Zerafa v The King

[2023] NSWCCA 109

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Zerafa v R [2023] NSWCCA 109

Hearing dates:

10 May 2023

Date of orders:

19 May 2023

Decision date:

19 May 2023

Before:

Beech-Jones CJ at CL at [1];
Adamson JA at [2];
Price J at [3]

Decision:

(1) Extend the time for leave to appeal.

(2) Grant leave to appeal.

(3) Dismiss the appeal.

Catchwords:

CRIMINAL LAW – appeal against aggregate sentence – whether sentence is manifestly excessive – whether sentence discount applied to all offences – whether Bugmy principles applied

Legislation Cited:

Crimes Act 1900 (NSW) ss 33B(1)(a), 112(3)

Crimes (Sentencing Procedure) Act 1999 (NSW) s 44(2C)

Firearms Act 1996 (NSW) ss 4, 7(1)

Cases Cited:

Bugmy v The Queen (2013) 249 CLR 571; 87 ALJR 1022; 302 ALR 192; 229 A Crim R 337; [2013] HCA 37

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

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

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

Hughes v R [2018] NSWCCA 2

JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297

Kliendienst v R [2020] NSWCCA 98

Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29

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

McTague v R [2020] NSWCCA 83

Noonan v R [2021] NSWCCA 35

R v AA [2006] NSWCCA 55

R v Simpson (2001) 53 NSWLR 704; 126 A Crim R 525; [2001] NSWCCA 534

R v Zerafa [2021] NSWDC 547

Vaughan v R [2022] NSWCCA 3

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

Category:

Principal judgment

Parties:

Storm Leigh Zerafa (aka Storm Leigh Hyde aka Storm Leigh Mellish) (Applicant)
Rex (Respondent)

Representation:

Counsel:
Unrepresented (Applicant)
D Scully (Respondent)

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

File Number(s):

2020/215692

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Common Law

Citation:

[2021] NSWDC 547

Date of Decision:

15 October 2021

Before:

Colefax SC DCJ

File Number(s):

2020/215692

JUDGMENT

1. BEECH-JONES CJ at CL: I agree with Price J.

2. ADAMSON JA: I agree with Price J.

3. PRICE J: Storm Leigh Zerafa (‘the applicant’) seeks leave to appeal against the aggregate sentence imposed by Colefax DCJ (‘the judge’) on 15 October 2021.

4. The applicant’s notice of intention to appeal was filed three days late. The Crown did not oppose an extension.

5. The applicant pleaded guilty to three offences:

1. Sequence 8: Possession of an unauthorised firearm contrary to s 7(1) of the Firearms Act 1996 (NSW). The maximum penalty for this offence is 14 years’ imprisonment with a standard non-parole period of 4 years’ imprisonment.

2. Sequence 10: Threatening to use an offensive weapon with intent to commit a serious indictable offence (namely intimidation) contrary to s 33B(1)(a) of the Crimes Act 1900 (NSW). The maximum penalty for this offence is 12 years’ imprisonment. There is no standard non-parole period.

3. Sequence 1: Specially aggravated break and enter and commit serious indictable offence (namely intimidation) contrary to s 112(3) of the Crimes Act. The maximum penalty for this offence is 25 years’ imprisonment with a standard non-parole period of 7 years.

6. After allowing a 25% discount for the utilitarian value of the pleas of guilty, his Honour imposed an aggregate sentence of 7 years’ imprisonment with a non-parole period of 4 years, commencing on 23 July 2020 and expiring on 22 July 2024.

7. As an aggregate sentence was imposed, the judge indicated the following sentences which his Honour said had been reduced by 25%:

1. Sequence 8: 3 years with a non-parole period of 1 year 9 months

2. Sequence 10: 5 years 3 months

3. Sequence 1: 4 years 6 months with a non-parole period of 2 years 8 months.

8. The applicant, who appeared in this Court unrepresented, appeals his sentence on the following grounds:

1. The sentence imposed was manifestly excessive;

2. The Sentencing Judge erred in not applying the 25% discount for sequence 10; and

3. The Sentencing Judge erred in failing to apply or have consideration for the Bugmy Act [sic].

Proceedings on sentence

9. The Crown tendered the agreed facts and the applicant’s criminal history which disclosed that he had a lengthy criminal history as a young person and had been the subject of control orders in the Children’s Court for offences of breaking and entering a dwelling house with intent to steal and stealing from the person. His prior criminal history as an adult includes convictions for shoplifting, damage to property, possession of a prohibited drug, and custody of a knife in a public place. On 24 December 2017, a 7-month suspended sentence of imprisonment had been imposed for driving whilst disqualified. On 21 April 2018, for an offence of possession of a prohibited drug, he was sentenced to imprisonment for 7 months which was also suspended.

