Baines v Rex

Ground 4

1. The argument on behalf of the applicant with respect to Ground 4 was relatively simple. Counsel avoided engaging in debate about whether, in the proper application of the principles stated by the High Court in Bugmy, it is necessary to show a causal connection between the "profound childhood deprivation" and the commission of the offence in question: see Perkins v R [2018] NSWCCA 62 at [42] (Hoeben CJ at CL) and [74] (White JA). The submission, which I accept, was that a causal link between the applicant's deprived background and the commission of the offence was clearly established.
2. On any view of the evidence, the only reasonable inference from the applicant's entire life history of deprivation and neglect, the absence of any normal family relations, the violence emanating from various individuals in his life, and the emotional abuse and mistreatment, is that he was deprived of the opportunity to develop anything resembling a social conscience. I do not accept that his background would or might, as the sentencing judge suggested at [178] of the Remarks on Sentence, diminish his moral culpability for lesser offences (such as break and enter and domestic violence), but not for the vastly more serious offence of the murder of Mr Barbaro. There is nothing in the reasoning of the High Court in Bugmy that supports that distinction.
3. To the contrary, the applicant's participation in the offence can only be explained by reference to the deficiencies and shortcomings in his early socialisation. That is consistent with the passages extracted above from Ms Cullen's reports. I do not agree that Ms Cullen did not purport to identify a causal connection. In my opinion the extracted passages, fairly read, do precisely that - see, particularly, the passage quoted at [56] above.
4. The issue is similar to that which attends consideration of mental illness in sentencing. In R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111, Wood CJ at CL said: "…the community will readily understand that the offender who suffers from a mental disorder or abnormality is less in control of his or her cognitive facilities or emotional restraints, and in some instances lacks the ability to make reasoned or ordered judgments. Almost invariably there is a limited appreciation of the wrongfulness of the act, or of its moral culpability, which although falling short of avoiding criminal responsibility does justify special consideration upon sentencing."
5. In my opinion that reasoning is equally applicable to offenders whose childhood and adolescence was subject to the deprivation demonstrated in this case. That is the effect of the decision of the High Court in Bugmy. The High Court did not distinguish between offences of varying gravity, to some of which the principle applies, and others to which it does not. The principles stated in Bugmy are capable of applying to even the most serious offences.
6. In my opinion this was a clear case in which the principles stated in Bugmy ought to have been applied. Error has been shown. Ground 4 of the proposed appeal should be upheld. The applicant's moral culpability was reduced by reason of his history of deprivation and disadvantage in childhood and adolescence. That means it is necessary for this Court to re-exercise the sentencing discretion: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37.

