to s 166 Criminal Procedure Act 1986 (NSW), by his Honour Judge Pickering SC on 2 August 2021. An aggregate sentence of 8 years imprisonment with a non-parole period (“NPP”) of 5 years and 6 months was imposed. Mr Ridgeway now seeks an extension of time in which to bring an application for leave to appeal, and leave to appeal against that sentence.

3. If permitted to do so the applicant raises one ground of appeal, in these terms:

“The sentencing judge erred in his application of the principles enunciated in Bugmy v The Queen [2013] HCA 37”.

4. The delay in advancing the proposed ground is a substantial one, but whether an extension of time should be granted is in part dependent upon whether an appeal has any prospect of success. For that reason, I will consider the substantive matter first.

The Proceedings in the District Court

5. As noted, the applicant entered pleas of guilty to four offences in the Local Court, adhering to those pleas in the District Court. The sequence numbers (“seq”), offences, maximum penalties, and any standard non-parole period (“SNPP”), together with the indicative sentences announced by the sentencing judge are as follows.

Seq.	Offence	Maximum Penalty	Indicative Penalty
2	Wound with intent to cause grievous bodily harm s 33(1)(a) Crimes Act 1900 (NSW)	25 years imprisonment; SNPP 7 years	7 years imprisonment; NPP 5 years
8	Robbery s 94 Crimes Act 1900 (NSW)	14 years imprisonment	12 months imprisonment
3	Contravene Apprehended Domestic Violence Order s 14(1) Crimes (Domestic and Personal Violence) Act 2007 (NSW)	2 years imprisonment or a fine of 50 penalty units	6 months imprisonment
4	Contravene Apprehended Domestic Violence Order s 14(1) Crimes (Domestic and Personal Violence) Act 2007 (NSW)	2 years imprisonment or a fine of 50 penalty units	3 months imprisonment

The Crown Case on Sentence

6. Setting aside the committal documentation, the Crown tendered a statement of agreed facts with respect to the offences, the applicant’s criminal and custodial histories, charge sheets and statements of fact prepared by arresting police with respect to the two counts of contravening an apprehended domestic violence order (“CADVO”), a copy of a sentence order made on 9 October 2019 (which the applicant had breached), a victim impact statement (“VIS”) from Ms D, and a sentence assessment report (“SAR”).

The Facts of the Offences

7. The indictable offences and one of the offences contrary to s 14 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) relate to Ms D, who entered a relationship with the applicant in 2016. She ended the relationship in April 2019 but the applicant continued to contact her despite her express wish that he not do so. Between May 2019 and May 2020 some three apprehended domestic violence orders (“ADVO”) against the applicant were obtained for Ms D’s protection.

8. During that period, in September 2019, Ms D and the applicant resumed their relationship but, by October, the applicant began to verbally abuse Ms D and to follow her. On 23 May 2020 the applicant accused Ms D of being unfaithful and abused her verbally. She sought police assistance with a further ADVO. A provisional order was issued by the Local Court on 27 May 2020. It restrained the applicant from assaulting, harassing, intimidating or threatening Ms D, from contacting her other than through a legal representative, and from going to a number of locations where she might be found.

9. Despite the service upon him of the provisional ADVO the applicant continued to contact Ms D from 27 May until 27 June 2020, via social media, phone and messaging services, and through third parties. On 26 June 2020 he also twice attended one of the excluded locations, a shopping mall in Forster, and approached Ms D’s place of work. These breaches of the ADVO over a three-month period were reflected by seq. 3.

10. On the evening of 26 June 2020, after she had finished work for the day, Ms D met with a female friend, Ms P, at a beach in Forster. They drove in Ms D’s car to Forster Keys, where they cleaned out Ms D’s car, before picking up some takeaway food and returning to the beach, where Ms P’s car was parked. Ms D parked her car beside that of her friend.

11. Almost immediately after Ms D parked her car the applicant drove into the car park and stopped his car behind and across the back of Ms D’s and Ms P’s parked cars, making it impossible for them to drive away. Ms D told her friend to start recording on her mobile phone and to call police.