10. The applicant was represented by counsel in the District Court. The documentary material tendered on his behalf included a report from forensic psychologist Naomi Cameron, a handwritten note in which the applicant expressed his sorrow for what he had done and the hurt caused to the victims, and an affidavit sworn by the applicant.

11. In the affidavit, the applicant related the difficult conditions that he had experienced on remand due to the COVID-19 pandemic.

12. I do not propose to summarise the psychologist’s report as the judge referred to it at length in his sentencing remarks.

13. The applicant gave oral evidence before the judge and matters of dispute arising from this evidence were dealt with in the judge’s sentencing remarks.

Remarks on sentence

14. During his remarks on sentence, his Honour said that the facts found were to a significant extent contained in the agreed facts but were added to by the applicant’s affidavit and evidence. Where there were areas of dispute, his Honour made findings of fact, acknowledging there could not be adverse findings unless established beyond reasonable doubt. Findings favourable to the applicant were to be established on the balance of probabilities.

15. The judge observed that at the time of the offending the applicant was 26 years old and had regularly abused illegal drugs, particularly ice, since he was 14 years old. His Honour said that the applicant had unsurprisingly, with his history of poly-substance abuse, suffered from drug-induced psychosis with accompanying paranoia and auditory hallucinations.

16. As to sequence 8, the judge said that at some point on the evening of 22 July 2020, the applicant was in company with Mr Ross, an old friend. Mr Ross was in the possession of a black gel blaster pistol, which to the untrained eye appeared to be a firearm capable of discharging bullets. However, it was “(theoretically) capable only of discharging hydrated gel ball pellets”. [1]

    1. R v Zerafa [2021] NSWDC 547 at [12].

17. His Honour observed that the gel blaster was both an air gun and a pistol within the relevant definitions of the Firearms Act. The functionality of the pistol, which his Honour said seemed to have been loaded with hydrated gel ball pellets, had never been tested.

18. The judge found that the applicant, in his drug affected paranoia, thought that Mr Ross and/or the people he was with might use the pistol on him so he took it with him when he left the house. His Honour said that how the applicant came to be in possession of the pistol had not been revealed in the evidence, nor was there evidence as to whether the applicant knew that the pistol was not capable of firing bullets but “only” gel ball pellets.

19. As to sequence 10, the judge said that at about 2:30am on 23 July 2020, the applicant was in the front yard of a residential premises at Sanctuary Point. In an adjoining premises was a 40 year old male (victim 1), his 21 year old female partner (victim 2), his 18 year old son (victim 3), victim 3’s friend (victim 4), and the baby of victims 1 and 2 (victim 5).

20. As the applicant had said his drug dealer lived in the premises occupied by the victims, the judge anonymised their names.

21. The occupants heard a noise and victims 3 and 4 opened the front door of the premises and walked onto the verandah. Victim 3 saw the applicant standing in the neighbour’s yard, looking over the dividing fence.

22. Victim 1 came out, holding a baseball bat and challenged the applicant to identify himself. The applicant said, “I just want to talk.” The applicant attempted to jump the fence and enter the front yard. Victim 1 walked toward him, motioning the baseball bat in his direction.

23. Victim 1 saw the applicant raise his left hand in which he was holding the pistol. He then took the pistol in his right hand and pointed it in the direction of victims 1, 3, and 4. The applicant said, “We’re right, we’re right. We have no problems.” Victim 1 managed to get victims 3 and 4 back into the house and yelled at the applicant, the judge said, “in a rather colourful fashion”.

24. Victim 2 yelled from a bedroom window, “What are you doing? I’ve got a baby here.” The applicant then pointed the pistol at victim 2 and said, “I don’t give a fuck. I’ll shoot you and the baby.” Victim 2 closed the bedroom window. All the occupants of the house got onto the floor as they were scared the applicant would shoot at the house.