Ground 5: the "Bugmy Bar Book" evidence

1. In light of my conclusion with respect to Ground 4 it is not strictly necessary to address Ground 5, by which the applicant complains of the somewhat summary manner in which the sentencing judge dismissed the evidence tendered from the Bugmy Bar Book. However, as the same issue will arise for the purpose of resentence, it remains necessary to consider the use, if any, that may properly be made of that material. Moreover, it may confidently be expected that the Bugmy Bar Book, or material of a similar kind, will be sought to be used in future cases.
2. The question raised by Ground 5 is not a question of admissibility. Two preliminary observations may be made. The first is that, by s 4(2) of the Evidence Act 1995 (NSW), the provisions of that Act do not apply to sentence proceedings unless a contrary direction is made. No such direction was sought or made. A somewhat more relaxed, or informal, approach is ordinarily taken to the admission of evidence in sentencing proceedings: R v Bourchas [2002] NSWCCA 373; (2002) 133 A Crim R 413 (Giles JA). Giles JA (with whom Levine and Sperling JJ agreed) went on, however, to say that where objection to evidence is taken in sentencing proceedings and no direction under s 4(2) has been made the objection must be resolved, not by reference to the Evidence Act but by the application of the common law rules of evidence (at [61]). That gives rise to the second observation, which is that the extracts from the Bugmy Bar Book were tendered, and admitted, without objection by the Crown. That explains why the ground of appeal is directed, not to the admissibility of the evidence, but to the treatment of the evidence by the sentencing judge.
3. The purpose for which the material in the Bugmy Bar Book was tendered was not explicitly stated. During the course of submissions the sentencing judge expressed reservations about the value of the material. Counsel for the applicant is recorded as answering the sentencing judge's query about the relevance of the material by saying: "…they reflect what the research and accepted research and accepted government reports say is the type of impact that these particular types of deprivation, childhood deprivation, and disadvantaged [sic] have."
4. In the present application, this Court was invited: "…to read the direct material concerning the applicant's disadvantaged upbringing in conjunction with the chapters from the Bar Book tendered on his behalf, e.g., concerning the incarceration of a parent or caregiver, and the normalization of contact with the criminal justice [system] brought about by such incarceration" and "to consider this material carefully before giving its imprimatur to the approach taken by the sentencing Judge in this case, which was essentially to treat the research as irrelevant to the task of a sentencing court and as inconsistent with the notion of individualised justice."
5. It was submitted that the approach of the sentencing judge was wrong, and that the failure by his Honour to take the material in the Bugmy Bar Book into account caused or contributed to the erroneous conclusion stated in [181] of the Remarks on Sentence to the effect that it had not been shown that the applicant's "undoubtedly disadvantaged background" reduced his moral culpability "for this appalling premeditated murder". Little more was said to specify or explain how the contents of the Bugmy Bar Book, if taken into account, would or could have cast light on the sentencing decision, such that the refusal to take it into account constituted error in the sentencing process.
6. Examination (which can be no more than superficial) of the Bugmy Bar Book bears out the suggestion that it is the product of academic research, with extensive footnotes directing attention to source materials. The chapters generally begin by noting that the purpose of "this document" (which is a reference to the individual chapter) is to "collate published research, the findings of government reports and inquiries, and academic commentary in relation to" the specific matter the subject of the chapters. One deficiency, however, is that there is no identification of the author or authors. It is therefore not possible to gauge their expertise or the quality of the research.
7. Generally, on my assessment, the Bugmy Bar Book draws together the results of what appears to be a considerable quantity of social research relevant to various forms of disadvantage and deprivation as can be discerned from the chapter headings listed above (at [64]). In that respect it is undoubtedly a useful compilation of material relevant to understanding the effects of social disadvantage and deprivation. Except for one chapter ("Aboriginal and Torres Strait Islanders: Stolen Generations and Descendants") it is not, and is not intended to be, confined to issues in Aboriginal communities. It cannot be denied, however, and has long been recognised, that various aspects of disadvantage and deprivation on which it focuses are prevalent in Aboriginal communities: R v Fernando (1992) 76 A Crim R 58; Bugmy at [38].
8. A common theme in the chapters is that the nature of the social disadvantage discussed (for example, childhood exposure to domestic and family violence, parental incarceration) precedes and contributes to a range of behavioural issues, including emotional development, delinquency and criminality.
9. That the Bugmy Bar Book is a useful compilation of material relevant to an understanding of social disadvantage and deprivation does not necessarily make it a useful tool for sentencing purposes. Alone, it says nothing about any individual offender (whether Aboriginal or non-Aboriginal).
10. The task of a sentencing judge, in every case, is to sentence a specific offender, for a specific offence, taking into account (inter alia) the specific personal circumstances of the offender. General propositions drawn from research of the kind collated and analysed in the Bugmy Bar Book do not and cannot substitute for specific evidence with respect to those issues.
11. The information contained in the Bugmy Bar Book does not specifically relate to the applicant. It was, no doubt, tendered in order to facilitate an understanding of how and why the applicant was willing to participate in a brutal execution-style murder of a man he did not know and against whom he had no grudge. It may, therefore, be possible to categorise it as expert evidence, establishing a foundation for an understanding of how the applicant came to conduct himself as he did, to explain the relevance of the evidence of the applicant's history of deprivation, and, possibly, to reinforce the opinion of Ms Cullen that these circumstances bore on the applicant's later conduct and mental health conditions.
12. It was not at any time made clear whether the material in the Bugmy Bar Book was relied upon as expert evidence or opinion evidence. The difference was explained by Kiefel CJ and Gageler J in Lang v The Queen [2023] HCA 29 at [5]-[6]. The two are not co-extensive. While (except as otherwise provided, as for example, by s 78 of the Evidence Act) opinion evidence can only be given by experts (at least when the proceedings are subject to rules of evidence), expert evidence need not be opinion evidence. Expert evidence "sometimes involves nothing more than imparting expert knowledge and sometimes involves nothing more than giving a technical description of events and processes in which the expert was involved". The various chapters in the Bugmy Bar Book are capable of meeting that description. It is more difficult to categorise the content as opinion, which has been held to be an "inference drawn from observed and communicated data": Honeysett v The Queen (2014) 253 CLR 122; [2014] HCA 29 at [21], cited by Kiefel CJ and Gageler J in Lang at [6].
13. Although Lang was concerned with admissibility of opinion evidence on common law principles, there are some comments in the judgment of Kiefel CJ and Gageler J that are useful for present purposes. Their Honours said: 8. The traditional approach of the common law to the admissibility of evidence of the opinion of an expert has been consistent with that conception of the probative value of evidence of the opinion of an expert lying in the extent, if at all, to which the opinion might assist the tribunal of fact to draw inferences from other evidence that has been adduced. The approach has been simultaneously to accept that 'the opinion of witnesses possessing peculiar skill is admissible whenever the subject-matter of enquiry is such that inexperienced persons are unlikely to prove capable of forming a correct judgment upon it without such assistance' and to deny that 'the opinions of witnesses can be received when the enquiry is into a subject matter, the nature of which is not such as to require any peculiar habits or study in order to qualify a man to understand it'. 9. The traditional approach has come under strain as developments in specialised knowledge, especially in fields of behavioural science and forensic science, have narrowed the subject-matters in respect of which it might continue to be asserted categorically and with confidence that common knowledge and experience provide so firm a foundation upon which to engage in fact-finding that the opinion of an expert could be of no assistance. This Court has emphasised that 'it does not follow that, because a lay witness can describe events and behaviour, expert evidence is unavailable to explain those events and that behaviour'. Nor does it follow that evidence of the opinion of an expert is unavailable to assist the tribunal of fact merely because the tribunal of fact, whether a judge or a jury, could be expected in the absence of that expert evidence to work out their own explanation for events and behaviour making use of nothing more than the common knowledge and experience that can be attributed to them." (internal citations omitted)
14. It seems to me that the survey of reference materials qualifies as "expert evidence", that is, "expert knowledge" drawn from what appears to be academic research, that is capable of assisting a sentencing judge to understand specific evidence about the circumstances of a particular offender, placed in a wider context.
15. It is not possible to draw any general conclusions about the usefulness (or otherwise) of the content of the Bugmy Bar Book. In some cases, it may lay the foundation for acceptance of the relevance of evidence of an offender's personal circumstances. In this case, owing to the comprehensive nature of Ms Cullen's report, it may well be that the Bugmy Bar Book added little. In another case, an understanding of the more general propositions contained may assist in understanding the background history of an offender.
16. In a written outline of submissions provided to the sentencing judge counsel identified those parts of the Bugmy Bar Book on which he relied. It would be unduly time consuming to repeat all of what was submitted on behalf of the applicant. A sample will suffice to illustrate the use sought to be made of the material.
17. Reference was made to the chapter entitled "Childhood Exposure to Domestic and Family Violence", and in particular to a section headed "Psychological, Learning and Behavioural Impacts". In the following paragraphs a number of studies, reviews and reports are cited, which conclude that exposure to domestic and family violence as a child "can affect … mental wellbeing and contribute to poorer educational outcomes and a range of behavioural issues". That was consistent with the account given in Ms Cullen's report and the evidence given by Ms Sines and Mr Lance Baines of the applicant's early history. While the content of the Bugmy Bar Book could not of itself establish that the applicant's behavioural issues did or may have stemmed from his early exposure to domestic and family violence, in conjunction with the evidence (that the sentencing judge accepted) that the applicant was exposed at a young age to domestic and family violence, the content of the Bar Book was capable of strengthening or reinforcing Ms Cullen's conclusion that: "…his emotionally deprived background, coupled with his (more specific) experiences of post-traumatic stress disorder in 2012, left him vulnerable to seeking acceptance, a sense of belonging and ultimately being taken advantage of by a group of associates who presented as available (and protective) to him."
18. A second instance of the material contained in the Bugmy Bar Book on which reliance was placed was the chapter headed "Incarceration of Parent or Caregiver" which gave an account of "a range of negative impacts for children of incarcerated parents and caregivers", something to which Ms Cullen also alluded.
19. In Bugmy the plurality in the High Court (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ) (at [41]) rejected a submission that courts should take "judicial notice of the systemic background of deprivation of Aboriginal offenders", which, their Honours said, "is antithetical to individualised justice". Their Honours then said: "Aboriginal Australians as a group are subject to social and economic disadvantage measured across a range of indices, but to recognise this is to say nothing about a particular Aboriginal offender. In any case in which it is sought to rely on an offender's background of deprivation in mitigation of sentence, it is necessary to point to material tending to establish that background."
20. I do not, therefore, consider that, alone, the Bugmy Bar Book material could have assisted the sentencing judge in the sentencing exercise. To the contrary, alone, it could have had the potential to lead to error, by inviting conclusions not supported by the specific evidence.
21. But the Bugmy Bar Book was not tendered in isolation. It was tendered in the context of the specific evidence of Ms Sines, Mr Lance Baines, and Ms Cullen. There was ample evidence to establish the deprived background of the applicant. The question then is whether the Bugmy Bar Book could throw additional light on that evidence. I am not persuaded that, if taken into account, it could have made any material difference to the outcome. This Court was referred to nothing in the Bugmy Bar Book material that would have advanced the case made by the specific evidence to which I have referred. The most it could do was provide support for the conclusions expressed by Ms Cullen, and accepted by the sentencing judge. The error identified by Ground 4 of the application was not a consequence of the sentencing judge's dismissal of the Bugmy Bar Book.
22. I would not uphold Ground 5 of the proposed appeal.

