Judge v R [2018] NSWCCA 203 | Case summary

First ground of appeal

As noted at para [4] above, the first ground of appeal is that the sentencing judge failed to advert to or apply the principles of Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37.
No reference was made to Bugmy v The Queen in the course of submissions before the sentencing judge on sentence. But the principles would have been well-known to the sentencing judge and to counsel. Counsel then appearing for Mr Judge did make submissions that sought to invoke what has been described as the "principles" in Bugmy. Counsel then appearing for Mr Judge said: "He is an aboriginal man of 24 years of age. ... Notwithstanding that he has had a long history of drug use he has been able to be employed ... ... Your Honour has read the psychological report. ... I have already mentioned the traumatic incident [sic] about his son's death in 2013 which resulted in him [sic] trying to commit suicide and self-harming. It is very clear ... that he has had a dysfunctional childhood and a very unstable childhood. He has disclosed previous abuse through another family member ... . Page 7, para 30, states as an overall conclusion the diagnosis of the report, the chronic self-harming behaviours, obviously the substance use and post-traumatic stress disorder and also suffering from borderline personality disorder which comes through the other report that the Crown tendered as well. Then as I said of course there is a long history of substance use. ..."
Counsel was here referring to a report of a forensic psychologist, Ms Kathryn Wakely, of 25 April 2017. She had interviewed Mr Judge on 12 April 2017 over a period of almost two hours. She recorded a history given to her by Mr Judge that included the following elements: 1. Mr Judge is the youngest of three children from his parents' union. From subsequent relationships of his father's he told Ms Wakely that he had 10 younger siblings ranging in age from newborn to 10 years. He noted that "all of his father's partners have been 'messy'" and said that all the younger children are in the care of Family and Community Services. He told Ms Wakely that his parents separated when he was eight years of age, following which he remained in the care of his mother. He recalled his mother often having been distressed and upset about his father's treatment of her, his father's persistent gambling and he recalled them arguing. He said that his father "was never there" in his younger years. He said that his childhood was "very unstable" and he did not ever feel secure. "He spoke of having been abused by a family member within the home throughout his childhood and the impact this had upon him throughout his teen years and continues to have upon him now." This was a reference to Mr Judge's assertion that he was sexually abused by an older brother. 2. Ms Wakely reported that she was told by Mr Judge that when he was 19 he entered into a relationship with a young woman and two years later they had a son who was born in 2013. Their son died when he was only nine days old. Mr Judge said that his partner's mother blamed them for his son's death and this created increased stress that ultimately led to their separation. 3. Ms Wakely also reported having been told by Mr Judge that around two years earlier, that is, in about April 2015, he had been contacted by a former female friend who advised him that he was the father of her three year-old daughter. He and the lady in question began a further relationship and had a second daughter. Ms Wakely reported that Mr Judge described the time of his second daughter's birth as being very difficult for him because of flashbacks in relation to the death of his son. 4. Ms Wakely reported that when Mr Judge was 13 he was admitted to Mt Druitt Hospital for alcohol poisoning. She reported that 12 months to the day after his son's death in 2013 Mr Judge had attempted suicide by hanging. She said that Mr Judge reported that he continued to experience suicidal thoughts. She reported that Mr Judge told her that after his son's death Mr Judge had witnessed a cellmate in custody engaging in self-harm and that he had begun to do this also. Scars on Mr Judge's forearm were apparent at interview. She recorded that Mr Judge had said that he had been sexually abused by his brother between the ages of four and seven, that at age 16 he had had a rifle pointed at his head and his life was threatened and that because of his earlier experiences he did not know how to deal with things, but felt "as though a bomb is building up and I don't know what to do or how to process or understand." 5. Ms Wakely reported that about six months after his son's death Mr Judge began using crystal methamphetamine. He told her that he found that this calmed him at the time. Mr Judge told Ms Wakely that for the most part his offending was "reactive to him 'acting out because of what happened (the stuff with my brother and the rifle) and not knowing how to get help and acting out'". 6. Ms Wakely reported that: "56. ... He recounted an unstable childhood during which he was exposed to sexual abuse, parental discord and separation, poor relationship modelling, and general instability. These factors and the impacts of these experiences upon the client were complicated by his own early use and subsequent abuse of substances, along with the development of trauma symptoms throughout his later teen years after Gavin was threatened with a firearm. 