25. Police arrived at the house at about 2:59am, by which time the applicant had left.

26. As to sequence 1, the judge recounted that at about 6:30am, the applicant went to a house at Sanctuary Point occupied by Mr Jones, who was, or had been, a close friend of the applicant. Mr Jones heard a bang, went onto the verandah and saw the applicant with his back towards him. Mr Jones went back inside and locked the doors. The applicant tried to open the screen door but it was locked. The applicant yelled various profanities at Mr Jones, then broke some of the wooden panels which were boarding up the loungeroom window.

27. The applicant continued to yell obscenities at Mr Jones and demanded, amongst other things, to know where a lotto ticket was, to which Mr Jones replied he didn’t have a lotto ticket and told him to “get off the drugs”.

28. The applicant reached through the window that had been boarded up with panels and pointed the pistol at Mr Jones, threatening to kill him. Mr Jones, who was 4-5 metres away, froze. The applicant stood at the loungeroom window and kept the pistol pointed at Mr Jones for about 30 seconds. Mr Jones grabbed an “eel spike”, raised it over his shoulder, and told the applicant to go away, which he did.

29. The judge did not accept the applicant went to the premises to obtain some of his possessions (principally, photographs of his mother) because he knew that he would be going to prison. The judge found the applicant was “not there for any benign purpose”. [2]

    2. Ibid at [42].

30. The judge made the following findings of the objective seriousness of each offence:

1. Sequence 8 – somewhere equidistant between the middle and the bottom of the range;

2. Sequence 10 – mid-range; and

3. Sequence 1 – mid-range.

31. His Honour found that sequence 10 was additionally aggravated because it involved multiple victims. His Honour said this consideration was not taken into account in assessing the objective seriousness of the offence.

32. His Honour then referred to the applicant’s subjective circumstances in Ms Cameron’s report and the applicant’s affidavit.

33. In recounting the applicant’s background, his Honour said that the applicant had never met or known his biological father, and that he had been brought up by his mother and stepfather, each of whom had severe substance abuse problems. At the age of 2 and a half years, the applicant was taken into care because of these issues.

34. The judge said that at some point, the applicant was returned to their “care”, after which he was subject “to sustained and brutal physical abuse” from his stepfather and his siblings. At the age of 12, the applicant was at the beach and was caught in a rip. His mother drowned trying to save him.

35. The judge said the applicant “had a profound sense of guilt around that traumatic matter which has never been properly addressed”. [3]

    3. Ibid at [54].

36. The judge went on to say that the applicant ran away from his stepfather’s house shortly after his mother’s death when he was in Year 7 at school and had been effectively homeless ever since.

37. The judge made the following finding:

“Your upbringing was clearly profoundly dysfunctional, and your moral culpability is, therefore, reduced in the manner the High Court has directed sentencing Judges to take into account.”[4]

4. Ibid at [56].

38. The judge recounted that the applicant had no formal education after Year 7, had no work skills, and a very limited employment history.

39. The judge observed that the applicant had a long history of illicit drug use since he was 14 years old. He also had a long criminal history which started when he was a juvenile and had continued consistently into adulthood.

40. The judge said that although his juvenile offences could not be held against him, his offences as an adult meant that he was not entitled to the leniency which could be extended to a first offender.

41. His Honour accepted that the applicant was sexually assaulted on a number of occasions whilst in Juvenile Justice detention. His Honour said that, notwithstanding those sexual assaults, he told Ms Cameron that he regarded Juvenile Detention as being “like a second home”, where he felt “safe and secure”. His Honour considered that these statements, together with the applicant’s prolonged periods of imprisonment, meant there was a real risk of the applicant becoming institutionalised.

42. The judge said the tests conducted by the psychologist showed that the applicant suffered from extremely severe levels of depression, anxiety, and stress. The psychologist also diagnosed a number of very significant clinical mental disorders which were:

• attention deficit and/or hyperactivity disorder (moderate);

• major depressive disorder (severe);

• generalised anxiety disorder;

• amphetamine induced psychotic disorder;

• cannabis use disorder (severe);

• stimulant use disorder (severe);

• complex post-traumatic stress disorder; and

• antisocial personality disorder.