Resentencing

1. Apart from the manner in which the sentencing judge treated his history of deprivation, the applicant did not take issue with the findings of fact or other conclusions for sentencing purposes of the sentencing judge.
2. His Honour considered that there was no real doubt that the applicant fired the first shots at Mr Barbaro, from the back seat of the Audi. He thus accepted the primary contention of the Crown, in preference to the alternative (that the applicant was present in the Audi, ready and willing to assist but not actively engaged in the actual shooting). That conclusion is not challenged and should be adopted.
3. His Honour also considered (at [162]) that the offence was carefully planned and that the applicant was well aware of the part he was to play. He noted that the evidence did not establish any motive on the part of the applicant for his participation, such as financial gain or personal hostility to Mr Barbaro, and inferred that his motivation was to ingratiate himself with Sultani and his criminal group. These conclusions, too, are not in dispute and should be adopted.
4. His Honour considered that, by late 2013, the applicant had been accepted as a member of Sultani's "Gang", then identified as the Burwood Chapter of the Rebels Outlaw Motorcycle gang. He found that the applicant became a "constant companion" of Sultani, and "one of his henchmen". Nevertheless, his Honour concluded (at [183]) that the applicant held a lower rank in the organisation than either Sultani or Munshizada and was thus "subordinate" and "seeking to emulate them in lethal violence". He therefore considered that the applicant's culpability was less than that of either Sultani or Munshizada. Again, these conclusions are not disputed and should be adopted.
5. There is no escaping the conclusion that the objective gravity of the offence was extreme. It was, as has been described elsewhere, "a cold blooded, execution-type shooting": Danishyar at [6]. It is obvious that a lengthy sentence must be imposed.
6. There was some favourable evidence with respect to the applicant's personal circumstances. Ms Cullen considered that the applicant had demonstrated sound insight "into how his early (traumatic) experiences" had resulted in, inter alia, "the normalisation and acceptance of violence". She considered that the applicant had demonstrated some contrition (a view rejected by his Honour).
7. The applicant has, since 2013, been in a stable relationship, from which a son was born in 2015. Statements attributed to the applicant by Ms Cullen are indicative of a commitment by the applicant to the relationship and to parenting his son. These considerations, while favourable to the applicant, can have no more than a small impact on the sentence that must be imposed.
8. Not a great deal is to be drawn from the sentences imposed on the co-offenders. Sultani and Munshizada were each sentenced for 3 murders, a sentence of imprisonment for life being imposed in respect of each. Danishyar was charged as an accessory before the fact, and accessory after the fact and convicted of each. He was sentenced to a total term of imprisonment of 15 years with a non-parole period of 11 years. A Crown appeal against that sentence was upheld and a sentence of imprisonment for 20 years with a non-parole period of 15 years was substituted: Danishyar at [154]. Danishyar's role in the murder was significantly less than that of the applicant, but nevertheless the sentence provides some focal point in the resentencing of the applicant. What cannot be overlooked is that the applicant was found to have fired the first shots at Mr Barbaro, shots that were sufficient, alone, to have proved fatal within a minute.
9. In re-exercising the sentencing discretion, full weight is to be given to the effects of the applicant's history of profound deprivation: Bugmy at [42]-[43]. At the same time, the Court should not lose sight of the central fact that a life has been taken: see Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 at [54]-[57].
10. In my opinion, an appropriate sentence is imprisonment for 30 years with a non-parole period of 22 years and 6 months.
11. The orders I propose are:
12. Leave to appeal against conviction granted;
13. Appeal against conviction dismissed;
14. Leave to appeal against sentence granted;
15. Appeal allowed; sentence imposed in the Supreme Court on 17 December 2021 quashed;
16. In lieu thereof Joshua Baines is sentenced to imprisonment consisting of a non-parole period of 22 years and 6 months commencing on 29 November 2018 and expiring on 28 May 2041 and a balance of term of 7 years and 6 months which will expire on 28 November 2048.
17. DHANJI J: The background to this appeal is set out in the reasons of Simpson AJA, which I gratefully adopt. I have come to a different conclusion to that reached by her Honour with respect to the appeal against conviction. With respect to the appeal against sentence, I have reached a different view with respect to ground 5 of the appeal, but not as to the result. My reasons are set out below.

