Criminal law - Appeal and new trial - Appeal against sentence - Sentence manifestly excessive or inadequate - No specific error alleged - One count of robbery involving theft of jewellery from fashion boutique and violence involving punching and biting complainant - 2 years' imprisonment with non-parole period of 14 months to be served cumulatively to current term not manifestly excessive.

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

Judgment Number: [2024] TASCCA 1

1. I have had the advantage of reading the reasons of Estcourt J. I agree with those reasons and the conclusion reached that the appeal should be dismissed. In my view, the sentence for this offender and for this crime was heavy, though not too harsh, and moreover, did not meet the threshold test of manifestly excessive.
2. I agree also with the additional comments of Jago J, and I wish to add some brief remarks of my own regarding the authority of Bugmy v The Queen [2013] HCA 37, 249 CLR 571, noting that this was a case where the offender's background of deprivation was relied upon as one of the reasons why the sentence was said to be manifestly excessive.
3. This case illustrates the importance of counsel at the sentencing hearing pointing to material tending to establish a background of deprivation if such deprivation is to be relied upon as a matter in mitigation. Counsel for the appellant was not counsel at the sentencing hearing and, as highlighted by Jago J, there was scant and inadequate material about the appellant's background that counsel for the appellant could draw upon in this regard.
4. Such a background, if shown, is undoubtedly relevant and may operate to mitigate the sentence. In Bugmy, the plurality judgment at [40] noted that:

"The circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way."

1. The judgment went on to note at [43] that such an environment may leave its mark on a person throughout life. Among other things, a background of that kind may compromise a person's capacity to mature and to learn from experience.
2. The plurality judgment in Bugmy made it plain that the effects of profound childhood deprivation do not diminish with the passage of time and remain relevant notwithstanding that the person has a long history of offending. It was stated that because of this, it is right to speak of giving "full weight" to an offender's deprived background in every sentencing decision. This proposition would have particular relevance to this case because the appellant is a mature offender with a long history of offending.
3. It is worth noting that the principle is expressed in terms that circumstances of deprivation "may" mitigate the sentence. This is not to suggest that these circumstances need not be taken into account in the exercise of the sentencing discretion, but rather that there may be countervailing factors impacting the sentence: R v Ingrey [2016] NSWCCA 31 at [35]. The sentencing task is a complex one, and, depending on the individual case, there may be considerations which counteract the mitigating effect of the offender's background. The judgment in Bugmy noted the sentencing court is required to give weight to the conflicting purposes of punishment, and that an offender's deprived background does not have the same mitigatory relevance for all the purposes of punishment, and went on to explain at [44]:

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

In making this point, the plurality judgment referred to Gleeson CJ in R v Engert (1995) 84 A Crim R 67 at 68.

1. Lifelong damage that is the result of childhood exposure to violence, abuse, or neglect may elevate the weight to be given to rehabilitation as a sentencing consideration. See Bergman (a pseudonym) v The Queen [2021] VSCA 148 at [100]. If an individual's background of childhood deprivation allows the weight ordinarily given to personal and general deterrence to be moderated in favour of other purposes of punishment, such as rehabilitation, there remains a question of degree; that is, to what extent such moderation should occur. As noted by Gleeson CJ in Engert, the interplay of considerations relevant to sentencing may be complex and the facts may point in different directions.
2. While the Bugmy principles were correctly referred to in submissions on appeal, material showing childhood deprivation had not been placed before the learned sentencing judge. As a result, this was not a case where the principles referred to were enlivened.