43. The judge found these disorders meant that the applicant had “difficulty with insight and judgement into [his] mental health” and had resulted in him minimising his symptoms and disengaging in the past with mental health services. [5]

    5. Ibid at [66].

44. The judge agreed with the psychologist’s conclusion that the applicant was at a high risk of offending.

45. The judge found that the applicant’s mental health issues meant that general deterrence was of reduced significance. However, specific deterrence was of significance, as was the protection of the community.

46. The judge said that he was not persuaded the applicant’s expression of remorse was based on any meaningful insight. His Honour regarded the applicant’s prospects of rehabilitation as poor.

47. The judge recounted a significant portion of the applicant’s affidavit which concerned his conditions in custody and COVID-19. His Honour said this evidence was extremely concerning. His Honour found the circumstances in which the applicant had been detained for the last 2 months to “have been extremely confronting” and would be taken into account in fixing the head sentence to be imposed, having regard to the nature of extra-curial punishment. [6]

    6. Ibid at [80].

48. After stating the indicative sentences for each of the offences, the judge found special circumstances being the applicant’s age, the risk of institutionalisation, and his prospects of rehabilitation which enabled his Honour to vary the ratio of the non-parole period to the head sentence. His Honour then imposed the aggregate sentence detailed at [6] above. Before concluding, his Honour said:

“I direct that the expert report of Ms Cameron, dated 5 October 2021 (Exhibit 1), go with the warrant – and I draw particular attention to [80] of that report.”[7]

7. Ibid at [92].

49. Paragraph 80 of Ms Cameron’s report is as follows:

“The following recommendations are made for whilst [the applicant] is in custody:

- Referral to Custodial Programs to address his substance use and criminal behaviours, such as the EQUIPS Aggression, Addiction, Criminal Conduct, and Substance Use programs. Offence specific treatment (i.e., EQUIPS Aggression) is considered a high priority.

- Referral to the Custodial Drug and Alcohol Service to be considered for a drug treatment program to address his substance use disorders.

- Referral to the Custodial Mental Health Service to address his severe mental health symptomology and learn how to regulate his emotions and manage his distressing symptoms.”

Ground 1: The sentence imposed was manifestly excessive

Applicant submissions

50. The applicant informed the Court that he was content to rely on his written submissions. The applicant’s affidavit sworn on 22 March 2023 was admitted on the “usual basis” if the Court came to resentence.

51. He respectfully requested the Court to review the sentences imposed by the judge in relation to the three offences. He expressly referred to sequence 10 as being “very high” and not having a non-parole period.

52. The applicant drew the Court’s attention to the judge’s direction that Ms Cameron’s report go with the warrant and particular attention be given to paragraph 80 of that report.

53. The applicant submitted that the judge’s intention was that he begin addressing his drug problem while in custody and to continue addressing these problems on parole. The judge had decided the sentence partly based on the expectation of the applicant’s participation in drug treatment programs whilst in custody.

54. The applicant informed the Court that “[i]n conformity with Judge Colefax’s wishes, as well as his own”, he had repeatedly attempted to participate in these programs whilst in custody but had been deemed ineligible. [8] He had been told on 22 February 2023 by his case manager at Cooma Correctional Centre that there was nothing he could do about the finding of his ineligibility for programs.

    8. Applicant submissions at [5].

55. He asked the Court to consider applying a longer period on parole (but without necessarily modifying the total sentence) to enable him to address his drug addiction problems.

56. The applicant submitted that this outcome would more closely conform to the judge’s actual intention and would allow Ms Cameron’s recommendations to be carried out. Furthermore, it would also allow the applicant to do what he earnestly wants to do; that is, to deal with his drug problem.

57. Further on in his written submissions, the applicant stated that he had made a mess of his life and hurt other people. He strongly believed that overcoming his drug addiction would directly impact on his mental health issues. He did not expect this to be easy, but knew he could do it. [9]

    9. Ibid at [19].

Crown submissions

58. The Crown submitted that whilst the indicative sentences for sequence 8 and sequence 10 might be regarded as stern, the aggregate sentence was not manifestly excessive. The Crown referred to the applicant not challenging the judge’s assessments of objective gravity and his Honour’s consideration of the applicant’s subjective case.

59. The Crown contended that, when considering the principle of totality, a substantial degree of accumulation was warranted in particular between sequences 8 and 10 which involved distinct offences committed on different premises and involving different victims. The Crown further pointed to the substantial reduction to the non-parole period, and the ratio between the non-parole period and head sentence being 57%.