The conviction appeal

1. Where an accused person pleads not guilty to a charge, in order to prove that person's guilt, it is necessary for the Crown to prove, at least, the elements of the offence. That is done by an adversarial process. Thus, in Ratten v The Queen (1974) 131 CLR 510; [1974] HCA 35, Barwick CJ said (at 517): "It is a trial, not an inquisition: a trial in which the protagonists are the Crown on the one hand and the accused on the other. Each is free to decide the ground on which it or he will contest the issue, the evidence which it or he will call, and what questions whether in chief or in cross-examination shall be asked; always, of course, subject to the rules of evidence, fairness and admissibility."
2. As part of a fair trial, an accused will ordinarily be entitled to particulars of the charge. That is, an accused person "is entitled to be appraised not only of the legal nature of the offence with which [they are] charged but also of the particular act, matter or thing alleged as the foundation of the charge": Johnson v Miller (1937) 59 CLR 467 at 489; [1937] HCA 77 per Dixon J. The accused is "entitled to be given as high a degree of particularity concerning a criminal charge as the subject matter will bear": KRM v The Queen (2001) 206 CLR 221; [2001] HCA 11 at [15] (per McHugh J); see also Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 at [26].
3. The combination of the above principles may have the result that the manner in which the Crown particularises its case will require it to prove not just the elements of the offence but the particulars relied on. That is, there will be cases where a particular matter that is not a legal ingredient of the charged offence, will, as a result of the manner in which the trial is run, need to be proved beyond reasonable doubt: see R v VHP (Court of Criminal Appeal (NSW), 7 July 1997, unrep); Regina v Hughes [2000] NSWCCA 3 at [17]-[18]; Cawthray v R [2013] NSWCCA 105 at [89]; Hamilton v Director of Public Prosecutions (NSW) (2020) 287 A Crim R 268; [2020] NSWSC 1745 at [87]-[98]; Dean v R [2019] NSWCCA 27 at [19].
4. While the elements of an offence are fixed, the Crown may be permitted to shift from its particulars. This can, potentially, occur at any stage in a trial. However, as was noted in R v VHP, "in some circumstances the requirements of procedural or substantive fairness may restrict the capacity of the Crown to depart from particulars". Of course, the later the application, the more likely that a change in particulars will result in unfairness: King v The Queen (1986) 161 CLR 423 at 432; [1986] HCA 59.
5. In the present matter, the Crown case was that the applicant was in the Audi Q7. But more than that, the Crown ran its case on the basis that this was a particular it was required to prove beyond reasonable doubt. There was no attempt by the Crown to resile from this. With the benefit of distance, it may be that in light of the manner in which the applicant's counsel addressed, consideration may have been given to the Crown modifying its case. Perhaps, by then, it was too late. It cannot now be known what issues of prejudice might have been raised by senior counsel for the applicant. Whatever might have occurred, in the event, having regard to the way the case was run, the obligation remained on the Crown to prove that the applicant was in the Audi Q7 at the relevant time.
6. The requirement to prove the applicant was in the Audi Q7 was reflected in the written directions. This was implicit with respect to the Crown's primary case that the applicant shot the deceased prior to him being shot by Mr Sultani. The evidence was that the first shots came from the Audi Q7, necessitating a finding that the applicant was in the vehicle. The requirement to prove that the applicant was in the vehicle was explicit with respect to the Crown's alternative case of proof of guilt by participation in a joint criminal enterprise. With respect to that alternative case, the written directions provided as follows: "Murder pursuant to joint criminal enterprise - presence at the scene, ready and willing to assist 5. Has the Crown proved beyond reasonable doubt that at the time of the shooting of Pasquale Barbaro (a) the accused attended Larkhall Avenue Earlwood in the Audi Q7 in the vicinity of No 6 in company with Abuzar Sultani and Siar Munshizada. and (b) the accused was at that time ready and willing to assist in killing Pasquale Barbaro and (c) any one or more of the accused, Abuzar Sultani and Siar Munshizada caused the death of Pasquale Barbaro by discharging one or more rounds from a firearm or firearms at Pasquale Barbaro. • If no to any of (a), (b) or (c), find the accused not guilty • If yes to all of (a), (b) and (c), find the accused guilty of murder."
7. The question from the jury resulting in the direction at the heart of this appeal asked whether the written direction at 5(a) required the applicant to be "'in the Audi Q7' to be found culpable for the crime" or could he "just be in the vicinity to be culpable as long as clauses (b) and (c) are met?". Consistent with the obligation assumed by the Crown, the trial judge directed the jury that, "the short answer" to the question was "yes", that is, the Crown did need to prove he was in the Audi Q7. His Honour then elaborated on that answer. The first part of that elaboration was as follows: "Question 5(a) is expressed in that way because the Crown adduced circumstantial evidence from which it has asked you to find that the accused was present in the Audi Q7. The evidence relied upon by the Crown of the accused being at the scene of the shooting, if you accept the basic facts upon which the Crown is relying, and if you draw the inference from those basic facts beyond reasonable doubt that the Crown asks you to draw, it is an inference that he was present in the Audi. The basic facts, the inference that the Crown asked you to draw, they are all directed to the proposition that he was there in the Audi. I ran through with you in summing up last week the process of considering all of the evidence together, determining what basic facts you are satisfied of and then determining whether you can infer from those basic facts beyond reasonable doubt that the accused was present in the Audi at the scene. I will not go through the summary of those basic facts that the Crown is relying upon again, but I will make a couple of brief points to emphasise what I am saying to you. In doing so, again, I make the disclaimer that I am not urging you to accept the Crown's arguments or its contentions on any of the basic facts or what flows from them, I will just remind you how the case has been put to you. You recall that many of the basic facts that the Crown relied upon to draw this inference of presence in the Audi were not contested. To act upon them, you would still have to be satisfied of them, but it is easier for you to do so when they are not contested. For example, the Crown relies upon the fact that the accused was picked up at Burroway Place at about 8 o'clock and rode in the WRX to Ring Street and there got out of the car, and that the Audi Q7 was there and had been there for some time. Now, none of those basic facts were contested. Other basic facts were contested. The Crown relied upon the way in which the shooting took place, to put it very broadly, to say there had to be a third person. The driver could not have done the shooting as well, there certainly were two shooters, the Crown says, because two weapons were used and so on, and those facts were strongly contested by the defence. It was said that you would not find from those indications that there was necessarily a third person in the car, or it could have been done by the driver, notwithstanding he also had responsibility to manoeuvre the vehicle as you saw and so on. Also, later on, the Crown relied upon the, what I termed, the post event communications and particularly the reenactment on 22 November and the things the accused said to Sultani on that occasion. Again, that was strongly contested by the defence, the defence put that those things said by the accused didn't indicate that he was there. Now, all of that, you can see from the brief recapitulation of it that I made, it is all directed to the proposition that the accused was in the Audi Q7 and that is where he was at the scene."
