Knight v R

JUDGMENT

1. LEEMING JA: I agree with Fagan J.
2. CAMPBELL J: I agree with Fagan J.
3. FAGAN J: Rosie Knight applies for leave to appeal against an aggregate sentence imposed by her Honour Judge Hock in the District Court at Sydney on 19 August 2022. The applicant pleaded guilty to two of the charges on the day after her trial had been fixed for hearing. In recognition of those pleas the learned judge allowed a discount of 5% to arrive at the indicative sentences. Her Honour allowed a discount of 25% for the third count to which the applicant had earlier entered a guilty plea. The three counts were as follows (with the indicative sentences and statutory maximum penalties shown): 1 Aggravated break and enter and commit serious indictable offence (robbery) in company contrary to s 112(2) of the Crimes Act 1900 (NSW). Indicative sentence 7 years and 6 months with a non-parole period of 4 years and 6 months; maximum penalty 20 years imprisonment and standard non-parole period 5 years. 2 Reckless wounding in company contrary to s 35(3) of the Crimes Act. Indicative sentence 3 years and 9 months with a non-parole period of 2 years and 3 months; maximum penalty 10 years imprisonment and standard non-parole period 4 years. 3 Conceal serious indictable offence (aggravated sexual intercourse without consent) contrary to s 316(1) of the Crimes Act. Indicative sentence 12 months; maximum penalty 3 years imprisonment.
4. The applicant was ordered to serve an aggregate sentence of 9 years with a non-parole period of 5 years and 6 months. The learned judge found special circumstances and hence the non-parole period is 61% of the head sentence. Her Honour took into account on a Form 1, in relation to the first count, two offences of common assault that were committed in the course of the break and enter.
5. The offences were committed during the early evening of 22 February 2020. The applicant in company with Tim Zumbo and another male attended a home unit in Marrickville. It was occupied by a couple who resided there and a male friend who was visiting. One of the three offenders knocked on the door. When it was unlatched all three barged in, with sufficient force to knock the first victim, who had opened the door, to the floor. The applicant was carrying a large piece of timber and Zumbo carried a knife and a small axe or tomahawk. Zumbo threatened the first victim to remain still on the floor while the applicant swung her piece of timber as she moved further into the unit. She ordered the second male victim to get on the floor and she hit him on the head with the timber, causing a laceration that subsequently required suturing. The applicant and Zumbo shouted "Where's the drugs?", "Where's the money?" and "Where's the safe?".
6. The female occupant of the unit was in the bedroom when the three offenders burst in. She came out in response to the noise and the applicant approached her, armed with the piece of timber. When the female victim turned and tried to flee the applicant seized her by the hair, pulled her back and said, "I'm going to kill you slut" and "You're gonna get hurt". The applicant punched the female victim to the left cheek and struck her on the head, shoulder and arm with the piece of timber. The applicant then pulled the female victim by her hair and flung her violently across the lounge room, where she hit a glass coffee table.
7. The applicant and Zumbo ransacked the unit. The third offender touched the female victim indecently while she was in the lounge room, removed jewellery from her person and then pulled her into the bathroom where he sexually assaulted her. The applicant was in another part of the unit when that occurred. She did not learn of it until after the three offenders had left the premises. Count 3 is based upon her concealment of the sexual offending.
8. Before leaving the unit the applicant struck one of the male victims on the head with her piece of timber and then struck him across the back with a metal bar. Those were the common assaults taken into account on the Form 1.