1. This is an appeal against sentence.
2. On 2 May 2022, the appellant, Beverley Anne Banfield, was found guilty by a jury of one count of robbery contrary to s 240(1) of the Criminal Code.
3. On 12 May 2022 the appellant was sentenced by Porter AJ to two years' imprisonment, to be served cumulatively to sentences presently being served by her, and his Honour ordered that she not be eligible to apply for parole until she had served 14 months of that sentence.
4. A notice of appeal was filed on behalf of the appellant on 25 May 2022, with the sole ground of appeal being that the sentence imposed was manifestly excessive in all of the circumstances. No specific error was alleged.
5. The principles relevant to such an appeal were adumbrated by Pearce J in Director of Public Prosecutions (Acting) v Pearce [2015] TASCCA 1 at [8]. An appellate court only sits to rectify a genuine error: Dinsdale v The Queen [2000] HCA 54. Where no specific error is alleged, the court must be persuaded that the sentence imposed is "unreasonable or plainly unjust": House v The King (1936) 55 CLR 499. This requires something beyond being too lenient or too harsh. It must be established that the sentencing order is so manifestly wrong that it could only be the result of some undefinable error in the exercise of judicial discretion: Bresnehan v The Queen [1992] TASSC 55.
6. The gravamen of the appellant's argument is that the sentence did not reflect the application of the totality principle and that it ignored the appellant's self-initiated steps towards addressing her long standing drug addiction and ignored her background of profound childhood deprivation: Bugmy v The Queen (2013) 249 CLR 571.
7. Counsel for the appellant, Mrs McShane, submits that the impact of his Honour's sentence of two years' imprisonment was crushing upon the appellant as it was imposed in addition to a 13 month sentence previously imposed in the Hobart Magistrates Court which saw her continuously in custody from 9 November 2021.
8. Counsel for the appellant submits that the sentence ignores the significance of the fact that between the commission of the subject offence and the appellant's most recent remand in custody on 9 November 2021, she had sought assistance with drug and alcohol counselling and was hoping that once released that she would be able to get the help she required to recover from her addiction and her mental health issues so that she could have a productive and fruitful life.
9. In particular, counsel for the appellant submits that seeking assistance was a significant change from when Brett J, in 2016, cancelled a drug treatment order he had made in respect of the appellant and stated that there was little real evidence that the appellant had made any serious attempt to address her drug problem and that rehabilitation was not a realistic sentencing aim until she was prepared to do so
10. In the learned sentencing judge's comments of passing sentence, his Honour found the facts as follows:

"... The complainant is Janena Mann who was the owner/proprietor of a ladies fashion boutique situated in North Hobart. They stocked clothing and accessories which included jewellery handbags and shoes. At about 2.45pm on 29 February 2020, Ms Mann was alone in the shop and sitting at the counter. She heard a noise from the front of the store. When she went to investigate she saw that a glass jewellery cabinet was open and somebody was kneeling down between the cabinet and a rack of clothing, taking jewellery from the cabinet. The person, established by the verdict to be the defendant, was carrying a bag. Ms Mann first asked if she could help and when she saw what the person was doing, said 'What are you doing, you are taking my jewellery', or words to that effect. The defendant replied, 'It's not me, it's the woman out the door.' Ms Mann then asked her to empty the bag and return the jewellery. When the defendant refused, Ms Mann grabbed the strap of the bag at which point the defendant bit her on her right hand and continued to hold the bite for a short time. She also punched Ms Mann to the face and upper arm and pushed her to the ground. As a result of the push Ms Mann landed on her side and hit her head. The defendant fled with some jewellery, worth approximately $3,350."

1. As to the impact of the crime on the victim, his Honour noted:

"I have a victim impact statement of Ms Mann dated 3 May 2022. The robbery seems to have had quite a profound effect on her. For a few days, she was sore from the two bite wounds to her hand. She continues to suffer pain in her hip. For a time she was extremely worried about the possibility of contracting blood borne infection from the bite wounds, and she had to have several tests over a period of six months to monitor the situation. Before the incident she worked in the shop on six days each week. Her business was her passion but she is now too traumatised to go into the shop without her partner accompanying her. He often works in the shop by himself. As Ms Mann described it, it is not the ideal scenario having an elderly gentleman running a ladies fashion shop. His recent poor health has forced the closure of the shop for some six weeks and she has now made the decision to close the shop permanently. Her low mood has caused difficulties in the relationship. She has also suffered financially as she has had to seek employed work. She says that she has been feeling emotionally shattered and alone and no longer trusts people as she should."

1. The learned sentencing judge gave consideration to each of the matters now agitated on behalf of the appellant.
2. As to totality, his Honour noted in his comments on passing sentence:

"Her present situation is that she is serving cumulative terms of imprisonment which were imposed on 14 April this year backdated to 4 November 2021, those sentences being imposed for more recent offending - violence and stealing from shops - as well as by way of resentencing for earlier similar matters. I note that the sentences presently being served expire on 3 December 2022, but that she is eligible for parole very shortly; 17 May 2022... I take into account the length of the sentences to which the defendant is subject." (Emphasis added.)