60. A further submission was that the applicant’s ineligibility to participate in programs while in custody related to events which occurred after sentence and are a matter for the executive government. It could not have been an error for the judge not to take those matters into account.

Consideration

61. The relevant principles concerning manifest excess were summarised by this Court (Payne JA, RA Hulme and Garling JJ) in Hughes v R [2018] NSWCCA 2 at [86]:

“When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]:

(1) appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases;

(2) intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error;

(3) it is not to the point that this Court might have exercised the sentencing discretion differently;

(4) there is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle; and

(5) it is for the applicant to establish that the sentence was unreasonable or plainly unjust.”

62. Where it is submitted that an aggregate sentence is manifestly excessive, there are a number of established principles which may be shortly stated. The indicative sentences are not themselves amenable to appeal, although they “may be a guide” to whether error can be established: JM v R (2014) 246 A Crim R 528 at [40]; [2014] NSWCCA 297. An examination of the indicative sentences can also be relevant to the question of whether the totality principle has been properly applied: Noonan v R [2021] NSWCCA 35; Kliendienst v R [2020] NSWCCA 98. However, the only operative sentence is the aggregate sentence: Vaughan v R [2022] NSWCCA 3 at [90]. An indicative sentence can be excessive without the aggregate sentence necessarily being so: JM v R at [39]. The fundamental question is whether the aggregate sentence is manifestly excessive when viewed against the totality of the criminality evident in the offences: McTague v R [2020] NSWCCA 83 at [47].

63. Another important principle is that the ultimate constraint on a finding of special circumstances is that the non-parole period must appropriately reflect the criminality involved in the offences: R v Simpson (2001) 53 NSWLR 704; 126 A Crim R 525; [2001] NSWCCA 534 at [63].

64. In the present appeal, the applicant neither complains about the judge’s assessment of objective gravity of the three offences nor his Honour’s findings about his subjective case. His Honour’s findings included a reduction in the applicant’s moral culpability due to his profoundly dysfunctional background, the applicant’s high risk of reoffending, his poor prospects of rehabilitation, and not being persuaded that the applicant’s expression of remorse was based on any meaningful insight.

65. Sequence 8 is an offence of possession of an unauthorised firearm contrary to s 7(1) of the Firearms Act. The unauthorised firearm was a gel ball air pistol, which was both an airgun and a pistol under s 4 of the Firearms Act. The pistol had a realistic appearance, which as the judge said “to the untrained eye appeared to be a firearm capable of discharging bullets”. [10] The applicant’s offending in sequences 10 and 1 demonstrates the potential harm that could be made of its use, notwithstanding its firing capability may have been confined to gel ball pellets.

    10. Zerafa at [12].

66. The judge accepted that the applicant had come into the possession of the pistol as he feared that the pistol might be used by Mr Ross or others. This Court has emphasised that possession of an unauthorised firearm for personal protection is not a matter of significant, if any, mitigation: R v AA [2006] NSWCCA 55 per Rothman J at [45]-[46]. In any event, he went on to use it in the early hours of the following day in the commission of serious offences.

67. The maximum penalty for the offence is 14 years’ imprisonment with a standard non-parole period of 4 years. His Honour assessed the offence to be “somewhere equidistant between the middle and the bottom of the range”. [11] The undiscounted starting point of the indicative sentence is 4 years imprisonment.

    11. Ibid at [47].

68. Whilst 1 am of the view that the indicative sentence of 3 years (after application of the 25% discount) is stern, I am not persuaded that it is manifestly excessive.

69. The applicant referred to the indicative sentence for sequence 10 as being “very high”. The undiscounted starting point of that indicative sentence is 7 years imprisonment. The maximum penalty for the offence is 12 years imprisonment. There is no standard non-parole period. His Honour assessed the offence to be in the mid-range but also found the offence to be additionally aggravated as it involved multiple victims.

70. During the commission of the offence, the applicant pointed a pistol in the direction of victims 1, 3, and 4. When victim 2 asked “What are you doing? I’ve got a baby here” from a bedroom window, the applicant pointed the pistol at her saying “I don’t give a fuck. I’ll shoot you and the baby.”