Ground 1 - no causal link between mental conditions and the offending

1. The applicant's first ground of appeal is in the following terms: 1 The sentencing judge erred in failing to take into account the causal connection between the [applicant's] mental conditions and the offending and, as such, did not take into account at sentence, a the [applicant's] reduced moral culpability and b the reduced weight to general deterrence.
2. The applicant was 32 years old at the date of the offending and 35 when sentenced. There was tendered on her behalf a report of Mr Raymond Hudd, a psychologist, containing a detailed personal and social history of the applicant. She adopted the truthfulness of that history on oath in the sentence proceedings and neither her history nor Mr Hudd's conclusions were challenged.
3. The applicant is an Aboriginal woman whose mental well-being has been severely affected by experiences of sexual and other abuse from her early teens. Between the ages of 13 and 14 she was sexually assaulted by an uncle, on average weekly. Soon after that when the applicant commenced a relationship with a boy one year older than herself, that partner commenced physical, sexual, verbal and emotional abuse. The applicant was pregnant with her first child at the age of 15 and had to leave school. She has had six children to her partner; his abuse continued throughout their relationship.
4. The applicant was unable to provide adequate care for her children and four of them were removed into Departmental care. The two oldest children, both boys, are now in their late teens and they have commenced offending against the law and are being dealt with by the courts. The applicant suffered rejection by her family, rather than support, when she was unable to care for her children and lost custody of them.
5. Mr Hudd recorded high scores on testing the applicant for anxiety, depression, anger/irritability, intrusive thoughts and other indicia of psychological disturbance. He found that those and other symptoms indicated Chronic Complex Post Traumatic Stress Disorder, Borderline Personality Disorder and Rape Trauma Syndrome, applying the criteria specified in the Diagnostic and Statistical Manual Edition V. The applicant described to Mr Hudd her long-term abuse of alcohol and cannabis from the age of 13 and her exponentially increased drug consumption following the loss of custody of her children.
6. The applicant's poor mental health and her substance abuse can readily be seen as the result of the appalling sexual abuse to which she was subject at the hands of her uncle in her early teens and the subsequent longer term abuse, of various kinds, by her partner. Significant as those matters were to the applicant's subjective case on sentence, there was no evidence from Mr Hudd or from the applicant herself upon which the sentencing judge could have found that the applicant's mental conditions, in a clinical sense, were in any degree causative of her offending, so as to reduce her moral culpability and the weight to be given to general deterrence.
7. Mr Hudd's report included general statements that the disorders he diagnosed in the applicant may affect the "impulse control" and "aggression" of the sufferer. He gave no evidence to relate those possibilities to the actual experience of the applicant at the time of offending. Mr Hudd also made the following generalisation: The link between her diagnosed disorders and offending behaviour is well-documented in forensics and criminal psychological literature … That broad observation is no evidence at all that the specific offending behaviour of this particular patient was in any degree causally linked to one or more of the disorders that he identified.
8. Counsel who appeared for the applicant in the sentence proceedings did not submit that there was a causal link between the applicant's mental conditions and her offending conduct. There would have been no evidence to support such a contention. In the absence of a submission or any evidence that could have supported it, the learned judge did not err in the respect asserted in ground 1. That ground should be rejected.