57. After this incident, the client developed symptoms of PTSD including hypervigilance and heightened anxiety, and became hyperalert to threat and victimisation." ... 59. With the passing of Gavin's son in 2013, the client's mental health deteriorated significantly, particularly in conjunction with his increasing substance abuse - leading to growing instability, subsequent mental health admissions, the engagement in deliberate self-harm, suicide attempts and a general deterioration in functioning and coping. 60. He has since undergone numerous psychological and psychiatric assessments and appears to have received several different diagnoses or suggested (unconfirmed) diagnoses. Based upon the available information, the overarching opinion among Psychiatrists who have seen Gavin in recent years, is a diagnosis of Post Traumatic Stress Disorder (PTSD), Borderline Personality Disorder (BPD), and unresolved grief. 61. These diagnoses are consistent with the client's presentation, functioning, current and past symptomatology, and his general history. Current psychometric testing is consistent with the client's diagnosis of PTSD and indicates the client is currently exhibiting extremely severe symptoms of anxiety, along with severe symptoms of depression and stress. 62. The presence of PTSD has relevance for the current offending and the client's decision making and behaviour at that time. Gavin is hypervigilant to threat and avoids confrontation to minimise any risk of threat to himself or further victimisation. He had previously been assaulted by the co-offender and was intimidated by him. The latter relationship dynamic, paired with the client's already present PTSD, makes it unlikely that Gavin would assert himself within this situation. Instead, when faced with a situation that involves the potential threat of victimisation or confrontation, Gavin is likely to be submissive and compliant to minimise the chances of any threat to himself, which appears largely consistent with his behaviour in the offence. 63. Gavin attributed his involvement in the offence, in part, to having ceased taking his prescription medication around this time. He displayed some insight regarding his past traumatic experiences and his diagnosis of PTSD, how this likely impacts his reactions and behaviour, and the possible benefits of utilising medication to assist in the management of anxiety symptoms. ... 66. However, for Gavin custody likely provides him with some relief from the day to day stressors and responsibilities of community based life by providing him with a relatively predictable environment, thereby alleviating some of the demands placed upon him. Because of this, Gavin is someone who would be at increased risk of becoming institutionalised over time, should he spend lengthy periods of time in custody. It will be important for Gavin to recognise this and develop his skills for self-management and general coping. He will also need to enhance appropriate community based supports so that in the future he is able to manage himself appropriately and seek assistance through suitable channels. "
Mr Judge relied upon Ms Wakely's report before the primary judge. Counsel for Mr Judge made extensive reference to it. Three aspects of the report should be noted. First, the description of Mr Judge's trauma and abuse as a child or teenager and his use of cannabis and alcohol from a young age is said to show profound childhood deprivation that reduces Mr Judge's moral culpability for the offence and to which, it is said, the primary judge failed to have regard.
Secondly, Ms Wakely's opinion at para 62 quoted above is said to show a causal relationship between his post-traumatic stress disorder and his offending in that he was intimidated by and submissive to Mr Batty.
Thirdly, before the sentencing judge, counsel relied upon para 66 in submitting that Mr Judge was at the risk of becoming institutionalised over time, should he spend a lengthy period in custody.
Ms Wakely's report was not the only material provided to the sentencing judge in relation to Mr Judge's mental health and childhood background. Other evidence clearly established that one year to the day after his son's death Mr Judge attempted suicide. On 23 November 2014 a psychiatric registrar at Cumberland Hospital, Westmead, reported on the suicide attempt and expressed the conclusion that there was a "chronic risk of self-harm and suicide given his son's anniversary of death in the context of BPD" (presumably Bipolar Disorder, although possibly Borderline Personality Disorder).
On 13 February 2015, a Ms Lynne Shailer, a credentialed mental health nurse with the Hills and Hawkesbury Counselling Service provided a report for the Blacktown Local Court. She said that Mr Judge had been introduced to her following an admission to Blacktown Hospital on 6 January 2015. On initial assessment he was extremely agitated and anxious with some psychotic features. She saw Mr Judge weekly in the period from 6 January to 9 February 2015 when his symptoms appeared to have improved. She recorded a diagnosis of "complex PDSD, ADHD, and Anxiety and Depression with psychotic [(photocopy illegible)]".