"...It goes without saying that this was a serious incident. The attack on Ms Mann, particularly involving a bite as it did, was disgraceful conduct. Shopkeepers and security staff employed by them are often in vulnerable situations and require the protection of the law. General deterrence and condemnation are prominent factors. In this case specific deterrence is a very weighty factor and, it seems to me, protection of the public needs to be considered. I am prepared to accept that there is some degree of motivation to change, and rehabilitation should always be encouraged, but that is not a factor of great weight in this case given the circumstances. I take into account the length of the sentences to which the defendant is subject." (Emphasis added.)

1. As to the appellant's background his Honour observed:

"The defendant is now 39 years old. She seems to have had a most unfortunate background and has a truly appalling recorded history of offending, mostly relating to offences of dishonesty. In the main, this arises from drug use and addiction. Dishonesty as a youth started at the age of 10. On Crown counsel's count the defendant has been convicted of approximately 140 counts of stealing, 85 of obtaining goods by false pretences, 29 of aggravated burglary 22 of forgery, 25 of uttering and 9 of burglary. There are 13 convictions for assault or assaulting police including a conviction for a Criminal Code assault. Significantly, in December 2001 she was convicted of aggravated robbery and sentenced to 12 months' imprisonment. In September 2016 she was convicted of aggravated armed robbery for which, along with the Code assault mentioned she was sentenced to 2 years' imprisonment with a non-parole period of 15 months. The defendant has been sentenced to suspended terms of imprisonment, has had the benefit of community based orders and therapeutic orders including a drug treatment order, and served terms of imprisonment, regrettably all to no avail. She did manage to successfully negotiate the parole period from the 2016 sentence although she had previously breached parole granted in respect of an earlier sentence. Of significance is the fact that both the 2001 aggravated robbery and the 2016 aggravated armed robbery involved not dissimilar circumstances to these. On the first occasion, she fought off a shopkeeper attempting to prevent her from stealing a handbag, and on the second occasion she stabbed a security officer with a syringe when that person was attempting to prevent her from removing stolen goods from a store. It is quite clear that a very large number of the dishonesty offences involve stealing from shops. As I have mentioned, it is also quite clear that a significant entrenched drug abuse problem has been at the heart of the offending. She steals to fund her addiction." (Emphasis added.)

1. No specific error is asserted on the part of the learned sentencing judge in respect of any of the three considerations of totality, deprived social background and prospects of rehabilitation so, whilst they form part of the appellant's circumstances, the sole issue in this appeal remains whether the sentence imposed by his Honour was manifestly excessive in all of the circumstances (Broomhall v Tasmania [2023] TASCCA 2 per Geason J at [28]-[32])
2. It may be accepted that the two year cumulative sentence, imposed with more than the minimum non-parole period, in the face of the appellant's deprived background and despite an indication of a clear change in her motivation to engage in drug and alcohol counselling, was a heavy one. In recognition of the totality principle and/or the appellant's deprived social background and/or the seemingly refreshing preparedness to address her addiction, another judge might have imposed a somewhat shorter sentence or a partially suspended sentence or the minimum non-parole period. But that is not enough. As has been noted above manifest excess requires something beyond the sentence being "too harsh".
3. I am unable to say that the learned sentencing judge's sentence was "unreasonable or plainly unjust". Measured against the yardstick of past sentences imposed by judges of this Court for the crime of robbery, the sentence, whilst perhaps at the upper end of the range of sentences for a single count of that crime, was nonetheless, in the circumstances of the case, within a proper exercise of his Honour's sentencing discretion. It is well understood that judges of the Court of Criminal Appeal have no remit to effect minor adjustments to a sentence on the basis of individual or idiosyncratic viewpoints.