12. Ms D got out of the car and moved towards the applicant, who had alighted from his vehicle. He accused her of seeing a man when she went to Forster Keys, and of “fucking” him, which she denied. Ms D said that she and Ms P had gone there to clean her car, and reminded the applicant that he was subject to an ADVO and should leave. She again told him to go and then walked back to her car to ask Ms P to call the police. The applicant followed her and told Ms P not to call police. When Ms D pushed him away from her and her car, warning him that he was “looking at two years” for breaching the ADVO, the applicant went to his car and got a hunting knife. The applicant lunged at Ms D with the knife and stabbed her in the head, causing an injury that began to bleed. Taking her by her shoulder he forced Ms D to bend over and then raised his arm, before stabbing Ms D with the knife in two forceful blows to the upper back. She collapsed to the ground calling for help. This conduct was reflected by the offence of wounding with intent to cause grievous bodily harm (seq. 2).

13. The applicant then turned to Ms P and, blocking her escape from the car, demanded the phone she had been using to record the attack on Ms D. She refused to give it to him but he wrestled it from her grasp and took it with him as he drove off at speed. This is the robbery charged as seq. 8.

14. By that time Ms D was lying in a pool of blood. Bystanders came to her aid and emergency services were called. An ambulance took Ms D to Manning Base Hospital but she had to be airlifted to the John Hunter Hospital in Newcastle for urgent medical treatment. On examination Ms D was found to have head and back wounds. A single laceration to the front of her forehead was seen, together with a compound fracture to the front of her skull. Five bony fragments of Ms D’s skull, one of which was the size of a 20c piece, had to be removed. She had also sustained two penetrating wounds to her back which had perforated the chest wall. Blood had pooled in the chest cavity and the right side of her lung had been punctured. She required surgery to resolve and repair her injuries. At the time of sentencing, she still required ongoing therapy for her injuries.

15. Later, a mobile telephone was found strapped to the underside of Ms D’s car; the device had been placed there by the applicant at some stage and used by him on 26 June 2020 to track her location, allowing him to confront her at the beach where he stabbed her and robbed Ms P.

16. The applicant was arrested in the early hours of 27 June 2020. He was found hiding in a cupboard. At the time he was intoxicated. The applicant was also in the company of a woman, Ms R, who was protected by an ADVO which prohibited the applicant from being in her company within 12 hours of consuming alcohol. His breach of this condition of the ADVO issued for Ms R's protection was charged as seq. 4.

Other Evidence in the Crown Case

17. Ms D read a VIS to the sentencing court in which she told his Honour that, at the moment the applicant’s knife plunged into her skull, she had hoped that it would kill her, that being the only way she thought she would be free from “the torture” of “the manipulation, stalking, harassment, […] threats, [and] intimidation” the applicant had subjected her to. Ms D said that, because of the applicant’s attack upon her, she had become a frightened person who struggled to feel safe and who experienced frequent panic attacks. Ms D is hypervigilant and feels unable to trust others, exhibiting many symptoms of the post-traumatic stress disorder she now lives with. She told the sentencing court that, in the period since the attack her happiness had been taken and:

“I don’t laugh how I used to. I lost hope. I am easily triggered to panic and anger, debilitating panic attacks.

[The applicant] may go to a physical prison for a few years, but my psychological prison will be there forever. Robbing me of my hopes and dreams for a normal life, normal relationships.”

18. The applicant’s criminal history was also before the sentencing judge. It began in 1999 with an adverse entry for assault before the Children’s Court. His offending continued with the applicant appearing before the Children’s Court in 2001 for dishonesty offences, and then in 2002, 2003, and 2005 for offences of resisting police, driving offences, taking and driving, breaking and entering a place of worship, escaping police custody, destroying property, and multiple other dishonesty offences. On each occasion the applicant appealed against the penalties imposed upon him in the Children’s Court, receiving lesser sentences on appeal.

19. After reaching adulthood the applicant continued to appear before the criminal courts. In 2005 he was before the Local Court for offences of assaulting police and resisting police. The following year he was gaoled for assault, two counts of assaulting a police officer, contravening an ADVO, and destroying property. In 2008 he was fined for multiple driving offences and minor anti-social offending. In 2009 another term of imprisonment was imposed for break enter and steal, with the term reduced after the applicant filed an appeal, which was successful. In 2010 the applicant faced the District Court, receiving a short gaol term and a longer suspended sentence for stealing from the person and assault. He breached the suspended sentence and was called up in 2011, being gaoled for the full term of the order. He was also fined that year for possessing a prohibited drug. In 2012 the applicant was fined for using a carriage service to menace, with community-based sentencing orders imposed upon him the following year for destroying property and resisting police. The applicant breached one of those orders and was called up in 2015, receiving a bond pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW). A community service order was imposed upon him at the same time for a drink driving offence. A further such offence saw the applicant appear before the Local Court again in 2016, when he was imprisoned for it, although that sentence was suspended on appeal.