On 25 May 2015 a Ms Nancy Vaccarella provided a pre-sentence report, apparently for the offences being dealt with in the Local Court of dishonestly obtaining property by deception, common assault, destruction or damage of property and possessing a prohibited drug, and stalking or intimidating. Ms Vaccarella was a community corrections officer with the Blacktown Community Corrections Office. She summarised Mr Judge's report to her of his unsettled childhood, of having been a victim of a serious assault by a close family member, of the trauma of his son's death, his substance abuse, and reported on his mental health diagnoses he had been given to that point.
On 16 August 2016 Dr Gordon Elliott of Justice Health and Forensic Mental Health Network, a consultant psychiatrist, provided a report to the Penrith Local Court on Mr Judge. Dr Elliott was sceptical of Mr Judge. He did note that on 7 June 2016 Mr Judge had been assessed by a consultant psychiatrist, Dr Sue Morgans of Telehealth, who considered that Mr Judge had a Borderline Personality Disorder, or a Complex Post Traumatic Distress Disorder. Dr Elliott reported that in his view Mr Judge was a: "care-seeking historian who tended to control the interview. He did not appear acutely distressed or depressed. He volunteered having mental health problems and emphasised the seriousness of these and the need for care. He also volunteered his experience of childhood sexual abuse. ... There was no evidence of the oddities in affect characteristic of a chronic psychotic illness. He did not appear formally thought disordered and there was no evidence of any other psychotic symptoms. ... He insisted his mental problems led to his offence, however, his chain of reasoning for this was a dubious one. He told me he should not be in custody and warranted placement in a Residential Drug Rehabilitation Facility."
Dr Elliott said that Mr Judge's account of his history of methamphetamine use was inconsistent with a finding of a drug court in 2012 which indicated a severe methamphetamine use disorder at that time. This was before his son's death. Mr Judge had claimed to Dr Elliott that he commenced methamphetamine use at the time of his son's death. Dr Elliott's conclusion was that: "There was no indication on this assessment that Mr Judge suffers from major mental illness such as schizophrenia or any other psychotic illness, or from major depression. He does however report a dysfunctional early developmental history as well as the experience of protracted childhood sexual abuse. He now displays features of a Borderline Personality Disorder, including emotional dysregulation or volatility, chronic deliberate self-harming behaviours, relationships characterised by argument and conflict, and a pattern of dealing with stress using maladaptive means, including substance use. Mr Judge has cannabis and methamphetamine use disorders."
In his recorded interview with the police, Mr Judge said that he was standing behind the victim whilst Batty was assaulting the victim because Batty told him to do so and that he did not want Batty to do it but was scared of him at the time. This was consistent with Ms Wakely's opinion that Mr Judge was intimidated by Mr Batty and was probably submissive to him and compliant with him in order to minimise chances of any threat to himself. The primary judge found that Mr Judge was not intimidated by Mr Batty. His Honour said that for that proposition to be made good, Mr Judge would have had to have given evidence, which he did not do. The CCTV footage was inconsistent with Mr Judge's being afraid of Mr Batty, in particular, his body language, including his laughing with Mr Batty immediately after the assault, showed that he was not intimidated as he had claimed.
The primary judge did not err in reaching this conclusion. The conclusion was well open to him. I would draw the same conclusion from the CCTV footage. The primary judge was entitled to take this into account in his consideration of other opinions given by Ms Wakely.