8. The direction was factually correct and assisted the jury as to how the Crown sought to prove the applicant was in the Audi Q7. His Honour, however, continued: "There was not anything in those circumstances that the Crown has relied upon which would be a basis for inferring he was there in any other location, and the Crown has not submitted to you that there was a basis for inferring that he was there on the pavement or in the front of one of the properties or another car or the like. … There is in the case no evidence, in fact, of the accused being on [Larkhall] Avenue at the time of the shooting but not in the Audi. There is no evidence of him being on the pavement or in another car or in the front of one of the properties. There is no evidence of any person being in any of those locations in respect of whom it could be inferred that the person was the accused. … The further explanation that I have offered to you by making some brief reference again to the structure of the Crown case and the points at which the accused opposes it, is simply to point out to you that there is no other way that the case has been put and no evidence upon which a finding of his presence in some other place could be made"
9. It was correct to direct the jury as his Honour did in the first extract above. It was a matter of determining whether the inference could be drawn, to the criminal standard, from "basic facts" that the applicant was present in the Audi Q7 at the scene. The second part of the answer, extracted immediately above, however, went further, and was, in my respectful view, apt to mislead. The applicant bore no burden of proof. It was not for him to positively establish a reasonable possibility consistent with innocence. It was for the Crown to exclude it.
10. Despite the applicant bearing no onus, the directions tended to suggest that, before a possibility consistent with innocence could be considered, there had to be evidence from which a positive inference as to that possibility could be drawn. It was for the Crown to exclude any reasonable possibility open on the evidence consistent with innocence. Evidence which leaves open the reasonable possibility of a fact is very different to evidence from which a positive inference can be drawn as to the existence of a fact.
11. In Barca v The Queen (1975) 133 CLR 82; [1975] HCA 42, Gibbs, Stephen, and Mason JJ said (at 105): "… The learned trial judge was perfectly correct in saying there was no evidence that the applicant took the deceased to [a relative's] house or that [that relative] fired the shots that killed the deceased. However, although a jury cannot be asked to engage in groundless speculation it is not incumbent on the defence either to establish that some inference other than that of guilt should reasonably be drawn from the evidence or to prove particular facts that would tend to support such an inference. If the jury think that the evidence as a whole is susceptible of a reasonable explanation other than that the accused committed the crime charged the accused is entitled to be acquitted."
12. More recently, in The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35, the High Court, referring to authorities including Barca v The Queen, said (at [62]): "It may readily be accepted that 'it is not incumbent on the defence either to establish that some inference other than that of guilt should reasonably be drawn from the evidence or to prove particular facts that would tend to support such an inference'. That proposition merely reflects that it remains for the prosecution to prove the accused's guilt of an offence beyond reasonable doubt." (footnotes omitted)
13. Earlier in this Court, in R v McIntyre (2000) 111 A Crim R 211; [2000] NSWCCA 6, Hulme J, with whom Sully and Hidden JJ agreed, stated (at [30]-[34]): "30 It is, of course, both proper and common for a judge in the course of a summing up to tell a jury that they must not speculate or guess, operations of the mind quite different from the drawing of inferences. However, as his Honour pointed out to the jury, this was a circumstantial evidence case. The appellant was entitled to be acquitted if the Crown could not exclude all reasonable hypotheses consistent with innocence. 31 Such hypotheses must, as I have said, be reasonable. But a jury does not have to be able to infer that an event, the subject of such an hypothesis, in fact occurred before relying on, or making allowance for, the possibility of such an event. A couple of examples demonstrate this point. 32 A rape is committed at night in the victim's home. The Crown presents a case based on circumstantial evidence that the offender was A. There is clear evidence that the windows of the victim's home were open and other persons were around and acting suspiciously. A would be entitled to be acquitted as there would be a reasonable possibility that someone else was the offender. 33 A fire commences on a wooden bench on which the owner was, earlier in the day, ironing. He says he thinks he turned the iron off. Clearly, there remains a reasonable possibility that he did not. A suspect against whom the Crown presented a circumstantial evidence case as to his involvement would be entitled to be acquitted. Although the circumstances might not justify an inference that the fire did start accidentally from the iron, those circumstances raised that cause as a reasonable possibility. 34 It would, of course be a matter of speculation, whether in fact that rape had been committed by someone else; or the fire had occurred accidentally due to a failure to turn the iron off; but there is no speculation involved in considering whether these are reasonable possibilities."
14. R v McIntyre was referred to with approval in McLeod v Regina [2008] NSWCCA 127 by Beazley JA (as her Excellency then was, and with whom Barr and Hoeben JJ agreed) at [21]: see also; Kaliyanda v R [2007] NSWCCA 300 at [62].
15. Returning to the present case, it may be arguable that any possibility left open by the evidence that the applicant was at the scene but not in the Audi Q7 was fanciful. If so, it was a matter for the jury. The jury, however, was instructed that, while the applicant's presence at the scene in the car was a matter to be proved by the Crown, that matter was established as there was no evidence he was not at the scene other than in the car, and no evidence from which a positive inference could be drawn as to that possibility. As established by the authorities above, the question was not whether there was evidence of the applicant at the scene but not in the car, or evidence from which a positive inference might be drawn as to that possibility, but rather, whether the evidence foreclosed such a hypothesis as a reasonable possibility. In my view, the jury was misdirected.

