[2013] HCA 37
Director of Public Prosecutions (Vic) v Dalgliesh (a Pseudonym) [2017] HCA 41
(2017) 91 ALJR 1063
Hili v R (2010) 242 CLR 520
[2010] HCA 45
House v The King (1936) 55 CLR 499
[1936] HCA 40
Neal v R (1982) 149 CLR 305
Source
Original judgment source is linked above.
Catchwords
[2013] HCA 37
Director of Public Prosecutions (Vic) v Dalgliesh (a Pseudonym) [2017] HCA 41(2017) 91 ALJR 1063
Hili v R (2010) 242 CLR 520[2010] HCA 45
House v The King (1936) 55 CLR 499[1936] HCA 40
Neal v R (1982) 149 CLR 305[1982] HCA 55
R v Fernando (1992) 76 A Crim R 58
R v Pham (2015) 256 CLR 550
Judgment (3 paragraphs)
[1]
The applicant's submission
So far as Ground 1 was concerned, the applicant reminded the Court of the evidence I have recounted above. Ms Lin argued that the evidence engaged the Bugmy principle which was relevant to sentencing the applicant as it reduced his moral culpability for the offending and lessened the relevance of specific and general deterrence as well as increasing the emphasis upon his need for rehabilitation.
In writing Ms Lin challenged the finding I have set out above concerning the applicant's prospects of rehabilitation. Ms Lin submitted that he was assessed as having a low/medium risk of reoffending by the corrections officer who provided the pre-sentence report. He had demonstrated the progress towards rehabilitation by becoming self employed as a personal trainer and completing two certificates in business administration. Ms Lin submitted the finding should have been one of "medium to high" prospects for rehabilitation (Applicant's Written Submissions at [21]).
Counsel argued the aggregate sentence was manifestly excessive repeating what she had said about the Bugmy principle. Ms Lin submitted that his Honour failed to adequately take account of remorse and additionally provided short particulars of 10 comparable cases decided in this Court between 2007 and 2017.
The Crown submitted that the evidence did not demonstrate the kind of profound social deprivation described by the High Court in Bugmy. There may have been disadvantages and some hardship growing up in a single parent household without the support of an extended family, but this fell a long way short of circumstances which engaged the Bugmy principle. It was pointed out when his mother was imprisoned and when she died the applicant had attained his majority and was in employment and apparently self-supporting.
As to Ground 2, the Crown submitted that the applicant had not demonstrated House v The King (1936) 55 CLR 499; [1936] HCA 40 error in his Honour's fact finding. His Honour gave cogent reasons for his guarded assessment of the applicant's prospects of rehabilitation and in any event generously adjusted the statutory ratio to maximise his opportunity for rehabilitation after his release to parole.
So far as Ground 3 is concerned, the Crown reminded the Court of the restraint that is exercisable by an appellate court in making a finding of manifest excess. His Honour was entitled to find that there was no genuine remorse demonstrated by the applicant.
So far as the comparable cases were concerned, the Crown reminded the Court of the limited utility of such material by reference to Director of Public Prosecutions (Vic) v Dalgliesh (a Pseudonym) [2017] HCA 41; (2017) 91 ALJR 1063 ("Dalgliesh") at [83] - [85]. By reference to a table provided the Crown pointed out the differences between each of the 10 cases relied upon by the applicant and the circumstances of the present case.
[2]
Consideration
What is required to engage the principle discussed in Bugmy is evidence of "profound childhood deprivation" (at [44]). The unanimous High Court said (at [41]):
"[i]n 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." (Emphasis added.)
Where "the effects of profound childhood deprivation" are established that circumstance may serve to reduce the offender's moral culpability for the offending (Bugmy at [44]), and diminish the relevance of personal and general deterrence "in favour of other purposes of punishment including rehabilitation" (Bugmy at [46]).
It is important to bear in mind that this is not a case that was factually in any way like Bugmy or R v Fernando (1992) 76 A Crim R 58. The latter decision is normally treated as a source of the principle. I accept that the principle is part of the general law of sentencing and is not restricted in its operation to particular demographic groups or classes within the community. I bear in mind that in Neal v R (1982) 149 CLR 305; [1982] HCA 55 at 326, Brennan J (as the Chief Justice then was) said that "courts are bound to take into account … all material facts including those facts which exist only by reason of the offender's membership of an ethnic or other group".
This is not a case, however, of a person raised from childhood in circumstances characterised by the abuse of alcohol and alcohol fuelled violence. Nor is it the case that the applicant was raised in an environment where illicit substance abuse was funded by engaging in the supply, for profit, of such drugs was endemic; if such a circumstance was present profound childhood deprivation may have been relevant to the applicant's sentence.