1. I have had the benefit of reading the reasons of Estcourt J. I agree with them and agree that the appeal should be dismissed. I wish to add the following comments.
2. The appellant's sole ground of appeal is that the sentence imposed is manifestly excessive. Whilst the notice of appeal does not assert any specific error on the part of the sentencing judge, counsel for the appellant argued, almost as particulars of the ground of "manifestly excessive", that the sentence did not properly reflect the totality principle, that the sentence did not properly reflect the appellant's difficult personal circumstances and the sentence did not properly reflect the appellant's prospects for rehabilitation.
3. As to totality, the sentencing judge acknowledged the appellant was serving cumulative terms of imprisonment. He noted the sentences were to expire on 3 December 2022 but that the appellant was eligible for parole as at 17 May 2022. The sentences imposed by the Magistrate's Court comprised of re-sentencing for breaches of many suspended sentences imposed for a multitude of stealing offences, and sentencing for numerous stealing offences, common assault, possessing illicit drugs and assaulting a police officer. They were then very similar offences to many which appeared on the appellant's record of prior convictions.
4. When a custodial sentence is to be imposed, which will be cumulative upon an existing custodial sentence, a sentencing judge must take into account that existing sentence so that the total period to be spent in custody adequately and fairly represents the totality of criminality involved in all of the offences to which that total period is attributable, but the totality principle does not operate to permit an adjustment of a penalty downward to a point where it fails to adequately reflect the gravity of the crimes and the penalty is not justly proportionate to the totality of the criminal offending (Director of Public Prosecutions v Broad [2018] TASCCA 5 at [5]).
5. The appellant's crime was a very serious one. As the sentencing judge found it involved "disgraceful conduct, particularly as it involved a bite" committed upon vulnerable premises. The complainant had endured the stress and uncertainty associated with a concern as to whether she had contracted a disease. It was necessary for the gravity of that conduct to be reflected in the sentence imposed. The learned sentencing judge made appropriate allowance for totality by setting a parole eligibility period of 14 months. It was reasonable for the sentencing judge to be optimistic about the prospect of the appellant's release on parole when eligible, particularly given the submission that since incarcerated the appellant had made efforts to better herself including seeking assistance for her difficulties, including her mental health.
6. As to the impact of the appellant's background on the sentence, it must be remembered that 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 (Bugmy v The Queen [2013] 249 CLR 571 at 594).
7. There was very limited information provided to the sentencing judge in respect to the appellant's background. The sentencing judge was told:
   • the appellant first came to the attention of police when she was 10 years of age;
   • she first appeared in the Burnie Children's Court in relation to some stealing matters in 1994 when she was 11 years of age;
   • "much of what was said to the Court in regard to the personal circumstances of the appellant back in 2016 to Brett J" still applied;
   • drugs have had a huge impact upon the appellant. She had been on them most of her life; and
   • she had some difficulties in the past, including issues with her mental health.
8. The sentencing judge was provided with the Comments on Passing Sentence of Brett J on 23 September 2016. In terms of background, the only additional material found in those Comments on Passing Sentence is as follows:
   • "You have been committing criminal offences on a regular basis throughout your life since you were 13 years of age"; and
   • "Much of your offending relates to a serious and longstanding problem with illicit drugs".
9. The sentencing judge also made reference to a sentence imposed by Blow J (as he then was) on 4 December 2001. From that sentence the following information as to the appellant's background can be gleaned:
   • she is of very low intelligence; and
   • she had a very unfortunate background.
10. The sentencing judge's conclusion that the appellant "seems to have had a most unfortunate background" was a fair conclusion given the material with which he had been provided, but there was insufficient material before the sentencing judge to permit a conclusion that the background of the appellant was so dysfunctional or so deprived as to lead to a conclusion that her moral culpability was substantially reduced thereby impacting the role sentencing aims such as general deterrence and denunciation should play in the exercise of the sentencing discretion. It may be that such material was available, but it was not before the sentencing judge.
11. A similar comment can be made in respect to the material that was placed before the sentencing judge in respect to the appellant's rehabilitation. He was told:
    • "after she was charged with this particular crime, she was seeking treatment at St Johns with the drug and alcohol programme there, but that was cut short earlier this year after only a few months because of her incarceration";
    • "seems to be some hope of rehabilitation given she took herself off to drug and alcohol counselling";
    • She is "hoping that once released, she will be able to get the help she requires to make sure she gets over her addictions and her mental health issues"; and
    • she has taken steps within the prison system to seek assistance.
12. Beyond an obtuse statement that the appellant was seeking treatment at St Johns, which had been cut short after only a few months, the sentencing judge was told nothing about the extent of any rehabilitation programme she had undertaken. He was given no information, for example, as to whether she had attended regularly, the extent of her engagement, or the effectiveness of the program for the appellant. Given the appellant's long history of drug addiction, and the obvious inference that earlier sentencing orders had failed to deter or rehabilitate the appellant, more cogent material was required if the sentencing judge was to properly give rehabilitation greater prominence in the sentencing exercise. Given the material that was before him, the sentencing judge was entitled to find that:

"Whilst rehabilitation should always be encouraged, it is not a factor of great weight in this case".

1. To the extent that there was evidence of motivation to change, the learned sentencing judge appropriately made allowance for it by the imposition of a parole eligibility order after the appellant had served 14 months.