The applicability of the proviso

1. The significance of a misdirection as to a possibility that is, at least arguably, fanciful (as I have referred to it above), may be doubted. The difficulty is that while the response was with respect to a specific question, it provided an example of the approach to be taken to circumstantial reasoning generally. There is no reason to think the jury would have distinguished between the reasoning to be employed with respect to the particular scenario raised by the question, and the manner in which circumstantial reasoning works generally. There was, at least, a danger that they did not do so. The Crown's case was circumstantial. The applicant's case was that the evidence led by the Crown did not foreclose the existence of a reasonable hypothesis consistent with innocence. Had the jury applied the specific direction given more generally, the applicant's entire case was, in essence, taken away from him. It is not necessary, in these circumstances, to consider whether the possibility raised by the jury's question was fanciful. I am not satisfied that no substantial miscarriage of justice occurred. It follows that I would not apply the proviso to s 6 of the Criminal Appeal Act.

The application for leave to appeal against sentence

1. I am aware that my view as to the conviction appeal is a minority view and the appeal against conviction will, consequently, be dismissed. It is necessary then to consider the application for leave to appeal against sentence.
2. In relation to ground 4, which complains of error in failing to find there was no causal link between the applicant's upbringing and his involvement in the offending, I agree with Simpson AJA that the ground is made out for the reasons her Honour gives. In relation to ground 5, which relates to the Bugmy Bar Book, I have reached a different conclusion. My reasons are set out below.