20. In 2019 the applicant was made subject to a Community Corrections Order for 12 months after being convicted of destroying property. The order was imposed on 9 October 2019 and directed the applicant to accept the supervision of the Community Corrections Service, particularly with respect to drug and alcohol rehabilitation and anger management. That order was current, and the applicant was thus subject to conditional liberty, at the time of the commission of the present offences.

21. The facts of the 2019 offence of destroying property were before the sentencing court. The offence was committed in the very early hours of 21 August 2019. It involved property owned by a former girlfriend of the applicant’s (who was the woman, Ms R, in whose company he was when arrested for the present offences). After telephoning Ms R and telling her he was going to smash up her car, he arrived at her home where her car was parked and, as she begged him not to, the applicant smashed the front and rear windscreens, and damaged the roof and bonnet of the car, using something like a screwdriver. The ADVO the applicant breached on the day of his arrest for the present offences was obtained for the protection of Ms R because of this conduct. When the applicant was later arrested and asked by police why he had damaged Ms R's car, he told them, “She had my phone”.

22. The custodial history that was before his Honour was unremarkable (although it appears to be incomplete).

23. The author of the SAR interviewed the applicant and his mother and made contact with a number of other people and agencies involved in the applicant’s treatment and supervision. At the time of interview, the applicant was aged 35 years. He reported that he had three children, and ongoing family support. He said he had been employed prior to entering custody and had employment to go to on his release. He had been attending educational courses in prison. The report noted, rather cryptically, that “prior to his offence Mr Ridgeway was reliant on social assistance”.

24. Of his past offending the author of the SAR observed that there was:

“A pattern of assaults, previous domestic violence, alcohol and drug related offending”.

25. The applicant had a long history of alcohol addiction with a record of poor response to intervention, including residential rehabilitation programmes. Despite that, he expressed himself as willing to undertake further rehabilitation. Whilst the applicant denied having “an aggressive nature” or condoning violence against women, the report’s author noted that his “offending appears to be escalating towards acts of serious violence while under the influence of alcohol and illicit substances”.

26. The applicant was assessed as presenting a medium-high risk of recidivism.

The Case for the Applicant on Sentence

27. The applicant did not give evidence. He tendered correspondence from law firm Slater and Gordon, which acted for him in a civil claim relating to institutional child sexual abuse.¹ His Honour was told that the claim was “on hold”.

28. The applicant, in an undated handwritten letter directed to the sentencing court, said that, although he could not remember “what is alleged that may have occurred”, he was remorseful for his conduct. He said that he had previously experienced periods of complete memory loss associated with his use of drugs and alcohol. The applicant said that he did not “condone those kind of actions against women” and hoped that the victim “was OK”. A further typed letter from the applicant, also undated, repeated these sentiments. Additionally, the applicant told the sentencing court that he believed that a childhood of abuse and neglect had adversely affected his personal development, leading him to the use of alcohol and drugs as a coping mechanism. He said that he understood the wrongfulness of his conduct and was sorry for it. Whilst on remand the applicant said that he had undertaken courses concerning domestic violence, alcohol, and drugs, as well as other educational programmes, and was determined not to repeat the negative behaviour of his past.

29. A letter from the applicant’s general practitioner, Dr Gibbons, referred to the difficult circumstances of the applicant’s childhood. Dr Gibbons said:

“Jake grew up in difficult circumstances that included frequent drunkenness, violence and many changes of accommodation. He only ever achieved very low levels of literacy, and this has often made it difficult for him to find work as he has been frightened of his employers finding out about his literacy problems. At 12 his mother sent him away to live with an uncle. Current neuropsychiatric theory believes that repeated exposure to violence within the family for young children inhibits the development of neural pathways for controlling emotions, and leads to anger, depression and difficulty controlling emotions as an adult.