Ground 2 - manifest excess

1. The written submissions adopted by counsel for the applicant quote the following words from the judgment of Gleeson CJ and Hayne J in Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]: [Manifest inadequacy or excess] is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive.
2. By reference to that passage counsel acknowledged that to substantiate ground 2 it would be neither necessary nor sufficient to assert specific faults in the sentencing judge's reasons. Nevertheless, it was argued that two aspects of the applicant's subjective case, in particular, must have been evaluated inappropriately for her Honour to have arrived at the aggregate sentence, which counsel submitted was excessive. First, it is said that the learned judge must have made too severe an assessment of the applicant's criminal history. Having recited a summary of that history her Honour said this at [91] of her Remarks: Ms Knight's extensive criminal history does not entitle her to leniency and she shows a continuing disregard for the law.
3. The appellant's criminal record since her early twenties consists mainly of relatively minor offending dealt with in the Local Court: larcenies, shoplifting, goods in custody, offensive behaviour, resisting police, common assaults, driving unregistered vehicles and driving without a licence. In 2015 the applicant committed some more serious offences including driving a vehicle taken without consent of its owner and an associated police pursuit (in May); two instances of possession of a knife in a public place (in April and October) and possession of ammunition without a license or permit (in April). In February 2016 she was in possession of an offensive implement in a public place and in January 2017 she committed two offences of driving when subject to police pursuit. In consequence of those more serious matters, since 31 May 2015 the applicant has been ordered to serve several relatively short prison terms, ranging between 1 month and 15 months.
4. The applicant's counsel justifiably observed that the entries on her record are consistent with the erraticism of a person habitually misusing alcohol and/or drugs. As a woman who has been deeply psychologically affected by various forms of abuse from early teenage years, her resort to intoxicants may fairly be seen as the outcome of despair rather than choice. Accepting those submissions, it is noted that her Honour did not erroneously treat the applicant's past offending as an aggravating factor. No appeal ground to suggest such an error is advanced. It was open to her Honour to treat the applicant as not entitled to leniency and as exhibiting a disregard for the law. The judge accurately observed that a number of the applicant's more serious offences, including police pursuits, had occurred during successive periods when she was on parole. A 10 month parole period had commenced on 21 July 2019 and was to run until 21 May 2020. That parole had been revoked once, for a period of one month, by reason of a breach of conditions in November 2019, and the current offences of 22 February 2020 occurred after the applicant had been permitted to resume her parole. The applicant's record of offending and punishments shows that very considerable leniency had been extended to her on several occasions prior to the sentencing decision now under consideration, including by way of the Drug Court program.
5. Secondly, counsel submitted that the abuse suffered by the applicant from her early teens must have been underestimated by her Honour as a mitigating factor. In oral submissions counsel said this: [Bearing] in mind her Honour refers to the fact that she's an Indigenous lady, there seems to be nothing in her Honour's remarks on sentence with regarding the reflecting of the Bugmy type Fernando issues of difficulty in her upbringing.
6. The reference to Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 is loose. The High Court was there concerned with making allowance in sentencing for an offender's deprived background, especially a background "that may compromise the person's capacity to mature and to learn from experience" (at [43]). The joint judgment of six of the justices included the following: [37] An Aboriginal offender's deprived background may mitigate the sentence that would otherwise be appropriate for the offence in the same way that the deprived background of a non-Aboriginal offender may mitigate that offender's sentence. In this respect, Simpson J has correctly explained the significance of the statements in R v Fernando: "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." [40] Of course, not all Aboriginal offenders come from backgrounds characterised by the abuse of alcohol and alcohol-fuelled violence. However, Wood J [in R v Fernando] was right to recognise both that those problems are endemic in some Aboriginal communities, and the reasons which tend to perpetuate them. 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. [44] Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving "full weight" to an offender's deprived background in every sentencing decision. […] 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. […] [46] […] An issue for determination on the remitter [to the Court of Criminal Appeal] is whether the appellant's background of profound childhood deprivation allowed the weight that would ordinarily be given to personal and general deterrence to be moderated in favour of other purposes of punishment, including rehabilitation, to the extent that [the sentencing judge] allowed.
7. R v Fernando (1992) 76 A Crim R 58 was a first instance sentencing decision for a malicious wounding with a knife. The offender had a long history of drinking to excess and was heavily intoxicated when he repeatedly stabbed a female friend. Wood J described the offender as follows: His history is that of a semi-educated Aborigine from a large family with the deprived background. His parents and siblings at one time or another have all drunk to excess and his parents separated for that reason when he was relatively young.
8. Wood J said that in such a case it was "proper for the court to recognise that the problems of alcohol abuse and violence which to a very significant degree go hand-in-hand within Aboriginal communities are very real ones and their cure requires more subtle remedies than the criminal law can provide by way of imprisonment". That led to his Honour stating principles that apply in the sentencing of offenders from deprived and dysfunctional backgrounds, including the following (at p 62): (E) While drunkenness is not normally an excuse or mitigating factor, where the abuse of alcohol by the person standing for sentence reflects the socio-economic circumstances and environment which the offender has grown up, that can and should be taken into account as a mitigating factor. […]
9. The applicant in the present case described her upbringing to Mr Hudd as "okay", apart from her abuse at the hands of her uncle and her partner from the age of about 13. That evidence did not engage the mitigating factor considered in Bugmy v The Queen and R v Fernando, of an upbringing through formative years in a family and societal environment characterised by alcohol abuse, associated violence and general dysfunction. The learned sentencing judge in the present case recognised - and summarised at length in her Remarks - the different kind of mitigation that was relevant to the applicant, involving physical, psychological, emotional and other damage done to her by two predatory and abusive individuals. The distinction between the two different types of adversity in an offender's background was recognised by Rothman J in Jackson v R [2023] NSWCCA 121 at [52], [53] and [59].