Ground 5 - the Bugmy Bar Book

1. Relevant aspects of the sentence proceedings, his Honour's remarks and the applicant's complaint have been set out by Simpson AJA. I also adopt the terminology of "the Bugmy Bar Book" used by her Honour.
2. As Simpson AJA points out, there was no challenge to the admission of the chapters from the Bugmy Bar Book tendered by the applicant. Inherent in this was an absence of any challenge to the expert evidence including its independence. This is not surprising having regard to the process by which the Bugmy Bar Book has been produced, including through the presence, on the Bugmy Bar Book committee, of a number of judges, two Crown prosecutors, a representative from the Judicial Commission of New South Wales, together with a number of senior practitioners and academics (see https://www.publicdefenders.nsw.gov.au/Pages/public_defenders_research/bar-book/acknowledgements.aspx).
3. Despite the admission of the evidence without objection, as the ground of appeal complains, his Honour expressly disregarded it. This is not of itself, of course, sufficient to establish error. If the evidence had no relevance to the sentencing exercise his Honour would have been right to disregard it. In my view, however, the evidence was capable of bearing on the determination of sentence.
4. While the evidence the subject of this ground was not specific to the applicant, this did not, of itself, deny its potential relevance. The potential scope for generalised research to assist in a particular sentencing exercise and to the collective understanding of sentencing courts more generally was acknowledged in Kentwell v R (No 2) [2015] NSWCCA 96. There, Rothman J (with whom Bathurst CJ and McCallum J, as her Honour then was, agreed), in determining the appropriate sentence to be imposed on that offender, made reference to R v Fernando (1992) 76 A Crim R 58. In that case, Wood J set out various matters of general relevance to which regard might be had in the context of sentencing that particular offender, an indigenous man with a background of significant deprivation. Rothman J observed (at [87]) that "Wood J in [R v] Fernando, Simpson J in Kennedy [v R [2010] NSWCCA 260] and the High Court in Bugmy [v The Queen (2013) 249 CLR 571; [2013] HCA 37], all make clear the factors adumbrated by Wood J are a non-exclusive set of factors, derived from previous judgments and learned papers". That is, the factors set out in R v Fernando were not specific to any particular offender but were based on a combination of the Court's accumulated experience and papers, which included "The Sentencing of Aboriginal Offenders by Justice Toohey" and the "report of J H Wooten QC concerning the Royal Commission into Aboriginal deaths in custody" (a matter also acknowledged by the High Court in Bugmy v The Queen at [18]). In Kentwell v R (No 2), Rothman J, in addition to these matters, referred (at [94]) to research studies (in particular of Professor Baumeister discussed by his Honour in R v Lewis [2014] NSWSC 1127 at [39]-[43]), which his Honour observed made it "clear that … extreme social exclusion will likely result in anti-social behaviour and most likely result in criminal offending".
5. In R v Tsingolas [2022] NSWDC 34, both the Crown and the offender relied on research material relating to the potential impact of childhood sexual abuse. Yehia SC DCJ (as her Honour then was), said (at [87]-[88]): "87 This material should be seen as an extension of the subjective material provided in the individual case - here, the expert reports and the evidence of the offender. To an extent greater than ever before, sentencing Judges are now assisted by a body of research into the impact of various forms of childhood disadvantage, deprivation and trauma that may have an ongoing and profound impact upon the individual. 88 Sentencing Judges in the 21st Century have the benefit of that assistance. The material provided is expert research and study that allows for a better understanding of the potentially profound impact of an individual's childhood experiences upon, amongst other things, their capacity to mature, control impulse and self-regulate. The research complements the psychological, psychiatric and other evidence relied upon in the individual case, and can be of substantial assistance in explaining the offending conduct, assessing moral culpability and/or informing the appropriate penalty."
6. Her Honour made reference to Kentwell v R (No 2), Perkins v R [2018] NSWCCA 62, and Bugmy v The Queen at [89]-[91] as supporting her observations. Her Honour concluded (at [92]): "92 … The material filed on [the offender's] behalf is complemented by the expert opinions expressed in the body of research to which I have been referred. That research not only contextualises the material directly relevant to this offender's subjective case, but also assists me in having a broader understanding (based on expert material rather than my own inexpert understanding of human affairs) of the ongoing and profound impact of childhood sexual abuse."
7. In the present case, there was a very large volume of material from the Bugmy Bar Book tendered on the applicant's behalf, an issue to which I will return. Following an exchange with the bench, however, the applicant's counsel indicated he would limit reliance on the Bugmy Bar Book to the matters specifically set out in his written submissions. In the light of counsel's approach, the reliance on the Bugmy Bar Book can be considered through the prism of the applicant's submissions before the sentencing judge.
8. The applicant's written submissions at first instance set out a number of "aspects of the offender's deprived background" which it was submitted "are known to cause instability and problems of attachment and social exclusion". This central submission was significant to the applicant's contention that his association with Mr Sultani was to be understood in the context of his previously frustrated need for acceptance and belonging. Various factors were then set out corresponding with the titles of the chapters of the Bugmy Bar Book which had been tendered. In most instances, reference was made to specific paragraphs of the relevant chapter.
9. The first factor identified was "[h]aving been descended from members of the stolen generation". Reference was made to paragraphs 22 and 27 of the corresponding Bugmy Bar Book chapter. Those paragraphs established that descendants of members of the stolen generation suffer greater disadvantage compared to other Aboriginal and Torres Strait Islander people in areas including experiencing discrimination, violence, personal satisfaction, and mental health. They are more likely to have been arrested and charged with offences. Links have been found between being a descendant of a member of the stolen generation and intergenerational trauma.
10. The submissions identified "[i]ncarceration of parents" as the next chapter of the Bugmy Bar Book relevant to the applicant. Under this heading, the relevant part of the chapter was summarised in the submissions as follows: "• Parental incarceration has been found to interfere with the attachment relationship between a child and their parent or caregiver, cause financial hardship, disrupt care and living arrangements, and subject children to stigmatisation and shame. • This may impact upon a child's emotional behavioural and psychological development, educational performance, delinquency and risk of offending. • A significant association has been found between parental incarceration and substance use and criminal behaviour reported by adolescents[.] • These potential impacts may have particularly negative consequences for Indigenous children when cumulated with other forms of disadvantage."
11. The third factor relied on was "[c]hildhood exposure to domestic and family violence". Reference was made to paragraphs 15-18 of the Bugmy Bar Book chapter, with the following matters set out as relevant to the applicant: "• behavioural problems; • poor academic outcomes; • low self-esteem; • externalising (e.g. aggression lack of emotional control, disobedience); • low school attendance; • bullying (both as victim and perpetrator) - see Ms Cullen's report at p4 par 4) • feeling anxious about their safety and that of other family members."
12. With respect to the applicant's "[e]arly exposure to alcohol drug abuse", it was submitted the applicant suffered many of the typical effects of such exposure, as set out at paragraph 2 of the corresponding chapter, which states: "Parental incarceration has been found to interfere with the attachment relationship between a child and their parent or caregiver, cause financial hardship, disrupt care and living arrangements, and subject children to stigmatisation and shame. This may impact, a child's emotional, behavioural, and psychological development, educational performance, delinquency and risk of offending."