He has suffered anxiety and depression since he was at least 16 years old, although he has been unable to talk about this until the past few years. He often feels he is unable to concentrate or think normally, is afraid to leave his house, does not sleep well and has bouts of crying. He has felt ashamed of needing therapy for emotional problems, but has attended both Awabakal AMS in Newcastle and Tobwabba AMS [1] for help.”

1. The authors, two lawyers with the firm, expressed the opinion that the applicant had “sustained severe and catastrophic psychological impairment” because of abuse said to have been suffered in a juvenile detention facility. The applicant’s counsel told the sentencing judge that no reliance was placed on those unqualified opinions.

30. Finally, the applicant relied upon a psychological report prepared for the purposes of the sentencing hearing by Megan Godbee. Ms Godbee assessed the applicant at interview conducted via an audio-visual link on 18 June 2021. Although the applicant was polite and attentive Ms Godbee found him to be a poor historian who “gave tangential and repetitive responses and often failed to answer questions”. She observed:

“Much of this report is based on the information that could be gleaned from his lengthy responses but there are some gaps, for example he did not answer questions about mental health symptoms and did not provide much of this information spontaneously.”

31. Although intelligence was not formally assessed by Ms Godbee, she thought that the applicant was of low intelligence, and that his mood was low with blunted emotions. He exhibited a belief that others were laughing at him.

32. The applicant gave a history of growing up in Forster with his mother and sister. He had very little contact with his father. The applicant said that his mother drank heavily, and he was often supervised by family members or not at all. He was frequently left alone in the house without food, was sexually abused by “multiple perpetrators”, and associated with users of drugs and alcohol. His education was limited: he said that he was subjected to racist taunts at school and often stormed off. He lacks basic literacy and numeracy and was expelled in Year 9 for fighting. In contrast to what the applicant said to the author of the SAR, he told Ms Godbee that he had been primarily unemployed and supported by Centrelink benefits and family.

31. The applicant said that he began consuming alcohol at age 11, when he drank in the company of his mother. He has been a regular binge drinker ever since. Since his teens the applicant said that he had regularly used cannabis and more recently added ecstasy and Seroquel to the mix. The applicant said that he had previously abstained from using drugs in custody but had always relapsed on release, in part because he continued to socialise with other drug users. He expressed the wish to undertake a rehabilitation programme. Ms Godbee noted:

“… it was difficult to gather information from Mr Ridgeway about his mental health history. Throughout the interview, he tended to view himself as a victim, stating that other people are always laughing at him and teasing him, as well as judging him for his behaviour. Mr Ridgeway’s account was obsessive and suggested a possible disconnect from reality, as he repeatedly talked about people laughing at him for removing his hat (because he is bald) and he is going to die in prison because of the teasing.

Mr Ridgeway attributed many of his difficulties to his childhood trauma, but presented with limited insight into the specific thoughts and feelings that he struggles with. He expressed distress about being called a ‘faggot’ due to his experience of being sexually abused by males. Mr Ridgeway said that he experiences nightmares about the abuse, but he did not want to discuss this further. According to Mr Ridgeway, he was diagnosed with Attention Deficit Hyperactivity Disorder as a child, but I note that this would have been difficult to disentangle from the neglect and trauma he was experiencing at the time. Mr Ridgeway did not answer questions about ADHD symptoms when asked.”

34. The applicant was prescribed an anti-depressant in custody.

35. He identified as of Aboriginal descent on his father’s side, although with no real involvement in his culture. He has had two long term relationships resulting in three children. Both relationships broke down due to his substance abuse and, in the case of his second relationship (with Ms R), domestic violence. The applicant has contact with his eldest child but not with his two younger children.

36. The applicant’s most recent relationship had been with Ms D, who had been unaware of his drug use. Ms Godbee noted:

“Mr Ridgeway described the relationship positively, but appeared to have limited insight into his offending behaviour. He expressed feelings of hurt that the victim is saying negative things about him to other people.”

37. Ms Godbee reported that the applicant recalled feeling angry on the day he attacked Ms D but he said that he otherwise had no memory of what he had done. She noted:

“Mr Ridgeway presented with some gaps in insight regarding his offending, stating that he is not a violent person and he does not harm women. He said that he has completed a domestic violence course in custody, but he does not have insight into the way his behaviours constituted violence. He focused on the fact that he has never hit a woman, but he has engaged in property damage (against a previous partner), AVO violations, tracking his girlfriend’s movements and his index offending.”