71. It is a very serious matter to point a pistol at a person, accompanied by a threat to kill. None of the victims knew that the pistol’s capability may have been confined to firing gel ball pellets. In my opinion, this in no way diminishes the seriousness of the offence. As the judge found, all the victims were likely to have believed the pistol to be capable of firing bullets and would have been terrified.

72. In my view, the facts reveal serious offending by the applicant and the indicative sentence of 5 years 3 months (after application of the 25% discount) is not manifestly excessive.

73. A further complaint by the applicant is that the judge did not specify a non-parole period for sequence 10. His Honour was not obligated to do so as the offence did not have a standard non-parole period: s 44(2C) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

74. During the commission of the sequence 1 offence, the applicant pointed the pistol at Mr Jones, who was 4-5 metres away, and threatened to kill him. He kept the pistol pointed at Mr Jones for about 30 seconds. He had broken through some of the wooden panels which were boarding up the loungeroom window of Mr Jones’ house. The maximum penalty for this offence is 25 years’ imprisonment with a standard non-parole period of 7 years. His Honour assessed the offence to be in the mid-range. The undiscounted starting point of the indicative sentence is 6 years imprisonment.

75. These facts reveal serious offending by the applicant and the indicative sentence of 4 years 6 months (after application of the 25% discount) is not manifestly excessive.

76. After finding special circumstances, the judge varied the statutory ratio between the head sentence and the non-parole period to 57%. The non-parole period of 4 years appropriately reflects the criminality of the offences.

77. The applicant’s complaint that he has been unable to participate in drug treatment programs whilst in custody is irrelevant to the question of manifest excess. It is a long-established practice of judges to bring to the attention of Corrective Services particular aspects of the personal circumstances of an offender which may include recommendations from a psychologist. Judges understand that prison authorities are not obliged to comply with such recommendations and the availability of various courses for an offender is an administrative decision to be made whilst an offender is serving a sentence.

78. In order to assist the applicant in overcoming his drug addiction, the judge directed that Ms Cameron’s report accompany the warrant and drew attention to paragraph 80.

79. The applicant’s inability to undertake the various custodial programs occurred after sentence and appears to be due to decisions made at Cooma Correctional Centre. This has nothing to do with the judge and no error of principle has been demonstrated.

80. The applicant is to be commended for his desire to participate in the programs recommended by Ms Cameron and it is regrettable that he is currently considered to be ineligible.

81. The aggregate sentence is not manifestly excessive. Ground 1 of the appeal is not made out.

Ground 2: The Sentencing Judge erred in not applying the 25% discount for sequence 10

82. There is no merit in this ground as the judge said at [85]:

“In relation to sequence 10, except for the discount of 25 per cent, the indicative sentence would have been imprisonment for 7 years; after the discount of 25 per cent, the indicative sentence is imprisonment for 5 years 3 months.”[12] (Emphasis added.)

12. Ibid at [85].

83. Ground 2 of the appeal is not made out.

Ground 3: The Sentencing Judge erred in failing to apply or have consideration for the Bugmy Act

84. The applicant was aware that the “Bugmy Act” was not the correct term but submitted that he intended to mean that his extraordinarily traumatic life must be given consideration in determining how he was sentenced. The applicant referred to his history as outlined in Ms Cameron’s report and to [51]-[62] of the judge’s sentencing remarks but submitted that nowhere in his remarks had his traumatic life been taken into account. It is evident that the applicant was referring to Bugmy v The Queen (2013) 249 CLR 571; 87 ALJR 1022; 302 ALR 192; 229 A Crim R 337; [2013] HCA 37.

85. In [51]-[55] of his sentencing remarks, the judge recounted the applicant’s background and said at [56]:

“Your upbringing was clearly profoundly dysfunctional, and your moral culpability is, therefore, reduced in the manner the High Court has directed sentencing Judges to take into account.”

86. Although the judge did not expressly mention Bugmy, it is clear that when his Honour referred to the applicant’s moral culpability being “reduced in the manner the High Court has directed sentencing Judges to take into account”, he was applying the principles enunciated by the High Court in Bugmy.

87. This ground of appeal is not made out.

Orders

88. I propose the following orders:

1. Extend the time for leave to appeal.

2. Grant leave to appeal.

3. Dismiss the appeal.

**********

Endnotes

Decision last updated: 19 May 2023