The primary judge made the following observations in relation to Mr Judge's background of social deprivation. His Honour said: "It may be accepted that his upbringing as a child was, as that prosaic word is commonly used, 'dysfunctional'. It may be accepted that he was brought up in a household of violence. It may be accepted that there was an incident of sexual assault. And it may be accepted that his early use of alcohol and illicit drugs from about ten or 11 years of age may have been some form of self-medication to deal with the violence of his upbringing, the loss of a stable influence of two parents, and the consequences of the unlawful sexual assault. All that may be accepted. None of it explains the criminality of this night. Mr Judge has been examined on a number of occasions by expert witnesses: there have been the experienced officers of Community Corrections who prepared a presentence report; there has been a psychologist who has prepared a report for these proceedings; and there has been a psychiatrist wo prepared a report for the Local Court in 2016. It is difficult to reconcile some of the histories in those reports as the learned Trial Advocate has pointed out in his helpful submissions this afternoon which I do not intend to repeat but which I incorporate by reference. Some of those difficulties, of course, could have been overcome if the offender went into the witness box but he did not. He bears the onus of proof on the balance of probabilities for matters in mitigation and because of his absence from the witness box, in my view, the better opinion to adopt is that of the psychiatrist Dr Elliott. He has diagnosed the offender as having a borderline personality disorder with drug disorder." (White Book p 9)
I do not accept Mr Judge's submission that the primary judge did not advert to or apply the principles of Bugmy v R. It is true that the primary judge did not refer to Mr Judge's asserted Aboriginality. Counsel for Mr Judge had submitted that he was an Aboriginal man of 24 years. None of the material before the primary judge referred to the applicant's asserted Aboriginality, except that Ms Wakely reported that prior to meeting Mr Judge she had received and read various materials that included a letter from Ms Sandra Kelty, Clinical Lead Aboriginal Mental Health, Blacktown City Mental Health Service dated 29 May 2016. Otherwise, it was conceded that the material before the primary judge made no reference to his asserted Aboriginality. The report of Mr Judge's criminal history provided for the District Court in relation to the earlier offences that was before the primary judge recorded his racial appearance as Caucasian.
This is by the way. In Bugmy the High Court approved what Simpson J said in relation to the decision of the Court of Criminal Appeal in R v Fernando (1992) 76 A Crim R 58 that: "Properly understood, Fernando is a decision, not about sentencing Aboriginals, but about the recognition, in sentencing decisions, of social disadvantage that frequently (no matter what the ethnicity of the offender) precedes the commission of crime."
The fact that the primary judge did not refer to Mr Judge's asserted Aboriginality, which was not in any event proved, was not an error. The same issues as to the asserted background of profound social deprivation arise irrespective of his Aboriginality.
I do not accept that the primary judge did not have regard to the factors relied upon to establish profound social disadvantage. His Honour referred to Mr Judge's dysfunctional upbringing. His Honour accepted that he was brought up in a household of violence and had been sexually assaulted as a child and that his early use of alcohol and illicit drugs may have been a form of self-medication to deal with the violence of his upbringing and the loss of a stable influence of two parents and the consequences of the unlawful sexual assault. His Honour said that this did not explain the criminality on the night. That conclusion must be understood in the context of his Honour's rejection of Mr Judge's statement that he went along with Mr Batty because he was intimidated.
In Perkins v R [2018] NSWCCA 62 I said: "[77] In Bugmy the High Court neither endorsed Mr Bugmy's submission (at 581) that no causal connection between the offender's aboriginality and the commission of the offence was needed, nor the submission of the Crown (at 579) that for systemic factors establishing profound social deprivation to diminish the moral blameworthiness of a particular offence, they must be causally linked. The plurality (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ) said that if an offender seeks to rely on his or her background of deprivation in mitigation of sentence, he or she needs to point to material tending to establish that background (at [41]), but did not say that if such background of deprivation is established it will (as distinct from may) be a mitigating factor. Nor did the plurality say that if such a background of deprivation is established it will only be a mitigating factor if a causal link between the background of deprivation and the offence is established. Gageler J said (at [56]) that 'The weight to be afforded to the effects of social deprivation in an offender's youth and background is in each case a matter for individual assessment.' [78] The plurality's reference to the decision in R v Engert (1995) 84 A Crim R 67 is consistent with their Honours' also declining to lay down a prescriptive rule to govern the exercise of the sentencing discretion. In Engert Gleeson CJ said (at 68): [W]hat is called for is the making of a discretionary decision in the light of the circumstances of the individual case and in the light of the purposes to be served by the sentencing exercise. ... [80] Establishing a connection between a background of social deprivation or profound social deprivation and the offending is likely to reduce the offender's moral culpability. In some cases that causal link may be inferred (R v Millwood [2012] NSWCCA 2 at [69])."