38. It was Ms Godbee’s opinion, from the applicant’s account, that:

“…it appears that he lacked a stable, supportive caregiver during his early life. This provided him with few protective factors to buffer from the effects of sexual abuse, intellectual difficulties and antisocial role modelling and he developed some mental health concerns. Mr Ridgeway had an early onset of polysubstance abuse, which has likely been maintained over time by the temporary relief he experiences from distress when he is drug affected. However, his drug use has had consequences that cause further distress (such as incarceration and not being able to see his younger children.

Mr Ridgeway’s index offending was precipitated by a history of domestic violence behaviours that he has limited insight into. On the day of the offence, he was drug-affected and angry, and it is my opinion that he holds distorted attitudes about relationships (given his anger that his ex-girlfriend was possibly dating someone else).”

39. Ms Godbee did, however, regard it as positive that the applicant presented with “reasonable insight” into his problems with substance abuse and need for treatment.

The Remarks on Sentence

40. The sentencing judge delivered his sentencing judgement ex tempore. His Honour set out the offences for sentence and the facts of them and noted the 25% discount on sentence required by law in recognition of the pleas of guilty entered at an early stage. Referring to the applicant’s act in secreting a mobile phone under Ms D’s car to track her movements, his Honour observed that circumstances such as that pointed to a desire by the applicant to maintain control over Ms D, whom he regarded as akin to his possession.

41. The use of the tracking device was a feature suggesting some level of premeditation, at least to the end of being able to stalk and locate Ms D, and confront her at any time. His Honour concluded that the stabbing itself was likely to have been more spontaneous, in that the applicant had initially left the hunting knife he had in his possession in his car and gone unarmed to confront Ms D. The sentencing judge concluded:

“To stab someone in the forehead in the manner that he did, in the circumstances of how it occurred, must always be above the midrange. That was a particularly callous, brutal and dangerous action that he took with the knife to her forehead. To then continue to stab her in a manner where he had really no control about just how serious those injuries were going to be, and accepting he did it with the intent to cause grievous bodily harm, bespeaks of great seriousness. It clearly is above the midrange of objective seriousness and significantly so.”

42. The robbery was also found to be a relatively impulsive crime, motivated by the applicant’s desire to secure and dispose of evidence. His Honour observed that the breaches of the two ADVOs were overshadowed by the more serious offending.

43. The applicant’s criminal history was such as to deny him leniency, although his Honour was conscious that, in many ways, it was consistent with what might be expected of an individual with a deprived background. Referring to the breach of conditional liberty his Honour said:

“… it is noted that the offender was on a community corrections order at the time of offending here. I have the facts for that community corrections matter, and it showed that it was also in a domestic violence setting, albeit involving the second victim of the AVO, [Ms R]. It is clearly a significant factor that he was on conditional liberty offending here, let alone that he was on AVOs.”

44. As to remorse, his Honour set out some parts of the applicant’s two letters to the court, contrasting the contents with the opinions expressed by Ms Godbee as to the applicant’s limited insight and perception of himself as victimised. The judge found it difficult to assess the genuineness of the applicant’s expressions of remorse, particularly in light of his inability to understand the significance of his controlling and violent behaviour, and concluded it was of limited importance. He continued:

“Of more significance in all the material before the Court is the background of the offender that plays clearly some causal link in his offending.

[…]

I am prepared to accept, in relation to the background of the offender, aspects of that relevan[t to] this sentence today, including clearly a dysfunctional background in relation to his upbringing and clearly a significant impact in relation to him being a victim of sexual assault.”

45. Although the applicant had not given evidence on sentence, and no detail of any sort was provided to the court concerning the claims of childhood sexual abuse, his Honour concluded that the applicant had “a difficult upbringing”, having been a victim of sexual assault and having been brought up in dysfunctional family circumstances. Referring to the decision of Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37, his Honour accepted that there was a connection between the applicant’s deprived childhood and his offending conduct, with the “normalisation of […] sexual violence” having a role to play in desensitising the applicant to the use of violence. He concluded that the applicant’s moral culpability was diminished, albeit only slightly in the context of such serious, violent domestic offending. The application of the principle of general deterrence was also found to be reduced to some extent because of the Bugmy features. His Honour also referred to the decision of Mundav State of Western Australia (2013) 249 CLR 600; [2013] HCA 38 and the requirement for sentencing courts to give sufficient attention to the rights of the victims of domestic violence. His Honour concluded:

“No matter what the circumstances of such a significant difficult upbringing the offender [experienced] in his life, it can never overcome and should never outweigh the significance of the objective seriousness of this offence and I do not lose sight of that. Indeed, if it was not for the important subjective features on sentence, it is likely that the sentence I would impose in this matter would be significantly more. I have very much taken those features into account but, as I said, I am not going to lose sight of the objective gravity of this matter.”

