HEADNOTE
[This headnote is not to be read as part of the judgment]
On 27 August 2019, the applicant pleaded guilty to two counts of reckless wounding and one count each of affray, aggravated break, enter, and commit serious indictable offence, and assault occasioning actual bodily harm. These convictions arose out of a single evening when the applicant, while under the influence of alcohol, performed various acts of violence at multiple residential premises in Coffs Harbour. In respect of the assault occasioning actual bodily harm, the sentencing judge convicted the applicant without penalty. In respect of the other four offences, an aggregate sentence of five years and six months' imprisonment, with a non-parole period of three years and six months, was imposed.
The sole ground of appeal was that the sentencing judge failed to give correct consideration to the principles in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 ("Bugmy"), namely that an offender's moral culpability may be reduced by having grown up in an environment of social disadvantage, including alcohol abuse and violence. In the applicant's case, although his initial childhood was, in his own words, "excellent", he discovered at age thirteen that he had not been raised by his biological parents. He then reunited with his biological family, and in doing so entered into an environment where criminality and alcohol and drug abuse were normalised. In an attempt to "fit in", the applicant turned to alcohol and crime, initially in the form of drug and theft offences, but soon offences of violence, which were often fuelled by alcohol. The sentencing judge considered that there was no evidence on which Bugmy principles could be applied, having regard to the positive initial period of the applicant's upbringing and a perceived lack of evidence of any social disadvantage.
Held (per Brereton JA; Basten JA and Beech-Jones J agreeing), extending time to appeal, granting leave to appeal, allowing the appeal, quashing the sentence imposed in the District Court, and imposing an aggregate sentence of five years' imprisonment, with a non-parole period of three years: [2], [77], [81].
As to an extension of time:
- The applicant's Notice of Appeal was filed just over two months out of time. An extension should be granted, as there is both an arguable case on appeal and a sufficient explanation for the delay, namely that the applicant's solicitor required additional time to obtain transcripts, Legal Aid approval, and advice and submissions from counsel: [7]-[8].
As to the sentence appeal:
- An offender's moral culpability is reduced by an upbringing characterised by social disadvantage and exposure to alcohol abuse and violence, in which criminality is normalised. This is particularly so where offending is fuelled by alcohol and the offender's alcohol abuse reflects the environment in which they were raised. The effects of such deprivation do not diminish over time, notwithstanding intervening custodial sentences, and thus while countervailing factors such as community protection may impact the degree of mitigation, application of the Bugmy principles is not discretionary, and the effects of childhood deprivation must be given full weight. These principles apply to both Indigenous and non-Indigenous communities, although they have particular application to the former, with Indigenous communities continuing to exhibit dislocation resulting from foreign invasion, disruption of culture, and minority racial status. Further, it must be recognised that incarceration has not proved an effective deterrent in the Indigenous context, thus it may be best to err on the side of leniency: [1]-[2] (Basten JA), [41]-[42], [51]-[56] (Brereton JA).
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37; Kennedy v R [2010] NSWCCA 260; R v Fernando (1992) 76 A Crim R 58, applied.
- While the phrase "profound childhood deprivation" is employed in Bugmy, this is not a threshold test, nor must a causative link between the deprivation and the offending be demonstrated, although if there is such a link then there must inevitably be a reduction in moral culpability: [57]-[61].
Dungay v R [2020] NSWCCA 209, applied; Kliendienst v R [2020] NSWCCA 98; Ingrey v R [2016] NSWCCA 31, considered.
- Presently, the applicant's entry into criminality was precipitated by the discovery of and reuniting with his biological family at age thirteen. He attempted to assimilate into an environment where crime, alcohol and drug abuse, and violence, were normalised, and his offending has henceforth been associated with alcohol abuse, including on this occasion. While he initially enjoyed a stable and secure childhood, the years of adolescence are equally if not more formative - an upbringing does not end at twelve years old. The sentencing judge, while entitled to also consider specific deterrence and community protection, erred by overlooking both the significant identity issues that the applicant's family revelation would have caused and the impact of his adolescent environment upon his development and moral culpability: [62]-[64].
- Per Beech-Jones J: Complaints of an alleged failure to apply the Bugmy principles must establish error of the kind stated in House v The King (1936) 55 CLR 499; [1936] HCA 40. Presently, the sentencing judge's conclusion that there was "no evidence" to support the applicability of Bugmy was founded "upon a wrong principle", as it either treated Bugmy as confined to dysfunctional social environments that are only a consequence of endemic alcohol‑related violence, or to be applied only if supported by evidence from the offender, or both. In doing so, the sentencing judge thus also did not take into account a material consideration. Error of the requisite kind is established: [79]-[80].