Fullerton J agreed that: "... the plurality in Bugmy did not say that deprivation will only be a mitigating factor lessening the moral culpability of the offender if it is causally linked to the offending but, rather, to adopt the approach of Gageler J at [56], the effects of social deprivation and its weight in the sentencing exercise is a matter for individual assessment." (at [100])
There was no error in the primary judge's finding that Mr Judge's dysfunctional background did not explain his criminality on the night of the offence. In so finding, the primary judge did not discount Mr Judge's background as irrelevant to the sentencing discretion. Rather, he declined to make a finding of a causal relationship between the background of social deprivation and the offending. Once his Honour rejected the contrary opinion of Ms Wakely, as his Honour was entitled to do, there was no error in that approach.

Second ground of appeal: failure to find special circumstances

At the sentencing hearing counsel for Mr Judge submitted that the primary judge ought to make a finding of special circumstances as this would be Mr Judge's first lengthy custodial sentence. She also submitted by reference to para 66 of Ms Wakely's report that there was a concern that with a very lengthy period of time in custody he would be at risk of becoming institutionalised over time and it might become easier for him to stay in custody than face the stresses that he will face when he comes out of custody.
In his remarks on sentence the primary judge said: "It has been submitted on behalf of Mr Judge that there should be a finding of special circumstances because: this is his first time of lengthy imprisonment; he will have a requirement for lengthy supervision; and he needs ongoing counselling to deal with [his] grief and loss. The Court of Criminal Appeal has made it clear in cases such as R v GWM [2012] NSWCCA 240 that judges of this Court too frequently make findings of special circumstances. In Mr Judge's case, notwithstanding those three matters to which attention has been drawn, I decline to make a finding of special circumstances. He is already serving a period of imprisonment in which he obtained considerable leniency with all sentences being totally concurrent and with the non-parole period being fifty per cent of the head sentence. I am not of the view that this is an appropriate case for a finding of special circumstances."
The primary judge did not specifically refer to the risk of Mr Judge's becoming institutionalised. However, his Honour's remarks on sentence were given ex tempore and it should be inferred that he took the evidence and submissions on the risk of "institutionalisation" into account.
In RG v R [2017] NSWCCA 60 Hoeben CJ at CL (at [109]) said: "… Institutionalisation is a label which is frequently used but its meaning and application to sentencing principles are unclear. What the label seems to suggest is that a person's time in prison will be so lengthy that the person is unable to be rehabilitated and that further time in prison will not achieve that purpose. What the consequences of a finding that institutionalisation might occur, or has occurred, in a sentencing context is also not clear. Does it mean that despite the seriousness of offending, further imprisonment should not take place? Surely not. In this case, because of his own conduct, the applicant had at the time of sentence already spent a considerable amount of time in prison with relatively short periods of living in the community. Her Honour was aware of that and acknowledged it in her reasons. Even so, there remained an obligation on her Honour to impose a sentence which was appropriate to the seriousness of the offending and which was otherwise consistent with proper sentencing principles."
I agree with the submissions of the Crown that the primary judge must be taken to have considered the risk of institutionalisation, but there remained an obligation on his Honour to impose a sentence appropriate to the seriousness of the offending. The primary judge found that both general and specific deterrence were relevant in the present case. That conclusion was correct.
Counsel for Mr Judge submitted that: "33. The sentencing judge's remarks above appear to indicate reference to the totality principle, in as far as the breached bonds and offences committed while on bail for the instant offence should properly play some role in determining the quantum of the non-parole period for the instant offence. 34. However, the sentencing judge proceeded to treat those factors relevant to the consideration of special circumstances as having been spent in finalising the breached bonds and fresh offences in the Local Court prior to the sentencing proceedings in the instant matter."
After citing the submissions made before the sentencing judge, counsel submitted that the primary judge perfunctorily treated the "Bugmy factors" as completely spent in the proceedings for other matters.
I do not agree with either submission. The primary judge was obliged to take into account Mr Judge's criminal history and the sentences imposed upon him, including the sentences imposed both before and after the relevant offence for which he was being sentenced. The sentencing judge was entitled to take into account his view of the leniency of the other sentences imposed.
It is well-established that a sentencing judge's opinion upon whether the standard non-parole period should be adjusted for special circumstances depends upon discretionary considerations with which this Court should be slow to intervene (R v Cramp [2004] NSWCCA 264 at [31]; R v Fidow [2004] NSWCCA 172 at [19]; CM v R [2013] NSWCCA 341 at [39]).

Judge v R

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