46. A finding of special circumstances pursuant to s 44 of the Crimes (Sentencing Procedure) Act was made to reduce the proportion of the non-parole to parole period, in part to assist the applicant in addressing his “psychological conditioning because of his difficult upbringing” and experience of child sexual abuse.

47. Sentence was imposed.

The Application to this Court

48. The applicant contends that the sentencing judge was in error in reducing the extent to which the Bugmy features were permitted to ameliorate the sentence imposed upon him. He argues that his Honour wrongly concluded that the s 33(1)(a) offence was planned to some extent and impermissibly allowed this conclusion to have an impact upon the weight given to his disadvantaged background. Further, he submits that, as there is nothing in the High Court’s decision in Bugmy to suggest that the ameliorating weight of disadvantage does not have no or lesser application where an offence is serious, the sentencing judge was wrong to limit the reduction in sentence because of the gravity of the offence.

49. The applicant’s contention cannot be made good in my conclusion. Although it is correct to say that the decision of the High Court in Bugmy does not treat disadvantage as having lesser relevance to the exercise of the sentencing discretion the greater the seriousness of the offence, that is not the way in which the sentencing judge applied the principle when sentencing the applicant. Rather, as the whole of the sentencing judgment makes clear, his Honour was conscious of the principles established by another decision handed down by the High Court on 2 October 2013, the same day as judgment in Bugmy was delivered, being the judgment in Munda. That decision which, like this matter, involved the commission of a serious domestic violence offence, applied to the exercise of the sentencing discretion in the applicant’s case, just as Bugmy did, although the principle emphasised in Munda tends to pull in the opposite direction to that given weight in Bugmy.

50. In both his written and oral submissions, the applicant was rather equivocal in advancing the assertion that the sentencing judge assessed the offences of 26 June 2020 as planned. The hesitancy of that submission implicitly acknowledges the very slender grounds for the argument, based as it is upon a few words of one sentence in an ex tempore judgment, taken out of the context of the whole. When read in the context of the whole of the judgment, as it must be, the argument is unsustainable.

51. Having accepted that the applicant’s background was a disadvantaged one (despite the unsatisfactory nature and paucity of the evidence in support of that proposition) his Honour said:

“In that respect there is some reduction in the moral culpability of this offending, although I should say it would be slight because this offending was still something that was significantly serious and planned from the point of view of domestic violence offending rather than just purely impulsive.”

52. By that sentence his Honour was not intending to and did not express a conclusion that the stabbing of Ms D and the robbery of Ms P was planned. He had already stated, earlier in his remarks, that these offences were not premeditated and had occurred spontaneously, after the applicant had approached Ms D in the car park at the beach in Forster. By the words “planned from the point of view of domestic violence offending” his Honour was referring to another conclusion, also expressed earlier in his remarks, that there was some planning involved in the confrontation with Ms D which preceded and precipitated the stabbing. He had previously concluded:

“There is little doubt that the aspect of [the applicant] tracking [Ms D’s] location by use of the tracking device suggests a degree of planning or premeditation, not necessarily the stabbing, but of confronting her in a domestic violence way. The only reason he was doing that was clearly to stalk her and confront her…”.

53. That conclusion was both entirely open to his Honour, and unarguably correct. The applicant had taken deliberate and relatively sophisticated steps to monitor Ms D’s movements by covertly fitting her car with a mobile phone used as a tracking device. He thus put himself in the position where he could track Ms D’s whereabouts at any time when she was with her car. This conduct was premeditated and planned, and it allowed the applicant to stalk Ms D. On 26 June 2020 the applicant was aware Ms D had been to Forster Keys, and was able to find and confront her at Forster beach because of his use of a tracking device. This is the aspect of the applicant’s conduct that his Honour was alluding to when he referred to planned “domestic violence offending”, as the final sentence of that same paragraph emphasised. His Honour said:

“That [stalking Ms D] is a different concept to premeditated stabbing”.