10. In reference to both the applicant and the co-offender Zumbo, who was sentenced at the same time, the learned judge said this: The difficulties both offenders encountered in their early lives which were beyond their control must be reflected in the sentences to be imposed. Counsel's analysis of the learned judge's remarks does not show that unreasonable weight, or insufficient weight, must have been placed upon any of the circumstances that were required to be taken into account.
11. The principal indicative sentence in respect of the applicant was that nominated for the aggravated break and enter. Undiscounted that would have been a sentence of 7 years and 11 months with a non-parole period of 4 years and 9 months. The applicant referred the Court to sentences imposed in other cases in support of an argument that the indicative sentence for this offence should inform a view that the aggregate is excessive. The cases referred to are either not truly comparable or involved sentences not markedly dissimilar to that which her Honour indicated for count 1.
12. The first case is Kerwin v R [2018] NSWCCA 23. On resentence in this Court for a violent break and enter in company, the starting point to which a 25% discount was applied was 6 years with a non-parole period of 3 years and 6 months. The offender had a very poor criminal record, a long-term addiction to drugs and alcohol, grew up in circumstances of profound deprivation and had an established intellectual disability that affected his reasoning and decision-making processes. The Court accepted that his disability was causally connected with the commission of the crime and that his moral culpability for the offence was reduced by this factor.
13. In Johnston v R [2021] NSWCCA 86 the starting point indicative sentence, before a 25% discount, would have been 7 years with a non-parole period of 5 years and 3 months. The offender, a female, in company with another female and a male armed with a star picket forced their way into a house where a person from whom the offender was trying to recover a debt was present. The three intruders searched for drugs and threatened the occupants with violence but the applicant became amicable and all three left without any physical assault having occurred, after a small quantity of drugs was provided. The offender had a long history of drug abuse commencing in childhood and an extensive criminal record. It was accepted that "Bugmy principles reduced the [offender's] moral culpability and reduced the application of the principle of general deterrence". She had "significant mental health issues, including depressive disorder, post- traumatic stress disorder, and borderline personality disorder - together with severe amphetamine and opiate dependence". On appeal the majority (Ward JA and Wilson J) considered that the indicative sentence was not manifestly excessive: at [112]. The offender's subjective circumstances were similar to those of the present applicant but the aggravated break and enter offence was objectively far less serious than the offence under consideration in the application now before the Court.
14. Ebsworth v R [2020] NSWCCA 229 concerned a break and enter offence committed by a young Aboriginal male, unaccompanied, against an estranged partner with whom he had been in a domestic relationship. The circumstances of the offending are not comparable with the present case. The sentence reflected a 15% discount for the offender's guilty pleas. The aggregate sentence imposed in the District Court of 5 years and 6 months imprisonment, with a non-parole period of 3 years and six months, for the break and enter and two counts of using a knife with intent to assault, was not disturbed in this Court on the severity appeal. That outcome cannot be indicative of an established range.
15. In Pham v R [2019] NSWCCA 211 the offender was a 26-year-old male who forced his way into the home unit of a young woman, aged 21 years, with whom he was infatuated. He acted alone. He punched the victim in the back of the head two or three times. The offender also committed an assault on the first victim's brother who came to her aid and on a neighbour who came to the unit to investigate. The offender had a history of drug misuse from the age of 15 and had been treated for anxiety and depression and possible psychotic symptoms. He had an adverse record and was not entitled to leniency. The aggregate sentence imposed in the District Court was held to be manifestly excessive. On resentencing the indicative penalty for the break and enter commenced from a starting point of 6 years and 2 months with a non-parole period of 4 years and 7 months, which was then discounted by 25% for the offender's early plea of guilty. The objective seriousness of the offence was very much less than that of the break and enter committed by the applicant now before the Court.
16. In Adams v R [2018] NSWCCA 139 the offender and two others forced their way into a home where a group of young men and women in their early twenties were socialising. Entry was forced for the apparent sole purpose of bashing people, breaking up the party and smashing the house. The offender was aged 23 and had a criminal record for minor offences of violence. The sentence imposed on him incorporated a 25% discount. Its starting point was a term of 6 years and 5 months with a non-parole period of 3 years and 11 months. The offence involved less personal violence than that of the applicant in the present case and was committed by a significantly younger person with a shorter record. The sole ground of appeal concerned parity with co-offenders and was rejected. As this Court did not resentence the decision affords no indication of a range.
17. The applicant's survey of these cases has merely reaffirmed the difficulty of locating any particular breach of s 112(2) of the Crimes Act on a spectrum of gravity. Consideration of the decisions to which the Court has been referred shows the lack of utility in trying to establish manifest excess or inadequacy by making comparisons between the case at hand and other cases involving infinitely variable particulars: see R v Meatuai [2016] NSWCCA 42 at [28]-[31] (RA Hulme J); Pham v R at [26].
18. The applicant has also compared the indicative sentences adopted by her Honour for counts 2 and 3 with penalties fixed in one or two other cases involving charges under the same sections. Those comparisons are equally un-instructive. Recitation of their particulars is not warranted. Having regard to all features of objective gravity and of the applicant's subjective circumstances, it is not shown that any of the indicative sentences adopted by her Honour were manifestly excessive. Nor is the aggregate manifestly excessive. Ground 2 should be rejected.
19. I propose the following orders: 1. Grant leave to the applicant to rely upon her notice of appeal notwithstanding that it was filed out of time. 2. Grant leave to appeal. 3. Dismiss the appeal.

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