His circumstances are very different. He fell into drug use as a teenager, which may have increased after his mother's death. The circumstances which lead him into drug dealing were circumstances which arose in his adulthood and had nothing whatsoever to do with any childhood deprivation, profound or otherwise.
In saying this, I accept that he was raised in straightened financial circumstances. There were doubtless difficulties and a degree of social disadvantage inherent in that. To the extent to which this may be deprivation, it is not deprivation which makes engaging in offending of this type more understandable such that moral culpability for the offending is reduced and the relevance of general and specific deterrence diminished.
In my judgment, the learned sentencing judge was correct to characterise the case as he did. The applicant's experience had led him to the belief that "money gives power and those without money are extremely vulnerable" (AB 21 - 22). Very many Australians, including migrants, overcome this vulnerability by hard work in legitimate pursuits as the Chief Justice remarked during the hearing (2.30T). As much as the applicant's background may excite sympathy, the sentencing judge was correct to say it was not a mitigating factor. It was certainly not a mitigating factor which reduced his moral culpability or the "high significance" (AB 22) of both specific and general deterrence in drug supply cases.
As I have said already, Ground 2 was but faintly pressed. In my judgment it was well open to the sentencing judge to make the finding he did about the lack of remorse. That finding was based partly upon his Honour's forensic advantage in seeing and hearing the applicant give evidence. It is not readily susceptible to challenge in this Court. For what it's worth, I formed the same impression from the written record. A finding about prospects of rehabilitation involves an evaluation of future probabilities based upon past circumstance. The factors identified by the sentencing judge: no meaningful remorse; no family support; and no friends or relationship are well-justified as a "guarded" assessment of those future probabilities (AB 22). In any event, to enhance the applicant's prospects for rehabilitation, the sentencing judge found special circumstances and took a generous approach to the relationship between the non-parole period and the total sentence. I would reject Ground 2.
To the extent to which Ground 3 is based upon the trial judge's assessment of remorse, I would reject it for the reasons I have already given. Comparable cases may have some relevance in the determination of a manifest excess ground of appeal. But in R v Pham (2015) 256 CLR 550; [2015] HCA 39, French CJ, Keane and Nettle JJ said (at [28]):
"[a]ppellate intervention on the ground of manifest excessiveness or inadequacy is not warranted unless, having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle."
In Dalgliesh, referred to by the Crown, Bell and Gageler JJ (at [83]) recalled that the history of past sentences does not establish that the range they suggest is the "correct range": Hili v R (2010) 242 CLR 520; [2010] HCA 45 at [54].
I do not find it necessary to summarise each of the cases to which the Court was referred. The short particulars provided by the applicant and the submissions provided by the Crown demonstrate that there are both similarities and differences between each of the comparable cases and the present case. Bearing in mind that the sentencing judge was imposing an aggregate sentence for three significant drug supply related offences, and having regard to the indicative sentences he recorded, the sentence passed was in my view comfortably within the range provided by the comparable sentences to the extent to which they may be relevant. The sentence certainly does not differ in any significant degree from those sentences viewed as a whole.
I acknowledge that many of the offenders in the comparable cases had lengthy criminal records and that factor is absent here. But that is only one factor.
Having reviewed all of the facts, matters and circumstances relevant to fixing a sentence for these offences and this offender, I am not left with any impression that the sentencing judge's approach was affected by latent error. In my judgment his Honour made no mistake of fact, or error of principle. He took into account factors relevant to the case and did not take into account any irrelevant matter. I am not satisfied that it has been shown that the sentencing discretion miscarried in any way in this case.
I propose the following orders:
(1) Grant leave to appeal.
(2) Appeal dismissed.
[3]
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Decision last updated: 19 October 2018
The applicant propounds three grounds of appeal as follows:
Ground 1: the sentencing judge erred by failing to appropriately regard and allow a sufficient discount with respect to the applicant's childhood disadvantage in accordance with Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 ("Bugmy");
Ground 2: his Honour erred by failing to have appropriate regard to the applicant's prospects of rehabilitation; and
Ground 3: the sentence imposed is unreasonably or plainly unjust.
Ms Lin of counsel provided admirably succinct written submissions dealing with each ground and during the hearing she made it clear that she did not wish to supplement her written submissions with respect to Ground 2 stating, "I don't quarrel with the Crown's submissions in respect to that" (1.35T). No oral argument was addressed to the Court concerning Ground 3. However, it will be appropriate to say something about each of those grounds, at least briefly.