The sentencing judge went on to observe that the fact that the stabbing was not premeditated “reduces the seriousness of it”, removing it from a higher range of objective gravity. These observations did not lead to any inappropriate reduction in the weight given to the Bugmy features and the applicant’s argument to the contrary is incorrect.

54. The second part of the applicant’s complaint is that his Honour was wrong to give less weight to the applicant’s deprived background because of the seriousness of the offence. Again, this is an argument that can only be advanced by ignoring what was said in the whole of the sentencing judgement, including important statements that followed the impugned sentence.

55. Taking the judgment as a whole it is clear that, in concluding that the reduction in sentence flowing from the application of the Bugmy principle would be “slight”, his Honour was not applying some mistaken view that the Bugmy principles did not apply to serious offending. Rather, he was balancing that principle with that given in Munda, as his Honour specifically observed:

“Matters of a domestic violence nature always require significant general deterrence. Whilst again I accept that where there are principles of the High Court in Bugmy that reduce moral culpability, and they must also to some extent also reduce general deterrence, it is again a degree of weight. Domestic violence is plaguing all communities in Australia, all States, all races. As the High Court says in Munda, even in considering the aspect of domestic violence in Aboriginal communities, it should be acknowledged that women have the same rights too. Also, in both the High Court and the New South Wales Court of Criminal Appeal have been repeated annunciations of the Court of the significance of imposing sentences to deter offending of this nature. The courts have been at pains to stress that women have a right to move on in relationships, that they are not mere possessions of a man, that they are entitled to their freedom. This one has all the classics of what concerns judges so much about domestic violence, that the victim was not allowed to move on, she was not allowed to have a life, she had to be stalked, confronted and could not have freedom, and as a result of that, she suffered a significant physical and emotional impact on her life and one that she will probably never fully recover [from].”

56. That approach was both open to his Honour, and appropriate in the circumstances of this matter. Indeed, the High Court in Bugmy explicitly acknowledged the difficulties that apply when exercising the sentencing discretion because of the conflicting purposes of punishment. The Court (per French CJ, Hayne, Crennan, Kiefel, Bell, and Keane JJ) said, at [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 [footnote omitted].”

57. The Court went on to observe that, whilst a history of childhood deprivation may explain an offender’s recourse to violence, it may also require that the community be protected from the offender.

58. The objective gravity of an offence is a relevant consideration when determining the extent to which a background of profound childhood deprivation will moderate the weight to be given to the broader objectives of sentencing, including the principles of specific and general deterrence. The High Court said as much at [44]-[46] of Bugmy. In short, a background of deprivation will not always and inevitably ameliorate a sentence imposed upon an offender. It may do so by lessening the weight to be given to general deterrence but, at the same time, the sentence to be imposed may be increased because of the need to protect the community and deter the particular offender.

59. The point was made in Munda by the High Court, constituted by French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ, with their Honours rejecting an argument advanced by the appellant to the effect that the disadvantage commonly associated with Aboriginal communities and which affected him should be treated as mitigatory, notwithstanding the weight to be given to other considerations such as deterrence. The Court observed, at [53] that:

“Mitigating factors must be given appropriate weight, but they must not be allowed ‘to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence.’ […] Further, it would be wrong to accept that a victim of violence by an Aboriginal offender is somehow less in need, or deserving, of such protection and vindication as the criminal law can provide.” [footnotes omitted]

60. That was precisely the position in the applicant’s case. It was proper and appropriate for his Honour to recognise the causal role of the applicant’s dysfunctional and damaging upbringing by giving reduced weight to the role of general deterrence, but not to the extent that an objectively grave offence was not properly penalised. The reasons for that were explained in Munda, at [54]-[55]:

“First, the proper role of the criminal law is not limited to the utilitarian value of general deterrence. The criminal law is more than a mode of social engineering which operates by providing disincentives directed to reducing unacceptably deviant behaviour within the community. To view the criminal law exclusively, or even principally, as a mechanism for the regulation of the risks of deviant behaviour is to fail to recognise the long-standing obligation of the state to vindicate the dignity of each victim of violence, to express the community's disapproval of that offending, and to afford such protection as can be afforded by the state to the vulnerable against repetition of violence. Further, one of the historical functions of the criminal law has been to discourage victims and their friends and families from resorting to self-help, and the consequent escalation of violent vendettas between members of the community.