13. The submissions referenced the chapter on "[l]ow socio-economic status" and referred to the applicant having grown up in poverty, submitting that this "directly impacted upon … wellbeing and very likely contributed to, or exacerbated, the lack of cohesion within the family and [the applicant's] social cohesion". Nothing was said, however, expressly linking the submission with anything established by the Bugmy Bar Book.
14. Reference was made to the chapter "[i]nterrupted school attendance and suspension" and specific reference to was made to paragraphs 25-42 of that chapter. These paragraphs supported the applicant's submission that, as a result of the applicant's suspensions and ultimate expulsion in high school, the applicant was deprived of "the guidance of teachers and involvement with a variety of peers", leading to him gravitating towards antisocial groups.
15. The applicant's submissions referred to the chapter "[h]omelessness", making particular reference to paragraphs 36-38 of that chapter of the Bugmy Bar Book. The submissions noted that the applicant experienced periods of homelessness between the age of 8 and 10, when he would sometimes sleep on streets to avoid violence at home, prior to leaving home completely at 14, following which he experienced periods of homelessness. The particular paragraphs referred to provided a basis for the applicant's submission that these periods of homelessness would "likely have added to his sense of social exclusion".
16. Finally, the submissions referred to the chapter on "[s]ocial exclusion and lack of family cohesion", with specific reference to paragraphs 8-10 of that chapter. The submissions on this subject implicitly acknowledged that the various factors relied on were not independent, but rather, were inter-related and acted in combination. It was submitted that the various factors referred to were "likely to have exacerbated the [applicant's] sense of social exclusion throughout his formative years" and, by reference to paragraphs 8-10 of the chapter, noted the potential link with antisocial behaviour and reduced empathy.
17. It can be seen from the above that the research collated in the Bugmy Bar Book pointed to, at least, the potential for the applicant's background to have had a significant effect on the applicant in the ways discussed above, which, in turn, may have pre-disposed him to offending in manner in which he did.
18. As the High Court in Bugmy v The Queen made clear, where an offender relies on a background of deprivation, that background must be established. The manner in which such a background might be proved (such as by, for example, direct evidence or a hearsay account in a report) is impacted by the manner in which sentencing proceedings are ordinarily conducted (and are expected to be conducted): see Simpson AJA at [78], and my observations in Edmonds v R [2022] NSWCCA 103 at [25]-[27]. While there is a need for evidence of the background of the individual offender, nothing in Bugmy v The Queen suggests that further evidence is required to establish the relevance of a deprived background. To the contrary, the High Court explicitly acknowledged the capacity of evidence of an offender's background to explain offending behaviour without reference to the need for any additional evidence (see particularly at [43] and [44]).
19. Despite the above, in the present case, the connection between the applicant's background and the offending conduct was not self-evident in the way it might be in the case of a person raised in an environment of drunken violence who replicates such conduct in an alcohol fuelled assault. Rather, the offending here was committed in calm, calculating, and utterly callous manner. The applicant nonetheless submitted that his background went a considerable way in explaining his conduct. In the context of this argument, while it was not in issue that the applicant had suffered childhood deprivation and that this was relevant, the extent to which it was relevant was a matter of contention.
20. Whether the applicant's background, combined with the material in the Bugmy Bar Book, could establish a connection between that background and the offending does not need to be decided. (The inferences that might be drawn on the balance of probabilities from what is essentially circumstantial evidence, will be a question of fact to be determined in the context of all the facts in a particular case.) Here, however, in addition to the generic (or circumstantial) evidence, there was the evidence of Ms Cullen specific to the applicant (or in the nature of direct evidence) linking the applicant's background with the offending (as discussed by Simpson AJA in the context of ground 4).
21. While, given Ms Cullen's report, the evidence in the Bugmy Bar Book may have added little, that was not, in my view, a basis for dismissing it. The forensic context is important. While the Crown did not take issue with the admissibility of Ms Cullen's report or the Bugmy Bar Book chapters, it was submitted that the Court would not find that any causal link had been established between the applicant's background and the offending. As noted by Simpson AJA, Ms Cullen was cross-examined, albeit without her opinions being undermined. The Crown's contention that there was no causal connection between the applicant's background and the offence added to the significance of the applicant's submissions as to such a connection based on the Bugmy Bar Book.
22. The research material contained in the Bugmy Bar Book and referred to in the submissions, supported the possibility that the applicant's background had a role to play in the decisions made by the applicant, leading to his involvement in the offence. The evidence made it more likely that Ms Cullen's conclusion as to the impact of the applicant's background was soundly based. This was of particular significance in the circumstances of this case, where, as noted above, the Crown submitted to the contrary and, ultimately, his Honour was not inclined to accept a link between the applicant's background and his offending.
23. Of course, it is likely that, at least some of the research material was known to and had been taken into account by Ms Cullen. That does not, however, mean that a deeper understanding of the impact of the applicant's background would not have assisted. To the contrary, the material was capable of assisting in understanding the basis for Ms Cullen's opinion. As has been observed in the context of ground 4, his Honour was in error in rejecting the causal link between the applicant's background and the offending established by the evidence of Ms Cullen. It is possible that, had the report been read in conjunction with the research material, his Honour would have been more inclined to accept Ms Cullen's opinion.
24. I am, in making the above observations, mindful of the ever-increasing complexity of sentencing and, correspondingly, sentencing proceedings. To this, is to be added the fact that his Honour was dealing three different offenders across a variety of offences, each of a most serious kind. The burden placed on the sentencing judge was significant. It was clearly added to by the tender (in addition to the other evidence relied on) of over 70 pages of material which did not specifically relate to the applicant. It is relevant to note, in this context, that the parties to the proceedings have important roles to play. Here, submissions were made by the applicant's counsel as to the potential link between various aspects of the applicant's deprived background and his offending, with reference to the relevant paragraphs of the Bugmy Bar Book. The written submissions were, of course, served on the Crown. No issue was taken by the Crown with respect to the validity of the opinions relied on. The applicant's counsel, appropriately, narrowed the material on which he relied to that referred to in his submissions. That obviated the need for his Honour to pay close regard to the various chapters, beyond the extent to which it was felt that reference to the source material might further assist in clarifying the submissions.

Resentence

1. All members of the Court are of the view that ground 4 has been established, with the result that the applicant must be resentenced. The different view I have come to with respect to ground 5 does not necessarily impact the result. In this regard, Simpson AJA has noted that "full weight is to be given to the effects of the applicant's history of profound deprivation" (at [107]). As to that effect, her Honour has had regard to the opinions of Ms Cullen, including the relationship between that background and the applicant's offending and the applicant's development of insight with respect to that connection. While the understanding of that relationship is enhanced by the material in the Bugmy Bar Book, the critical evidence was that which was specific to the applicant. In the result, as Simpson AJA makes clear, the gravity of the offending must not be overlooked. In all the circumstances, I agree with the sentence proposed by her Honour.
2. McNAUGHTON J: I agree with Simpson AJA.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 November 2023