[…] A just sentence must accord due recognition to the human dignity of the victim of domestic violence and the legitimate interest of the general community in the denunciation and punishment of a brutal, alcohol-fuelled destruction of a woman by her partner. A failure on the part of the state to mete out a just punishment of violent offending may be seen as a failure by the state to vindicate the human dignity of the victim; and to impose a lesser punishment by reason of the identity of the victim is to create a group of second-class citizens, a state of affairs entirely at odds with the fundamental idea of equality before the law.”

61. Ms D was very seriously assaulted by the applicant only because she had sought to make a life apart from him. She was entitled to expect that the great harm done to her by the applicant would be vindicated by the sentencing court, and that she and others would be protected from further violence at the applicant’s hands in the future. The community was entitled to expect that the applicant’s crime would be appropriately denounced, and that the applicant would be properly punished for his brutal attack upon Ms D.

62. His Honour had to balance the competing considerations at play in the applicant’s case, that being no easy task. He gave proper weight to the applicant’s disadvantaged background, without losing sight of the gravity of the offending and what was required to properly recognise and denounce it. As the sentencing judge noted, “the important subjective features” had caused his Honour to impose a sentence significantly less than that which would otherwise have been imposed, and provided a basis to make a finding of special circumstances, favourable to the applicant. It remained important, however, for the sentence imposed upon the applicant to vindicate Ms D’s right to live unmolested in the community, safe from violence at the hands of a former partner. That is a principle at least as important as the principle expressed in Bugmy. Victims of domestic violence and other serious violent crimes are as entitled to the protection of the courts as violent offenders are to proper consideration by the courts of their subjective cases. The latter does not obviate the former, as Munda makes very clear.

63. His Honour was doing no more than recognising and applying the competing principles that applied to the determination of the sentence to be imposed upon the applicant. That he gave proper weight to the applicant’s subjective case is demonstrated by the term imposed and the finding of special circumstances. For an offence as serious as the wounding of Ms D was, a much higher term of imprisonment would otherwise have been called for. There was no error by the sentencing judge.

An Extension of Time?

64. The sentence in this matter was imposed on 2 August 2021. It was almost three full years before the applications for an extension of time and leave to appeal were filed, well out of time. The applicant relies upon his own affidavit of 24 May 2024 and that of his solicitor, Michael Lantis, of 26 May 2024, to explain the lengthy delay.

65. In his affidavit the applicant asserts that he was so upset and depressed by the length of the sentence imposed upon him that afterwards he went straight back to his cell “and did not come out […] for a long time”. He claims, rather improbably for a man with a lengthy criminal record who has previously launched numerous appeals against sentences he regarded as too long, that he had no idea that he could appeal against the sentence imposed upon him until told that he could by another inmate, sometime in 2022. He says that he thereafter made inquiries through the Prisoners’ Legal Service and gave a solicitor instructions to file an appeal on 3 November 2022.

66. Mr Lantis deposes that an application for legal aid was received from the applicant on 3 November 2022, with the District Court papers sought later that month. That material was received on 23 March 2023 but was not considered by a solicitor until July 2023. Advice was not sought from counsel until September 2023, although the matter had to be briefed to alternative counsel in November when the original counsel became unavailable. Advice having been received in March 2024, arrangements were thereafter made to file relevant documentation with the Registry.

67. Neither the applicant’s explanation for the delay in instructing his lawyers to pursue an appeal, nor that of Mr Lantis in explaining the lapse of time in filing the necessary documentation after receiving those instructions, is entirely satisfactory. However, the applicant is said to be of low intelligence and, even though his intelligence was not formally assessed, Ms Godbee’s opinion to that effect may be accepted. The consequences of the delay in pursuing the matter by the applicant’s lawyers should not be visited upon him personally. For those reasons, I would allow an extension of the time in which to bring an application for leave to appeal.

Conclusion

68. For these reasons I propose that the Court makes the following orders:

1. Extend the time in which to bring an application for leave to appeal until 28 May 2024;

2. Grant leave to appeal;

3. Dismiss the appeal.

69. SWEENEY J: I agree with Wilson J that the sentencing judge did not err in the way asserted. I agree with the orders proposed by her Honour.

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Endnote

Decision last updated: 21 August 2024